dissenting in part and concurring as to the abandonment result reached by the majority:
I respectfully dissent. I would affirm the trial court as to the questions discussed below. A brief review of the facts put the issues before us in perspective:
The Trinidad Reservoir is located a few miles above the City of Trinidad. The ditches which make up the Purgatoire River Water Conservancy District (District) are below the City of Trinidad. The headgates of Highland and Nine-Mile are some 75 miles below the ditches administered by the District.
The District, and those representing a number of ditches within the District, have appealed from the water court’s judgment and decree prohibiting state water officials from allowing water to be stored in the newly completed Trinidad Reservoir because of a call for water which was made by two downstream non-member ditches, the Highland and the Nine-Mile Ditch. The trial court’s judgment was entered after extended hearings and with full recognition of the fact that the cost of construction of the Trinidad Reservoir exceeded 44.5 million dollars.
The Trinidad Reservoir was constructed to prevent destructive flooding by the Purgatoire River. It was constructed after a study by the corps of engineers which was commenced in 1938. The report suggested that a multi-purpose reservoir which would serve for flood control, irrigation, and recreation uses be established upstream from the City of Trinidad.
Eventually, the report was adopted by Congress in 1954 and published as House Document 325. By the Flood Control Act of 1958, *213Congress authorized construction of the Trinidad Dam in accordance with the principles embodied in House Document 325.
The District was formed in 1960 to encompass the ditches within the project area. Those ditches had historically diverted water for winter irrigation, and the return flows from that irrigation had been used and reused by downstream appropriators. The District was designed to administer the direct flow rights of the ditches which comprise it, as well as the 1908 decreed storage right of 20,000 acre feet of water in the Model Reservoir.
The report recommended that the Trinidad Reservoir be operated in accordance with several conditions, two of which are relevant here: (1) the Model Reservoir Storage right would be transferred to the proposed Trinidad Reservoir, and (2) the stream flows historically diverted by the project ditches for winter irrigation would be stored in the proposed Trinidad Reservoir. Water which was stored during the winter irrigation season would be released during spring and summer irrigation seasons to members of the District.
After three years of negotiation, operating principles for the Trinidad project were developed. It was intended that the principles would effectuate the conditions set forth above, ensure that the project complied with federal and state law, and achieve maximum irrigation benefits. It was recognized that storage of water which had previously been diverted by the project ditches for winter irrigation could harm the downstream appropriators who had historically relied on the return flow from those diversions to fulfill their decreed rights. Protection was afforded to downstream senior water rights by Article IV D1 of the Operating Principles.
“1. Non-interference With Downstream Water Rights.
“(a) Bypasses to the river shall be made at any time during the year to satisfy downstream senior rights as ordered by the Colorado State Engineer to the extent that such demands are not met by stream gains or otherwise satisfied but are limited to the extent as determined by the Colorado State Engineer to actually benefit such rights without unnecessary waste through channel losses.” (Emphasis in original.)
It is not disputed that Highland and Nine-Mile are among the intended beneficiaries of the requirement that the District comply with an order issued by the state engineer. The order was to bypass water to the river for the benefit of senior downstream users whenever the downstream demands are not met by stream gains or otherwise satisfied so long as unnecessary waste would not result through channel losses.
In 1965, the District Court for Las Animas County entered a decree transferring the 20,000 acre feet of storage of the Model Reservoir to the proposed Trinidad Reservoir. The decree required that storage in the reservoir be maintained in such a manner that the quantity of water in the river downstream not vary from the amount of flow measured over the ten-year period immediately prior to the operation of the reservoir.
*214By a 1967 decree, the Las Animas County District Court approved both the reimbursement contract between the Bureau of Reclamation and the District, which provided for repayment of the project costs allocable to irrigation and the contracts between the District and the member ditches whereby the District was to administer and store the ditches’ direct flow rights.
