Plans for Augmentation
A plan for augmentation is a mechanism to allow a water user to divert a junior water right at times when it would ordinarily be out-of-priority. This occurs by providing replacement water to the stream from a more senior water source to offset the impacts of the junior water to the stream. The official definition of a “plan for augmentation” is as follows:
A detailed program, which may be either temporary or perpetual in duration, to increase the supply of water available for beneficial use in a division or portion thereof by the development of new or alternate means or points of diversion, by a pooling of water resources, by water exchange projects, by providing substitute supplies of water, by the development of new sources of water, or by any other appropriate means. “Plan for augmentation” does not include the salvage of tributary waters by the eradication of phreatophytes, nor does it include the use of tributary water collected from land surfaces that have been made impermeable, thereby increasing the runoff but not adding to the existing supply of tributary water.
C.R.S. § 37-92-103(9). In its most simple sense, a plan for augmentation allows one to forego use of a senior water right in exchange for diverting a junior water right at times that would otherwise be unlawful.
Plans for augmentation shall only be approved if the “plan will not injuriously affect the owner of or persons entitled to use water under a vested water right or a decreed conditional water right.” C.R.S. § 37-92-305(3)(a). The state engineer and division engineer are required to “exercise the broadest latitude possible in the administration of waters under their jurisdiction to encourage and develop augmentation plans and voluntary exchanges of water and may make such rules and regulations and shall take such other reasonable action as may be necessary in order to allow continuance of existing uses and to assure maximum beneficial utilization of the waters of this state.” C.R.S. § 37-92-501.5. “Augmentation plans implement the Colorado doctrine of optimum use and priority administration, which favors management of Colorado’s water resource to extend its benefit for multiple beneficial purposes.” Empire Lodge Homeowners’ Ass’n v. Moyer, 39 P.3d 1139, 1150 (Colo. 2001) (citing Williams v. Midway Ranches Prop. Owners Ass’n, 938 P.2d 515, 522 (Colo. 1997)).
Below is an example of the operation of a plan for augmentation. In this example, the municipality’s water plant is diverting 10 cfs and returning 9 cfs to the stream, resulting in a depletion of 1 cfs. The municipality is operating a plan for augmentation that allows it to divert a junior water right into its treatment plant, so long as there is no net impact to the stream. Thus, it is using a release from an augmentation reservoir of 1 cfs to make up for the depletion and taking credit for the WWTP discharge of 9 cfs to ensure that the stream is not depleted by the operation of the municipal water system. In this way, the downstream senior water right receives 10 cfs of flow, as if the municipal water system has no impact on the river. Thus, a plan for augmentation allows the operation of a junior water right when it would otherwise be out-of-priority, so long as the impacts of that water right are offset by adding replacement water to the stream.
If you have questions about plans for augmentation or need assistance acquiring one for your water rights, please contact the attorneys at Nazarenus Stack & Wombacher.