Introduction

Colorado is a headwater state. Of the 158 rivers flowing through it, all but two originate in Colorado’s Rocky Mountains. Major rivers, including the Colorado, the Rio Grande, the Platte, and the Arkansas, arise as small mountain streams that flow through plateaus and high mesas to the west, arid valleys to the south, and rolling plains to the east, before entering neighboring states.^[3] Colorado is the highest contiguous state with an average elevation of 6,800 feet above sea level.^[4] Colorado has fifty-nine mountain peaks 14,000 feet or higher and its lowest elevation, where the Arkansas River crosses into Kansas, is still 3,350 feet above sea level.^[5] Colorado’s semi-arid climate creates seasonal temperature swings from over 100 degrees Fahrenheit in the summer to negative 40 degrees Fahrenheit in the winter.^[6] Agriculture has thrived despite Colorado’s geographical variability and challenging climate, in part because Colorado law permits irrigators to divert water away from the riparian corridor for use on distant, drier, ground.^[7]

Colorado’s diverse cultures, vibrant communities, and recreational opportunities attract new residents at nearly twice the national population growth rate.^[8] This population trend continues to pressure Colorado’s natural resources, particularly land and water resources that are vital to support a booming outdoor recreation and tourism industry and a robust agricultural industry. Annually, agriculture contributes over $45 billion to the economy and creates an estimated 170,000 jobs, making it the second largest industry in Colorado, behind outdoor recreation at $62 billion.^[9]

Agriculture is Colorado’s largest water-consuming sector, utilizing nearly ninety percent of developed supplies compared to seven percent for municipalities and three percent for large industries.^[10] Despite this, only eighty percent of agricultural water needs are currently met across the state.^[11] The predicted future supply gap for agriculture across the state is between 10 million and 13.5 million acre-feet (“AF”).^[12] Wise development and sustainable use of Colorado’s land and water resources is essential to increase prosperity for all Colorado’s economic sectors, bolster its recreational opportunities, preserve its picturesque environment, and ensure the viability of its agricultural industry in a water-scarce future.

This Article analyzes Colorado’s anticipated gap in water supply and demand and examines how agriculture, through cooperation and collaboration, can contribute to addressing this gap while ensuring its own future success. First, this Article reviews how agricultural development has steered the evolution of Colorado’s water laws. Next, this Article explores Colorado’s experience addressing historical supply gaps through engineering and innovation, and permanent transfers of water from agriculture to other uses. Finally, this Article contemplates whether Colorado’s efforts to prioritize cooperative water sharing programs can, with appropriate economic support, meet its supply gaps and solidify agriculture’s role as a leader in addressing water scarcity and changing cultural values.

I. Colorado’s Supply and Demand Gap

Colorado experienced a historic drought in 2002.^[13] Several below-average snowpack and precipitation years caused decreased water supplies state-wide.^[14] Then, April of 2002 brought record-high temperatures and almost no springtime precipitation.^[15] Severe drought set in and continued through the summer months, triggering rapid drawdown of reservoirs, feeble stream flows, wildfires, and severe agricultural impacts.^[16] Colorado needed a plan to address its rapidly growing population in an increasingly dry climate.

Following the drought of 2002, the Colorado Water Conservation Board (“CWCB”) initiated the State Water Supply Initiative (“SWSI,” often pronounced “swah-zee”). SWSI was a technical analysis of water supply and demand projection, including identification of population-driven supply gaps. SWSI considered both individual basin and statewide perspectives, and recommended cooperative and collaborative efforts to identify projects and develop strategies to address identified supply gaps.^[17] SWSI predicted that landowners would remove significant irrigated acreage from production to address forecasted, population-driven, deficiencies in Colorado’s municipal water supplies.^[18]

In 2005, the Colorado legislature passed the Colorado Water for the Twenty-First Century Act, which established nine basin roundtables and the Interbasin Compact Committee (“IBCC”).^[19] The IBCC is a twenty-seven-member committee composed of two members appointed by each of the nine basin roundtables; six members appointed by the governor; one member appointed by the chairperson of the Senate Agriculture Committee; one member appointed by the chairperson of the House Agriculture Committee; and the chair of the committee, the Director of Compact Negotiations, appointed by the governor.^[20] The legislature intended that the IBCC would provide a forum for the nine basin roundtables to provide policy input and coordination on a state-wide level.^[21]

The legislature created the basin roundtables to facilitate “continued discussions within and between basins on water management issues, and to encourage locally driven collaborative solutions.”^[22] The nine roundtables are comprised of local, knowledgeable water leaders representing each of the eight major river basins in the state and the Denver metro area.^[23] Voting members of the roundtables include representatives for conservancy and conservation districts, counties and municipalities, as well as representatives from the industrial, environmental, and agricultural sectors.^[24] The legislature tasked each roundtable to identify water management and supply issues, propose solutions, and report the roundtable’s findings and recommendations in a Basin Implementation Plan (“BIP”).^[25] The BIPs were intended to provide local insight and data from each major river basin for use in updating SWSI; this updated SWSI report is known as the Analysis and Technical Update to the Colorado Water Plan.^[26]

In May 2013, Governor Hickenlooper issued an executive order directing the CWCB to develop the Colorado Water Plan.^[27] First released in 2015, the Colorado Water Plan provides a framework for water supply planning to address present and future water needs and management issues.^[28] The Colorado Water Plan, with input from the basin roundtables and the IBCC, identifies supply gaps for each major water-dependent sector including agriculture, municipal/industrial, and environmental needs.^[29] The identified supply and demand gaps vary by sector and river basin.^[30] The Colorado Water Plan encourages water users to collaboratively manage water development and create cooperative solutions to supply demands.^[31]

The 2023 update to the Colorado Water Plan focuses on four values: (1) vibrant communities, (2) robust agriculture, (3) thriving watersheds, and (4) resilient planning.^[32] To analyze future demands and supply gaps, the Colorado Water Plan utilized five growth scenarios for Colorado with respect to water use: (1) Business as Usual, (2) Weak Economy, (3) Cooperative Growth, (4) Adaptive Innovation, and (5) Hot Growth.^[33] These scenarios assume different rates of economic growth, climatic changes, and water use adaptation and innovation to develop projections for future water supply needs. The Adaptive Innovation scenario—which models conditions under a warmer and drier climate with new technology and increased conservation^[34]—is relevant to this Article’s evaluation of how agriculture can help ensure the vitality of Colorado’s water resources in a water-scarce future through adoption of innovative technology coupled with increased collaboration and cooperation.

The Colorado Water Plan (2023 update) predicts municipal and industrial supply gaps by 2050 of 230,000 AF to 740,000 AF in drought years, depending on the growth scenario.^[35] The estimated municipal and industrial gap under the Adaptive Innovation scenario is approximately 400,000 AF.^[36] The Colorado Water Plan breaks this supply gap down by basin. It predicts that the South Platte River Basin will have the most significant gap, followed by the Arkansas River Basin.^[37] These two river basins encompass two of the highest producing agricultural regions in the state.^[38] The Colorado Water Plan estimates a statewide agricultural supply gap of over 2.5 million AF under the Adaptive Innovation scenario, even assuming significant innovative adaptations.^[39] Despite this, other water users and policy makers often identify senior agricultural water rights as one source of supply to meet the supply gap outside of agricultural demands. Even with technological innovations and conservation practices in agriculture, the Colorado Water Plan predicts that 400,000 to 500,000 acres of agricultural lands will be removed from production due to urbanization, water transfers, or groundwater issues to meet the supply gap across the state.^[40]

II. Agriculture and the Evolution of Colorado’s Water Laws

Historically, the eastern half of the United States allocates and administers water differently than the western half. The eastern United States principally applies the riparian rights doctrine to allocate water between competing users and uses.^[41] Under the riparian rights doctrine, rooted in common law that developed after the Revolutionary War,^[42] the owners of land adjacent to a waterway (i.e., riparian land), are entitled to use a reasonable amount of water.^[43] Non-riparian landowners generally lack any right to use water.^[44] The wetter climate in the eastern United States lent itself to agricultural production without irrigation and its numerous rivers and streams afford many opportunities to access water under the riparian doctrine.

Conversely, supplemental irrigation is commonly required in the western United States. This is especially true to grow most crops in Colorado’s semi-arid climate. Early trappers and traders in the state irrigated small plots of hay and vegetables.^[45] As more people frequented the territory, the demand for hay and forage for their animals increased.^[46] Bent’s Fort, in the southeastern part of the state, served as a primary outpost for supplies for those traveling along the Santa Fe Trail.^[47] During the height of its use between 1833 and 1849, Bent’s Fort was the only major permanent white settlement between Missouri and the Mexican settlements.^[48] Accordingly, the settlers of Bent Fort and other outposts faced a high demand for supplies, including agricultural products. Necessity forced settlers to deliver water long distances from the nearest river. In 1847, settlers constructed the John Hatcher Ditch along the Las Animas River to irrigate 60 acres to grow hay for ox teams traveling the Santa Fe Trail.^[49] Settlers in the San Luis Valley dug the People’s Ditch in 1852 to irrigate communal grazing lands.^[50] Diverting from Culebra Creek, the People’s Ditch is the oldest continuously used, community irrigation system and earliest recognized water right in the state.^[51]

Colorado’s mining industry also spurred significant agricultural demand that contributed to the development of Colorado’s water use system. Territorial Governor Samuel Elbert described the need for increased agriculture to the legislature in the early 1870s: “You cannot work your mines profitable on imported bread. The thousands who now and will hereafter delve in these mountains and lift their glittering treasures to the sunlight, must draw their sustenance from the fertile valleys that lie enveloped in their arms and stretch away from their feet.”^[52] Elbert’s understanding of the critical role that agriculture played in supporting industry led him to found the Western Irrigation Conference in the summer of 1873.^[53]

The territorial legislature recognized that increasing demand for agricultural products required farmers to expand their production beyond the fields adjacent to the waterways in 1861.^[54] That year, the territorial legislature passed a law granting a right of way between an irrigator’s farm and the stream to facilitate delivery and use of water when the “farm or land, used by him for agricultural purposes, is too far removed from said stream.”^[55] In 1872, the Supreme Court of Colorado Territory confirmed this practice and applied the territorial law in Yunker v. Nichols, when it observed that diverting water of streams from their natural channels was necessary in a “dry and thirsty” land to obtain the fruits of the soil.^[56] The court acknowledged that “it has always been the policy of national and state governments to encourage the diversion and use of water for agriculture.”^[57] This territorial law, followed by the Yunker decision, was the first indicator of Colorado’s departure from the riparian rights doctrine. Rather than allotting water rights to landowners adjacent to the river, Colorado would ultimately recognize that unappropriated water is property of the public for use by the people of the state.^[58] Colorado’s Constitution built on the ideas that the territorial legislature had codified in advancing toward the doctrine of prior appropriation and its basic tenet: first in time, first in right.^[59]

A. Basic Tenets of Prior Appropriation

In 1878, just two years after Colorado’s statehood, the Colorado Supreme Court stated in Schilling v. Rominger that “the first appropriator of the water . . . has a prior right to such water, to the extent of his appropriation, is a doctrine that we must hold applicable, in all cases, respecting the diversion of water for the purpose of irrigation.”^[60] Growing demand and drought prompted the legislature to enact the Adjudication Acts of 1879 and 1881,^[61] which gave the judicial branch jurisdiction to determine the relative priorities of water rights and enable their uses accordingly.^[62] The 1879 Adjudication Act enabled county commissioners to consider applications for water rights and gave the judicial branch jurisdiction to determine the relative priorities of water rights and enable their uses accordingly.^[63] The 1881 Adjudication Act built on the statutory provisions of the 1879 Act and served as the state’s method for awarding irrigation decrees for thirty-eight years.^[64]