The contracts approved by the Las Animas County District Court incorporated the project operating principles, and as the majority recognizes, those principles are binding on the parties to this proceeding. The Las Animas County District Court retained jurisdiction over the matter in order to be able to declare its decree operative when the reservoir was completed.
Once the conditions precedent to formation of the project area were completed, construction of the Trinidad Reservoir began. The project was completed in 1976. The gates of the Trinidad Reservoir were closed temporarily for testing. They have not been closed since.
On December 3, 1976, the Las Animas County District Court entered an order which decreed that the storage rights granted under its 1965 decree would become effective on January 1, 1977. The District planned to close the gates and to begin storing water on that date.
The trial court found, and the majority agrees, that the decreed water rights of Highland and Nine-Mile are junior to the diversion rights of the project ditches, but senior to the Model Reservoir Storage rights which were transferred to the Trinidad Reservoir by the 1965 decree of the Las Animas County District Court. Thus, the proposed January 1, 1977, storage would have been out of priority with respect to the rights of Highland and Nine-Mile, and such storage could not begin until the requirements of section 37-92-502(2), C.R.S. 1973, were complied with.1
On December 18, 1976, Highland and Nine-Mile, in anticipation of the proposed commencement of storage, put a call on the river, demanding fulfillment of their senior priority rights.
*215On December 29, 1976, the division engineer ordered that no storage would be allowed in the Trinidad Reservoir until the calls of Highland and Nine-Mile were filled. The division engineer provided in his order that, if their rights were satisfied, the District could begin storing its junior Model Reservoir Storage rights in the Trinidad Reservoir. The trial court found that the division engineer’s “order of December 29 [1976] had in fact caused water to become available to calling seniors at the time and place of their need.” It also found that the Purgatoire River was a “live stream” from the Trinidad area to Highland’s headgates, and that “during the period in question, water passing Trinidad Reservoir in the Purgatoire River provided a major portion of the water diverted by Highland, either as direct river flow or as a part of a continuous irrigation and return flow cycle.” Thus, the trial court found that the December 18, 1976, call placed by Highland and Nine-Mile was not futile.
However, on January 25, 1977, the division engineer issued a second order, which permitted the District to commence storage on January 26, 1977. The order provided that the storage would be out of priority, pursuant to section 37-80-120, C.R.S. 1973. The order was premised on the division engineer’s declaration that his order of December 29, 1976, had failed to make water available to Highland, and the division engineer “discontinued” his order of December 29. See section 37-92-502(2), C.R.S. 1973.
The determination that the calls placed by Highland and Nine-Mile were futile was premised upon the condition that if the storage of the winter irrigation flows in the Trinidad Reservoir should cause less water to be available to Highland and Nine-Mile, water would be released from storage for their benefit.
Following the division engineer’s order of December 29, 1976, that storage in the Trinidad Reservoir be delayed until the calls of Highland and Nine-Mile were satisfied, the division engineer entered into negotiations with the District. As a result of these negotiations, the trial court found that:
“It appears from the testimony of defendant Kuiper that the State Engineer acting through the Division Engineer made an agreement under which the District and its member ditches would forgo direct flow diversions for winter irrigation in exchange for the obligation of the State Defendants to store the waters thus released in Trinidad Reservoir. The Court finds that the State Defendants by [the Division Engineer’s] order of January 25 acted upon the promise made by the District to release the direct flow rights under its control to the river . . . .”
Thus, the division engineer’s futile call determination of January 25, was based, not on the requisites of section 37-92-502(2), C.R.S. 1973, but on a condition that the futile call determination was subject to an agreement that, while storage in the Trinidad Reservoir could begin, it *216was subject to a possible subsequent decision of the division engineer that storage was causing harm to Highland and Nine-Mile.
As noted above, the trial court found the December 18, 1976, call of Highland and Nine-Mile was not futile, and that the division engineer’s order of December 29, had caused water to become available to Highland and Nine-Mile at the time and place of their need. The trial court made several findings regarding the division engineer’s futile call determination of January 25, 1977.
