Title: Transmountain Water Diversions in Colorado
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Permanent Link: http://ufdc.ufl.edu/WL00000900/00001
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Title: Transmountain Water Diversions in Colorado
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: The Newsletter of the Natural Resources Law Center University of Colorado: at Boulder School of Law Number 12 November 1987
General Note: Box 7, Folder 3 ( Vail Conference 1988 - 1988 ), Item 71
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000900
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

Resource Law Notes

Ihe Neorstlle of On. WNaural RMaoUvCoi Law Center
Ur..vrl,% co Coloiid: at Soulir -School of Low

Transmountain Water

Number 1t. November 1987


Diversions in Colorado I ,
By James S. Lochhead 6 .
Jim Lochhead is a
shareholder In the firm of 5
Leavenworth & -Lochhead,
P.C., in Glenwood Springs,
which emphasizes water
rights, municipal, and real J... L- 2
estate law. He received his 4 -
B.A. and J.D. degrees from < 3
the University of Colorado.
He is a member and past S
chairman of the Colorado
Water Conservation Board
Sand is the Colorado
Commissioner to the Upper The above map depicts the seven
Colorado River Commis- Jim Lochhed water divisions in Colorado, the
sion. This paper is based on water division courts, the primary
a presentation given at the center conference on "Finding rivers./
Water for the Front Range," April 1987.
This article will discuss the history of the struggle between
the Eastern and Western Slopes of Colorado to control and
utilize waters originating near the Continental Divide. The' _
struggle has two basic elements at its roots. The first is physi-'
ographic: the Eastern Slope is relatively arid, whereas the It was only natural, then, that as the East-
Western Slope provides a snowpack which sustains the entire em Slope grew and outstripped Its local
Colorado River. The second element is socioeconomic: the
Eastern Slope holds the bulk of the sate's population andeoo water supply t would look to the Western
nomic activiy. t was only natural, Ihen, that as the Eastern Slope for new sources of water.
Slope grew and oustripped ts local water supply, it would look --
to the Western Slope for new sources of water.
The continuing battle over transmountain waters has taken Co., the Supreme Court of Colorado was faced with the first te
many forms. The battle has been waged in the courts, the of Colorado's appropriation doctrine. The case involved tt
Colorado legislature, the Congress, and before various federal diversion of waters by ditches from St. Vrain Creek for irrigatic
agencies. It has involved many different parties, governmental use in another basin. In an attempt to limit the scope of it
entities, private interests, citizens groups, state and federal appropriation doctrine, the objectors in the St. Vrain Cret
agencies, and elected representatives. drainage argued that those within the natural drainage basin h.
a better right to the use of the waters originating there than of
Early Affirmations of the Right to Divert Transbasln who came before them and transported the water out of tt

The legal right to appropriate and transport water from one
watershed to another has been attacked since statehood, and
Colorado courts have consistently affirmed the right to make
such a diversion. In the 1882 case of Coffin v. Left Hand Ditchi

continued on page



natural drainage area. The Supreme Court denied this asser-
tion as not in keeping with the doctrine of prior appropriation nor
with the policy underlying the adoption of this doctrine. In
soundly defeating any concept of riparianism, and in what is
viewed as one of the cornerstones of Colorado's "pure" appro-
priation doctrine, the Court established that priority of right is not
dependent upon the locus of its use. The Court took a practical
view in recognizing Colorado's arid nature and the Imperative

The Court took a practical view in recog-
nizing Colorado's arid nature and the "im-
perative necessity" of allowing diversion
of water for beneficial use elsewhere.

necessity" of allowing diversion of water for beneficial use else-
where. To award priority to those within the natural drainage
basin would stifle Colorado's agricultural economy by limiting
the ability of farmers to utilize water on the most productive
lands. Coffin, therefore, represents the Court's initial statement
on Colorado's free market, entrepreneurial system of water
rights adjudication.
However, the affirmation of the right to divert waterfrom one
basin to anotherdid not stem debate overthe issue. The eastern
portion of the state developed first, and very early in our history
the available water supplies natural to that area became over-
appropriated. Therefore, water still in abundance on the West-
ern Slope became the focal topic of contention. Concerns on the
Western Slope were for the most part economic, originating in
a fear that the Eastern Slope would become so populous that it
would effectively seize control of Colorado's economy. Just as
Upper Basin states sought to preservethewaterof the Colorado
Riverforfuture use in the face of rapid development inthe Lower
Basin, so the Western Slope sought to preserve its interest in
water originating there.
Although Coffin held that a water user in the basin of origin
did not have a better priority per se than a transbasin diverter,
Western Slope interests argued that the right to transbasin
divert should be conditioned. In City and County of Denver v.
Sheriff, the City of Denver sought to appropriate water on the
Western Slope for use on the Eastern Slope by means of an
elaborate collection and tunnel system. While not directly at-
tacking Denver's right to appropriate, West Slope interests
sought to have the Court place restrictive conditions on the use
of the water so diverted. The trial court, located on the Western

The Western Slope was In a particularly
strong bargaining position at this time...

