(1) In every case in which the state engineer finds that water can be stored out of priority under circumstances such that the water so stored can be promptly made available to downstream senior storage appropriators in case they are unable to completely store their entire appropriative right due to insufficient water supply, the state engineer may permit such upstream storage out of priority, but such storage water shall be promptly released on demand of a downstream senior whenever needed by such senior for actual use.
(2) Individuals and private or public entities, alone or in concert, may provide a substituted supply of water to one or more appropriators senior to them, not to exceed that to which any senior appropriator is entitled from time to time by virtue of his appropriations, and, to the extent that such substituted water is made available to meet the appropriative requirements of such senior, the right of such senior to draw water pursuant to his appropriation shall be deemed to be satisfied. The rights of such senior may be used for effectuating such substitution during the period while it is in operation, and the practice may be confirmed by court order as provided for determining water rights.
(3) Any substituted water shall be of a quality and continuity to meet the requirements of use to which the senior appropriation has normally been put.
(4) Whenever substitute water is supplied to a senior ditch, the supplier or his assignee may take an equivalent amount for beneficial use from water of the state of Colorado to the fullest extent possible without impairing the availability of water lawfully divertible by others. A practice of substitution or exchange pursuant to law may constitute an appropriative right and may be adjudicated or otherwise evidenced as any other right of appropriation.
(5) In determining the quantity of water required as a substitute supply to replace evaporation from groundwater exposed to the atmosphere in connection with the extraction of sand and gravel by open mining as defined in section 34-32-103 (9), C.R.S., there shall be no requirement to replace the amount of historic natural depletion to the waters of the state, if any, caused by the preexisting natural vegetative cover on the surface of the area which will be, or which has been, permanently replaced by an open water surface. The applicant shall bear the burden of proving the historic natural depletion.
(6) In determining the quantity of water required as a substitute supply to replace stream depletions in connection with any mining operation as defined in section 34-32-103 (8), C.R.S., for which a reclamation permit has been obtained as set forth in section 34-32-109, C.R.S., there is no requirement to replace the amount of historic natural depletion to the waters of the state, if any, caused by the preexisting natural vegetative cover and evaporation on the surface of the area that will be, or that has been, eliminated or made impermeable as part of the permitted mining operation. The applicant bears the burden of proving the historic natural depletion.
Source: L. 69: p. 1196, § 8. C.R.S. 1963: § 148-11-25. L. 89: (5) added, p. 1425, § 4, effective July 15. L. 2012: (6) added, (HB 12-1022), ch. 15, p. 38, § 1, effective August 8.
ANNOTATION
Law reviews. For article, "A Review of Recent Activity in Colorado Water Law", see 47 Den. L.J. 181 (1970). For comment, "Maximum Utilization Collides With Prior Appropriation in A-B Cattle Co. v. United States", see 57 Den. L.J. 103 (1979). For article, "The Emerging Relationship Between Environmental Regulations and Colorado Water Law", see 53 U. Colo. L. Rev. 597 (1982). For article, "The Physical Solution in Western Water Law", see 57 U. Colo. L. Rev. 445 (1986). For article, "Quality Versus Quantity: The Continued Right to Appropriate — Part I", see 15 Colo. Law. 1035 (1986). For article, "Colorado's Law of 'Underground Water': A Look at the South Platte Basin and Beyond", see 59 U. Colo. L. Rev. 579 (1988). For article, "The Constitution, Property Rights and the Future of Water Law", see 61 U. Colo. L. Rev. 257 (1990). For article, "Water Banking: A New Tool For Water Management", see 23 Colo. Law. 595 (1994). For article, "Nutrient Standards for Lakes and Reservoirs: Where Water Quality Law and Water Rights Law Intersect", see 53 Colo. Law. 38 (Jan.-Feb. 2024).
"Quality" requirement of statute is not violated when person slows down movement of water, resulting in the settling of silt to the bottom and leaving only clear water for the senior appropriator. In re A-B Cattle Co. v. United States, 196 Colo. 539, 589 P.2d 57 (1978).
Any substituted water shall be of a quality and continuity to meet the requirements of use to which the senior appropriation has normally been put. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).
Delegation to the state engineer to make the necessary determinations concerning the quality of the substitute water supply is consistent with this statute, which confers certain authority on the state engineer to regulate exchanges in the absence of adjudication by the applicant. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).
The state engineer's water quality control responsibilities are integrated into the general administration of water quality under the Water Quality Control Act. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).
Other than exchanges involving upstream reservoirs, this section does not give the state engineer statutory authority to approve substitute supply plans for out-of-priority diversions when a decreed plan for augmentation is required under § 37-92-305. This section merely gives the state engineer enforcement discretion. Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo. 2001).
Applied in Purgatoire River Water Conservancy Dist. v. Kuiper, 197 Colo. 200, 593 P.2d 333 (1979).