“Under C.R.S. 1973, 37-92-502(2) the Division Engineer is authorized to issue orders for the discontinuance of any diversion to the extent the water is required by persons having senior priority, but no such discontinuance shall be ordered unless the diversion is causing or will cause ‘material injury’ to the senior rights. The determination of the materiality of the injury is made to depend upon the facts of each case and is governed by those factors specified in 502(2). The December 29 order has been characterized by some counsel as a discontinuance order, but the Court finds from the testimony of the Division Engineer that it discontinued nothing, since the gates on the reservoir had never been closed to store water. As the Division Engineer testified, the December 29 order was entered to ensure that the gates were not closed, not to discontinue a present diversion. On the theory, however, that the December 29 order is a discontinuance order, the plaintiffs and the State Defendants urge that the December 29 order failed to ‘cause water to become available to such senior priorities at the time and place of their need,’ and was therefore properly rescinded by the January 25 order. On this point, the Court concludes as follows: If the December 29 order is in fact a discontinuance order, the record reflects, and the Court so finds, that neither the written order of December 29 nor the testimony of the Division Engineer demonstrate that he considered the five factors which the statute requires him to consider before discontinuing ‘a diversion to satisfy senior priorities.’ The statute does not apply to the facts before the Court. Moreover, the statute provides no basis for a later order (January 25) which if not enjoined by order of this Court, would have impounded an average daily flow of 9 or' 10 c.f.s. during the thirty (30) days it was to remain in effect. Impounding the headwaters of a river seems to be an inefficient way to increase the flow below the impoundment.”
This conclusion is fully supported by the record. Thus, the order of January 25, 1977, was premised, not on the requirements of section 37-92-502(2), but on the division engineer’s decision to determine at some later date whether or not Highland and Nine-Mile would be harmed by storage. The trial court recognized that the division engineer had full authority to determine that the December 18, 1976, call of Highland and Nine-Mile had been futile, but it also recognized that such a determination could only be made after the division engineer had complied with the terms of *217section 37-92-502(2), C.R.S. 1973. Accordingly, the trial court’s decree provided, in part, that:
“The State Engineer, Division Engineer and Water Commissioner be and hereby are enjoined and restrained from storing water out of priority under the Model Storage Right when Highland and Nine Mile are calling for water under rights senior to the Model Storage Right, unless the Division Engineer should first determine in accordance with Colorado law that the Highland and Nine Mile calls are futile.” (Emphasis supplied.)
From the above, it is clear that the trial court did not usurp the division engineer’s authority to test the hypothesis that storage of waters previously diverted for winter irrigation would not harm Highland and Nine-Mile. Rather, the trial court held that, before the division engineer could order storage, he must make his futile call determination in accordance with the statutory directives, and that the division engineer was acting in excess of his authority by failing to do so. In this respect, the trial court was correct.
The trial court also found that the division engineer failed to comply with the operating principles for the Trinidad Reservoir when he issued his January 25, 1977, order to begin storage in the Trinidad Reservoir. The operating principles were incorporated into the 1967 Las Animas County District Court decree, and when the division engineer permitted out-of-priority storage of the waters governed by that decree, he was required to abide by its terms.
The trial court found that the division engineer had failed to comply with at least two provisions of the Las Animas County District Court’s decrees when he issued his order of January 25, 1977:
“The Court finds that the District, in connection with its proposals for winter storage, made no attempt to estimate evaporation losses from water in storage as required by Article IV, paragraph D.4 of the Operating Principles incorporated by reference in the April 14, 1965 transfer decree.
“The State has not calculated the 10-year running average of river flows as required by the Operating Principles and therefore has no standard against which to measure the results of its order of January 25, 1977, had that order been allowed to become effective.”