Slope, agreed with this argument and placed the condition in its
decree granting Denver's water rights that all of Denver's water
so decreed were "supplemental" to its prior existing decrees.
Denverwas required to fully and economically utilize such prior
existing decrees before it could use any of the newly adjudi-
cated rights.


The purposes of this condition were obvious: To prevent
Denver from selling or leasing its present supply and using only
transmountain waters to satisfy its own needs, and to forestall
the transmountain diversion project granted by the decrees.
The condition also reflected a position which has since been
espoused by the Western Slope, that Denver must make full use
of Eastern Slope water before looking to the Western Slope for
further supplies.
In striking down these restrictions on use of transmountain
waters, the Colorado Supreme Court's reasoning took two
distinct positions. First, the Court said that the restriction inter-
fered with property already owned by the City. The Court
characterized the condition as an "arbitrary invasion" on the
City's vested property rights. Second, the Court recognized the
special nature of the need for water associated with a growing
municipality: The need in the present to begin to secure an
adequate supply for the future. Likewise, the Court affirmed the
right to appropriate water for interbasin transfer. In what has
since been referred to asthe "great and growing cities doctrine,"
the Court recognized the great expense and planning required
to supply a growing municipality and characterized the adjudi-
cation of water for reasonably anticipated future needs as the
"highest prudence."

Compensatory Storage
With the expansion of irrigated agriculture on the Eastern
Slope, the West Slope was viewed as a source of additional
irrigation supply. Moreover, agriculture could look to the federal
government for financial assistance with the huge cost of

The principle of compensation for the
basin of origin was further Ingrained in

project construction. First, however, the agricultural interests
had to have a mechanism to organize and thereby deal with the
federal government. In response, the Colorado legislature
provided forthe creation of waterconservancy districts.The first
of these districts was the Northem Colorado Water Conser-
vancy District, created to develop the Colorado-Big Thompson
Project then under consideration.
The Westem Slope was in a particularly strong bargaining
position at this time since ts representative in Congress,
Congressman Edward T. Taylor, was Chairman of the Appro-
priations Committee of the House. By virtue of his position, he
was able to block attempts to obtain public financing for projects
which would divert water from his district to the Eastern Slope
unless concessions were made to protect his district. Addition-
ally, an organization, the Western Slope Protective Association,
was developed to preserve and protect the waters of Western
Colorado affected by proposed transbasin diversions. This
group, the predecessor to the Colorado River Water Conserva-
tion District, was able to negotiate with the Northern District to
achieve lasting compensation to the Western Slope for the
removal of waters to the Eastern Slope. These concessions led
to the doctrine now known as "compensatory storage."
The principle of the recognition of rights in the 'basin of


origin" grew out of the holding in Wyoming v. Colorado. In that
case, the United States Supreme court dismissed purely philo-
sophical objections to interbasin transfers and held that as
between two states under the appropriation doctrine, the rule of
equitable apportionment of waters applied. "Equity" for the
basin of origin was also implicitly recognized in the negotiation
of the Colorado River Compact of 1922, which required the
upper basin states to deliver certain quantities of water at Lee's
Ferry, but which also reserved to the Upper Basin water for
future development.
With these two developments in mind, Westem Slope
interests wanted some type of limitation placed on the Colo-
rado-Big Thompson Project in orderto protect their existing and

...Yet, the Water Board is not obliged
under Colorado law to provide compensa-
tory storage.

future needs. Thus, it was agreed in Senate Document No. 80
that Green Mountain Reservoir would be built to a storage
capacity of approximately 154,000 acre-feet to be held for use
by the Western Slope in return for the right to divert an expected
320,000 acre-feet to the East Slope. This storage capacity had
two purposes:
1.To protect Western Slope water rights by releasing wa-
ter to replace out-of-priority diversions by the Colorado-Big
Thompson Project;
2.To provide for future domestic and irrigation uses on the
(r Western Slope.
The principle of compensation for the basin of origin was
further ingrained in 1943, when the Colorado legislature
amended the original Water Conservancy District Act to include
a requirement that any facility of a water conservancy district
designed to export water from the Colorado River basin be
designed, constructed, and operated so that present and pro-
spective uses of water within the Colorado River basin would
not be Impaired nor increased in cost at the expense of the
water users within the natural basin." Although the statute does
not refer to storage, the history of Green Mountain Reservoir
has led water interests to refer to this enactment as the "com-
pensatory storage statute."
This statute was applied in the legislation authorizing the
construction of the Fryingpan-Arkansas Project. Colorado es-
tablished operating principles for the Project and included this
provision almost verbatim. The operating principles were sub-
sequently incorporated into the federal law authorizing con-

