November 1, 2014

Colorado Supreme Court: Mere Storage of Water for Later Use Does Not Qualify as a Beneficial Use

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Upper Yampa Water Conservancy District in the Yampa River or its Tributaries in Routt and Moffat Counties: Upper Yampa Water Conservancy District v. Wolfe, State Engineer, Water Division 6 on June 27, 2011.

Conditional Water Right—Actual Storage—Actual Beneficial Use.

The Supreme Court affirmed an order of the district court for Water Division No. 6, holding that to perfect a conditional water right that allows storage, an applicant must show actual storage and actual beneficial use of a specific amount of water. The applicant also must show that it appropriated water in excess of its existing absolute decrees allowing for storage.

The applicant, Upper Yampa Conservancy District (District), was given an opportunity by the district court to submit quantifiable evidence that it appropriated water in excess of its existing absolute decrees, but it failed to submit such evidence. Instead, the District relied on the argument that mere storage for later use should qualify as beneficial use. The Supreme Court rejected this argument, because storage itself is not a beneficial use; the subsequent use of stored water is the beneficial use for which water is stored.

The Court also rejected the District’s assertion that once a conditional water right has been decreed, the only question when considering an absolute application is whether the District has completed the appropriation envisioned by a prior judicial decree. The Court has long held that once a conditional water right has been decreed, its holder has the continuing burden to establish a non-speculative need for that right.

Summary and full case available here.

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