Earlier this month, the Decennial Abandonment List of Water Rights was released by the Colorado Department of Water Resources. This list contains thousands of water rights across the state — some reaching back to the 1800s — that are in danger of being abandoned, meaning the owner would lose the right to use that water, and determines if the water right will survive another decade.
But perhaps the most important part of the list is that if a water right listed is not challenged, that right can be lost forever.
This list is an “important” process for water law and administering the state’s water rights, according to the DWR. Every decade, the DWR is required by state law to present a list of water rights, which Division Engineers administer in the seven different water basins of Colorado. The list is created by looking over records of water diversions, completing other fact-based research and conducting on-site visits.
Colorado’s water rights are unlike other states’, according to Davis Graham & Stubbs counsel James Witwer. “Water rights are effectively created by use, and lost — or greatly diminished — by nonuse,” he said. The phrase “use it or lose it” is very apt to this situation. A “shudder” goes through the water-user community when the list comes out, and many are surprised to find their rights on the list.
And with an ever-expanding population moving into the state, water continues to be a major concern — both who owns the rights to that water and in what order. The list focuses on water rights that exist but do not have any recent use documented, Witwer said.
Witwer said some people look at Division Engineers as “the Grim Reaper” coming for water rights, however, “I think if you asked the engineers they would describe themselves more like the coroner who is investigating after the fact to tell you that a water right is already dead.”
The initial list has been published, but a window of protest is open until July 2021 for those who contest the listing, and in some cases the water rights can be taken off the list, he said. The state can struggle to know who owns a water right when it is put on the list, Witwer said. He added many people are surprised to learn that the state does not have “crystal clear” records on water right ownership.
During this time, an informal opportunity is given to people to object to the right placement on the list and provide proof. People ultimately have to show that the right has been used, or a good reason why it has not, Witwer said.
While the list does affect many different kinds of water right holders, ranchers and farmers are especially affected by the list, according to Nazarenus Stack & Wombacher partner William Wombacher. Water rights are usufructuary rights — if they aren’t used, they can be lost. For a legal water right to be abandoned, the key legal principle is showing that the water right owner had an intent to abandon it.
A legal presumption is attached that the right is abandoned if the water rights haven’t been used for a period of 10 years, he said. The list signifies that the water rights were determined to meet that presumption, and the burden shifts to the right owner to go to the State Engineers Office to show there was no intent for abandonment, and then finally seek a finding from the water court.
There are many reasons why people may not pay attention to water rights, Witwer said. More people continue to adopt Colorado as their home state, and some believe food comes from the store and water from the tap, he said. “They don’t really understand there’s a vast and complex, not only legal system, but a physical system that delivers water from faraway places.”
In addition, they don’t know legal property rights are at risk.
“Without a water right, someone in Colorado, generally, doesn’t have a legal right to use water,” Witwer said. “Obviously if you get your water from Denver or Colorado Springs you don’t have much to worry about… but if you’re in a small town or subdivision it’s kind of up to you.”
Agriculture, and senior water rights held by agriculture, are potentially at risk if not used, he said. Many ranchers and farmers are good stewards of their water rights generally, but the list affects groups from mountain communities to homeowners’ associations, real estate developers, industry and can even affect municipalities.
Wombacher agreed that farmers and irrigators were affected most by the list. Cities and municipalities benefit from having large staffs and resources to stay on top of the water right things constantly, however, the typical farmer is out working day after day to raise family, crops and cattle. “He doesn’t have the benefit, necessarily, of having all that support,” he said.
“At the end of the day, the state, they’re not trying to go after people — they’re just trying to enforce the law,” Wombacher said. “But, if you have a good-faith basis, my experience, they’ll pay attention to that.”
If someone has been using the water rights, and their right is on the list, the first step is to assemble any diversion records that have been kept — even if it’s written on notebook paper or from the memory of a ranch manager, Wombacher said.
He added that supporting the fact you don’t intend to abandon that water right is important, as are records of improvements made to rights. Records such as replacing a head gate, augmenting a well or records of working with a water district are the key.
The engineers are “all ears” Witwer said. Because of the lack of ownership lists, that is partially the reason for a year of time to object and check the list.
Once a right is abandoned, it “disappears,” Wombacher said. The state keeps a tabulation of all the water rights in the state, which includes the priority date, usage and how much water is allocated, and when a right is abandoned that right just disappears from the tabulation and ceases to exist.
If a water right is “all-the-way dead” you cannot revive it, and thus the owner loses their place in line in the state’s priority system, Witwer said. “And if you were number seven out of a thousand users, you’re now number 1,001 — assuming you go back to water court — that can be the difference between reliable water supply and no water supply. That causes a lot of heartache when someone lets a right go.”
The key is to act immediately to prevent the water right from being declared abandoned, adding that this is the lone chance people have to save them, Witwer said.
“If you fall asleep on your water rights too long, they might not wake up,” Witwer said.
This article appears in the July 27 issue of Law Week Colorado. To read other complete articles from this issue, order a copy online