...downstream appropriators have no
vested right to a continuation of importa-
tion of foreign water Introduced by an-

struction and operation of the Project. Thus, the Project itself
included a requirement that the construction of Ruedi Reservoir
Sbe completed and operational for replacement and compensa-
tory purposes, in the same manner as Green Mountain Reser-
voir, before any water was diverted to the Eastern Slope. The

/0.0 O

project allows for this compensatory storage in addition to the
rights and benefits granted to Westem Slope water users to the
water stored in Green Mountain Reservoir.
The issue of the meaning of the water conservancy district
act limitation arose wth a subdistrict of the Northem Colorado
Water Conservancy District, when the Subdistrict failed to
Include compensatory measures in its plans for the Windy Gap
Project. The issues involved the detail with which the plan for
compensation must be stated in a water rights application by a
conservancy district. In remanding the decisiontothe trial court,
the Colorado Supreme Court, in Colorado River Water Conser-
vationDistrict v. MAunsal SLbdistr, heldthatthe Subdistrict's
plan was not detailed enough. In settling the case, the Subdis-
trict subsequently agreedto a numberof concrete measures for
the benefit of the Wester Slope.
This statutory requirement is limited, however, in that it
applies only to water conservancy districts. There are other
entities on the East Slope which can finance transmountain
diversion projects. For example, the Denver Water Board,
which provides for much of the entire Denver metropolitan area,
exerts the most persuasive impact of any single agency, city, or
district. Yet, the Water Boardis not obliged under Colorado law
to provide compensatory storage.

Rights to Transbaln Retur Flow
As various Interests appropriated new West Slope water,
downstream Eastem Slope users grew to depend on the
increased flow which such diversions produce. Thus, contro-

..a policy that Eastern Slope Importers
should make maximum use of water di-
verted from the Western Slope.

verses arose inchange in point of diversion and change in use
adjudications on the Eastern Slope. One such controversy was
involved in Brighton ich Company v. City of Eglewood.
Englewood had purchased Eastern Slope irrigation rights and
sought to change their use to municipal purposes. Prior to this
point, Englewood had been supplied with Western Slope water
by Denver. After the proposed change, Englewood would be
supplied with Eastem Slope water. Some protestants claimed
thatthe#resuwouldbead inutloninthefbowtowhichtheyhad
come to depend. The Court rejected this contention, holding
that downstream appropriators have no vested right to a con-
tinuation of Vpotaton of foreign water introduced by another.
With Impending droughts, overppropration of water sup-
pies and continued opposition to transmountain diversions, a
number proposalshavebeen madeto stretchthe use of water
on the Easen Slope. Such plans cut down on the amount of
Western Slope water needed, but they also reduce the return
flow supply to downstream Eastern Slope users. In City and
County of Denver Board of Water Commissioners v. Fulton
Dch Irrigation Conpany. Denver sought a declaratory judg-
ment allowing it to make successive uses of diverted trans-
mountain water still under Denver's control. Viewing imported
water as developed, the Court held that, in the absence of
agreements to the contrary, and without express statutory

I ^ ^____- -

authorization, Denver could reuse, make successive use of,
and after use make disposition of imported water. This legal
principal was based in part upon a policy that Eastern Slope
importers should make maximum use of water diverted fromthe
Western Slope. This concept has been incorporated into statu-
tory law in C.R.S. Section 37-82-106(1).

The Latest Challenge
The most recent challenge to the right of an Eastem Slope
diverter to appropriate water for transbasin diversion came in
the case of City and County of Denver v. Colorado River Water
Conservation District. In that case, the Colorado River Water
Conservation District challenged Denver's authority to appro-
priate water not reasonably needed by it, for use exclusively
outside the territorial limits of the City and County. The River
District argued that Denver was prohibited by the home-rule
provisions of the Colorado Constitution, Colorado statute, and
the Denver City Charter from appropriating water for use solely
outside its boundaries. The Court ruled that Denver did have
such power. The Court found that the provision of water service
to the metropolitan area was a matter of mixed state and local
concern. Although the state has enacted numerous statutes
regulating the use, development, and provision of water serv-
ice, it has not specifically restricted (and has, in fact, authorized)
extraterritorial municipal supply. Moreover, the Court relied on
evidence which established that Denver and the metropolitan
area are socially and economically entertwined. Thus, provision
of metropolitan-wide water service was held to also be a matter
of local concern to Denver. Therefore, the Court implicitly
harkened back to its "great and growing cities doctrine" origi-
nally articulated in the 1939 case of City and County of Denver
v. Sheriff.
However, another argument raised by the Western Slope
interests places some limitations on the application of that
broad doctrine. Importantly, Denver's situation had changed
since the Sheriff case was decided. The Poundstone Amend-
ment had eliminated Denver's abilityto annex. Denvercould not
argue that its appropriations were based upon anticipated
expansion of its boundaries. Its appropriations were to be for
permanent water service outside its boundaries. Therefore, the

