CO Code § 37-45-118 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 45 - Water Conservancy Districts|§ 37-45-118. General Powers

  The board has power on behalf of said district:   To have perpetual succession;        To take by appropriation, grant, purchase, bequest, devise, or lease, and to hold and enjoy water, waterworks, water rights, and sources of water supply, and any and all real and personal property of any kind within or without the district necessary or convenient to the full exercise of its powers; (b) (I) (A) To take by appropriation, grant, purchase, bequest, devise, or lease, and to hold and enjoy water, waterworks, water rights, and sources of water supply, and any and all real and personal property of any kind within or without the district necessary or convenient to the full exercise of its powers;    To sell, lease, encumber, alien, or otherwise dispose of water, waterworks, water rights, and sources of supply of water for use within the district;    To acquire, construct, or operate, control, and use any and all works, facilities, and means necessary or convenient to the exercise of its power, both within and without the district for the purpose of providing for the use of such water within the district and to do and perform any and all things necessary or convenient to the full exercise of the powers granted in this paragraph (b).       Any works or facilities planned and designed for the exportation of water from the natural basin of the Colorado river and its tributaries in Colorado, by any district created under this article, shall be subject to the provisions of the Colorado river compact and the ”Boulder Canyon Project Act“. Any such works or facilities shall be designed, constructed, and operated in such manner that the present appropriations of water and, in addition thereto, prospective uses of water for irrigation and other beneficial consumptive use purposes, including consumptive uses for domestic, mining, and industrial purposes, within the natural basin of the Colorado river in the state of Colorado from which water is exported will not be impaired nor increased in cost at the expense of the water users within the natural basin. The facilities and other means for the accomplishment of said purpose shall be incorporated in and made a part of any project plans for the exportation of water from said natural basin in Colorado.       To have and to exercise the power of eminent domain and dominant eminent domain and in the manner provided by law for the condemnation of private property for public use to take any property necessary to the exercise of the powers granted in this article; except that such district shall not have or exercise the power of eminent domain over or by means thereof to acquire the title to or beneficial use of vested water rights for transmountain diversion, and in connection therewith such district shall not have the power to carry or transport water in transmountain diversion, the title to which has been acquired by any municipality by virtue of eminent domain proceedings against any such vested rights;      To construct and maintain works and establish and maintain facilities across or along any public street or highway and in, upon, or over any vacant public lands which public lands are now, or may become, the property of the state of Colorado and to construct works and establish and maintain facilities across any stream of water or watercourse; except that the district shall promptly restore any such street or highway to its former state of usefulness as nearly as may be and shall not use the same in such manner as to completely or unnecessarily impair the usefulness thereof. The grant of the right to use such vacant state lands shall be effective upon the filing by such district with the state board of land commissioners of an application showing the boundaries, extent, and locations of the lands, rights-of-way, or easements desired for such purposes. (d) (I) To construct and maintain works and establish and maintain facilities across or along any public street or highway and in, upon, or over any vacant public lands which public lands are now, or may become, the property of the state of Colorado and to construct works and establish and maintain facilities across any stream of water or watercourse; except that the district shall promptly restore any such street or highway to its former state of usefulness as nearly as may be and shall not use the same in such manner as to completely or unnecessarily impair the usefulness thereof. The grant of the right to use such vacant state lands shall be effective upon the filing by such district with the state board of land commissioners of an application showing the boundaries, extent, and locations of the lands, rights-of-way, or easements desired for such purposes.    If the land, rights-of-way, or easements for which application is made is for the construction of any aqueduct, ditch, pipeline, conduit, tunnel, or other works for the conveyance of water, or for roads, or for poles or towers and wires for the conveyance of electrical energy, or for telephonic or telegraphic communication, no compensation shall be charged the district therefor, unless in the opinion of the state board of land commissioners the construction of such works will render the remainder of the legal subdivision through which such works are to be constructed valueless or unsalable, in which event the district shall pay for the lands to be taken and for such portion of any legal subdivision which in the opinion of the board is rendered valueless or unsalable, at the rate of two dollars and fifty cents per acre. If the lands for which application is made are for purposes other than the construction of roads or works for the conveyance of water or electricity or telephonic or telegraphic communication, such district shall pay to the state for such lands at the rate of two dollars and fifty cents per acre.    