In 1937, the U.S. Congress authorized the Colorado-Big Thompson Project (CBT), a complex transbasin diversion project that diverts water from the headwaters of the Colorado River on the Continental Divide’s western slope for use on lands in northeastern Colorado on the eastern slope. A component of the CBT is the Green Mountain Reservoir (GMR), on the Blue River, a tributary to the Colorado River. GMR serves two purposes: (1) to provide up to 54,645 acre-feet (AF) of replacement water to interests on the west slope of the Continental Divide affected by the CBT, and (2) to supply a federal hydroelectric generating station.
To resolve extensive litigation regarding CBT’s water rights, the courts entered a series of decrees and stipulations (collectively the Blue River Decree). However, contentious issues persisted. In 2013, after ten years of negotiations, parties with interests in the CBT agreed to the Green Mountain Reservoir Administrative Protocol (the Protocol), which sought to clarify and implement the provisions of the Blue River Decree in a consistent, transparent manner.
In order for the State and Division Engineers to administer the Protocol, the parties to the Protocol filed an application for a determination of water rights to confirm that the Protocol was consistent with the Blue River Decree (the Application). Despite the City of Golden’s (Golden) opposition to the Application, the water court granted summary judgment to the applicants.
On appeal by Golden, the Colorado Supreme Court affirmed the water court’s order. United States v. City of Golden, 2024 CO 43M. First, the Court found that the injury rule was inapplicable to applications requesting “the interpretation of the terms of an existing decree.” In general, a change of water right or decree of a conditional water right cannot result in injury, via diminution of available water supply, to existing vested water rights. However, even when a senior appropriator exercises their water rights in a way not previously done, if such exercise is consistent with the decree, “curtailment of a junior right to satisfy a senior right does not constitute ‘injury’ to the junior rights holder.” Thus, the Application, in seeking to confirm that the Protocol is consistent with the Blue River Decree, could not result in injury to Golden’s rights.
Next, the Supreme Court clarified that the Blue River Decree’s provisions requiring fair and equitable treatment “to all parties having interests therein” do not afford protections to every existing and potential water user in the Blue River basin. Rather, that language applies to parties that have an interest in the CBT. As Golden is not an eastern slope user that receives CBT water or a western slope user for which GMR stores replacement water, Golden has no interest in the CBT.
Lastly, the Court found the Protocol was not an unconstitutional subordination agreement, but rather, is more akin to a complex no-call agreement. No-call agreements and subordination agreements are similar but have distinguishing characteristics. Under both types of agreements, water that could otherwise go to the senior appropriator is made available to some or all junior appropriators. However, a general subordination agreement causes a senior water right to stand in order of priority behind other junior water rights. Similarly, under a selective subordination agreement, a senior water user subordinates their water rights to certain junior water users while denying the same permission to other junior users. Further, both general and selective subordination agreements must evince an intent among the parties to change their relative priority status. Conversely, a no-call agreement provides that a senior appropriator will not place a call on a particular water right that it holds, thereby contracting away the right to place a call requesting more water to fulfill the senior right. Thus, where a subordination agreement causes a senior water right to stand in order of priority behind one or more junior rights (i.e., to contract away its senior priority), a no-call agreement contracts away the right to place a call. Accordingly, as the Protocol by its express terms and operation will not result in subordination, it is not subordination agreements, but rather is a complex agreement that uses strategies well-known to Colorado’s water rights system and conforms to the goals of prior appropriation.
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