The River District argued that Denver was
prohibited by the homerule provisions of
the Colorado Constitution, Colorado stat-
ute, and the Denver City Charter from appro-
priating water for use solely outside Its

River District argued that Denver was subject to the rule
established in Colrado River Water Conservation District v.
Vidler Tunnel and Water Conpany. In that case, the Colorado
Supreme Court held that in the absence of firm contractual
commitments for the use of water not intended for use by Vidler
on its own land, and in the absence of any agency relationship
S between Vidler and the intended users, Vidler had not formed
the necessary intent to appropriate water to apply to beneficial
use. The River District argued that in the selling of water outside


ts boundaries, Denver was acting in its proprietary capacity
and, therefore, was subject to the ruling in the Vidlercase that
watercould not be appropriated for 'speculative"purposes. The
Court found inadequate evidence of Denver's intent to appropri-
ate water, under the Vidler test, since it had not been estab-
lished that the proposed appropriations were necessary to
satisfy existing contracts. Instead, the Court found evidence
that Denver was appropriating water under an assumption that
t would be providing water to metropolitan growth that would
occur in the future. The Court remanded the case for a determi-
nation as to whether Denver had plans to use the water within
ts own boundaries,firm contractual commitmentsto supplythat
water to users outside its boundaries, or agency relationships
with such users.
The parties did not have an opportunity to litigate the
specifics of Denver's intent to appropriate water under the
Viderule on remand, however, since the case was settled in
the comprehensive agreement between Denver and the Colo-
rado River Water Conservation District, discussed later in this

Land Use Issues
Local Western Slope governmental entities have more
recently attempted to regulate the asserted negative impacts of
transbasin diversions through the imposition of comprehensive
plans, zoning regulations, subdivision regulations, building
codes, and regulations issued pursuant to House Bill 1041
(C.R.S. Section 24-65.1-101 et seq.). Attempted regulation by
Grand County brought legal challenge by the City and County
of Denver overthe issue of Grand County's authority to regulate
Denver's Williams Fork Diversion Project. Among other argu-

The Court held that Denver had no Interest
In or preferential right to water In Green
Mountain Reservoir.

ments, Denver asserted that its activities in developing the
project could not be regulated because of Denver's plenary
authority as a home-rule city pursuant to Article XX of the
Colorado Constitution, and because such regulation would
deprive Denver of Ms constitutional right to appropriate and
develop water rights. In the case of City and County of Denver
v. Bergand, the Federal District Court ruled that Grand
County's anduseregulations asappledtoDenver'stransbasin
water project were facially valid. Although Denver is a home-
rule municipality, Is activities are subject to regulation by other
authorities when undertaken In another county. Furthermore,
although the right to appropriate water is constitutional, the
Court found that the manner and method of appropriation can
be reasonably regulated. Therefore, Grand County could con-
slitutionally regulate the impacts of construction and operation
of Denver's transbasin diversion project. The Court specifically
reserved judgment on whether Grand County applied ts regu-
lations in a manner consistent with state and federal law and,
thus, whether such application was subject to preemption. On
their face, however, the Court found the regulations were not in
conflict with state law.
Eastern and Western Slope interests currently have the


opportunity to test the limits of the application of local land use
regulation on transbasin diversions. The Cities of Colorado
Springs and Aurora have made application to Eagle County
under the County's House Bill 1041 Regulations for review of
their proposed Homestake II Project, and are undergoing the
County review process.

Controversies Over Operations
Even forthose transmountain diversions which are in place,
controversy exists as to the proper operation of these projects.
Of particular importance is Denver's right to fill Dillon Reservoir,
located on the Blue River upstream from Green Mountain
Reservoir. The so-called "Blue River Decree" established the
relative priorities of Green Mountain and Dillon Reservoirs. The
Blue River Decree is actually a series of litigation commencing
in 1952 with the issuance of decrees by the District Court in
Summit County, and continuing with Federal District Court
litigation through the present time. Through this series of
litigations, Denver has asserted both a priorityto the use of Blue
River water and an interest in Green Mountain Reservoir. Both
of these claims have been repeatedly denied by the Federal
District Court. One of the later affirmations of the Western
Slope's rights in Green Mountain Reservoir came in the Novem-