While the legislature was developing the Adjudication Act of 1879, insufficient flows in the St. Vrain River caused disputes between irrigators that further solidified Colorado as an appropriation state.^[65] In 1882, the Colorado Supreme Court decided Coffin v. Left Hand Ditch Company, confirming several foundational tenets of the doctrine of prior appropriation.^[66] The court expanded Schilling’s embrace of prior appropriation and decidedly confirmed that the riparian rights doctrine is inapplicable in Colorado. ^[67] The court summarized the legislature’s efforts and stated that the “first appropriator of water has a prior right thereto.”^[68] With this statement, the court established that the doctrine of prior appropriation was the law in Colorado and that the earlier appropriator of water has a superior right, or a more senior priority.^[69] To perfect an appropriation, the court required the appropriator to both divert and place water to beneficial use.^[70] Building on its recent decision in Coffin, the court in Thomas v. Guiraud clearly defined the appropriation of water as “the successful application thereof to the beneficial use designed . . .” in its decision.^[71] Given Colorado’s drier climate, an appropriator’s priority may determine whether they receive water at all.^[72]

B. Water Rights as Property Rights

A water right is a usufructuary right; it gives the owner a right to use and enjoy the property without impairing its substance.^[73] The primary value of a water right “is in its relative priority and the right to use the resource” but, unlike other property, not in its continuous tangible possession.^[74] However, a water right retains the characteristic of other property rights in that it can be used, enjoyed, and disposed of at the discretion of its owner (with certain limitations to protect the usufructuary rights of others).^[75] The water rights owner determines the use of the water, location of the use, and the amount necessary to accomplish the goals of that use. These determinations are substantiated through the court process. Once a water user adjudicates its interest in a water right, that water right becomes a vested property right.^[76]

Judicial confirmation of a water right provides its owner a priority to use of a certain amount of water from an identified source for a particular purpose superior to other users who subsequently appropriate interests in that source.^[77] Inherent in the value of a water right and its privileges is the water right owner’s ability to use the “quantity which he has appropriated at any place where he may choose to convey it, and for any beneficial purpose for which he may choose to apply it.”^[78] Recognizing this value of each water right, the court in Fuller v. Swan River Placer Mining Company limited a water right owner’s ability to change where and how he used it to prevent those changes from affecting the value of other water rights.^[79]

C. Changes of Water Rights

A water right owner may change the place and type of use of his water provided the change does not injure other users.^[80] Aligned with the Adjudication Acts of 1879 and 1882, the Coffin court included initial discussions of the “no injury rule” of prior appropriation. The no injury rule prevents an upstream water user from diverting or changing its water right to the detriment of downstream users.^[81] The court discussed the Territorial Legislature’s law that prohibited the diversion of water to the detriment of others along the stream.^[82] The court concluded that the “detriment” to which the law referred could only occur if another water right had been previously appropriated. Read together, the session law and the discussion in Coffin indicate the beginnings of the no injury rule in Colorado water law.^[83]

After the courts and the legislature established the main tenets of prior appropriation, Colorado began to experience more significant water use outside of agriculture.^[84] The state’s growing population required different supplies at new locations.^[85] In over-appropriated basins, water users looked to existing senior rights to satisfy their needs. The acceleration of applications seeking to change water rights from irrigation use to other purposes expanded and refined relevant law.^[86] A water right holder may, subject to the no injury rule, separate his right from the land to which it was originally applied and sell the right to another water user.^[87]

By the 1950s, Colorado case law contained ample authority for approving changes of water rights under a variety of circumstances subject to proper terms and conditions, notwithstanding their usufructuary nature as property.^[88] In a change case, “the applicant must demonstrate that the timing of diversions and the quantity of consumption for the changed use will not exceed those of the perfected appropriation and that return flows of native waters from the decreed use at its place of use—upon which junior appropriators and prospective new appropriators often depend for their supply—will not be diminished.”^[89] In other words, the no injury rule requires a court to impose terms and conditions on changes of water rights to ensure that the supply of water for other water rights is not impaired by the change.^[90]

In 1979, the Colorado Supreme Court first articulated the anti-speculation doctrine in Colorado River Water Conservation District v. Vidler Tunnel Water Company, which requires either the water right holder to demonstrate they have the ability to place the water to beneficial use or they have a firm contract with a third-party that will put the water to beneficial use.^[91] The anti-speculation doctrine is applicable to new appropriations and changes of water rights.^[92]

The amount of water that an applicant can change is limited to the historical consumptive use (“HCU”) of the water right for its decreed purpose at its original place of use.^[93] To quantify the HCU and demonstrate that the change will not injure other water users, the change applicant typically must provide the court with comprehensive engineering demonstrating the consumptive use resulting from actual application of the water right for the decreed beneficial use over a representative and material period of time.^[94] If the court has previously determined the HCU for a water right in a previous change case, the applicant seeking to subsequently change the place or type of use need not requantify it.^[95] Applicants regularly engage attorneys to assist with the water court process to change a water right, which has become more common as water demands shift across the state.

IV. Colorado Begins to Address the Supply and Demand Gaps

Throughout Colorado’s history, population growth on the Front Range and increased agricultural demand on the eastern plains have shaped Colorado’s water laws. Today, ninety percent of Colorado’s population resides east of the Continental Divide and approximately eighty percent of precipitation accrues west of the Continental Divide.^[96] In addition to converting senior irrigation water rights, water users recognized that moving water from one watershed to another was a means to meet the demands of an increasing population.

A. Engineering and Innovation

Two years before the Colorado Supreme Court issued its decision in Coffin, the Otero Canal Company constructed the first transbasin diversion to bring supplemental irrigation to farmers in southeastern Colorado. In 1880, the company constructed the Ewing Ditch over Tennessee Pass (between Eagle and Lake counties) to transport up to 2,400 AF of water from the Eagle River, a tributary of the Colorado River, to Tennessee Creek, a tributary of the Arkansas River.^[97] The same year that Coffin was decided, the Larimer County Ditch Company constructed the Cameron Pass Ditch to bring water from Michigan Creek in the North Platte basin to the Cache La Poudre watershed in the South Platte Basin.^[98] In 1894, Larimer County Water Supply initiated construction on the Grand River Ditch, a transbasin diversion from the Colorado River Basin to the South Platte Basin.^[99]

While Colorado water users may have developed transbasin diversions, the federal government served as their major catalyst. President Roosevelt signed the Reclamation Act on June 17, 1902, to facilitate and fund the construction of water development projects across the West.^[100] Water users that benefitted from the project would repay the government’s construction costs over a period of years.^[101] In 1904, two years after its formation, the United States Reclamation Service, later renamed the Bureau of Reclamation, began to study the feasibility of a project originally proposed by State Engineer E.S. Nettleton that would bring water from the Colorado River to the Big Thompson River or St. Vrain Creek, referred to then as the Grand Lake Project.^[102] The Grand Lake Project was born out of economic depression, drought, and tense relations with neighboring states.^[103] Inspired by New Deal Era policies used to fund a water project in Wyoming, water users in the water-short South Platte River Basin identified the Colorado River Basin as a source of supplemental supply.^[104] In 1931, the State Engineer published a final Grand Lake report evaluating the needs in the South Platte River Basin and the feasibility of a transmountain diversion to address them.^[105]

Shortly thereafter in 1933, Grand Lake Project proponents organized the Grand Lake Committee to draft and submit a funding request to the Bureau of Reclamation.^[106] In 1935, Reclamation allocated $150,000 to survey and estimate the costs of the Grand Lake Project.^[107] When survey reports suggested that the Grand Lake Project was feasible, Grand Lake Project proponents organized northeastern Colorado agricultural water users to form the Northern Colorado Water Users Association as a state proponent to move the Grand Lake Project forward.^[108] As the Grand Lake Project developed, Reclamation renamed it the Colorado-Big Thompson Project (“C-BT Project”).^[109]

As the C-BT Project progressed, Reclamation prepared additional surveys and engineering reports, increasing project costs. At the conclusion of funding negotiations, C-BT Project proponents requested a total of $33.6 million in federal grants and loans,^[110] the equivalent of $760 million in 2023. In 1958, twenty years after construction commenced, the final price of the C-BT Project totaled $162 million.^[111] As the price tag grew, C-BT proponents and beneficiaries realized that payment of such a significant price tag was unattainable by water sales alone. Accordingly, C-BT project proponents lobbied for the creation of a conservancy district with tax powers to generate additional funds to repay project costs to Reclamation.^[112]

Governor Teller Adams signed Colorado’s Conservancy District Act into law in 1937.^[113] Subsequently, C-BT Project proponents formed the Northern Colorado Water Conservancy District (“Northern”) with the primary purpose of working with the United States to construct and fund the C-BT Project.^[114] The United States entered contracts with Northern under which the United States assumed responsibility to construct facilities necessary to deliver Colorado River water under and across the Continental Divide.^[115] The United States retains ownership of the water while Northern administers the water to users via allotment contracts to repay construction costs to the United States.^[116]

Agricultural users in the Arkansas River Basin also looked westward to the Roaring Fork River watershed, a tributary to the Colorado River, for additional irrigation water supplies in a water-short system. Reclamation commenced studies for this “Fryingpan-Arkansas Project” (“Fry-Ark”) in 1936. By 1960, Reclamation estimated that Fry-Ark water would irrigate nearly 300,000 acres of land in the Arkansas Valley, resulting in an annual agricultural yield of nearly $2 million.^[117] President Kennedy authorized construction on August 16, 1962,^[118] and the building of Ruedi Dam and Reservoir began in 1964.^[119] Project facilities extending from the upper reaches of Hunter Creek in the Roaring Fork River basin into the upper Fryingpan River basin deliver water to Boustead Tunnel, which carries it underneath the Continental Divide into Turquoise Lake near Leadville, from which it is further distributed.^[120] The Arkansas Valley Conduit, a 130-mile pipeline intended to serve up to forty communities east of Pueblo, is the latest component of the Fry-Ark Project.^[121] Reclamation began construction in July of 2023 and is working to complete the trunk line by 2030.^[122] The Southeastern Colorado Water Conservancy District (“Southeastern”), formed in 1958, administers repayment of Fry-Ark Project costs and allocates supplemental project water to water users in the Arkansas River basin.^[123]

The Bureau of Reclamation, Northern, and Southeastern were able to accomplish innovative water development projects to meet supply gaps on a scale that individual water users could not. These transbasin projects have supported robust agricultural economies in both the South Platte and Arkansas River basins. This support has helped foster Colorado’s five largest agricultural counties, measured by acres of land in agricultural production today, which are all in the South Platte and Arkansas River basins.^[124] For example, in 1869, the first major irrigation undertaking in Weld County provided water from the Cache la Poudre to irrigate 60,000 acres.^[125] Today, Weld County is home to more than 2.1 million acres of farmland.^[126] The supplemental flows from the Colorado River delivered through the C-BT Project to Weld County have helped make it the top agricultural producing county in the State.

