July 18, 2019

SB 13-041: For Purposes of Perfecting a Water Right, Expanding the Definition of “Beneficial Use” to Include Storage of Water

On Wednesday, January 16, 2013, Sen. Mary Hodge introduced SB 13-041 – Concerning the Protection of Stored Water, and, in Connection Therewith, Preserving Supplies for Drought and Long-Term Needs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In the case of Upper Yampa Water Conservancy Dist. v. Wolfe, 255 P.3d 1108 (Colo. 2011), the Colorado Supreme Court held that storage of water is not a beneficial use, at least where flood control and fire or drought protection are not the stated uses of the water, and that to perfect a conditional storage right, the water must be released from storage and put to beneficial use. Further, an applicant must show that it has exhausted its absolute storage rights before its conditional storage rights can be perfected.

The bill reverses these holdings by:

  • Expanding the definition of “beneficial use” to include the impoundment of water for firefighting or storage for any decreed purpose;
  • Specifying that:
    1. An applicant doesn’t have to demonstrate that all existing absolute decreed water rights that are part of an integrated system have been utilized to their full extent to establish the need to exercise a conditional water storage right or to make it absolute, in whole or in part;
    2. When conditional water storage rights are made absolute, the decreed volume should be the extent of the volume of the appropriation that has been captured, possessed, and controlled at the decreed storage structure; and
    3. Carrying water over in storage from one year to another is not grounds for a determination of abandonment.

On Jan. 31, the Agriculture, Natural Resources, and Energy Committee approved the bill and moved it to the Senate 2nd Reading Consent Calendar.

Since this summary, on Second Reading, the Senate laid the bill over daily with amendments.

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