Upon filing such application, accompanied by map or plat showing the location or proposed location of such works or facilities, the fee title to so much of such state lands as shall be necessary or convenient to enable such district efficiently and without interference to construct, maintain, and operate its works and to establish, maintain, and operate its facilities shall be conveyed to said district by patent. If an easement or right-of-way only over such lands is sought by the district, such easement or right-of-way shall be evidenced by permit or grant executed by or on behalf of the state board of land commissioners. The state board of land commissioners may reserve easements or rights-of-way, in the public, across any lands in such patents, grants, or permits described for streets, roads, and highways theretofore established according to law. Before any such patent, grant, or permit is executed, any compensation due to the state under the provisions hereof must be paid. No fee shall be exacted from the district for any patent, permit, or grant so issued or for any service rendered hereunder.    In the use of streets, the district shall be subject to the reasonable rules and regulations of the county, city, or town where such streets lie, concerning excavation and the refilling of excavation, the relaying of pavements, and the protection of the public during periods of construction; except that the district shall not be required to pay any license or permit fees or file any bonds. The district may be required to pay reasonable inspection fees.       To contract with the government of the United States or any agency thereof for the construction, preservation, operation, and maintenance of tunnels, reservoirs, regulating basins, diversion canals, and works, dams, power plants, and all necessary works incident thereto and to acquire perpetual rights to the use of water from such works and to sell and dispose of perpetual rights to the use of water from such works to persons and corporations, public and private;    To list in separate ownership the lands within the district which are susceptible of irrigation from district sources and to make an allotment of water to all such lands, which allotment of water shall not exceed the maximum amount of water that the board determines could be beneficially used on such lands; to levy assessments as provided in sections 37-45-121 to 37-45-126 against the lands within the district to which water is allotted on the basis of the value per acre-foot of water allotted to said lands within the district; except that the board may divide the district into units and fix a different value per acre-foot of water in the respective units and, in such case, shall assess the lands within each unit upon the same basis of value per acre-foot of water allotted to lands within such unit;    To fix rates at which water not allotted to lands, as provided in paragraph (f) of this subsection (1), shall be sold, leased, or otherwise disposed of; but rates shall be equitable although not necessarily equal or uniform, for like classes of service throughout the district;    To enter into contracts, employ and retain personal services, and employ laborers; to create, establish, and maintain such offices and positions as shall be necessary and convenient for the transaction of the business of the district; and to elect, appoint, and employ such officers, attorneys, agents, and employees therefor as found by the board to be necessary and convenient;    To adopt plans and specifications for the works for which the district was organized, which plans and specifications may at any time be changed or modified by the board. Such plans shall include maps, profiles, and such other data and descriptions as may be necessary to set forth the location and character of the works, and a copy thereof shall be kept in the office of the district and open to public inspection.    To appropriate and otherwise acquire water and water rights within or without the state; to develop, store, and transport water; to subscribe for, purchase, and acquire stock in canal companies, water companies, and water users' associations; to provide, sell, lease, and deliver water for municipal and domestic purposes, irrigation, power, milling, manufacturing, mining, metallurgical, and any and all other beneficial uses and to derive revenue and benefits therefrom; to fix the terms and rates therefor; and to make and adopt plans for and to acquire, construct, operate, and maintain dams, reservoirs, canals, conduits, pipelines, tunnels, power plants, and any and all works, facilities, improvements, and property necessary or convenient therefor and, in the doing of all of said things, to obligate itself and execute and perform such obligations according to the tenor thereof; but the sale, leasing, and delivery of water for irrigation, domestic, and other beneficial purposes as provided in this section, whether the water is developed by the principal district or a subdistrict thereof, shall only be made for use within the boundaries of either the principal district or the subdistrict, or both;    Repealed.    To invest or deposit any surplus money in the district treasury, including such money as may be in any sinking or escrow fund established for the purpose of providing for the payment of the principal of or interest on any contract or bonded or other indebtedness, or for any other purpose, not required for the immediate necessities of the district in any legal investment or depository authorized by the provisions of part 6 of article 75 of title 24, C.R.S., and such investment may be made by direct purchase of any issue of such legal investment, or part thereof, at the original sale of the same or by the subsequent purchase of such legal investment. Any legal investment thus made and held may be sold from time to time and the proceeds reinvested in any such legal investment. Sales of any such legal investment thus purchased and held shall be made in season so that the proceeds may be applied to the purposes for which the money with which the legal investments were originally purchased was placed in the treasury of the district. The functions and duties authorized by this paragraph (l) shall be performed under such rules and regulations as shall be prescribed by the board. The board may appoint, by written resolution, one or more persons to act as custodians of the money of the district. Such persons shall give surety bonds in such amounts and form and for such purposes as the board requires.    