While beneficial, these transbasin projects did not come without a cost. These large diversions created water supply shortages and unhealthy river systems in the basins of origin.^[127] Streambeds depleted by transbasin diversions are often too large for their reduced flows, resulting in degraded aquatic environments and higher water temperatures that impact aquatic species and recreation.^[128] During the summer of 2022, the Colorado River Basin suffered high temperatures and low river flows that increased fish mortality.^[129] The Colorado River Basin contains several Gold Medal fishing designations that are placed at risk by low flow conditions.^[130] Many local economies on the Western Slope rely on rivers to supply water not only for irrigation, but for kayaking and rafting, fishing, and other activities that support real estate values.^[131] The benefits that transmountain diversions provide to major agricultural areas like Weld County are incongruent with their adverse effects in the basins of origin. These adverse effects of transmountain diversions place the two largest economic sectors in the State—outdoor recreation and agriculture—at odds.

The Winter Water Storage Program (“WWSP”) is another example of innovation and collaborative solutions to address future water scarcity. In the mid-1980s, thirteen ditch and/or reservoir companies partnered with Southeastern to develop the WWSP to store water that would otherwise have been diverted by irrigators downstream from Pueblo Reservoir during the winter months for later release and use during the irrigation season.^[132] The participants in the WWSP store their WWSP water in Pueblo Reservoir, Lake Henry, Lake Meredith, Holbrook Reservoir, Dye Reservoir, Adobe Creek Reservoir, Horse Creek Reservoir, the Great Plains Reservoirs and John Martin Reservoir in the percentages determined by the court.^[133] The WWSP has a Board of Trustees, comprised of one representative for each WWSP participant, which meets once a year to discuss winter operations and storage availability.^[134] Establishing the WWSP required substantial collaboration and its ongoing operations require cooperation among the thirteen participating ditch and/or reservoir companies and Southeastern.^[135] Innovative and collaborative solutions, such as the WWSP, help to minimize the permanent removal of acres from irrigated agriculture by increasing resiliency for farmers in the face of increased water scarcity.

B. Permanent Retirement of Irrigated Acreage: Buy and Dry

As Colorado’s population grew and its cultural priorities shifted, water users permanently retired irrigated acreage with increasing frequency to meet growing demands for municipal, industrial, environmental, and recreational water supplies. This practice, sometimes referred to as “Buy and Dry,” involves the purchase of senior irrigation water rights with the intent to permanently dry up the land historically irrigated by the water and change the water right to new places and types of use.^[136]

The Arkansas River Basin has seen substantial Buy and Dry, particularly in relation to water stored in Twin Lakes Reservoir in Lake County. Water users formed the Twin Lakes Reservoir and Canal Company to store and manage water in the Twin Lakes Reservoir for irrigation of approximately 56,000 acres under the Colorado Canal that runs from just east of Pueblo into Crowley County.^[137] Over time, company shareholders sold ninety-five percent of the Twin Lakes Reservoir and Canal Company shares to municipalities.^[138] By 1980, sprawling Front Range cities had purchased almost all the Twin Lakes Reservoir and Canal Company shares.^[139] Today, these transfers to municipal and industrial uses have dried up nearly 60,000 of the almost 300,000 acres formerly irrigated with the Twin Lakes water, with three-fourths of the water going to Colorado Springs, Pueblo, and Aurora.^[140]

The permanent removal of irrigated agriculture through Buy and Dry can have disastrous secondary impacts, of which Crowley County communities are an example. Despite an extended drought from 1950 to 1957,^[141] Crowley County boasted 50,000 acres of irrigated farmland in the 1960s.^[142] Farmers irrigated thousands of acres of fields for sugar beets alone, which supported one of the county’s larger businesses, the sugar factory.^[143] In 1967, the sugar factory closed in the face of bankruptcy, further compounding the difficulties of farming through an extended period of drought.^[144] These elements created the perfect storm to entice many agricultural users to sell their water rights to thirsty municipalities.

Today, Crowley County contains roughly only 4,600 acres of irrigated farmland.^[145] Buyers paid agricultural producers for their water rights; however, it was a one-time payment and often meant the end of a farming operation. Consequently, the county and its communities changed as water left the local farms.^[146] The county lost the tax base necessary to provide essential services, and communities lost main street businesses, supporting agribusinesses, and winter employment for their residents at the sugar factory. ^[147] Neither the water, nor the agriculture, has returned to Crowley County.^[148] As one farmer from Crowley County commented in retrospect: “When we sold our water, we sold our future.”^[149]

Permanent removal of irrigation water can also have adverse impacts on the environment. Agricultural land removed from irrigation does not spontaneously return to native vegetation, and soil conditions often suffer when irrigation ceases.^[150] Court-imposed revegetation requirements have proven difficult to enforce and many dried-up farms were overcome by noxious weeds and suffered eroding topsoil.^[151] Thousands of acres of once-fertile farmland is now brown and lifeless^[152] resulting in loss of habitat supporting many wildlife species. Recognizing these problems, the Colorado General Assembly passed Senate Bill 92-92.^[153]

Senate Bill 92-92 requires water judges to include terms and conditions in change cases that ensure revegetation of de-irrigated lands.^[154] The Colorado Supreme Court discussed the importance of this development in the law in Thornton v. Bijou Irr. Co. when it stated:

[t]he change in use of a water right from irrigation to other purposes often results in serious detrimental consequences for the land no longer receiving water. In 1992, the General Assembly stressed the importance of mitigating these negative effects by enacting a statute requiring conditions on such changes in use that ensure the revegetation of the dewatered lands.^[155]

Today, revegetation is a required condition for court approval in all change cases involving permanent dry-up of irrigated acreage.^[156] Nevertheless, revegetation does not address broader economic, community, and environmental impacts of Buy and Dry practices. The experience of Crowley County illustrates the need for alternatives to Buy and Dry, several of which are being developed.

V. Colorado’s Future: Collaboration, Cooperation, and Compensation

Colorado’s water community has recognized that collaboratively managed water development and cooperative solutions are necessary to meet supply gaps and protect Colorado’s future. The basin roundtables, the IBCC, and the Colorado Water Plan began to explore alternatives to traditional Buy and Dry to meet supply gaps while maintaining vibrant communities, robust agriculture, thriving watersheds, and resiliency in the face of a water-short future.

A. Conservation-Irrigation Efficiency Practices

There is a perception that agricultural producers could conserve enough water to meet the supply gaps identified in the Colorado Water Plan by simply switching to more efficient application methods and reducing delivery losses by lining ditches and canals. The Colorado Water Plan, however, building on the SWSI, estimates that Coloradans only have the potential to conserve between 160,000 AF and 460,000 AF by 2050, a fraction of the anticipated supply gap.^[157] Accordingly, conservation alone is insufficient to meet Colorado’s supply gaps, but it is an important tool to build resiliency. Agricultural producers have been innovative participants in planning for a water-scarce future. Their efforts have influenced Colorado’s water laws from the state’s territorial days to today’s Collaborative Water Sharing Agreements (“CWSAs”).^[158]

The agricultural sector has increased its resiliency in response to drought, declining groundwater levels, compact compliance restrictions, and urban water transfers by implementing measures to reduce the amount of water applied to crops while simultaneously working to increase crop production. Agricultural users are experimenting with drought-tolerant crops and alternative forages, employing more efficient application practices, and utilizing technology such as Colorado Agricultural Meteorological Network weather stations, to calculate evapotranspiration values and schedule application of limited water supplies with greater precision and benefit.^[159]

Center pivot irrigation systems continue to replace flood or gated pipe irrigation methods. When an agricultural producer irrigates using flood irrigation, only about fifty percent of the water applied is utilized by the plant.^[160] Center pivot irrigation increases this amount to approximately eighty-five percent.^[161] Although center pivot sprinklers are significantly more efficient, newer technologies can conserve even more water while increasing crop yield. Several of these were developed in Colorado, such as the Dragon-Line. The Dragon-Line is a central pivot irrigation system that has been adapted with water lines that move along the ground rather than apply water from above the crops.^[162] This mobile drip irrigation system further improves efficiency beyond traditional center pivot sprinkler systems.^[163]

The Subsurface Irrigation Efficiency Project in Weld County is studying water application methods to determine the minimum application rates necessary for optimum crop production.^[164] The project is evaluating a subterranean drip line that applies water and fertilizers directly to plant roots, thereby eliminating evaporative losses.^[165] Although subsurface irrigation is not new to Colorado, the Subsurface Irrigation Efficiency Project is specifically evaluating ways to further increase efficiency by advancing subsurface application to respond more effectively to drought conditions in a water-scarce future.

While conservation practices are beneficial in reducing the amount of water necessary for optimum crop production, they do not generate transferable yield available to meet supply gaps in other water use sectors. The amount of legally transferrable water remains limited to HCU. An agricultural producer cannot transfer conserved water to new uses under Colorado law. Because agricultural producers cannot profit by selling conserved water, funding assistance is critical for implementation of widespread conservation technologies.

In 2021, the State Legislature passed House Bill 21-1242, creating the Agricultural Drought and Climate Resilience Office in the Colorado Department of Agriculture.^[166] House Bill 21-1242 directs this office to support and assist agricultural producers in implementing practices that minimize the impacts of climate change.^[167] The Saving Tomorrow’s Agricultural Resources (“STAR”) program is one example of the assistance the office provides. The STAR program provides financial and technical assistance to producers to implement new practices on a limited or trial basis for potential adoption across their entire operation.^[168] STAR program goals include improving soil health, water quality, and water availability.^[169]

Funding assistance is essential to ease financial hurdles associated with implementing new water-efficient technologies to increase resiliency and reduce the amount of agricultural acreage permanently removed from irrigation. Agricultural producers are building new funding partnerships, both public and private, to bring these technologies within reach.

B. Collaborative Water Sharing Agreements

CWSAs, formerly known as Alternative Transfer Methods, provide opportunities to address water supply needs in ways that minimize permanent reduction of irrigated agriculture to avoid the adverse secondary impacts of Buy and Dry.^[170] CWSAs can benefit a variety of water users, not just municipal and industrial interests. For example, a CWSA may facilitate the lease of water to maintain minimum stream flows to benefit the aquatic environment or to support peak flows for threatened and endangered aquatic species. CWSAs may also supplement recreational flows and reservoir levels to support Colorado’s outdoor recreational industry or, potentially, involve leases to the State for compact compliance or other interstate deliveries.

