In the month of September, 2002, the Colorado Supreme Court published two opinions on cases which involve water rights.  In both of these cases, the Court reviewed and reversed decisions which had been made by regional water courts, two or three years ago.  And, in both cases, the Court acted to protect court-decreed water rights, in the context of Colorado’s continuing drought conditions.

  In one case, the water court (District 4; Ouray County) had granted conditional rights to a property owner in 1994.  Then, in 2001, the court cancelled the ranch owner’s conditional water rights, because the owner had failed to file its application for a finding of reasonable diligence, within the permitted 6-year period.  In summary, the owner had obtained conditional water rights, but failed to subsequently provide the Court with proof that it was making use of these adjudicated rights.

  In this case, the Colorado Supreme Court ruled to protect the rights of the owner, against the water court’s action, since the action was taken without notice being provided to the owner.  The Supreme Court relied upon a specific Colorado Statute for its ruling, but the effect is that a water court must provide an owner with notice and an opportunity to be heard, before a water right (even a conditional one) can be taken away by court order.

  The other, more complicated, case occurred in Rio Grande County, where the owner of a farm property (Bradley) sought a permit to relocate a well, in order to irrigate his property more efficiently.  Bradley sought to move an existing water right from a corner of a crop area into an area near the center of the crop area, contending that he was only moving his existing water rights, and that such a move would not harm any other holders of water rights.

  The State’s water engineer and the water referee objected to Bradley’s request, because of an apparent concern that Bradley was actually expanding his water rights – possibly against the interests of other holders of water rights.  Bradley took his case to the water court, which approved his request to move his water rights to the new location.

  However, the State’s engineer then appealed the water court’s decision.  When the Colorado Supreme Court reviewed the case that was presented to the water court and the findings that the water court made, the Supreme Court found that the water court’s decision was not appropriate under the evidence presented.  The Court found that, while Bradley’s efforts to irrigate more efficiently were laudable, the real effect of moving of his water rights was to increase his water usage.

  Furthermore, the Supreme Court found that there was substantial demand for water in the impacted area and considerable water rights held by others.  In reviewing the water court’s factual findings, the Court stated, “…they demonstrate with near certainty that the requested change would amount to an enlargement of the applicant’s original water right and would be injurious to other vested rights.”  Here, the Court protected the water rights of other owners, whose rights could have been negatively impacted by Bradley’s request.

  In its discussion of this case, the Supreme Court affirmed a couple of basic water rights’ principles.  First, it is not permissible to expand a water right, under the guise of requesting a change in location of the use of that right.  And, second, if an owner does seek to change location of a use, the owner risks losing some of that owner’s adjudicated quantity:  “…once an appropriator exercises the right to change a decreed water right, he runs the real risk of requantification of the right based upon actual historic consumptive use at an amount less than his original decree.”

  While both of these cases highlight the need for diligence and for caution on the part of the owners of water rights, the Supreme Court is clearly acting in a manner that is protective of the water rights of those who own them and who are diligent.