To refund bonded indebtedness incurred by the district under and pursuant to such rules and regulations as shall be prescribed by the board;    To borrow money and incur indebtedness and to issue bonds or other evidence of such indebtedness;    To adopt bylaws not in conflict with the constitution and laws of the state for carrying on the business, objects, and affairs of the board and of the district;    To participate in the formulation and implementation of nonpoint source water pollution control programs related to agricultural practices in order to implement programs required or authorized under federal law and section 25-8-205 (5), C.R.S., enter into contracts and agreements, accept funds from any federal, state, or private sources, receive grants or loans, participate in education and demonstration programs, construct, operate, maintain, or replace facilities, and perform such other activities and adopt such rules and policies as the board deems necessary or desirable in connection with nonpoint source water pollution control programs related to agricultural practices;      To provide park and recreation improvements and services in connection with a reservoir owned by the district and adjacent land if such improvements and services are not already being provided by another entity with respect to the reservoir and adjacent land. (q) (I) To provide park and recreation improvements and services in connection with a reservoir owned by the district and adjacent land if such improvements and services are not already being provided by another entity with respect to the reservoir and adjacent land.    Once the board adopts a resolution to provide improvements and services pursuant to this paragraph (q), no other entity may provide park and recreation improvements and services with respect to the reservoir and adjacent land without the consent of the board.    The district may exercise any powers that a park and recreation district has in connection with the provision of park and recreation improvements and services, including imposing rates, fees, and charges in connection with the improvements and services. The district may use any district revenues to provide the improvements and services.          Nothing provided in this article shall be construed to grant to the district or board the power to generate, distribute, sell, or contract to sell electric energy except for the operation of the works and facilities of the district and except for wholesale sales of electric energy which may be made both within and without the boundaries of the district or subdistrict.    Without limiting any other express or implied authority provided to a district or to a subdistrict of a district by this article 45, to secure and protect an adequate supply of water, a district may conduct or participate in forest health projects, as defined in section 37-95-103 (4.9), within and outside the district boundaries that reduce the risk of wildfire within the watersheds within which the district collects, transports, or stores its water supply. In addition to any other district financial powers, a district may acquire, sell, or lease real or personal property and enter into lease-purchase agreements as set forth in section 29-1-103.     History. Source: L. 37: P. 1324, § 13. CSA: C. 173B, § 27. L. 43: Pp. 633, 635, §§ 1, 1. CRS 53: § 149-6-13. C.R.S. 1963: § 150-5-13. L. 71: P. 1348, § 1. L. 77: (1)(j) amended, p. 1636, § 1, effective June 9. L. 81: (1)(l) amended, p. 620, § 4, effective April 30; (1)(k) amended, p. 1756, § 1, effective May 18. L. 87: (1)(k) repealed and (2) added, p. 1582, §§ 42, 43, effective July 10. L. 88: (1)(p) added, p. 1023, § 3, effective April 6. L. 89: (1)(l) amended, p. 1135, § 84, effective July 1. L. 2005: (1)(q) added, p. 152, § 2, effective April 5. L. 2021: (3) added,(HB 21-1008), ch. 159, p. 907, § 9, effective May 20. History. Source: L. 37: P. 1324, § 13. CSA: C. 173B, § 27. L. 43: Pp. 633, 635, §§ 1, 1. CRS 53: § 149-6-13. C.R.S. 1963: § 150-5-13. L. 71: P. 1348, § 1. L. 77: (1)(j) amended, p. 1636, § 1, effective June 9. L. 81: (1)(l) amended, p. 620, § 4, effective April 30; (1)(k) amended, p. 1756, § 1, effective May 18. L. 87: (1)(k) repealed and (2) added, p. 1582, §§ 42, 43, effective July 10. L. 88: (1)(p) added, p. 1023, § 3, effective April 6. L. 89: (1)(l) amended, p. 1135, § 84, effective July 1. L. 2005: (1)(q) added, p. 152, § 2, effective April 5. L. 2021: (3) added,(HB 21-1008), ch. 159, p. 907, § 9, effective May 20.    Cross references:   For the ”Boulder Canyon Project Act“, see 43 U.S.C. §§ 617 to 617v.   ANNOTATION   Law reviews. For article, ”Factors Affecting Water Utilization in Colorado“, see 19 Rocky Mt. L. Rev. 341 (1947). For article, ”Compensatory Storage“, see 22 Rocky Mt. L. Rev. 453 (1950). For note, ”Constitutionality of Colorado Statutes Providing for Transmountain Water Diversions“, see 25 Rocky Mt. L. Rev. 363 (1953). For article, ”Reclamation Water Rights“, see 32 Rocky Mt. L. Rev. 464 (1960). For note, ”A Survey of Colorado Water Law“, see 47 Den. L.J. 226 (1970). For article, ”Colorado Water Law Problems“, see 50 Den. L.J. 293 (1973). For article, ”Area-of-Origin Protection in Transbasin Water Diversions: An Evaluation of Alternative Approaches“, see 57 U. Colo. L. Rev. 527 (1986). For article, ”Law and the American West: The Search for an Ethic of Place“, see 59 U. Colo. L. Rev. 401 (1988). For article, ”The Constitution, Property Rights and the Future of Water Law“, see 61 U. Colo. L. Rev. 257 (1990).   