C. Interruptible Water Supply Agreements

Interruptible water supply agreements (“IWSAs”) allow two water users to enter into what is effectively an option contract.^[171] In 2003, the IWSA was one of the first CWSAs to be codified by the Colorado General Assembly as an immediate response to the 2002 drought.^[172] The legislature found that “there are certain circumstances under which administrative approval of the use of interruptible water supply agreements can maximize the beneficial use of Colorado water resources without the need for an adjudication and without injury to vested water rights or decreed conditional water rights.”^[173] An IWSA allows the HCU portion of a water right to be used in a different place and for a different type of use on a temporary basis, without permanently changing the place or type of use of the right.^[174] The State Engineer is responsible for the approval and administration of these agreements.^[175]

Each IWSA application must contain “a quantification of the historical consumptive use of the water right, an accurate description of the land where the water is decreed for use, and, if the loaned water right is being used for irrigation, a plan to prevent erosion and blowing soils, and a description of compliance with local county noxious weed regulations and other land use provisions.”^[176] The IWSA application must also contain a detailed written report, prepared by a professional engineer or other qualified professional, who “evaluates the historical consumptive use, return flows, and the potential for material injury to other water rights relating to the interruptible water supply agreement and that proposes conditions to prevent such injury.”^[177] A formal hearing is not required before approval of an IWSA.^[178]

Prior to approval of an IWSA, the applicant must provide written notice of the application to the substitute water supply plan notification list for the division or divisions in which the water right is located and which it will be used.^[179] Owners of water rights have thirty-five days following notice to file comments on the operation of the IWSA, including any claims of injury or requests for terms and conditions to protect against injury.^[180] The State Engineer, in approving IWSAs and formulating terms and conditions for operating the agreement, applies the same no injury rule to this temporary transfer as is applied in the water court process to prevent injury to other vested water rights or decreed conditional water rights.^[181] The State Engineer must also make a finding that the operation and administration of the IWSA will not impair compliance with any interstate compact.^[182]

An IWSA is limited to a term of ten years, and the water can only be applied to the new place and type of use for three of these ten years.^[183] The water right owner, typically an agricultural water user, must cease use of the right when the user with whom they have contracted elects to use the leased water under the IWSA.^[184] The water right owner must provide notice to all parties who filed comments with the State Engineer during the IWSA approval process by March 1st of any year that the option is exercised.^[185] Participants in an IWSA can renew the agreement for a second ten-year term if they did not exercise the IWSA during the original ten-year term.^[186]

Agricultural producers have not favored IWSAs for three primary reasons. First, the IWSA arrangement is burdensome and unpredictable. The IWSA encumbers the water right for ten years, even though the lease can only be exercised for three of those ten years. The agricultural producer may not know which of the ten years the lease will be exercised, if at all. Second, the IWSA’s March 1st deadline for the lessee to provide notice of the intent to exercise the lease is insufficient time for the agricultural producer to plan and adjust. By March 1st, many agricultural producers have already begun preparing the ground and purchasing seed, fertilizer, or inputs necessary for the growing season. Third, lease rates in IWSA contracts have not historically tracked commodity prices. In any year over a ten-year term, commodity prices may exceed the IWSA lease price, making uninterrupted use of the water for agricultural production more valuable than the lease. Additionally, the statutory requirement to provide detailed written engineering reports with every IWSA application creates significant upfront costs. These costs alone may prohibit an agricultural producer from participating in an IWSA.

The ten-year contract limitation also discourages municipal water suppliers from entering IWSAs. Municipal suppliers need firm yield security and predictability. IWSAs, with their short terms and operational limitations, do not facilitate predictable and secure long-term supply planning. For this reason, Buy and Dry and permanent ownership of the water right is often a more desirable option for municipalities. Division of Water Resources records indicate that the State has approved few IWSAs since passage of the IWSA statute in 2003.^[187]

D. Fallowing-Leasing Pilot Projects

In 2013, the Colorado legislature authorized the CWCB to provide financial, technical, and other assistance to facilitate fallowing-leasing pilot projects as an alternative to traditional Buy and Dry.^[188] The legislature intended to use the pilot projects to study the feasibility of water delivery to other users for temporary use and evaluate a streamlined approach to implement these projects.^[189] In particular, the CWCB is studying the use of standardized accounting and administrative tools for determining HCU, return flow obligations, and conditions to prevent injury to other water rights.^[190]

The requirements for administratively approved fallowing-leasing pilot project closely mirror those of an IWSA. An approved project can only fallow the same parcel of land for three out of ten years.^[191] The program also prevents fallowing more than thirty percent of a single irrigated farm for more than ten consecutive years.^[192] These restrictions ensure that portions of land will remain in agricultural production, thus addressing one economic impact of Buy and Dry, but commensurately limit the water supply available for lease.

Two examples of fallowing-leasing projects are (1) the Catlin Canal Fallowing-Leasing Project, created by the Lower Arkansas Water Conservancy District and the Lower Arkansas Valley Super Ditch Company; and (2) the Colorado Springs Utilities Fallowing-Leasing Pilot Project between the Lower Arkansas Valley Super Ditch Company and Colorado Springs Utilities. ^[193] These projects are associated with “Super Ditch,” which is an entity formed to aggregate and organize water supplies for lease to municipalities and other water users under CWSAs.^[194] Super Ditch is actively negotiating new CWSAs and promoting partnerships and collaborative solutions necessary to meet the supply gaps and provide greater resiliency.

Participants in fallowing-leasing programs are required to pay an application fee and all costs incurred to administer the program.^[195] These costs are significantly less than the expenses associated with the historical use analysis required for a traditional water court change application or IWSA application, due to use of streamlined modeling tools. However, fallowing-leasing pilot projects are limited and share similar barriers to widespread acceptance as the IWSAs.

E. Substitute Water Supply Plans

Following the 2002 drought, the State legislature expanded the State Engineer’s authorization to approve substitute water supply plans (“SWSP”).^[196] SWSPs may be used to circumvent the water court process for temporary changes in the place and type of water use for one to five years.^[197] Alternatively, water users may use SWSPs in conjunction with a change of water right that is pending in water court to implement the new place or type of use prior to final adjudication of the change.^[198] Water users frequently implement SWSPs due to their flexibility.^[199]

Although SWSPs initially addressed the need to augment out-of-priority diversions that occurred before the water court’s approval,^[200] they have evolved to allow water users to move and change water rights, if only temporarily, on an expedited basis. SWSPs are suitable for addressing emergencies affecting public health and safety, and for the use of an agricultural water protection water right (discussed below).^[201] The application process for an SWSP involves public notice and a thirty-five-day comment period.^[202] The application requirements and approval process vary depending on the purpose for which the SWSP is being requested.

SWSPs can provide short-term financial benefits to agricultural users willing to make supplies available to municipal providers seeking to fill immediate gaps, particularly because they can be designed to be more reactive to market conditions than other CWSAs. Although a useful tool, SWSPs used in isolation do not address long-term supply needs for a growing population in a water-scare future due to their temporary duration. Accordingly, the best use of an SWSP may be as a component of a larger CWSA.

F. Agricultural Water Protection Right

Agricultural water protection rights (“AWPR”) permit water rights owners to change up to fifty percent of a water right from irrigation use to undetermined non-agricultural uses.^[203] The water right owner can lease the changed portion to another, possibly unidentified, end-user.^[204] The AWPR is intended to relax the anti-speculation doctrine by requiring a firm contract with the end user prior to approval of the change of water right unlike traditional changes of water rights. ^[205] AWPR are currently limited by statute to use in the South Platte and Arkansas River basins.^[206] The Colorado River Drought Task Force, organized by Senate Bill 23-295, recommends expanding AWPRs to all of Colorado’s river basins in their December 15, 2023 Final Report.^[207]

The legislature codified the AWPR in 2016 in response to the need for additional conservation efforts and collaborative solutions to meet supply gaps identified in the Colorado Water Plan.^[208] Unlike traditional Buy and Dry, the water is not permanently severed from the land.^[209] The AWPR is designed to simultaneously preserve agricultural irrigation while increasing flexibility and creating a more responsive market for agricultural water leases.^[210] The AWPR provides an opportunity for agricultural water users to react quickly to climatic and market conditions to make water available for lease, loan, or trade on short notice. In this way, the AWPR is more flexible and advantageous to the water right owner than other CWSA options. The downside of these benefits is the initial upfront cost of obtaining water court approval for the AWPR. However, water leased under an AWPR is limited to use in the water division in which it was historically used.^[211] This restriction prevents use of an AWPR in a transbasin operation and may prevent AWPR participants from maximizing the lease value of the changed water right. This restriction appears to be a political accommodation rather than an effort to prevent injury to other water users.

AWPR designations require water court approval.^[212] In approving an AWPR designation, the water court must (1) quantify historical diversions and the HCU of the water being changed, (2) specify return flow obligations, and (3) establish terms and conditions for operation of the AWPR.^[213] After obtaining the water court AWPR designation, the water right owner must then apply for a SWSP prior to delivering the leased, loaned, or traded portion of the AWPR to a new point of diversion and for a new use.^[214] The AWPR owner is required to identify the specific beneficial use for which the changed water will be used in the SWSP application.^[215] The same notice and thirty-five-day comment period that applies to AWPRs in other SWSPs also applies to SWSPs involving AWPRs.^[216]

Following approval of the SWSP for delivery of the AWPR, the water right owner must participate in a conservation program to ensure that the non-leased water continues to be used for agriculture.^[217] The water right owner can do this through an established federal, state, or local government conservation program, or a new agricultural water protection program (“AWPP”).^[218] The AWPR statute tasks the CWCB with developing guidelines and minimum criteria for AWPPs.^[219] In conformance with the CWCB’s guidelines and criteria, an eligible entity, including a water conservation district, water conservancy district, irrigation district, municipality, or ditch and reservoir company,^[220] proposes, sponsors, and operates the AWPP.^[221] The goal of this requirement is to help ensure that the water right owner continues to use the portion of water not leased for agricultural purposes.^[222]

The AWPR is a recent addition to the CWSA toolbox and requires significant upfront investment from the water right owner. The water court process, including the requirements to quantify HCU based on site-specific farm deliveries, can be complex and usually requires assistance from an engineer and an attorney.^[223] The services of these experts can be cost-prohibitive. Without a firm contract, an AWPR applicant does not have the certainty that future leases will be sufficient to recoup the costs associated with the change process. To date, no Colorado water user has attempted to obtain an AWPR designation and no AWPP have been created.^[224]

Additionally, the water system structure in the South Platte and Arkansas River basins, where the AWPR statute applies, does not encourage broad participation. In these basins, many agricultural producers obtain water through mutual ditch companies. A mutual ditch company owns the record title in the water right as a fiduciary on behalf of its shareholders, sometimes referred to as “naked title.”^[225] Shareholders, in turn, have a right to use that water.^[226] Shareholders retain the traditional ownership interests in the water right, including the right to change the place and type of use of the water right unless contractually waived.^[227] Requests by shareholders to change their water rights, including obtaining an AWPR designation, may be subject to approval by the company’s board of directors in accordance with the ditch company’s bylaws increasing upfront costs for potential AWPR participants.^[228]

This approval process, often referred to as a “Catlin” approval in reference to the decision in Fort Lyon Canal Co. v. Catlin Canal Company, is designed to protect mutual ditch company shareholders from changes of water rights by other shareholders.^[229] This process recognizes that shareholders have a contractual relationship with one another and this contract, as articulated in the company’s bylaws, can impose additional restrictions on the use, conveyance, or change of water rights.^[230] The Catlin approval process requires the change applicant to comply with these restrictions and to include protective terms and conditions in the change decree as a condition of company approval of the proposed change.^[231] After obtaining approval from the ditch company, the shareholder seeking to change the water rights represented by its shares must then proceed through the water court process.^[232]

Conversely, the mutual ditch company structure may provide greater opportunity for broader participation by interested shareholders in an AWPP, created and administered by the mutual ditch company.^[233] A mutual ditch company could employ its organizational resources, operational expertise, and powers of assessment against shareholder stock^[234] to create an economy of scale necessary to affordably effectuate an AWPP for participating members. The best-case scenario may be a ditch-wide quantification of HCU and designation as an AWPR, allowing for the broadest shareholder participation. However, equitable and legal concerns complicate obtaining a ditch-wide quantification and designation as an AWPR absent unanimous shareholder participation. Issues such as allocation of expense between participating and non-participating shareholders, and the potential HCU quantification of non-participating shareholders that may occur through ditch-wide analysis,^[235] pose equitable and legal concerns. Despite these challenges, several ways in which mutual ditch companies can lead the development and participation in CWSAs are explored in the following sections.