Governor Richard Lamm created the
Denver Metropolitan Area Water

Sber 2,1977 decision by Judge Alfred Arraj, in an action brought
by the Colorado River Water Conservation District and the
United States to compel Denver to release water in Dillon so as
to allow Green Mountain Reservoir to fill. The Court held that
Denver had no interest in or preferential right to water in Green
Mountain Reservoir. Therefore, Denver is not entitled to divert
any of the water from the Blue River before Green Mountain
Reservoir has filled or is assured of filling to capacity each year.
The Court also denied Denver's claim that t could store water
in Dillon Reservoir out of priority and compensate the United
States only for lost power production in Green Mountain Reser-
voir. Denver may have the right to effectuate exchanges, but
such exchanges must clearly protect not only power production
but Western Slope rights to the "ompensaory" pool in Green
Mountain Reservoir. Exchanges by Denver canbe allowed only
when the fill of Green Mountain Reservoir is assured, when the
water to be exchanged is on hand, and when power replace-
ment is provided.
Denver has through the years operated such an exchange
utilizing its Williams Fork Reservoir. Although, as a technical
matter, three separate exchanges operate (the "Williams Fork
to Dillon exchange," the "Williams Fork to Green Mountain to
Dillon exchange,* and the "Williams Fork to Straight Creek
exchange"), the exchanges basically provide for the release of
water from Williams Fork Reservoir as substitute storage for
waterthat would otherwise have been stored in Green Mountain
SReservoir but for the out-of-priority storage in Dillon Reservoir.
The effect of the exchange is to protect water users in Western
Colorado downstream from the confluence of the Blue River
and the Colorado Riverf rom adverse effects caused by the out-

of-priority storage at Dillon Reservoir. A number of concerns
continue to remain, however, with regard to the operation of the
exchange and its potential damage to interests in Summit
County in particular. Another effect of the exchanges is to
increase the efficiency of Denver's Roberts Tunnel Collection
System. This increases Denver's firm annual yield fromthe Blue
River in Summit County by about 10,000 acre-feet. Summit
County, therefore, remains concerned about the impacts of the
exchanges. The issues surrounding these exchanges were
raised again by Summit County with the negotiation by Denver
and the Colorado River Water Conservation District of an
agreement settling various litigated claims, discussed later in
this article.

As the process evolved, It became appar-
n tt that e were w conflicts not only be-
tween the Eastand West Slopes but within
the East and West Slopes as well.

The Metropolitan Area Water Roundtable
In 1980, in an effort to end continued dispute and litigation
over providing an adequate supply of water to the Denver
metropolitan area through a "negotiated" solution, Governor
Richard Lamm created the Denver Metropolitan Area Water
Roundtable. The group was composed of some 30 representa-
tives of various water interests on both the East and West
Slopes. As originally designed, the effort was intended to reach
a consensus on the legitimate needs of the Denver metropolitan
area forwater, andthe most acceptable projects, methods, and
mitigations to meet those needs. As the process evolved, it
became apparent thatthere were conflicts not only betweenthe
East and West Slopes but within the East and West Slopes as
well. The process lasted almost six years and was sometimes
bitter. However, by discussing their concerns, the various
interests found that there were some common grounds upon
which agreement could be reached. As a direct result of the
Roundtable process, three developments occurred which will
have a continuing impact on the ability of the Eastern Slope to
divert water from Western Colorado:
1. Denver filed applications with the U.S. Army Corps of
Engineers for ste specific and system-wide permits for the
construction of various projects, resulting in a massive environ
mental impact statement process.
2. Denver entered into an agreement with Summit County
to address Summit County's specific concerns.
3. Denver entered Into an agreement with the Colorado
River Water Conservation District to settle ongoing litigation,
provide a short-term supply of water to Denver, and establish a
basis for future cooperation.
The latter two agreements are discussed below.

Denver/Summit County Agreement
On September 18, 1985, Denver and Summit County
entered into an agreement designed to resolve concerns thai
had been expressed by Summit Countythrough the Roundtabli
process. Specifically, those concems involve future water use


within Summit County above Dillon Reservoir (that is, junior to
Dillon), recreational reservoir levels in Dillon Reservoir, and
S water quality problems in Dillon. In exchange for Summit
County's support for a reservoir by Denver on the South Platte
River and the County's agreement to issue land use permits for
the Straight Creek Project. Denver agreed to address these
With regard to providing for future water use within Summit
County, Denver agreed to subordinate storage in Dillon Reser-
voir and the operation of the Williams Fork exchanges to 3,100
acre-feet of depletions by Summit County at any point above
Green Mountain Reservoir. In exchange, Summit County
agreed to a complex set of provisions providing Denver with
adequate replacement water for the amount of the subordina-
tion. Denver also agreed to provide to the Town of Silverthome
and Summit County storage space in Dillon Reservoir, under
certain conditions.
As to recreational water levels in Dillon Reservoir, Denver
agreed to provide minimum "target elevations" during specified
periods of the summer recreation season.
Finally, as to water quality, Denver agreed to allow major
municipal wastewater treatment plants located in Summit
County to discharge tertiary treated effluent directly through the
Roberts Tunnel to the North Fork of the South Platte River when
Denver is transporting a minimum of 50 c.f.s. of water through
the Roberts Tunnel, under certain conditions. Denver also
agreed to contribute to the cost of constructing nonpoint source
phosphorous control projects and also agreed to work with the
County to design a water quality monitoring program.

