The Colorado Supreme Court on Monday upheld an agreement that would allow a water conservation subdistrict in Southern Colorado to import water to the Rio Grande and use the entirety of its own imported water under long-standing legal doctrine.
The Closed Basin is a watershed in the San Luis Valley with a physical separation between itself and the Rio Grande. Surface water, therefore, does not flow into the river, and is imported through canals. However, a study revealed that pumping from an underground aquifer in the Closed Basin was causing depletion to the waters of the Rio Grande.
In 2010, a water court judge approved a plan for the Special Improvement District No. 1 of the Rio Grande Water Conservation District that proposed a way to restore river flows otherwise lost to irrigation-related pumping. The subdistrict would have to replace the river depletions, and consequently it contracted with Santa Maria Reservoir Company to lease water from its supply in two reservoirs.
The company, however, had to amend its bylaws to allow for the water to go toward replacement of flows, not just for irrigation. The idea was to release water from a reservoir and have it flow down the Rio Grande, with no diversions for irrigation to the Closed Basin.
By April 2016, all affected parties had withdrawn objections except for one rancher, Jim Warner. He owned property in the Closed Basin and needed the subsurface water created as a byproduct of the importation to stay at a certain level. Warner opposed the change out of a suspicion that he could no longer use flood irrigation of his hay crops.
During the trial, SMRC argued that its importation scheme would not harm other water users in the Closed Basin. Warner did not provide any evidence to support his claim, as well as for his allegation that the Closed Basin and the Rio Grande were not separate water systems after all.
The water court found acceptable the arrangement for SMRC to replenish the Rio Grande and for the subdistrict to use the entirety of its imported water into the Closed Basin for its own irrigation purposes.
The doctrine of prior appropriation, which essentially guarantees that the first person to use water gains a right to it prior to others’ claims in the future, applies to naturally-occurring surface and underground water. However, that right does not extend to water that is imported, because all other uses that stem from that additional water come at the expense of the importer. A 1969 law codified that principle for water flows, “to the extent that its [imported] volume can be distinguished from the volume of the streams into which it is introduced.”
Writing for the Supreme Court, Justice Carlos A. Samour Jr. found that the water court was correct to approve the Closed Basin arrangement based on cases as early as 1907.
“We have repeatedly said that when water is introduced into a stream system from an unconnected stream system, it is imported,” he wrote. There was plainly a divide between the Closed Basin and the river, and the SMRC’s actions would not cause Warner injury.
Referencing a Joni Mitchell song, Samour explained that “the approval of SMRC’s application simply revealed to [Warner] that his past use of return flows from SMRC’s imported water in the Closed Basin was a benefit to which he had no enforceable right; Warner just didn’t know what he had 'til it was gone.”
The case is Santa Maria Reservoir Co. v. Jim Warner.