The CWSA alternatives to Buy and Dry summarized above were each intended to address barriers to temporary transfers and reduce Buy and Dry transactions. The fallowing-leasing pilot projects were introduced to streamline the leasing process by utilizing a conservative model to determine HCU. The SWSP provides increased flexibility by shortening and concentrating the lease duration to one to five years as defined by the agreement, instead of the IWSA and fallowing-leasing pilot project’s three in ten-year format. Finally, the AWPR provides the greatest flexibility to react to a changing market while maintaining production on at least fifty percent of the irrigated acreage. The relatively low levels of interest in utilizing these CWSA processes suggests that additional work needs to be done to make water sharing partnerships the standard rather than the exception. As CWSAs continue to evolve, the law must also progress to reduce barriers to participation, increase their viability, and demonstrate that agricultural innovation and partnerships will always play a key role in the evolution of Colorado’s water law.

VI. Building on Existing Partnerships and Exploring New Opportunities

Trust, or the lack thereof, between agricultural water users and water users in other sectors is another barrier to developing new partnerships and collaborative solutions. Informed by history, such as the Crowley County example above, the agricultural sector perceives that cities, recreational interests, and environmentalists are targeting conversion of agricultural water rights to fill their sectors’ supply gaps. Building trust between water use sectors through partnerships that recognize the value of the water as applied for its original use and the uses allowed under CWSAs and fairly compensating farmers for the use of their water is necessary to achieve the Colorado Water Plan’s goals of maintaining vibrant communities, robust agriculture, thriving watersheds, and resilient planning while addressing the forecasted supply gaps.

A. Cooperation, Collaboration, and Building New Partnerships

New partnerships are developing to address supply gaps with coordinated administration of water supplies and collaborative solutions. The North Sterling Irrigation District, located in the South Platte River basin, partnered with Xcel Energy and Tallgrass Energy to develop IWSAs benefiting landowners within the District during a downturn in commodity prices.^[236] Under those agreements, Xcel Energy and Tall Grass have agreed to pay the North Sterling Irrigation District a base rate to have water available for their use.^[237] When the energy companies decide to exercise their lease, they pay an additional fee to North Sterling for the actual water use.^[238] This agreement benefits both sides because it ensures an available supply for the energy companies while adequately compensating agricultural producers for encumbering their water rights for ten years under the IWSA and for the actual use of the water.

In the Arkansas River basin, Colorado Springs Utilities (“CS-U”) is working with farmers in Bent County to develop CWSAs anchored in innovative partnerships, conservation efforts, and careful planning.^[239] CS-U’s Bent County water sharing program finances installation of center pivot sprinklers on historically flood irrigated farms to increase irrigation efficiency and crop productivity while improving water quality in the lower Arkansas River. The water historically used to irrigate the corners of fields where the center pivot irrigation systems are installed is conveyed to CS-U for use within its service area. ^[240] In addition, CS-U leases the entire water right in three out of ten years, with the expectation that the lease option will be exercised in wet years following one or more dry years, to replenish depleted storage reservoirs.^[241] In years that CS-U does not need the water it acquired from dry-up of the corners of these farms, CS-U plans to lease the water back to farmers in Bent County. This collaborative water sharing program enables CS-U to acquire firm yield supplies through agricultural transfers while minimizing permanent reduction in irrigated agriculture and the associated socioeconomic impacts of traditional Buy and Dry.^[242] The agricultural user benefits from a more efficient irrigation application method to maintain or even improve crop productivity without having to finance the entire efficiency system improvement.

Partnerships that include infrastructure investment will encourage greater participation in CWSAs. The agricultural sector is struggling with aging delivery infrastructure and the need to install efficiency improvements and repair existing storage facilities. Colorado Water Plan grants, for example, prioritize funding for water development projects that support multiple beneficial uses.^[243] Partnerships with Colorado Parks and Wildlife,^[244] Trout Unlimited,^[245] and similar organizations can fund infrastructure improvements such as headgates that include fish passages to encourage spawning, channel stabilization projects to reduce erosion and flood hazards while improving habitat for aquatic and riparian species, and creating improved recreational opportunities. For example, Trout Unlimited partnered with Colorado Parks and Wildlife to install a fish passage channel on Elk Creek around the Ware and Hinds irrigation diversion structure.^[246] This project demonstrates fruitful cooperation between agricultural producers, environmentalists, and recreationalists by expanding fishing opportunities, improving aquatic habitat, and preserving agricultural operations. Existing storage facilities that have historically served only agricultural users can be utilized to store water for other sectors, such as the North Sterling Irrigation District and Xcel Energy partnership described above.

B. Further Development of Water Markets to Encourage Short- and Long-Term Leasing

Agricultural producers fiercely defend their property rights, including the right to profit from the sale of their water rights. As discussed above, agricultural water users have resisted entering into CWSAs due to risks involved in entering into ten-year agreements for lease of the water based on fixed per AF pricing rather than tracking the commodity prices. Recognizing that agricultural water users view their water as an additional commodity to be marketed in a manner that improves the overall farm finances is necessary to increase participation in CWSAs.

The Little Thompson Farm in Larimer County is an example of how CWSAs can be structured to encourage long-term leasing while eliminating the risk associated with fixed-rate leases. Larimer County purchased a farm southwest of the Town of Berthoud to prevent a traditional Buy and Dry transaction.^[247] Larimer County entered into a CWSA with the City of Broomfield to bolster Broomfield’s water supply.^[248] The IWSA between Larimer County, as the owner of the water rights, and the City of Broomfield includes a lease rate escalator, which considers supply and demand, and component indices (corn and municipal cost index) to periodically adjust the rate that Broomfield pays Larimer County when it exercises its lease option.^[249] This approach becomes effective in 2028, ten years after the initiation of the CWSA, to ensure that neither side is paying or receiving too much or too little.^[250] Agricultural producers are accustomed to marketing their products in markets that experience significant price swings daily, monthly, and yearly depending on factors beyond their control. Incorporating lease rate escalators is a step in the right direction, but creation of a more responsive market for leasing water would encourage more widespread participation.

Water supply planning for Colorado’s vibrant communities utilizes fifty years or greater planning horizons.^[251] In contrast, agricultural producers need to be responsive to climatic conditions, market conditions, and individual farm circumstances including the availability of farm workers, seeds, chemicals, and other necessary inputs in making decisions on a seasonal basis. Creating a secure water market exchange that connects end-users with willing agricultural lease participants that encourages both short-term and long-term leases will provide greater opportunity to address supply gaps. Where a municipality may prefer a long-term lease for greater firm-yield security, recreational and environmental sectors may prefer more short-term leases that are responsive to climatic conditions. Agricultural producers experiencing supply gaps could also lease water on the exchange from other agricultural producers. The implementation and administration of a secure water market exchange requires coordination and financing beyond that available to individual CWSA participants.

Title 37 of the Colorado Revised Statutes provides for the organization of irrigation districts, water conservancy districts, and four water conservation districts (the Colorado River Water Conservation District, the Southwestern Water Conservation District, the Rio Grande Water Conservation District, and the Republican River Water Conservation District).^[252] Each of these entities has taxing authority and each generally has a legislative purpose to develop water supplies for beneficial use within the State.^[253] These organizations can provide the resources necessary to initiate, implement, and coordinate CWSAs on a broad scale. In developing cooperative solutions to address the supply gap in a water-scarce future, these quasi-governmental entities could also eliminate another prominent barrier to participation in CWSAs: the engineering requirements and costs. Cooperation with an entity could better guarantee the agricultural producer’s investment. These entities, as an intermediary between the water right owner and end user, can facilitate negotiations for the lease, loan, or trade agreement to better serve both users’ needs, including ensuring that the water rights owner is adequately compensated.

Private enterprise is another option for developing a water market exchange and overcoming barriers to implementation of large-scale CWSAs. However, this avenue has inherent risks as these enterprises would be operating the exchange for profit rather than to fulfill a statutory purpose to develop water supplies for beneficial use within the State. The investment potential in senior water rights has not gone unnoticed in the face of dwindling supplies for a rapidly growing population in the western United States. The New York Times quoted the president and co-founder of a hedge fund acknowledging that the water market is a “trillion-dollar market opportunity.”^[254] Investment vehicles, such as Water Asset Management’s Global Water Equity Fund based in New York City, are acquiring water rights and agricultural acreage pursuant to an investment strategy that predicts future water scarcity and increasing demand.^[255] Private water market exchanges would need to be strictly regulated in light of Colorado’s recognition that “[t]he water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided.”^[256]

C. Outside Pressures

As the western United States experiences more frequent and prolonged droughts, headwater states like Colorado face increased pressure to conserve water.^[257] Critical infrastructure at the Glen Canyon and Hoover dams that provides water and electricity to vast portions of the western United States has been at the core of recent water conservation discussions. Although the supply and demand issue along the entire length of the Colorado River could be an entire article itself, a brief discussion of the issue as pertinent to this article is below.

In the summer of 2022, the Department of the Interior began applying increasing pressure on the Colorado River Basin States, particularly the Lower Basin States, to reduce water consumption.^[258] The Department of the Interior is moving through the National Environmental Policy Act process to produce a Supplemental Environmental Impact Statement that includes guidance for future operations and water management along the Colorado River.^[259] Consequently, Colorado faces pressure to conserve water within and tributary to the Colorado River, to flow downstream to operate the Glen Canyon and Hoover Dams.

The Upper Basin States are exploring potential conservation solutions through the System Conservation Pilot Program.^[260] Colorado is encouraging its residents to temporarily, voluntarily conserve water for compensation.^[261] Colorado is not the first state to consider a demand management program.^[262] The Lower Basin States are facing additional pressure from the Department of the Interior and several have already enacted water reduction measures.^[263] In Arizona, water providers raised delivery rates to municipal entities by twenty percent for fiscal year 2022 to offset lost agricultural revenues that resulted from demand management practices.^[264] A contemplated federal demand management program suggests that financial incentives will be provided to agricultural users who cease using water.^[265] Agricultural producers are skeptical that demand management is a viable strategy and they fear that its failure will promote further Buy and Dry.^[266]

Conclusion

Throughout the history of Colorado’s water law, agriculture has been at the forefront of legal, technological, and policy advances. Further innovation in agriculture, in combination with strategic economic support and new CWSA opportunities, can enable agricultural users to continue to lead and prepare Colorado to conserve water for its growing population, preserve its environment, bolster its outdoor recreation industry, and fortify its water supplies for a future of unknown challenges in the greater Colorado River Basin.

