(1) In
every case in which the state engineer finds that water can be stored out of priority under
circumstances such that the water so stored can be promptly made available to downstream
senior storage appropriators in case they are unable to completely store their entire appropriative
right due to insufficient water supply, the state engineer may permit such upstream storage out of
priority, but such storage water shall be promptly released on demand of a downstream senior
whenever needed by such senior for actual use.
(2) Individuals and private or public entities, alone or in concert, may provide a
substituted supply of water to one or more appropriators senior to them, not to exceed that to
which any senior appropriator is entitled from time to time by virtue of his appropriations, and,
to the extent that such substituted water is made available to meet the appropriative requirements
of such senior, the right of such senior to draw water pursuant to his appropriation shall be
deemed to be satisfied. The rights of such senior may be used for effectuating such substitution
during the period while it is in operation, and the practice may be confirmed by court order as
provided for determining water rights.
(3) Any substituted water shall be of a quality and continuity to meet the requirements of
use to which the senior appropriation has normally been put.
(4) Whenever substitute water is supplied to a senior ditch, the supplier or his assignee
may take an equivalent amount for beneficial use from water of the state of Colorado to the
fullest extent possible without impairing the availability of water lawfully divertible by others. A
practice of substitution or exchange pursuant to law may constitute an appropriative right and
may be adjudicated or otherwise evidenced as any other right of appropriation.
(5) In determining the quantity of water required as a substitute supply to replace
evaporation from groundwater exposed to the atmosphere in connection with the extraction of
sand and gravel by open mining as defined in section 34-32-103 (9), C.R.S., there shall be no
requirement to replace the amount of historic natural depletion to the waters of the state, if any,
caused by the preexisting natural vegetative cover on the surface of the area which will be, or
which has been, permanently replaced by an open water surface. The applicant shall bear the
burden of proving the historic natural depletion.
(6) In determining the quantity of water required as a substitute supply to replace stream
depletions in connection with any mining operation as defined in section 34-32-103 (8), C.R.S.,
for which a reclamation permit has been obtained as set forth in section 34-32-109, C.R.S., there
is no requirement to replace the amount of historic natural depletion to the waters of the state, if
any, caused by the preexisting natural vegetative cover and evaporation on the surface of the
area that will be, or that has been, eliminated or made impermeable as part of the permitted
mining operation. The applicant bears the burden of proving the historic natural depletion.
Source: L. 69: p. 1196, § 8. C.R.S. 1963: § 148-11-25. L. 89: (5) added, p. 1425, § 4,
effective July 15. L. 2012: (6) added, (HB 12-1022), ch. 15, p. 38, § 1, effective August 8.
37-80-121. Water administration fee - cash fund - rules - report - definitions -
repeal. (Repealed)
Source: L. 2003: Entire section added, p. 1509, § 1, effective May 1. L. 2004: (1), (2),
(3), (5), and (6) repealed, p. 361, § 2, effective April 7; (4) repealed, p. 361, § 1, effective July 1.
Notes of Decisions
City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).
· cites it 21× “Thornton will pump significant amounts of WSSC water, including CBT water, to Thornton and replace it by exchange with other water of lower quality derived from a variety of Thornton’s other water rights.”
City of Florence v. Bd. of Waterworks of Pueblo, 793 P.2d 148 (Colo. 1990).
· cites it 20× “ater right and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of the completion of the appropriation, a determination with respect to a change of a water right, approval of a plan for augmentation,…”
Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo. 2001).
· cites it 32× “Whether the Water Court erred in determining that Empire's SSP was in violation of C.R.S. § 37-80-120 and that the State Engineer abused his discretion in approving Empire's SSP.”
Empire Lodge Homeowners'ass'n v. Moyer, 39 P.3d 1139 (Colo. 2002).
· cites it 35× “Whether the Water Court erred in determining that Empire's SSP was in violation of C.R.S. § 37-80-120 and that the State Engineer abused his discretion in approving Empire's SSP.”
Simpson v. Bijou Irrigation Co., 69 P.3d 50 (Colo. 2003).
· cites it 5× “3d 1139 , GASP replacement water was administered in accordance with substitute water supply plans approved by the State Engineer pursuant to section 37-80-120. Empire Lodge, however, clearly established that such ongoing approval of substitute supply plans by the State Engineer…”
Question Submitted by the United States Court of Claims v. United States, 589 P.2d 57 (Colo. 1978).
· cites it 12× “See section 37-80-120, C.R.S.1973. Rather, their position is predicated upon subsection (3) of the statute just cited, which reads, "Any substituted water shall be of a quality and continuity to meet the requirements of use to which the senior appropriation has normally been put.”
Colorado Water Conservation Bd. v. City of Cent., 125 P.3d 424 (Colo. 2005).
· cites it 5× “See § 37-80-120(1), C.R.S. (2005). However,' a practice of substitution or exchange may constitute an appropriative water right and may be adjudicated as any other water right.”
State v. Sw. Colorado Water Conservation Dist., 671 P.2d 1294 (Colo. 1983).
· cites it 4× “t and the amount and priority thereof, including a determination that a conditional water right has become a water *1310 right by reason of the completion of the appropriation, a determination with respect to a change of a water right, approval of a plan for augmentation,…”
Purgatoire River Water Conservancy Dist. v. Kuiper, 593 P.2d 333 (Colo. 1979).
