State Legislature Responds to St. Jude’s Co. Decision
We previously reported on this website about the Colorado Supreme Court decision in the case of St. Jude’s Co. v. Roaring Fork Club, LLC, 351 P.3d 442 (Colo. 2015). In that case, the court determined that certain private water diversions for aesthetic, recreational, or piscatorial uses do not constitute “beneficial uses” of water under the 1969 Water Right Determination and Administration Act. Thus, such uses may not form the basis of a new appropriative water right under Colorado law.
Many water rights decreed prior to the St. Jude’s Co. decision, both absolute and conditional, include aesthetic, piscatorial, and/or recreational uses among their decreed purposes. As a result of the St. Jude’s Co. decision, such uses of prior decreed water rights have been scrutinized or even challenged in subsequent water court applications for findings of reasonable diligence or to make the water right absolute, as well as in applications for changes of water rights or plans for augmentation. House Bill 17-1190 was introduced in the 2017 legislative session in response to such challenges, among other concerns.
HB 17-1190 endured several amendments throughout the legislative process, but ultimately passed the state legislature. The bill is now before Governor Hickenlooper for final approval.
As passed, HB 17-1190 provides that the St. Jude’s Co. decision interpreting beneficial uses of water does not apply to absolute and conditional water rights for which a decree was entered on or prior to July 15, 2015. Such rights, which may otherwise be scrutinized under the St. Jude’s Co. “beneficial use” interpretation, are deemed valid and shall be given full force and effect. Further, the bill provides that such water rights “may be maintained through findings of reasonable diligence and made absolute, and augmentation plans related to such rights may be approved” in accordance with law. The bill limits applications for changes of such prior-decreed water rights to changes in points of diversion only.
HB 17-1190 lends certainty to owners of prior-decreed water rights for aesthetic, recreational, and/or piscatorial uses that such water rights may continue to be developed, utilized, and maintained notwithstanding the Colorado Supreme Court’s decision in St. Jude’s Co.
For further information regarding this article or anything else concerning water law please contact Nicole Garrimone-Campagna at e-mail: , Mary Elizabeth Geiger at e-mail: , and David McConaughy at e-mail: .