1. *Partner at Balcomb & Green; J.D. 1998, University of Colorado Law School. ↑
2. **Associate at Balcomb & Green; J.D. 2022, University of Denver Sturm College of Law. ↑
3. Colorado, Nat’l Wild & Scenic River System, https://www.rivers.gov/colorado (last visited Jan. 7, 2024). ↑
4. N. J. Doesken, et al., Climatology of the United States No. 60: Climate of Colorado, Colo. State Univ. Climate Ctr., https://climate.colostate.edu/climate_long.html (last visited Jan. 2023). ↑
5. Id. (3,500 feet, approximately). ↑
6. Id. ↑
7. See Yunker v. Nichols, 1 Colo. 551, 552 (1872). ↑
8. 2020 Census: Percent Change in Resident Population for the 50 States, the District of Columbia, and Puerto Rico: 2010 to 2020, U.S. Census Bureau (Apr. 27, 2021), https://www.census.gov/library/visualizations/2021/dec/2020-percent-change-map.html. ↑
9. Press Release, Colorado Farm Bureau, An Introduction to Colorado Agriculture (Mar. 18, 2022), https://www.coloradofarmbureau.com/2022/03/18/an-introduction-to-colorado-agriculture/; Where Trail Meets Trade, Outdoor Recreation, Colo. Off. Econ. Dev. & Int’l Trade, https://choosecolorado.com/key-industries/outdoor-recreation/ (last visited Jan. 7, 2024). ↑
10. Colorado Water Conservation Bd, Colorado Water Plan: Executive Summary 4 (2023) (hereinafter “Colorado Water Plan”). ↑
11. Id. at 50. ↑
12. Id. at 41. ↑
13. U.S. Drought, Nat’l Oceanic & Atmospheric Admin., https://www.ncei.noaa. gov/access/monitoring/monthly-report/drought/200213 (last visited Feb. 28, 2024). ↑
14. Roger Pielke & Nolan Doesken, 2002 Drought History in Colorado, Colo. Climate Ctr. 5 (Aug. 2005). ↑
15. Statewide Rankings, April 2002, Nat’l Oceanic & Atmospheric Admin., https://www.ncei.noaa.gov/access/monitoring/climate-at-a-glance/statewide/rankings/5/pcp/200204 (last visited Feb. 28, 2024). ↑
16. See Colorado Water Plan, supra note 8, at 32. ↑
17. Mollie Schreck, Statewide Water Supply Initiative Update, Water Educ. Colo. (Oct. 5, 2017), https://www.watereducationcolorado.org/publications-and-radio/blog/ statewide-water-supply-initiative-update/. ↑
18. Colorado Water Conservation Board, Statewide Water Supply Initiative 2010 4-26 (Jan. 2011). ↑
19. H.B. 1177, 65th Leg., 1st Reg. Sess. (Colo. 2005) (codified as Colo. Rev. Stat. §§ 37-75-103, -104). ↑
20. Interbasin Compact Committee, Colo. Water Conservation Bd., https://cwcb. colorado.gov/about-us/interbasin-compact-committee (last visited Feb. 28, 2024). ↑
21. Colo. Rev. Stat. § 37-75-105(1)(a). ↑
22. Id. § 37-75-104(1)(a). ↑
23. Id. § 37-75-104. ↑
24. Id. ↑
25. Basin Implementation Plan Guidance, Colo. Water Conservation Bd., https://dnrweblink.state.co.us/cwcb/0/doc/172522/Electronic.aspx?searchid=da8f2c6c-3efa-48d6-a43e-892b5c2bd750 (last visited Feb. 28, 2024). ↑
26. Colorado Water Plan, supra note 8, at 15. ↑
27. Brooke Maddaford, The Colorado Water Plan, Legislative Council Publ’n 14-10 (Sept. 2014), https://leg.colorado.gov/sites/default/files/14-10colorado_water_plan_issue_brief98149350.pdf. ↑
28. See Colorado Water Plan, supra note 8, at 9. ↑
29. See id. ↑
30. Id. ↑
31. See id. ↑
32. Id. at 8. ↑
33. Id. at 22. ↑
34. Id. at 50. ↑
35. Id. at 45. ↑
36. Id. ↑
37. Id. ↑
38. Id. at 46. ↑
39. Id. at 47. ↑
40. Id. at 50, 192; Analysis and Technical Update to the Colorado Water Plan, Colo. Water Conservation Bd. xxv, xxvii (2023), https://dnrftp.state.co.us/CWCB/Technical Update to Water Plan/1. Technical Update Documentation/Volume 1-Executive Summary.pdf. ↑
41. James N. Corbridge Jr. & Teresa A. Rice, Vranesh’s Colorado Water Law 2 (Rev.Ed. 1999). ↑
42. David Getches et al., Water Law in a Nutshell 18 (5th ed. 2015). ↑
43. Id. at 3. ↑
44. Id. at 43. ↑
45. Corbridge & Rice, supra note 39, at 4. ↑
46. Id. at 5. ↑
47. Bent’s Old Fort, History and Culture, Nat’l Park Serv., https://www.nps.gov/ beol/learn/historyculture/index.htm (last visited Jan. 7, 2024). ↑
48. Id. ↑
49. W. McHendrie, The Hatcher Ditch (1846–1928): The Oldest Irrigation Ditch Now in Use, The Colorado Magazine, State Historical Society of Colorado (Vol. V, No. 3) 81, 88 (June 1928). ↑
50. Water History: People’s Ditch in the San Luis Valley, Colo. State Univ.: Colo. Water Knowledge, https://waterknowledge.colostate.edu/water-history/ (last visited Jan. 7, 2024); McHendrie, supra note 47, at 81. ↑
51. In re adjudication of water rights for irrigation in water district no. 24, June 14, 1889, Costilla County. ↑
52. Alvin T. Steinel, History of Agriculture in Colorado 194 (Fort Collins State Agricultural College ed., 1926). ↑
53. Samuel Hitt Elbert, Colo. State Archives (2023), https://archives.colorado.gov/ collections/governors/samuel-hitt-elbert. ↑
54. Gregory J. Hobbs, Colorado Water Law: An Historical Overview, 1 U. Denv. Water L. Rev. 1, 5 (1997) (citing Colo. Terr. Laws 67–68 (1861)). ↑
55. Colo. Terr. Laws 67–68 (1861). ↑
56. Yunker v. Nichols, 1 Colo. 551, 552 (1872). ↑
57. Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446 (1882). ↑
58. Colo. Const. art. XVI, § 5. ↑
59. Colo. Terr. Laws 58 (1864) (“Nor shall the water of any stream be diverted to the detriment of [others] who may have a priority of right . . .”). ↑
60. Schilling v. Rominger, 4 Colo. 100, 103–05 (1878). ↑
61. See Santa Fe Trail Ranches Prop. Owners Ass’n v. Simpson, 990 P.2d 46, 52 (Colo. 1999) (discussing history of adjudication statutes); These acts appear to also be referred to as Irrigation Acts. ↑
62. Justice Gregory J. Hobbs, Jr., Colorado’s 1969 Adjudication and Administration Act: Settling in, 3 U. Denv. Water L. Rev. 1, 5 (1999). ↑
63. Raphael J. Moses, The Development of Colorado’s Water Law, U. Colo. L. Sch. Colo. L. Scholarly Commons 12 (Oct. 8, 1985), https://scholar.law.colorado.edu/cgi/ viewcontent.cgi?article=1005&context=colorado-water-issues-and-options-nineties-and-beyond; see also Justice Gregory J. Hobbs, Jr., supra note 60, at 1, 5. ↑
64. Moses, supra note 61, at 13. ↑
65. Coffin v. Left Hand Ditch Co., 6 Colo. 443, 444 (1882). ↑
66. Id. at 446–51. ↑
67. Id. at 447. ↑
68. Id. ↑
69. Id. ↑
70. Farmers’ High Line Canal & Reservoir Co. v. Southworth, 21 P. 1028, 1029 (Colo. 1889); Schilling v. Rominger, 4 Colo. 100, 103–05 (Colo. 1878); Thomas v. Guiraud, 6 Colo. 530, 532 (Colo. 1883); Sieber v. Frink, 7 Colo. 149 (Colo. 1884); Wheeler v. Irrigation Co., 10 Colo. 582 (Colo. 1888). ↑
71. Thomas, 6 Colo. at 533. ↑
72. Colo. Rev. Stat § 37-92-103(4); See Colo. Rev. Stat. § 37-92-103(10). ↑
73. Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1377 (Colo. 1982). ↑
74. Id. ↑
75. See id. ↑
76. Id. at 1377. ↑
77. Id. ↑
78. Fuller v. Swan River Placer Min. Co., 19 P. 836, 838 (Colo. 1888). ↑
79. Id. at 839. ↑
80. Wadsworth Ditch Co. v. Brown, 88 P. 1060, 1061 (Colo. 1907). ↑
81. Farmers Reservoir and Irrigation Co. v. Consol. Mut. Water Co., 33 P.3d 799, 807 (Colo. 2001). ↑
82. Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (1882) (discussing and citing 1862 Sess. Laws p.48, Session Laws). ↑
83. See also Strickler v. City of Colorado Springs, 26 P. 313, 315 (Colo. 1891) (holding that diverting from a tributary to the detriment of downstream users is impermissible). ↑
84. Strickler, 26 P. at 313 (analyzing the change of water rights from agricultural uses to city purposes via sale). ↑
85. See, e.g., id.; Farmers Highline Canal & Reservoir Co. v. City of Golden, 272 P.2d 629 (Colo. 1954) (City of Golden sought to change point of diversion and type of use from irrigation to municipal); Green v. Chaffee Ditch Co., 371 P.2d 775 (Colo. 1962) (changing the point of diversion to supply the City of Fort Collins). ↑
86. Fuller v. Swan River Placer Min. Co., 19 P. 836, 839 (Colo. 1888) (The right to change, limited by the no injury rule, includes the point of diversion, and place and character of use.); see also Act Relating to the Waters of the State of Colorado, ch. 190, §§ 22-24, 1943 Colo. Sess. Laws 628–31. ↑
87. Strickler, 26 P. at 316. ↑
88. See, e.g., Fuller 19 P. at 836. ↑
89. Santa Fe Trail Ranches Prop. Owners Ass’n v. Simpson, 990 P.2d 46, 58 (Colo. 1999). ↑
90. Colo. Rev. Stat. § 37-92-305(3)(a); Farmers Highline Canal, 272 P.2d at 632. ↑
91. Colorado River Water Conservation Dist. v. Vidler Tunnel Water Co., 594 P.2d 566, 568 (Colo. 1979). ↑
92. High Plains A & M, LLC v. Se. Colorado Water Conservancy Dist., 120 P.3d 710, 716 (Colo. 2005), as modified on denial of reh’g (Oct. 11, 2005). ↑
93. Santa Fe Trail Ranches Prop. Owners Ass’n, 990 P.2d at 59. ↑
94. Colo. Rev. Stat. § 37-92-305(3)(d). ↑
95. Id. ↑
96. Colorado Water Plan, supra note 8, at 28. ↑
97. Caitlin Coleman, Citizen’s Guide to Transbasin Diversions 4 (2014). ↑
98. Skyline Ditch, Colo. State Univ., https://pehc.colostate.edu/digital_projects/dp/ poudre-river/moving-storing/ditches-dams-diversions/skyline-ditch (last visited Feb. 28, 2024). ↑
99. Water History, supra note 48. ↑
100. The Bureau of Reclamation: A Very Brief History, Bureau of Reclamation, https://www.usbr.gov/history/borhist.html (last updated Aug. 15, 2018). ↑
101. Brief History of the Bureau of Reclamation, Bureau of Reclamation 4 (July 2000), https://www.usbr.gov/history/briefhis.pdf. ↑