S Denver/Colorado River Water Conservation District
Also as a result of the discussions undertaken through the
Roundtable process, Denver, the River District, the Northern
Colorado Water Conservancy District, and the Municipal Sub-
district of the Northern District entered into an agreement or
December 15, 1986 designed to resolve a number of long
standing disputes. The agreement was also spurred by the
impending litigation of the remand from the Colorado Supremi
Court in City and County of Denver v. Colorado River Wate
Conservation District, and Denver's challenge to 'due dili
gence" filings by the River District for a number of ts project
located on the Westem Slope.
The agreement was further triggered by the perceived tal
gap" problem in Denver-a short-termwater supply shortage-
and the River District's desire to construct a reservoir on Rod
Creek in Grand County.
The first element of the agreement was a provision for th
lease of up to 15,000 acre-feet of water per year by the Rive
District to Denver from the proposed Rock Creek Reservoir
Denver will utilizewater released from Rock Creek Reservoira
an exchange to allow out-of-priority storage in Dillon Reservor
and diversion through the Roberts Tunnel, in a manner sinila
to the Williams Fork exchanges. Underthe lease terms outline
in the agreement, the lease could generate a revenue streamti
the River District of up to $3.75 million per year.
"r The second major element of the agreement was th
settlement of the pending litigation referenced above. Denve
limited its claims for the Eagle-Colorado Project and limited


calls on the Windy Gap Project owned by the Municipal Subdis-
trict of the Northern District, subordinated calls for nonindustrial
uses upstream of the project, and subordinated to downstream
municipal and Irrigation rights "perfected" at the time of con-
struction of the project. In exchange, the River District allowed
the entry of a decree in the remand case awarding to Denver its
claimatothe Straight Creek and Piney River units of the Roberts
Tunnel Collection System, and the Eagle-Colorado Project as
modified by the agreement.
The third element of the agreement concerned the "Green
Mountain Pumpback Project." The Green Mountain Pumpback
was originally proposed by Interests in Eagle County, to allow
Denver to utilize Green Mountain Reservoir by physically
pumping water back to Dillon through a pipeline, replacing the
equivalent function of Green Mountain Reservoir for the benefit
of the Western Slope by construction of another reservoir. The
parties agreed to enter into discussions to allow for the
operation of the Green Mountain Pumpback, and established
various parameters and limitations for such operation.
Finally, Denver agreed that as part of the project to deliver
Green Mountain waterto the metropolitan Denver area, Denver
will commit to utilize with reasonable efficiency the water
available to Denver from its decrees on the South Platte River,
utilize return flows in accordance with the Blue River decrees,
and conserve existing supplies through a comprehensive water
conservation program.

The only certainty is that these Issues will
produce continuing controversy.

As with prior exchanges and operations of Dillon Reservoir,
Summit County has expressed concern over the impact of the
Rock Creek Lease and the Green Mountain Pumpback. Specii-
cally, the effect of the agreement. f Implemented, is to tunnel
\ Denvers foreseeable transmountain water diversions through
- the Roberts Tunnel. This concentrates adverse impacts on
SSummit County. In defense, the River District argues Summit
e County is protected by its prior agreement with Denver and
r promises that money generated from the Rock Creek Lease
- can be used to offset such adverse impacts. The only certainty
is that these issues will produce continuing controversy.

SDenver/PubIl Service Company Agreement
k The Colorado River Water Conservation District, and local
land use regulating authorities, are not the only entities affecting
D the availability and operation of transmountain diversion proj-
r ects. One of the major "calls" on the Colorado River is located
at the Shoshone Power Plant. This hydroelectric facility is
s located on the Colorado River approximately 10 miles east of
Glenwood Springs. The plant is a "run of the river facility and
r operates under two water rights priorities. The first is a 1902
1 water right, the oldest industrial water right on the Colorado
o River, for 1250 c.t.s. The second is a 1929 water right for 158
c.t.s. The only water rights on the Colorado River senior to the
B Shoshone plant are for agricultural uses in the Grand Valley
r near Grand Junction (the so-called "Cameo" call).
I On April 14,1986 Denver and the Public Service Company


