WATER LAW

- Claire E. Sollars

     The scarcity of water in the intermountain West has resulted in the creation of laws and policies that are intended to promote the utilization of the resource while protecting those who have the right to use it.  Colorado relies upon the doctrine of appropriation for water users, which, simply put, means first in time, first in right.  It also means that landowners do not automatically have the right to use water that arises on or runs through their property.

      In Colorado, the right to use water is created through the court system.  The process is initiated with an application that includes specific information about the location of the water source (a spring, a stream, a river, or a well), the location where the water is to be used, how the water is to be used (such as irrigation, domestic, municipal, wildlife watering, aesthetics, piscatorial, or livestock watering), the date of appropriation (the date that specific steps were taken to use the water), and whether the request is for an absolute water right (when the water is actually being used) or conditional (when the water is not yet used but will be in the future).  The adjudication process can be relatively simple and quick or can become very complex and involve a great deal of time if others oppose the application or problems are discovered with respect to the information contained in the application.

     Once a water right is adjudicated, the right is administered under Colorado’s priority system.  Water rights that are adjudicated in an earlier year are senior to those with a later date of adjudication.  Within the same year of adjudication, the water right holder having the earlier date of appropriation is considered senior.  In times of water shortage, the owner of a senior water right can “call out” a junior water right holder using water from the same source.  If the call is determined to be valid, then the junior water right holder must stop diverting water so that more water is available to the senior water right holder.  Sometimes such calls are deemed “futile,” when the water associated with the junior water right would not be available to the senior water user even if the diversion was stopped.  In such cases, the junior water right holder can continue to use the water right as decreed.

      K&T handles all facets of water law matters, including water right applications, due diligence applications (for existing conditional water rights), plans for augmentation, ditch agreements, well agreements, and assisting property owners with the process of utilizing adjudicated water rights.  Some issues require litigation but often the matters can be resolved without requiring a hearing or trial before the Court.  Claire Sollars serves as lead counsel for water law matters at K&T.

  INFORMATION REQUIREMENTS:

      Whether preparing an application for surface water rights or preparing for a trial to protect existing water rights, certain information is always required, such as maps, drawings or legal descriptions reflecting the location of the water source and the property where the water is used.  Additionally, detailed information regarding the present and future use (both type of use and quantity) of the water, such as domestic use, stock watering, or a fish pond is needed.  It is helpful to have information concerning use of water from the same water source by others, as this will help to determine the relative priority of the client’s water rights.

GENERAL PROCEDURE:

     At the initial meeting with the client, the basic principles of water law are discussed which relate to the client’s needs and desires.  If a client needs to file an application for water rights, K&T can prepare the application for them or can provide them with assistance to fill out the documents themselves.  Sometimes the client may be in a position where their water rights are being infringed upon by the actions of others.  In such cases, K&T will work with the client to defend the client’s rights, whether through dialogue with the other party or enlisting the Court’s aid to resolve the dispute.  The client may also be in a situation where another party has filed for water rights that may effect the client’s rights.  If so, K&T will review the case with the client to determine if it is appropriate to file a statement of opposition to the case, (to be directly involved in the adjudication process), or whether the issues can be resolved outside of litigation.

     While many water law issues can be resolved without the need for litigation, sometimes it is required.  In such cases, K&T will prepare the client’s case for trial, which typically includes the need to obtain expert witnesses and to conduct field research.  Regardless of the situation, K&T will strive to provide the client with the expertise and knowledge to address any water law issue.

ADDITIONAL INFORMATION:

The website www.courts.state.co  provides access to the   Colorado forms for water rights proceedings.

The Colorado Foundation for Water Education (www.cfwe.org) provides balanced, accurate information and education on water resource topics including booklets that can be purchased online with respect to the same. (https://cfwe.org/EducationalProducts/ss/ListCatalog.asp)

Also The University of Denver Water Law Review contains articles and information about water law.   Some information on the publication can be found at www.du.edu/law/lawreview/.