102. Robert Autobee, Colorado Big Thompson Project, Bureau of Reclamation 4 (1996), https://www.donquigley.net/documents/0673_REF.pdf; Daniel Tyler, The Last Water Hole in the West: The Colorado-Big Thompson Project and the Northern Colorado Water Conservancy District 31 (Univ. Press of Colo. ed., 1992). ↑
103. Tyler, supra note 100, at 25, 34; see also History: 1930s, N. Water, https://www.northernwater.org/about-us/history (last visited Feb. 28, 2024). ↑
104. Id. ↑
105. Tyler, supra note 100, at 33 (citing Colorado, Department of the State Engineer, “Report on the Water Resources of the South Platte Basin in Colorado and Present utilization of Same Together With present and Future Transmountain Diversions,” prepared under the direction of M.C. Hinderlider, State Engineer, in cooperation with the Platte Valley Water Conservation League and the U.S. Army Engineers (Denver, 1931)). ↑
106. Tyler, supra note 100, at 35. ↑
107. History: 1930s, supra note 101. ↑
108. Tyler, supra note 100, at 46. ↑
109. History: 1930s, supra note 101. ↑
110. Tyler, supra note 100, at 52. ↑
111. From the Archives: Signing the Deal, N. Water (Aug. 14, 2023), https://www. northernwater.org/what-we-do/deliver-water/colorado-big-thompson-project/C-BT-history/. ↑
112. Tyler, supra note 100, at 58. ↑
113. History: 1930s, supra note 101. ↑
114. Id. ↑
115. Colorado-Big Thompson Project, N. Water, https://www.northernwater.org/ what-we-do/deliver-water/colorado-big-thompson-project (last visited Feb. 28, 2024). ↑
116. Northern Water Adopted Budget Fiscal Year 2021, N. Water 8 (2024), https://www.northernwater.org/getmedia/7ebaeb4f-de61-4c87-b762-09194061ef58/ FY2024-Northern-Water-Budget. ↑
117. Jedediah S. Rogers, Fryingpan-Arkansas Project, Bureau of Reclamation 31 (2006), https://www.usbr.gov/projects/pdf.php?id=120. ↑
118. An Act To authorize the construction, operation, and maintenance by the Secretary of the Interior of the Fryingpan-Arkansas Project, Colorado, Public Law 87-59, 77 Stat. 393 (1962). ↑
119. Tom Cooney, Town of Ruedi Submerged by Reservoir, but Not by History, Aspen Journalism (Nov. 29, 2020), https://aspenjournalism.org/town-of-ruedi-submerged-by-reservoir-not-by-history/. ↑
120. Fryingpan-Arkansas Project, Roaring Fork Conservancy (2023), https://roaringfork.org//your-watershed/watershed-facts/transmountain-diversions/fryingpan-arkansas-project/ (last visited Feb. 28, 2024). ↑
121. Arkansas Valley Conduit, Se. Colo. Water Conservancy Dist., https://www. secwcd.org/content/arkansas-valley-conduit (last updated Aug. 2, 2023). ↑
122. Id. ↑
123. History of Southeastern Colorado Water Conservancy District, Se. Colo. Water Conservancy Dist., https://www.secwcd.org/content/history-southeastern-colorado-water-conservancy-district (last updated Aug. 3, 2015). ↑
124. Highlights from the 2017 Census of Agriculture, Colo. Dep’t of Local Affairs (Jan. 29, 2020), https://gis.dola.colorado.gov/crosstabs/Census of Agriculture 2017/. ↑
125. Carol Mehls & Steven Mehls, Weld County Colorado Historic Agriculture Context, Colo. Historical Soc’y 7 (2006), https://www.historycolorado.org/sites/default/ files/media/documents/2018/612.pdf. ↑
126. Highlights from the 2017 Census of Agriculture, supra note 122. ↑
127. Peter Roessmann, Transmountain Diversion Create Political Divide in State, Post Indep. (Oct. 19, 2003), https://www.postindependent.com/news/transmountain-diversions-create-political-divide-in-state/. ↑
128. Colorado River District Acts to Address Spiking Colorado River Temperatures, Colo. River Dist. (July 15, 2022), https://www.coloradoriverdistrict.org/district-acts-to-address-spiking-colorado-river-temperatures/. ↑
129. Id. ↑
130. Water and its Relationship to the Economies of the Headwaters Counties, Coley/Forrest, Inc. 7 (Dec. 2011), https://nwccog.org/wp-content/uploads/2015/03/QQ Study_Report_Jan-2012.pdf. ↑
131. Id. ↑
132. Case No. 84CW179, District Court Water Division No. 2 (Nov. 10, 1987). ↑
133. Id. ↑
134. Winter Water Storage, Se. Colo. Water Conservancy Dist., https:// www.secwcd.org/content/winter-water-storage (last updated Feb. 21, 2024). ↑
135. Chris Woodka, Arkansas River Basin: Winter water storage starts up, The Pueblo Chieftain (2015), https://coyotegulch.blog/2015/11/16/arkansas-river-basin-winter-water-storage-starts-up/. ↑
136. Ralph “Terry” Scanga, Water Talks: Quantifying Water Right Ownership and the Term ‘Buy and Dry’, Ark Valley Voice (Jan. 28, 2021), https://arkvalleyvoice.com/water-talksquantifying-water-right-ownership-and-the-term-buy-and-dry/. ↑
137. See Twin Lakes Reservoir & Canal Co. v. City of Aspen, 568 P.2d 45, 46 (Colo. 1977). ↑
138. Heather Sackett, Roaring Fork flows to spike early next week as Twin Lakes diversion pauses, Aspen Journalism (June 15, 2023), https://aspenjournalism.org/roaring-fork-flows-to-spike-early-next-week-as-twin-lakes-diversion-pauses/. ↑
139. Robert Sanchez, High + Dry, 5280 (Dec. 2014), https://www.5280.com/high-dry/. ↑
140. Rogers, supra note 115, at 10. ↑
141. Brian Devine, Moving Waters: The Legacy of Buy-and-Dry and the Challenge of Lease-Fallowing in Colorado’s Arkansas River Basin, U. Colo. Program in Env’t Sci. 20 (2015), https://scholar.colorado.edu/concern/graduate_thesis_or_dissertations/q524j- p10z. ↑
142. Wendy Kerner, Making Environmental Wrongs Environmental Rights: A Constitutional Approach, 41 Stan. Env’t. L.J. 83, 121 (2022). ↑
143. Crowley Communities / National Sugar Company / Last Days of the Buffalo / Crowley Country, The Historical Marker Database, https://www.hmdb.org/m.asp?m =120745 (last updated May 29, 2022). ↑
144. Sanchez, supra note 137; Devine, supra note 139. ↑
145. Kerner, supra note 140. ↑
146. Luke Runyon & Matt Bloom, Water is Leaving Colorado Farmland for the City – But Will it Ever return?, KUNC (June 13, 2018) https://www.kunc.org/environment/2018-06-13/water-is-leaving-colorado-farmland-for-the-city-but-will-it-ever-return (“The landscape looks fundamentally different than when the land was being irrigated.”). ↑
147. See Sofia Jeremias, Will the West Figure out How to Share Water?, Desert News (Nov. 11, 2020) https://www.deseret.com/indepth/2020/11/11/21513056/will-the-west-figure-out-how-to-share-water; Bessemer Farmland Conservation Project, Palmer Land Conservancy (June 3, 2021), https://www.palmerland.org/BessemerProject. ↑
148. Marianne Goodland, Buying and drying: water lessons from Crowley County, Colo. Indep. (July 9, 2015) https://www.coloradoindependent.com/2015/07/09/buying-and-drying-water-lessons-from-crowley-county/. ↑
149. Id. ↑
150. Sanchez, supra note 137. ↑
151. Kerner, supra note 140. ↑
152. Palmer Land Conservancy, supra note 145. ↑
153. Thornton v. Bijou Irr. Co., 926 P.2d 1, 84 (Colo. 1996). ↑
154. Id. (referencing S.B. 92, 58th Leg., Reg. Sess. (Colo. 1992)). ↑
155. Thornton, 926 P.2d at 84. ↑
156. Colo. Rev. Stat. § 37-92-305(4.5)(a). ↑
157. Conservation in Colorado, Colo. State Univ., https://waterknowledge.colostate. edu/water-management-administration/conservationpage/ (last visited Feb. 28, 2024). ↑
158. See e.g. McHendrie, supra note 47, at 81, 88; Nelson Harvey, On Fallowed Ground: Measuring the effects of water-sharing programs, Water Educ. Colo. (Nov. 1, 2017). ↑
159. A. A. Andales et al., The Colorado Agricultural Meteorological Network (CoAgMet) and Crop ET Reports – 4.723, Colo. State Univ. Extension (Dec. 2014), https://extension.colostate.edu/topic-areas/agriculture/the-colorado-agricultural-meteorological-network-coagmet-and-crop-et-reports-4-723/. ↑
160. Andy Oerman, Flood Irrigation vs. Center Pivot Irrigation, Valley (2020) https://www.valleyirrigation.com/blog/valley-blog/2018/02/22/flood-irrigation-vs-center-pivot-irrigation. ↑
161. Id. ↑
162. P. J. Griekspoor, Dragon-Line proves its ability to save water, Farm Progress (Mar. 28, 2019) https://www.farmprogress.com/farming-equipment/dragon-line-proves-its-ability-to-save-water. ↑
163. Id.; see also Why Converting from Flood to Pivot Irrigation Improves ROI, Zimmatic Blog, Lindsay (Feb. 28, 2022), https://www.lindsay.com/usca/en/resource/ why-converting-from-flood-to-pivot-irrigation-improves-roi/. ↑
164. What is SIEP?, Subsurface Irrigation Efficiency Project, https://www. siepwater.com/what-is-siep- (last visited Feb. 28, 2024). ↑
165. Id. ↑
166. H.B. 21-1242, 2021 Gen. Assemb., Reg. Sess. (Colo. 2021). ↑
167. Id. ↑
168. Soil Health Program Background, Colo. Dep’t Agric., https://ag.colorado.gov/ soil-health (last visited Feb. 28, 2024). ↑
169. Id. ↑
170. Collaborative Water Sharing Agreements, Colo. Water Conservation Bd., https://cwcb.colorado.gov/focus-areas/supply/collaborative-water-sharing-agreements (last visited Feb. 28, 2024). ↑
171. Colo. Rev. Stat. § 37-92-309. ↑
172. Peter Nichols et al., Standardizing Temporary Water Transfer Procedures in Colorado, 22 U. Denv. Water L. Rev. 497, 508 (2019). ↑
173. Colo. Rev. Stat. § 37-92-309(1). ↑
174. Id. ↑
175. Id. § 37-92-309(3). ↑
176. Id. § 37-92-309(3)(b). ↑
177. Id. § 37-92-309(3)(a). ↑
178. Id. § 37-92-309(3)(b). ↑
179. Id. § 37-92-309(3)(a). ↑
180. Id. ↑
181. Id. § 37-92-309(3)(b). ↑
182. Id. ↑
183. Id. § 37-92-309(3)(c). ↑
184. Id. § 37-92-309(2)(a)(i). ↑
185. Id. § 37-92-309(3)(d). ↑
186. Id. § 37-92-309(3)(c)(i). ↑
