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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

Dry Up

“Dry up” is a concept that most frequently arises in the context of a change of irrigation water rights to new uses.  Applicants seeking to change water rights must propose decree terms and conditions sufficient to ensure that new uses of the water rights will not expand the overall use of the water rights compared to the historical amounts and will not result in injury to other water rights.  One common term and condition is the need to “dry up” the land that was historically irrigated by the water rights and prevent that land from being irrigated by certain sources of water in the future.  The purpose of a dry up requirement is to ensure that the portion of the water rights that continue to be used for irrigation (e.g., by other shareowners along the same ditch) cannot have its consumptive use expanded by spreading the same amount of water on additional acres.  City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 87-88 (Colo. 1996).

Parties who purchase the water rights from a farm, but not the land on which they were used, would be wise to obtain a “dry up covenant” as part of the purchase of the water rights.  A dry up covenant is a document that prohibits the historically irrigated land from being irrigated or maintained in a way that would interfere with the ability of the owner of the water rights to change the water rights to new uses.  Parties seeking to purchase lands that are subject to a dry-up covenant should take care to fully understand the effect of the dry-up covenant on the future use of the property.

“Dry up” can also take the form of “de facto dry up.”  This means that the historically irrigated lands have been developed and are no longer capable of being irrigated.  This can occur when a property is converted from a farm into a gravel mine or is paved over for a residential or commercial development.  In these situations the area of land that is no longer capable of irrigation can be labeled as “de facto dry up” and treated as though it will not be irrigated in the future, even in the absence of a dry up covenant.

While dry up is not a requirement in every change of water rights case, it is important to be aware of this potential limitation and to plan for it if you are purchasing irrigation water rights that you intend to change to new uses in the future.

The attorneys at Nazarenus Stack & Wombacher are experienced in changing water rights and drafting and enforcing dry up covenants.  If you have questions about any of these areas of water law please reach out to us for assistance.

William Wombacher