Colorado Division of Water Resources issues guidance for implementation of the St. Jude’s ruling

October 4, 2016   |   Real Estate and Real Property, Water Law

Recently, the Division for Water Resources (“DWR”) issued written instructions reflecting the State Engineer’s direction to Division Engineers concerning consultation and administration duties in light of the Colorado Supreme Court’s ruling in St. Jude’s Co. v. Roaring Fork Club.

Briefly, in St. Jude’s, the Supreme Court ruled that a private club could not obtain a direct-flow water right for aesthetic, recreation, and piscatorial use because such uses are not beneficial uses of water under Colorado law. For a more detailed discussion of the St. Jude’s decision, click here.

DWR’s written instructions are intended to address questions that have arisen as a result of the St. Jude’s decision. The most significant takeaway from the written instructions is that the State Engineer appears to be interpreting St. Jude’s narrowly and limiting its application to analogous factual scenarios.

For example, Division Engineers are urged to recommend denial of any claims for recreation, piscatorial, or aesthetic uses for the purposes of re-creating a natural stream on private property, i.e., the same factual scenario presented in St. Jude’s. However, existing absolute water rights for such uses are to be administered per their decrees.

Furthermore, the written instructions say that is unclear how or if St. Jude’s should be applied to other situations, such as the public/municipal context or public and private storage rights. Therefore, the written instructions state that the Division Engineers should not take a position as to whether St. Jude’s applies in those situations.

Importantly, the written instructions do say that as to applications for change of water rights, for findings of reasonable diligence, to make conditional water rights absolute, or for approval of a plan for augmentation that include claims regarding water rights previously decreed for recreation, piscatorial, or aesthetic uses for purposes of re-creating a natural stream on private property, Division Engineers should not oppose an applicant’s request to stay such claims until the end of the 2017 Regular Session of the General Assembly. Some in the water community are hoping that the General Assembly will pass legislation to address some of the questions created by the St. Jude’s decision. It appears that the State Engineer has decided to allow some time to see if the legislative process resolves the outstanding issues.

The written instructions may be revised at any time by the State Engineer and are not binding. The State Engineer and Division Engineers retain the discretion to consider each water court case and well permit application based on its own facts and circumstances. However, the written instructions are helpful to anyone with an existing aesthetic, recreation, or piscatorial right, or that would like to obtain one.