Constitutional and statutory provisions not applicable. The language of § 8 of art. XVI, Colo. Const., and of article 85 of title 37, is not applicable to a political subdivision of the state of Colorado. Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202 , 613 P.2d 889 (1980).   Such provisions are only applicable to private parties. The framers intended, and the general assembly understood, that § 8 of art. XVI, Colo. Const., was applicable only to private persons or corporations engaged in the business of storage, carriage, and sale of water for irrigation, mining, milling, manufacturing, or domestic purposes. Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202 , 613 P.2d 889 (1980).   District compelled to obey section in formation and function. A legislatively created water conservancy district is compelled to obey the mandate of this section, not only in how the district is formed but also in how the district through its directors continues to function. Central Colo. Water Conservancy Dist. v. Colo. River Water Conservation Dist., 186 Colo. 193 , 526 P.2d 302 (1974).   District must obey subsection (1)(b)(II) prior to diverting water. A legislatively created water conservancy district is compelled to obey the mandate of subsection (1)(b)(II) prior to diverting water from a natural basin to the district. Central Colo. Water Conservancy Dist. v. Colo. River Water Conservation Dist., 186 Colo. 193 , 526 P.2d 302 (1974).   The general powers over the affairs of the district after incorporation are granted to the members of the board of directors by this section, with the jurisdiction of the district court limited by § 37-45-108 . Peaker v. Southeastern Colo. Water Conservancy Dist., 174 Colo. 210 , 483 P.2d 232 (1971).   This section gives a district board the authority to adopt plans and specifications for the works for which the district was organized, which plans and specifications may at any time be changed or modified by the board. People ex rel. Dunbar v. South Platte Water Conservancy Dist., 139 Colo. 503 , 343 P.2d 812 (1959).   Board has duty to determine extent of property necessary to be taken. In the exercise of the broad power vested in the district board, there is a duty to determine, among other things, the extent of the property necessary to be taken to accomplish the public purpose, and its determination of the question, in the absence of fraud or bad faith, is final; accordingly the failure of the court to appoint a commission to determine the necessity of taking land above the high-water line of the lake involved, or to be involved, was not error. Kistler v. Northern Colo. Water Conservancy Dist., 126 Colo. 11 , 246 P.2d 616 (1952).   Board is not subject to county commissioners' authority when setting rates for water it sells. Matthews v. Tri-County Water Conservancy Dist., 42 Colo. App. 80, 594 P.2d 586 (1979), aff'd, 200 Colo. 202 , 613 P.2d 889 (1980).   Water conservancy districts, when fixing rates for sale of water, are not subject to the jurisdiction of the boards of county commissioners. Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202 , 613 P.2d 889 (1980).   Water conservancy district was a municipality for purposes of the Federal Power Act notice requirements. Northern Colo. Water Conservancy Dist. v. F.E.R.C., 730 F.2d 1509 (10th Cir. 1984).   Water conservancy districts are not public utilities subject to the regulation of the public utilities commission (PUC). Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202 , 613 P.2d 889 (1980).   The power of a conservancy district to engage in rate fixing for the sale, leasing or disposition of its waters does not by this authority alone give it public utility status or subject it to the rules, regulations, and supervision of the PUC. Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202 , 613 P.2d 889 (1980).   A water conservancy district, a political subdivision of the state, having the powers of a public or municipal corporation and having no obligation to sell, and being prohibited by statute from selling water for use outside the district boundaries, does not rationally fall within the definition of a public utility or within the regulatory control of the PUC. Matthews v. Tri-County Water Conservancy Dist., 200 Colo. 202 , 613 P.2d 889 (1980).   For guides accompanying jurors inspecting lands during condemnation proceeding, see Kistler v. Northern Colo. Water Conservancy Dist., 126 Colo. 11 , 246 P.2d 616 (1952).   This section evinces an intent that a conservancy district use the benefits of any water developed by the district within the boundaries of the district, however, extra-district use is not per se impermissible. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).   The northern Colorado water conservancy district (NCWCD) enacted rules and regulations to implement the limitations placed on the distribution of Colorado-Big Thompson (CBT) water by the Water Conservancy Act and the 1938 repayment contract between the United States and the NCWCD for the construction of the CBT project. The Water Conservancy Act, the repayment contract, and the rules enacted by the NCWCD all prohibited use of CBT water outside the boundaries of the NCWCD boundaries. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).   Thornton could not use, outside the NCWCD boundaries, the CBT water it obtained by virtue of its shares in the water supply and storage company (WSSC) and the WSSC allotment contract with NCWCD. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).   Applied in Southeastern Colo. Water Conservancy Dist. v. Huston, 197 Colo. 365 , 593 P.2d 1347 (1979); Colo. River Water Conservation Dist. v. Municipal Subdistrict, 198 Colo. 352 , 610 P.2d 81 (1979).