House Bill 20-1159 (CRS 37-92-502 (2) (c)), which came into effect on September 14, 2020, directs the State Engineer of the Colorado Division of Water Resources (DWR) to confirm a claim for an existing beneficial use – including livestock watering – if the use or exchange has not been previously confirmed by a court order or decree. The new law says that the appropriation of water by the Colorado Water Conservation Board to support the instream flow is subject to existing water uses and exchanges “whether or not they are previously confirmed by an ordinance or executive order of the United States. court ”.

To obtain confirmation of an existing use for livestock watering, an applicant must provide records to support the application for use and the date on which it was established. The State Engineer is required to confirm the extent of the claimed non-adjudicated use (or water exchange) that existed on the date of the appropriation of a reserved debit right. Confirmation of an existing use is not a water right, however, the law does not require or prohibit a water user from seeking confirmation or arbitration from a court in the water from a pre-existing use or exchange. In other words, even if you receive confirmation from the state engineer that your non-decreed water use predates a reserved right of flow, you may decide that it is in your best interest to work. obtaining a decree on the right to water for use.

CONTEXT

The question of whether undeclared uses exceeded reserved flow rights arose in Routt County during the drought year of 2012. The Division 6 engineer ordered irrigators to shut down water livestock in irrigation ditches after the irrigation season is over if their water rights do not. specify “livestock watering” as a prescribed use.

The stock watering order aimed to support the reserved flow. In 1973, the Colorado legislature authorized the Colorado Water Conservation Board (CWCB) to appropriate water rights to support instream flows and natural lake levels in order to preserve or enhance the natural environment in a reasonable measure. The CWCB can apply for new credits or purchase existing water rights, or receive temporary water rights loans.

Many pastoralists have historically used ditches and irrigation streams to water their livestock, both during and outside the irrigation season. Often, the use of livestock water was not specified in a decree on the right to irrigation water because the use was considered incidental and the practice was common. The Water Resources Division ruled that this practice was not allowed outside of the irrigation season if the river was under administration (such as a reserved flow call) unless a pastoralist had a right to water reserve decreed and that the right is greater than the reserved flow rate.

HB 20-1159 protects a breeder’s historic but non-decreed stock watering use against withdrawal of priority through junior debit rights (once confirmation of an existing stock watering use has been confirmed by the DWR). However, it does not establish a seniority in relation to a water right, with the exception of a reserved flow right. This also does not prevent a junior decreed water right from being called confirmed but not decreed use.

Some questions also remain. The DWR may or may not allow livestock watering from irrigation ditches outside of the irrigation season, however, except in Division 3, there is currently no definition of what constitutes an irrigation season. ‘irrigation. In Division 3 – under CRS 37-92-501 (4) (b) (II) – the engineer of Division 3 sets the dates for the irrigation season each year.

It is not uncommon for ranchers to continue irrigating after a severe frost has ended the growing season so that they can fill the soil profile before the soil freezes. In this way, water is already available for the pasture grasses in early spring.

It is also not currently clear whether a water user can preemptively request a finding of existing use, or whether the determination is made in response to a call by a reserved debit right. DWR is currently working on a process document to guide how decisions will be made. In all cases, a water user will need to provide the State Engineer with usage records, stressing the importance of keeping good records of all types of water usage.

SUMMARY

• There is absolute clarity and a law confirming that historical uses that occurred before a reserved debit deposited are greater than the reserved debit right.

• There is no clarity and law indicating that historical livestock water use, if not judged, takes precedence over any non-EWB right. date of right of appeal.

– Brink, Brink, Inc, is the consultant coordinator of the Ag Water NetWORK of Colorado Cattlemen. Colorado Cattlemen’s Ag Water NetWORK mission is to help “keep agricultural water connected to agricultural land.” Brink can be contacted at [email protected]. Kueter is a lawyer with Holsinger Law, LLC, which practices land, wildlife and water law. Kueter can be contacted at [email protected].