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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

Change of Erroneously Described Point of Diversion

It is not uncommon for the owner of a water right to learn that the physical point of diversion for his or her water right is not located at the point dictated by the terms of their water court decree.  This can happen as a result of changes in the accuracy of surveying methods or simply because of a mistake that goes unnoticed for decades.  Fortunately, the Colorado General Assembly created a truncated water court process for correcting an established but erroneously described point of diversion.  See C.R.S. § 37-92-305(3.6).

It is important to note that surface diversions that are located within 500 feet and groundwater diversions located within 200 feet of their decreed locations are deemed to be located in compliance with the decree.  However, diversions that are located farther away are not in compliance with their decree and may qualify as an “established but erroneously described point of diversion.”

To qualify as an “established but erroneously described point of diversion” the diversion must be: (1) located in the same physical location since the application decree confirmed the water right, (2) not located as specified in the applicable decree, and (3) have been used by the diverter to divert water with the intent to use the water pursuant to the existing decree.  C.R.S. § 37-92-305(3.6)(a)(II).

The benefit of qualifying as an “established but erroneously described point of diversion” is that water court applications to correct the error in the legal description carry a rebuttal presumption that the correction will not result in an expansion of use of the water right and will not injure other water rights. C.R.S. § 37-92-305(3.6)((e). Likewise, applicants in these proceedings are not required to satisfy the Can and Will Doctrine or the Anti-Speculation Doctrine nor are they required to prove a need for the water.  The final decree entered in such cases is also prohibited from requantifying the underlying water right.  Thus, applicants seeking to correct “established but erroneously described points of diversion” benefit from dramatically reduced legal standards and evidentiary burdens that are designed to reduce the cost and potential for opposition to such cases.

If you have questions about whether the points of diversion for your water rights are in compliance with the terms of your decrees or need help correcting an established but erroneously described point of diversion, please reach out to the water attorneys at Nazarenus Stack & Wombacher LLC.

William Wombacher