Changes of Water Rights
In order for a water right to be used for purposes that were not approved in the original decree, one must file a change of water rights application with the Water Court and obtain approval for the new uses. This procedure can be used to change points of diversion, types of use, places of use, etc. The water court cannot approve an application for a change of water right unless the change “will not injuriously affect the owner of or persons entitled to use water under a vested water right or a decreed conditional water right.” C.R.S. § 37-92-305(3)(a). This requirement is based on the long-held principle that owners of vested water rights have a right to the “continuation of stream conditions as they existed at the time they first made their appropriation.” Farmers Reservoir & Irrigation Co. v. City of Golden, 44 P.3d 241, 245 (Colo. 2002).
The fundamental elements of a change case are to “(1) identify the original appropriation’s historic beneficial use; (2) fix the historic beneficial consumptive use attributable to the appropriation by employing a suitable parcel-by-parcel or ditch-wide methodology; (3) determine the amount of beneficial consumptive use attributable to the applicant's ownership interest; and (4) affix protective conditions for preventing injury to other water rights in operation of the judgment and decree.” Farmers Reservoir & Irrigation Co. v. Consol. Mut. Water Co., 33 P.3d 799, 807 (Colo. 2001).
In a change case the applicant carries the initial burden and must first establish “that the proposed change will not have an injurious effect on others’ water rights.” City and County of Broomfield v. Farmers Reservoir & Irrigation Co., 235 P.3d 296, 299 (Colo. 2010). If the applicant satisfies this initial burden, the burden then shifts to the opposers to show that the change will result in injury to their existing water rights. Id. If the opposers are able to present such evidence, then the applicant has the ultimate burden to show an absence of injurious effect by a preponderance of the evidence. Id. Additionally, where an “expansion of use is the injury asserted, establishment of historical use is the burden of the applicant.” Weibert v. Rothe Brothers, Inc.¸ 618 P.2d 1367, 1372 (Colo. 1980). This includes the burden to demonstrate that the change remains within the scope of the original right. Id.
One of the most important aspects of a change case is establishing the historical beneficial consumptive use of a water right. Only the portion of a water right that was historically consumed can be changed to a new use. Thus, even if a water right allowed one to divert 100 acre feet on paper, if only 20 acre feet was historically consumed then only 20 acre feet may be changed to the new use. A water resources engineer that specializes in consumptive use analyses and has experience serving as an expert in water court is a necessity for any successful change application.
Where a proposed change would injure other water rights, the change should not be approved unless it includes accompanying terms and conditions adequate to prevent injury. C.R.S. § 37-92-305(3)(a). These protective provisions are designed to “hold the owners of water rights to their adjudicated allocation of historic beneficial consumptive use and assure maintenance of surface or tributary groundwater stream conditions that existed at the time of other water rights appropriations.” Farmers Reservoir & Irrigation Co. v. Consol. Mut. Water Co., 33 P.3d at 807. There are certain terms and conditions that have become mandatory components of every modern-day change case. These include things such as volumetric limits which are structured to ensure that the pattern of use of the water for the new uses is consistent with the historical pattern of use, as well as requirements to maintain historical return flows in time, location, and amount.
If you have questions about changes of water rights or need assistance changing your water right then please reach out to the attorneys at Nazarenus Stack & Wombacher LLC