These findings served as the basis for two of the trial court’s conclusions of law:
“The Division Engineer, acting for the State Engineer by statute, would have, but for the entry of a temporary restraining order by this Court on January 31, 1977, failed to make the bypass to the river to satisfy the rights of Highland and Nine Mile which are senior to the Model Storage Right. His order of January 25 would have shut the gates on the Trinidad Reservoir, thus precluding the bypass required by D.l.(a), of Article IV of *218the Operating Principles, which are incorporated into the 1965 degree. According to the testimony of the Division Engineer, the downstream rights of Highland and Nine Mile senior to the Model Storage Right had not been ‘met by stream gains or otherwise satisfied,’ and neither the State Engineer nor the Division Engineer had determined whether a bypass would ‘actually benefit such rights without unnecessary waste through channel losses.’ To that extent, at least, the Court concludes as a matter of law that the Division Engineer has failed to comply with the Operating Principles incorporated into the 1965 decree for the protection of the Nine Mile and Highland rights.
“The Division Engineer acted in excess of his constitutional and statutory jurisdiction and authority when he ordered the out of priority storage in the Trinidad Reservoir under the terms of the 1965 decree which by its own terms provided that bypasses to the river shall be made at any time during the year to satisfy downstream senior rights to the extent that such demands are not met by stream gains or otherwise satisfied but are limited to the extent as determined by the State Engineer to actually benefit such rights without unnecessary waste through channel losses.”
In order to ensure that the division engineer complied with the Operating Principles, the trial court decreed that:
“The State Engineer, Division Engineer and Water Commissioner be and hereby are ordered to bypass water to the Purgatoire River below the Trinidad Reservoir as required by D.l(a) of Article IV of the Operating Principles to satisfy the water rights of Highland and Nine Mile which are senior to the Model Storage Right to the extent that demands of Highland and Nine Mile are not met by stream gains or otherwise satisfied, but such bypasses are limited to the extent as determined by the Division Engineer to actually benefit such Highland and Nine Mile rights without unnecessary waste through channel losses in accordance with applicable Colorado law regarding futile calls.”
Thus, the trial court endeavored to ensure that the division engineer acted within the scope of his authority. The “conditional futile call” order of January 25, 1977, which resulted from the agreement which the division engineer made with the District, is not the type-of action which is contemplated by section 37-92-502(2), C.R.S. 1973. That statute, and the operating principles which were incorporated into the junior Model Reservoir Storage right which was benefitted by the division engineer’s futile call order, provide detailed criteria which spell out the conditions under which out-of-priority storage is permitted. The division engineer failed to comply with these requirements. As such, the actions of the trial court were not, as the majority has determined, a usurpation of the powers possessed by the state engineer. The trial court, as reflected by the quoted portions of its decree, sought to require the state engineer to exercise his authority within the proper limits.
*219In all other respects, I concur in the result reached by the majority, but the decision of the trial court as to the issues discussed above should be affirmed.
MR. JUSTICE CARRIGAN has authorized me to say that he joins me in this dissent.
Section 37-92-502(2), C.R.S. 1973, provides, in pertinent part:
“(2) Each division engineer shall order the total or partial discontinuance of any diversion in his division to the extent the water being diverted ... is required by persons entitled to use water under water rights having senior priorities, but no such discontinuance shall be ordered unless the diversion is causing or will cause material injury to such water rights having senior priorities. In making his decision as to the discontinuance of a diversion to satisfy senior priorities the division engineer shall be governed by the following: The materiality of injury depends on all factors which will determine in each case the amount of water such discontinuance will make available to such senior priorities at the time and place of their need. Such factors include the current and prospective volumes of water in a tributary to the stream from which the diversion is being made; distance and type of stream bed between the diversion points; the various velocities of this water, both surface and underground; the probable duration of the available flow; and the predictable return flow to the affected stream. ... In the event a discontinuance has been ordered pursuant to the foregoing, and nevertheless such does not cause water to become available to such senior priorities at the time and place of their need, then such discontinuance order shall be rescinded . . . .”