of Colorado entered into a letter agreement providing, among
other things, that Public Service will "subordinate" its senior
right to Denver when Denverdetermines that its available water
Supplies are "critically impacted" and i no vested downstream
or upstream water decrees in Colorado will be injured.
The meaning and effect of the agreement is unclear. The
Colorado State Engineer has taken the position that the agree-
ment operates as a selective subordination and that he will not
honor the agreement unless appropriately decreed in water
Complete elimination of the Shoshone call for all water
users during the non-irrigation season results in a tree river",
allowing use by any upstream water user. Selective subordina-
tion of the Shoshone water right to Denver alone would result in
Denver's continued otherwise out-of-priority use while other
water users are curtailed during the non-irrigation season. This
would create the impact of causing more water users to be out
of prioritythanwould otherwise occur. Preliminary indications of
the yield to Denver's system is a result of this subordination (if
implemented) are from 15,000 to 40,000 acre-feet per year.
The principal impact of any elimination of the Shoshone can
will be increased non-irrigation season depletions by upstream
transbasin diversions in the Colorado, Fraser, Blue, and Eagle
Rivers. Additionally, diversions for West Slope municipal and
snowmaking uses upstream from Shoshone may increase,
subjectto other more local water rights calls (including instream
flow rights) and the effect of increased transbasin diversions.
These are impacts about which the Western Slope has been
concerned since the first transmountain diversion project was
s originated.

Issues inherent in the original transbasin diversions of
water continue to be fought both by the proponents and objec-
tors to transbasin diversion projects. The concerns of the
Western Slope will continue to be discussed and fought over in
political and legal arenas, and were summarized in a letter
dated August 16, 1984 from the President of the Colorado
Water Conservation District to Governor Richard Lamm. The
letter stated:
As you are well aware, transmountain diversions of water
which result in the total removal of water from a river basin have
extraordinary impacts compared to the typical in-basin water
use. These impacts and resulting damage include but are not
limited to the following:
1. The lack of water to meet existing and future demands in
certain areas of westem Colorado.
2. The likelihood of transferring to the Western Slope the
entire burden of supplying water to meet the Colorado River
Compacts requirements.
3. Additional costs and burdens caused by the removal of
high-quality watertrom headwaters streams thereby increasing
downstream salinity.
4. The construction or reconstruction of new headgates and
diversion facilities in order to obtain the amount of water
appropriators are entitled to under existing decrees.
S. .The denial of municipal expansionof water and sanitation
systems, especially in the counties from which the water is

6. Increased capital and operating costs for water and
sanitation plants, particularly in the Fraser and Blue River
7. The reduction or elimination of land tax based by the
purchase of private property by tax-exempt entities.
8. The loss of agricultural lands and agricultural production
due to reduced water supplies.
9. Detrimental socioeconomic and environmental impacts
on local municipalties, counties, and the entire Western Slope.
10. The consequences of measures used to mitigate im-
pacts on species listed as threatened or endangered.
11. Degradation of the West Slope recreation industry
which depends on the esthetics and utility of full-flowing
The above list is certainly not meant to be all inclusive.

Publications and Materials
of the Natural Resources Law Center
Tradition, Innovation, and Conflict: Perspectives on Colrado Water
Law. Lawrence J. MacDonnell ed.,1987. $18
Special Water Districts: Challenge for the Future, James N.
Corbridg, Jr., ed., 1983. $15
Conference Mterials Notebooks and Audiotapes
Waer as a Pubc Resource: Emerging Rights and Obligations, 55
pag. notebook of outlines and materials from 3-day conference,
June 1987, $60; cassette tapes of speakers' presentations, full 3
days, $150.
The Pubic Lands During the Remainder of the 20th Century: Plan
ning, Law and Policy i the Federal Land Agencies, S35-pge note
book of outlines and materials from 3-day conference, June 1987,
$60; aeeme tapes of speakers' presentations, full 3 days $150.
External Devopmen Afecting the National Pars: Preservin
'*he Bet MaM We Ever Had 580-page notebook of outines and
materials from 2-day conference, Spt. 1966, $40; cassette tpes
of speakrs' presentations, ful 2 days, $80.
estrn WaMer: Expxndi Usesklte, Supples 406p note
book of ouline and materials from 3-day conference, June 1986,
$60; asett tapes of speakers' presentations, full 3 days. $150.
OGwingranwdfonnHaz)u Wrst Contro 361-pagenoebook
of outlines and meerials from 2-day conference, June 1986, $50;
assete apes of speakers' prsentations, full 2 days, $100.
M Mme Wer Law ir Tnrmlwb 415-pag notebook of outings
nd materials from 3-day conference, June 1965, $60; cassette
tape of spekers' presentations, full 3 days, $150.
Pulic La AiMne Leauig: Issus and Dkewion 472-page
notebook of outlines and materials from 2-day conference. June
1965, $40; easse te pe of speakers' presentations, ful 2 days.
$100; half-day sgments, $35 each.
Oomdonal Papere
A Brie oduction to Environmntal Lmw in China,' Chng Zheng-
Kang, Proeslor of Law. University of Peking Beijing, China, NRLC
Occasional Papers Seris, 196. 36 pages. $3.
*egulationof WatesfromtheMetalMining ndustry:TheShapeof
Things to Come," Lawrence J. MacDonnell, NRLC Occasional
S Papers Series. 196.32 pages. $3.
'"Enrging Fores in Western Water Law,' Steven J. Shupe, Water
Resource Consultant, NRLC Occasional Papers Series. 1986.21
pgs. 3.