· cites it 16× “This order was expressly issued under the authority of section 37-80-120, C.R.S.1973 and the order specifically stated that this would be out-of-priority storage.”
S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226 (Colo. 2011).
· cites it 2× “ditional water right and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of the completion of the appropriation, 4 a determination with respect to a change of a water right, approval of a plan for…”
Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46 (Colo. 1999).
· cites it 2× “Nor does our holding affect utilization of the upstream storage and substitute supply provisions of section 37-80-120, 10 C.R.S. (1999). These provisions allow out-of-priority diversions under conditions statutorily designed to protect seniors against injury to their…”
Three Bells Ranch Assocs. v. Cache La Poudre Water Users Ass'n, 758 P.2d 164 (Colo. 1988).
· cites it 2× “Within ten days, Three Bells was required to submit to the state engineer a well permit application for the gravel pit as well as evidence of a plan of substitute supply pursuant to section 37-80-120, 15 C.R.S. (1973), in order to protect other water users from injury while…”
— Colo. Rev. Stat. § 37-80-120(1) — 5 cases
Colorado Water Conservation Bd. v. City of Cent., 125 P.3d 424 (Colo. 2005).
“See § 37-80-120(1), C.R.S. (2005). However,' a practice of substitution or exchange may constitute an appropriative water right and may be adjudicated as any other water right.”
Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo. 2001).
“Whether the Water Court erred in determining that Empire's SSP was in violation of C.R.S. § 37-80-120 and that the State Engineer abused his discretion in approving Empire's SSP.”
Empire Lodge Homeowners'ass'n v. Moyer, 39 P.3d 1139 (Colo. 2002).
“Whether the Water Court erred in determining that Empire's SSP was in violation of C.R.S. § 37-80-120 and that the State Engineer abused his discretion in approving Empire's SSP.”
City of Florence v. Bd. of Waterworks of Pueblo, 793 P.2d 148 (Colo. 1990).
“ater right and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of the completion of the appropriation, a determination with respect to a change of a water right, approval of a plan for augmentation,…”
— Colo. Rev. Stat. § 37-80-120(2) — 4 cases
City of Florence v. Bd. of Waterworks of Pueblo, 793 P.2d 148 (Colo. 1990).
“ater right and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of the completion of the appropriation, a determination with respect to a change of a water right, approval of a plan for augmentation,…”
Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo. 2001).
“Whether the Water Court erred in determining that Empire's SSP was in violation of C.R.S. § 37-80-120 and that the State Engineer abused his discretion in approving Empire's SSP.”
Empire Lodge Homeowners'ass'n v. Moyer, 39 P.3d 1139 (Colo. 2002).
“Whether the Water Court erred in determining that Empire's SSP was in violation of C.R.S. § 37-80-120 and that the State Engineer abused his discretion in approving Empire's SSP.”
— Colo. Rev. Stat. § 37-80-120(3) — 5 cases
City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).
“Thornton will pump significant amounts of WSSC water, including CBT water, to Thornton and replace it by exchange with other water of lower quality derived from a variety of Thornton’s other water rights.”
Question Submitted by the United States Court of Claims v. United States, 589 P.2d 57 (Colo. 1978).
“See section 37-80-120, C.R.S.1973. Rather, their position is predicated upon subsection (3) of the statute just cited, which reads, "Any substituted water shall be of a quality and continuity to meet the requirements of use to which the senior appropriation has normally been put.”
City of Florence v. Bd. of Waterworks of Pueblo, 793 P.2d 148 (Colo. 1990).
“ater right and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of the completion of the appropriation, a determination with respect to a change of a water right, approval of a plan for augmentation,…”
— Colo. Rev. Stat. § 37-80-120(4) — 5 cases
City of Florence v. Bd. of Waterworks of Pueblo, 793 P.2d 148 (Colo. 1990).
“ater right and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of the completion of the appropriation, a determination with respect to a change of a water right, approval of a plan for augmentation,…”
Colorado Water Conservation Bd. v. City of Cent., 125 P.3d 424 (Colo. 2005).
“See § 37-80-120(1), C.R.S. (2005). However,' a practice of substitution or exchange may constitute an appropriative water right and may be adjudicated as any other water right.”
— Colo. Rev. Stat. § 37-80-120(5) — 3 cases
Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo. 2001).
“Whether the Water Court erred in determining that Empire's SSP was in violation of C.R.S. § 37-80-120 and that the State Engineer abused his discretion in approving Empire's SSP.”
Simpson v. Bijou Irrigation Co., 69 P.3d 50 (Colo. 2003).
“3d 1139 , GASP replacement water was administered in accordance with substitute water supply plans approved by the State Engineer pursuant to section 37-80-120. Empire Lodge, however, clearly established that such ongoing approval of substitute supply plans by the State Engineer…”
Empire Lodge Homeowners'ass'n v. Moyer, 39 P.3d 1139 (Colo. 2002).
“Whether the Water Court erred in determining that Empire's SSP was in violation of C.R.S. § 37-80-120 and that the State Engineer abused his discretion in approving Empire's SSP.”
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