Ouray County and its municipalities are much further upstream than the Montrose and Delta Canal’s multiple agricultural users, but hold rights that are junior to the Uncompahgre Valley Water Users Association (the entity that owns the canal) under the state’s prior appropriation doctrine, and are thus subject to a water call by the M&D Canal during drought years.
Monday’s meeting came on the heels of the City of Ouray’s official objection to the
Colorado Division of Water Resources’ 2012 tabulation, which enabled the M&D Canal to make a call on the city’s water supply last year. In a position paper sent to CDWR’s Division 4 Water Engineer Bob Hurford last June, the city outlined flaws in the state’s water adjudication system preventing adjudication of Ouray’s historic water rights ahead of downstream irrigators on the M&D Canal.
If CDWR agrees to re-tabulate Division 4 water in the City of Ouray’s favor, the administration number for the municipality’s most senior water rights will be
tabulated higher than the M&D Canal, thus protecting the city from a future call.
But CDWR has told the City of Ouray that it can’t re-tabulate the city’s water rights statutorily because the tabulation has been correctly executed, based on decree.
“We don’t have any interest in shutting the town down or keeping them from getting re-tabulated, if that is truly the intent of those decrees,” said Jason Ullman, Assistant Division Engineer for CDWR’s Division 4 in Montrose. “But determining the intent of decrees over 110 years old requires a lot of speculation.”
The re-tabulation issue dominated discussion throughout much of Monday’s meeting, said Ullman. “We all met and discussed what options are there. We didn’t reach any conclusions. But we did agree there is more research we need to do on both sides to figure this out.”
The City of Ouray’s position paper hinges on decisions made well over a century ago regarding Colorado water law. The city asserts it was not able to adjudicate its rights in a timely manner (ahead of downstream irrigators on the M&D Canal) on water it was appropriating as early as the 1870s because, at the time, the state’s newly created water adjudication system favored agricultural users over what would be considered municipal purposes in today’s terminology.
Central to the city’s argument is the so-called “subordination clause” in the first general adjudication decree in Division 4 in 1888, which “subordinates” agricultural water use to so-called domestic water use but has been interpreted narrowly so as not to equate “domestic” with modern-day municipal water use.
All in all, the meeting was “a good next step,” Ullman said. “There was no discussion of litigating it. It was a productive discussion in figuring out a solution to the issue.” A follow-up meeting has been set for January.