OURAY – In the face of changing weather patterns and projected water scarcity, the City of Ouray has made a bold move, demanding that the Colorado Division of Water Resources retabulate the water rights within its Division 4 (which encompasses Ouray) to protect the municipality from future water calls by downstream agricultural users in Montrose and Delta counties.
If the effort is successful, the city will be immune to another water call from the Uncompahgre Valley Water Users Association and it’s M&D Canal, such as the one that took place last summer, City Attorney Kathryn Sellars told the Ouray City Council last week.
The City of Ouray may be much further upstream than the M&D Canal’s multiple agricultural users, but proximity to a watershed’s headwaters does not factor into the complicated calculus of Colorado water law. What matters most, under the state’s prior appropriation doctrine, is who filed and adjudicated their water rights first .
As the Colorado Division of Water Resources puts it: “The essence of a water right is its place in the priority system.” And when it comes to priority water rights on the Upper Uncompahgre River, the M&D Canal is the biggest dog in the fight.
Sellars, on behalf of the City of Ouray, argues that back in the 1870s, 80s and 90s when city forefathers started taking (or appropriating) water from the Uncompahgre watershed for what would be considered municipal purposes in today’s terminology, the state’s water adjudication system was set up in a way that inherently favored agricultural users.
The city’s water rights on its municipal source at Weehawken Spring, for example, have appropriation dates as early as 1881, but due to this flawed system, the city was not able to legally adjudicate these rights – or establish them in court – until 1904. The city’s most historic water right, on the Radium Ditch and Pipeline, dates back even further – all the way to 1877 – but records show it was not adjudicated until 50 years later, in 1926.
The most senior rights on the M&D Canal, meanwhile, were filed from 1883-1885 and were adjudicated in 1897 – well ahead of Ouray.
Thus the City of Ouray has been forever saddled with junior water rights compared to thirsty downstream irrigators, who are more and more likely to place a call on the city’s water supply as that water becomes ever scarcer in future years. This is the basic problem which the city seeks to resolve.
CDWR conducts tabulations of water rights throughout its various districts every two years. Water rights holders have one year from the time of the tabulation to object to a particular determination. The last tabulation of water rights affecting the City of Ouray took place in 2012, and the next one occurs in 2014.
The City of Ouray, through Sellars, intends to file an official objection to the CDWR’s 2012 tabulation which enabled the M&D Canal to make a call on the city’s water supply last year.
In a position paper sent to to Division 4 Water Engineer Bob Hurford on June 13 outlining this objection, Sellars related the complicated history of water adjudication in Colorado and exposed special circumstances which, she argued, underline several flaws in the system when applied to Ouray.
Central to her argument is the so-called “subordination clause” in the first general adjudication decree in Division 4 in 1888 which “subordinates” agricultural water uses to so-called domestic water use but has been interpreted narrowly so as not to equate “domestic” with modern-day municipal water use.
If CDWR agrees to retabulate Division 4 water to the City of Ouray’s favor, the administration number for the municipality’s most senior water rights will be tabulated higher than the M&D Canal, thus protecting the city from a future call.
City Administrator Patrick Rondinelli said on Tuesday this week that the city has not yet received an official response from the CDWR regarding the position paper. Next steps could take place within the water court system, he stated in a memo to council.
That may in fact be the city’s best recourse, said Jason Ullman, Assistant Division Engineer for CDWR’s Division 4.
“They can protest the tabulation. Statute allows them to do that,” Ullman allowed. However, he countered, CDWR did not make any mistakes in its most recent tabulation; it was simply following the prior appropriation doctrine as spelled out in Colorado law, and according to the terms of that doctrine, the M&D Canal plainly has senior rights.
“We don’t have the authority to tabulate a water right in the way the City of Ouray is asking,” Ullman argued. “We have told them we would not oppose them if they filed with the water court to request that the seniority of water rights be clarified, and see what the water court judge says. They really need to take the matter to someone who has the authority to direct us to retabulate.”
CDWR’s research has not produced any other examples of other Colorado municipalities in the same situation as Ouray.
“It’s just the way the priority system was developed in Colorado,” Ullman said. “They couldn’t foresee this problem back then. It’s worked well for over 100 years, but there are some quirks in the system. The point is, we would not file an opposition to their request for retabulation, but the court needs to give its blessing to that. Because there is no other municipality in this situation.”
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