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Water Rights Resources

Water law is complex, nuanced, and can be difficult to understand. We delve into common water law concepts and provide tutorials that describe how it use publicly available tools to learn more about water rights. To this end, below are a series of articles that are designed to help parties develop a general understanding of some of the basic principles of water law. The information provided below is for educational purposes only and if you have specific questions about your water rights, please contact the attorneys at Nazarenus Stack & Wombacher for legal advice. Use of this information is explicitly subject the website disclaimer available at this link https://www.nswlaw.com/disclaimer

Abandonment of Water Rights

Water Right Abandonment

 Abandonment is “the termination of a water right in whole or in part as a result of the intent of the owner thereof to discontinue permanently the use of all or part of the water available thereunder.” C.R.S. § 37-92-103(2). There is a statutory presumption of abandonment after a period of ten or more years of non-use. C.R.S. § 37-92-402(11).  A presumption of abandonment requires two elements: (1) non-use for the statutory period (ten years); and (2) the intent to abandon. Se. Colo. Water Conservancy Dist. v. Twin Lakes Assocs., Inc., 770 P.2d 1231, 1238 (Colo. 1989). This presumption may be rebutted by evidence of the owner's intent to not abandon the right; evidence rebutting the presumption of  abandonment may include such acts as loaning or leasing the water to others or good faith efforts to sell the water right.  Archuleta v. Gomez, 200 P.3d 333, 344 (Colo. 2009).  Courts will consider the following factors when analyzing the issue of intent to abandon: (1) repair and maintenance of diversion structures; (2) attempts to put the water to a beneficial use; (3) active diversion records; (4) diligent efforts to sell the water right; (5) filing documents to protect, change, or preserve the water right; (6) leasing the water right; and (7) economic or legal obstacles to exercising the water right.  East Twin Lakes Ditches and Water Works, Inc. v. Bd. of Cty. Commrs. , 76 P.3d 918, 922 (Colo. 2003).  Where a presumption of abandonment cannot be overcome by the preponderance of the evidence, a court will find that the rights have been abandoned. Colo. Water Conservation Bd. v. Upper Gunnison River Water, 109 P.3d 585, 597 (Colo. 2005).  The best way to avoid abandonment is to simply use a water right for its intended purpose(s) and to ensure that the infrastructure associated with the water right is sized such that it can divert and convey the full amount of the water right.

Abandonment List

Colorado law requires the State Engineer to prepare of list of abandoned water rights every ten years.  The State Engineer relies in part on information from local water commissioners about the status of water rights in their districts.  Water rights can appear on this list for numerous reasons, including lack of diversion records, lack of infrastructure necessary to exercise the water right, lack of adequate capacity to use the full amount of water right, lack of a legally required augmentation plan, or other reasons that support a finding that the water right has not been placed to beneficial use.

Once the initial abandonment list has been published, the State Engineer will send notices via  certified mail to the last known owner of the water right in question, who then has one year to file a written statement of opposition to the Division Engineer describing why the water right has not been abandoned.   Based on these statements, the Division Engineer may agree to remove a water right from the abandonment list.  After consideration of all opposition, the State Engineer will publish a revised abandonment list, which is also filed in the respective water court.   At this stage, owners must file a statement of opposition to the water court if they wish to continue their opposition to the listing.  To the extent that a water owner cannot reach a settlement with the Division Engineer to resolve the abandonment listing, then the Water Judge will conduct trials to evaluate whether the water right has, in fact, been abandoned.  The Water Judge will rely on the law described above in making his or her final decision on the water right.

The next abandonment list will be published in 2030.  If you have questions or concerns about the abandonment of a water right, please call one of the experienced attorneys at Nazarenus Stack & Wombacher to discuss your options.

William Wombacher