187. Letter from Jeff Deatherage, Chief of Water Supply, Colorado Division of Water Resources, to Cristyn Radabaugh, Martin and Wood Water Consultants, Inc. (June 28, 2019), https://dnrweblink.state.co.us/dwr/DocView.aspx?id=3459163&dbid=0&cr=1. ↑
188. H.B. 13-1248, 2013 Gen. Assemb., Reg. Sess. (Colo. 2013); Colo. Rev. Stat. § 37-60-115(8). ↑
189. Id. ↑
190. Colo. Rev. Stat. § 30-60-115(8). ↑
191. Id. § 37-60-115(8)(c)(I). ↑
192. Id. § 37-60-115(8)(c)(II). ↑
193. Nichols, supra note 170, at 530–33. ↑
194. Scott Campbell, The Super Ditch: Can Water Become a Cash Crop in the West?, Lincoln Inst. of Land Pol’y (Oct. 2015), https://www.lincolninst.edu/pt-br/publications/articles/super-ditch. ↑
195. Colo. Rev. Stat. § 37-92-308(1)(a). ↑
196. Substitute Water Supply Plans & Administrative Approvals, Colo. Div. Water Res., https://dwr.colorado.gov/services/water-administration/water-supply-plans-and-administrative-approvals (last visited Feb. 28, 2024). ↑
197. Id. ↑
198. Colo. Rev. Stat. § 37-92-308(4)(a). ↑
199. Nichols, supra note 170, at 507. ↑
200. Michael F. Browning, Substitute Supply Plans: Recent Water Law Developments, Colo. Law. 67, 67 (2002). ↑
201. Colo. Rev. Stat. §§ 37-92-308(7), (12). ↑
202. Id. § 37-92-308(3)(b). ↑
203. Id. § 37-92-305(19)(a)(I); Nichols, supra note 170, at 516. ↑
204. Colo. Rev. Stat. § 37-92-305(19)(b)(II); Nichols, supra note 170, at 516. ↑
205. See e.g. Fort Lyon Canal Co. v. High Plains A & M, LLC, 167 P.3d 726 (Colo. 2007). ↑
206. Colo. Rev. Stat. § 37-92-305(19)(a)(I) (“A water right decreed in water division 3, 4, 5, 6, or 7 is not eligible for a change in water right to an agricultural water protection water right.”). ↑
207. See Colorado River Drought Task Force, Final Report 3 (Dec. 15, 2023), https://crdroughttaskforce.com/Content/Docs/CRDTF_FinalReport_15December2023_ FINAL.pdf. ↑
208. See Criteria and Guidelines for the Establishment of an Agricultural Water Protection program in Water Division 1 or 2 for the Implementation of an Agricultural Water Protection Water Right as allowed by House Bill 16-1228, Colo. Water Conservation Bd., https://dnrweblink.state.co.us/dwr/0/edoc/3144184/DWR_3144184.pdf (last visited Feb. 28, 2024). ↑
209. Id. ↑
210. Colo. Rev. Stat. §§ 37-92-305(4)(c), (19). ↑
211. Id. § 37-92-305(19)(VI). ↑
212. Id. § 37-92-305(4)(c). ↑
213. Colo. Water Conservation Bd., supra note 206. ↑
214. Id. ↑
215. Id. ↑
216. Substitute Water Supply Plans & Administrative Approvals, supra note 194. ↑
217. Colo. Water Conservation Bd., supra note 206; Colo. Rev. Stat. § 37-92-305(19)(b)(III). ↑
218. Colo. Rev. Stat. § 37-92-305(19)(b)(IV). ↑
219. Id. § 37-92-305(19)(b)(IV)(B). ↑
220. Id. § 37-92-305(19)(c). ↑
221. Id. § 37-92-305(19)(b)(IV)(B). ↑
222. Colo. Water Conservation Bd., supra note 206. ↑
223. See Water Ct. Comm. of the Colo. Sup. Ct., Non-Attorney’s Guide to Colo. Water Cts. (July 2014), https://www.courts.state.co.us/userfiles/file/Court_Probation/ Water_Courts/FINAL Non-Attorneys Guide to Colorado Water Courts (01_14_20 fee update).pdf. ↑
224. Telephone Call with Nora Flynn, Colorado Water Conservation Board (Mar. 29, 2023). ↑
225. Jacobucci v. Dist. Ct. In & For Jefferson Cnty., 541 P.2d 667, 674 (Colo. 1975). ↑
226. Jacobucci, 541 P.2d at 674. ↑
227. Id. at 672; Wadsworth Ditch Co. v. Brown, 88 P. 1060, 1061 (Colo. 1907). ↑
228. Fort Lyon Canal Co. v. Catlin Canal Co., 642 P.2d 501 (Colo. 1982). ↑
229. Id. ↑
230. Id. at 508. ↑
231. See id. ↑
232. Fort Lyon Canal Co., 642 P.2d at 508–09. ↑
233. Colo. Rev. Stat. § 37-92-305(19)(b)(iii). ↑
234. Id. §§ 37-42-101–18. ↑
235. Pueblo West Metro. Dist. v. Se. Colorado Water Conservancy Dist., 717 P.2d 955, 959 (Colo. 1986) (stating that one who exercises the “privilege to change a water right, see § 37-92-302 . . . runs a real risk of a requantification of the water right based on actual historical consumptive use”) (as cited in Santa Fe Trail Ranches Prop. Owners Ass’n v. Simpson, 990 P.2d 46 (Colo. 1999)). ↑
236. Telephone Call with Jim Yahn, Manager, North Sterling Irrigation District (Apr. 13, 2023); Jeff Rice, Yahn: Reservoir ready to supply BNN water, Sterling J. Advoc. (May 8, 2019), https://www.journal-advocate.com/2017/01/17/yahn-reservoir-ready-to-supply-bnn-water/. ↑
237. Telephone Call with Jim Yahn, Manager, North Sterling Irrigation District (Apr. 13, 2023). ↑
238. Id. ↑
239. Agricultural Water Sharing, Colo. Springs Utils., https://www.csu.org/Pages/ AgWaterSharing.aspx (last visited Feb. 28, 2024). ↑
240. Bill Folsom, Win-win? Water-sharing deal between Colorado Springs and rural Bent County, KOAA News 5 (Oct. 16, 2022), https://www.koaa.com/news/covering-colorado/win-win-water-sharing-deal-between-colorado-springs-and-rural-bent-county. ↑
241. FAQs: Lower Arkansas Valley Water Sharing Program, Colo. Springs Utils., https://www.csu.org/Documents/WaterSharingAgreementFAQ.pdf (last visited Jan. 7, 2024). ↑
242. Id. ↑
243. Colorado Water Plan Grants, Colo. Water Conservation Bd., https://cwcb.colorado.gov/funding/colorado-water-plan-grants (last visited Feb. 28, 2024). ↑
244. Grant Programs, Colo. Parks & Wildlife, https://cpw.state.co.us/aboutus/ pages/grantprograms.aspx (last visited Jan. 7, 2024). ↑
245. Grant Opportunities, Colo. Trout Unlimited (June 25, 2020), https://coloradotu.org/chapter-resource-content/2020/6/grant-opportunities. ↑
246. Elk Creek Fish Passage Project, Colo. Trout Unlimited (Aug. 2, 2016), https:// cpw.state.co.us/aboutus/pages/grantprograms.aspx. ↑
247. Little Thompson Farm, Larimer Cnty., https://www.larimer.gov/naturalresources/openlands/acquisitions/little-thompson-farm (last visited Feb. 28, 2024). ↑
248. Id. ↑
249. Little Thompson Farm ATM Grant Completion Report, Colorado Water Conservation Board 3–4 (2018). ↑
250. Id. ↑
251. Pagosa Area Water & Sanitation Dist. v. Trout Unlimited, 170 P.3d 307, 317 (Colo. 2007), as modified (Nov. 13, 2007) (upholding and applying a 50-year planning horizon limit from City of Thornton v. Bijou Irr. Co., 926 P.2d 1 (Colo. 1996)); see also Pagosa Area Water & Sanitation Dist. v. Trout Unlimited, 219 P.3d 774, 777 (Colo. 2009), as modified on denial of reh’g (Nov. 23, 2009) (permitting presentation of additional evidence to extend planning horizon). ↑
252. Colo. Rev. Stat. § 37-41-101; Id. § 37-45-102; Id. § 37-46-103; Id. § 37-47-103; Id. § 37-48-102; Id. § 37-50-103. ↑
253. See generally Colo. Rev. Stat. §§ 37-41-101–60; Id. §§ 37-45-101–53; Id. §§ 37-46-101–51; Id. §§ 37-47-101–51; Id. §§ 37-48-101–95; Id. §§ 37-50-101–42. ↑
254. Ben R. Howe, Wall Street Eyes Billions in the Colorado’s Water, N.Y. Times (Jan. 3, 2021), https://www.nytimes.com/2021/01/03/business/colorado-river-water-rights. html. ↑
255. Water Investment Opportunity, Water Asset Mgmt., https://waterinv.com/investment_opportunity (last visited Feb. 28, 2024). ↑
256. Colo. Const. art. 16, § 5. ↑
257. Chris Outcalt, Colorado hits a “hard pause” on water demand management as it waits for other states to catch up, Colo. Sun (Mar. 25, 2022), https://coloradosun.com/ 2022/03/25/colorado-hard-pause-water-demand-management/; see also As the climate dries the American west faces power and water shortages, experts warn, UN env’t programme (Aug. 2, 2022), https://www.unep.org/news-and-stories/story/climate-dries-american-west-faces-power-and-water-shortages-experts-warn (referring to climactic conditions as aridification rather than drought); Colorado Water Plan, supra note 8, at 32–34. ↑
258. Interior Department Announces Actions to Protect Colorado River System, Sets 2023 Operating Conditions for Lake Powell and Lake Mead, U.S. Dep’t Interior (Aug. 16, 2022), https://www.doi.gov/pressreleases/interior-department-announces-actions-protect-colorado-river-system-sets-2023. ↑
259. Supplemental Environmental Impact Statement for Near-term Colorado River Operations, Bureau of Reclamation (Oct. 26, 2023), https://www.usbr.gov/ColoradoRiverBasin/interimguidelines/seis/index.html. ↑
260. System Conservation Pilot Program in 2023, Upper Colo. River Comm’n, http://www.ucrcommission.com/system-conservation-pilot-program-for-2023/ (last visited Feb. 28, 2024); Demand Management Feasibility Protecting Colorado Water, Colo. Water Conservation Bd., https://cwcb.colorado.gov/focus-areas/supply/demand-management (last visited Feb. 28, 2024). ↑
261. Colorado River Commissioner’s Corner: System Conservation Pilot Program, Colorado Water Conservation Board, link (last visited Apr. 3, 2024). ↑
262. Fitch: Arizona water rights rise as Colorado River shortage declared, Water Fin. & Mgmt. (Aug. 18, 2021), https://waterfm.com/fitch-ratings-arizona-water-rates-rise-as-colorado-river-shortage-declared/. ↑
263. Lain Leoniak, The Law of the Colorado River In the Context of Post-2026 Operations of Lake Powell and Lake Mead, Colo. Bar Ass’n, Water Law Section (Dec. 5, 2023). ↑
264. Water Fin. & Mgmt., supra note 260. ↑
265. Grayson Zulauf, Colorado River deal forever changes the price of water in the West, CalMatters (June 6, 2023), https://calmatters.org/commentary/2023/06/colorado-river-deal-west-water/. ↑
266. Heather Sackett, Water equity a concern for Western Slope water users, The Aspen Times (Aug. 27, 2019), https://www.aspentimes.com/news/water-equity-a-concern-for-western-slope-water-users/. ↑