Trail's End Ranch, L.L.C., v. Colorado Division of Water Resources
Issued June 14, 2004

On June 14, 2004, the Colorado Supreme Court issued its decision in Trail's End Ranch, L.L.C., v. Colorado Division of Water Resources, No. 03SA199. This case arose from an attempt by Trail's End Ranch, LLC, to divert its direct flow irrigation rights, without adjudicating a change in point of diversion for those rights, from points downstream of the decreed points of diversion on the same natural stream. It was undisputed that Trail's End had been diverting water not only at its decreed headgates for its water rights, but also at points several thousand feet downstream of each decreed headgate. All of the referenced points on the stream and all intervening stream reaches were located on Trail's End's property, and there were no intervening water users in that reach.

Nevertheless, the Division Engineer (Water Div. 2) ordered Trail's End to cease diversions at the unadjudicated points. Trail's End complied, but then proposed to permanently operate these three water rights by diverting and measuring all water to which it was entitled at the decreed points of diversion, measuring and returning the diverted water to Spruce Creek, and conveying the returned water through the creek for diversion at the unadjudicated downstream points of diversion, subject to reasonable transportation losses. The Division Engineer rejected the proposal and Trail's End filed an action in the water court to declare its entitlement to its proposed operations and to enjoin enforcement of the order.

The water court held that Trail's End was proposing to change its points of diversion and that the conditions of its proposed conveyance of water to the "recapture" points downstream did not exempt it from applying for a change of water right in the manner prescribed by statute, C.R.S. § 37-92-103. Id. at *3. It therefore granted the division's motion for summary judgment. Id. The Colorado Supreme Court noted that "there is no apparent purpose, other than circumventing the statutory requirement to adjudicate a change of water right, to be served by Trail's End's proposed rerouting operations, and none has been offered by Trail's End." Id. at *14.The Court then affirmed the water court's decision, holding that the practice proposed by Trail's End would constitute a change or adding new or supplemental points of diversion within the meaning of the Water Right Determination and Administration Act of 1969. Id. at *14. Thus, Trail's End could not benefit from the priorities of its decreed water rights without first adjudicating changes to those rights as prescribed by the Act. In reaching its decision, the Court reasoned that "far from a mere formality, the adjudication of changes to the point of diversion of an existing water right provides an important protection for potentially affected water rights holders." Id. at *13.

See the Supreme Court decision