* The Rights of Communities: A Blank Space in American Law.,
Joseph L. Sax, Professor of Law, University of California, Berkeley,
NRLC Occasional Papers Series, 1984.16 pgs. $3.
* "Nuisance and the Right of Solar Access,'Adrian Bradbrook,
Reader in Law, University of Melbourne, Australia, NRLC
Occasional Papers Series, 193. 54 pgs. $5.
* "Tortious Liability for the Operation of Wind Generators," Adrian
Bradbrook, Reader in Law, University of Meboume, Australia,
NRLC Occasional Papers Series, 1983.74 pgs. $5.
* "The Access of Wind to Wind Generators." Adrian Bradbrook,
Reader in Law, University of Mlbourne. Australia, NRLC
Occasional Papers Series, 1983. 77 pgs. $5.
Research Reports
"The Endangered Species Act and Water Development Within the
South Platte Basin." Lawrence J. MacDonnell. Colorado Water Re-
sources Research Institute (Completion Report No. 137), 1985. $6.
"Guidelines for Developing Area-of-Origin Compensation,' Law
rence J. MacDonnell, Charles W. HoweJames N. Corbridge, Jr., W.
Ashley Ahrens, NRLC Research Report Series, 1985.70 pgs. $5.
"Implied Covenants in Oil and Gas Leases," reprint of two articles by
Stephen F. Williams, Professor of Law, University of Colorado,.
1983. 40 pgs. $5.

The Natural Resources Law Center

The Natural Resources Law Center was established at the
University of Colorado School of Law in the fall of 1981. Building
on the strong academic base in natural resources already
existing in the Law School and the University, the Center's
purpose is to facilitate research, publication, and education
related to natural resources law.
For information about the Natural Resources Law Center
and its programs, contact:
Lawrence J. MacDonnell, Director
Katherine Taylor, Executive Assistant
Fleming Law Building, Room 171
Campus Box 401
Boulder, CO 80309-0401
(303) 492-1286

Natural Resources Law Center Advisory Board

David R. Andrews, Eq.,
McCulchen Doyle. Brown &
Enersen, San Francisco.
Gary L Qrer, Esq.. Sherman
& Howard Denver.
PrfeI or Charle W. Howe,
Department of Economics,
University of Colorado, Boulder.
Dr. Jay Hughes, Dean, College
of Forestry and Natural
Resources. Colorado State
University, Fort Collins.
Profesmo Ralph W. Johnaon,
University of Washington.
School of Law Seattle.
Clyde OMart, Baq. Davis,
Graham & Stubb, Denver.
Charles J. Meyrm Eq.,
Gibson, Dunn & Crutcher,
Raphael J. Moes, Esq.,
Chairman. Moses, Wittemyer,
Harrison & Woodruff, Boulder.
Laurence L Moss, Energy
Design and Analysis,
Estes Park.
William H. Nelson, Esq.,
Nelson, Hoskin, Groves &
Prinster, Grand Junction.
David P. PhIips, Esq.,
Executive Director, Rocky
Mountain Mineral Law
Foundation, Denvr.
Harris D. Shrman, Esq..
Amold & Porter, Denver.
Profesor A. Dan Tarlock,
Chicago/Kent Law School.lllinois
Institute of Technology,

Dr. John Titton, Department of
Mineral Economics, Colorado
School of Mines, Golden.
Gretchen VanderWerf, Esq.,
Hawley & VanderWerf,
John G. Welles, Executive
Director, Denver Museum of
Natural History. Denver.
Professor Oltert F. White,
Department of Geography,
University of Colorado, Boulder.
The Honoble Stephen F.
Williams, U.S. Circuit Judge,
Tenth Judicial
Circuit.Washington, D.C.
Jamee C. Wilson, Energy
Resource Consultant.
Willam Wise, Esq, El Paso
Natural Gas Co., El Paso.
Marvin Wolf, Esq., Wolf
Energy Company, Denver.

Faculty Advisory Committee

Clifford J. Calhoun,
Acting Dean and Professor
of Law
James N. Corbridg, Jr,
Professor of Law (on leave).
Chancellor, University of
Colorado, Boulder.
David H. Getche. Professor
of Law.
D niel Magraw, Associate
Professor of Law.
Courmand H.Peterson,
Professor of Law.
Charles F. Wlkinson,
Professor of Law.

/L. o

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