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Colorado Division of Water Resources Issues Guidance on Diversions during Free River and during a “Futile Call Determination”

November 11, 2015   |   Water Law

On November 4, the Division of Water Resources (“DWR”) issued “Written Instructions” that outline principles that the Division Engineers will apply to diversion during Free River and during a Futile Call Determination, which can be found here.  The “Written Instructions” are not statute or administrative regulations; they are statements of what DWR believes the law requires/allows.   Thus, the application of the “Written Instruction” can always be challenged.

Here are the highlights:

Written Instruction 2015-02: Instructions Concerning the Administration of Diversions of Water during Free River

  • Free River conditions exist for a reach of a river when there is sufficient natural supply to satisfy all water uses, whether decreed or undecreed, and the State Engineer administration is unnecessary for the protection of decreed water rights.
  • A water user may use water during a Free River for an undecreed use after confirming with DWR that a Free River exists and that the water user will put the water to beneficial use. Undecreed uses need not comply with terms of a decreed water right.
  • Use of water during a Free River for a decreed water right is subject to the following restrictions:
    • Regardless of whether the diversion is for direct-flow or storage, the amount of diversion will be credited to any volumetric limits for that decreed water right and must comply with decree provisions.
    • If the volumetric limit is reached, subsequent diversions need not comply with decree provisions.
    • Accounting for storage must show that the decreed water rights for the water user have been filled in an amount equal to the amount diverted during Free River (“paper filled”), in order of seniors first. Diversions into storage reservoirs with existing rights during Free River must be made in accordance with accounting approved by the Division Engineer.

Written Instruction 2015-03: Instructions Concerning the Administration of Diversions of Water during a “Futile Call Determination”

  • The futile call doctrine authorizes the Division Engineer to lift a curtailment order issued for the protection of decreed water rights under priority administration if the person whose diversion is curtailed proves that discontinuance of that diversion will not cause water to become available to senior priorities under a call for administration.
  • The Division Engineer will consider diversion during a futile call determination as a lawful out-of-priority diversion.
  • A water user may use water during a futile call determination for an undecreed use after confirming with DWR that a futile call determination has been made and that the water user will put the water to beneficial use. Undecreed uses need not comply with terms of a decreed water right.
  • Use of water during a futile call determination for a decreed water right is subject to the following restrictions:
    • Regardless of whether the diversion is for direct-flow or storage, the amount of diversion will be credited to any volumetric limits for that decreed water right and must comply with decree provisions.
    • If the volumetric limit is reached, subsequent diversions need not comply with decree provisions.
    • Accounting for storage must show that the decreed water rights for the water user have been filled in an amount equal to the amount diverted during the futile call determination (“paper filled”), in order of seniors first. Diversions into storage reservoirs with existing rights during a futile call determination must be made in accordance with accounting approved by the Division Engineer.
  • A diversion with no delayed impacts to the stream that has a decreed augmentation plan generally will be permitted independent of the augmentation plan’s replacement requirements.
  • Generally, replacement of lagged depletions from a ground water diversion need not be replaced pursuant to a decreed augmentation plan.
  • The Division Engineer will consider surface water and connected ground water when making a futile call determination.
  • If a futile call determination is applied to a specific stream reach that contains multiple water rights, the Division Engineer will administer all water rights within that reach according to their priorities.