April 21, 2019

Colorado Supreme Court: Water Court’s Conditional Decree of Non-Consumptive Hydropower Right Affirmed

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Tidd: Frees v. Tidd on Monday, June 1, 2015.

Ditch Easement—Dominant and Servient Interests—Alterations to a Ditch—Conditional Water Right for Non-Consumptive Hydropower Use—Declaratory Judgment and Conditional Water Right Decree With Conditions to Protect Against Injury to Ditch and Water Right Interests—Water Right Determination and Administration Act of 1969.

The Supreme Court upheld the water court’s judgment entering a conditional water right decree for a non-consumptive hydropower use water right with a 2010 priority for 0.41 cfs diverted from Garner Creek through the headgate of Garner Creek Ditch No. 1 in Saguache County, Water Division No. 3. Charles and Barbara Tidd properly obtained a judicial declaration of no material injury to ditch and water right interests owned by the Frees in connection with a ditch easement located on the Tidds’ property. The Court upheld the water court’s finding that water is available for the non-consumptive conditional appropriation under the terms of the Water Right Determination and Administration Act of 1969, and the conditions included in the water court’s judgment and decree were sufficient to protect against injury to senior adjudicated water rights and the Frees’ ditch rights.

Summary and full case available here, courtesy of The Colorado Lawyer.

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