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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

Simple Change in Point of Diversion

Water court applicants seeking to change a water right to new uses or points of diversion typically attract significant opposition from other users, which can be time consuming and costly.  This can present a challenge for parties who seek to make relatively minor changes to their water rights such as minor changes in points of diversion.  To address this challenge, the Colorado General Assembly passed Senate Bill 13-074, which creates a truncated water court process for a “simple change in surface point of diversion.”

The “Simple Change” process is only applicable to changes in points of diversion, for surface diversions where there is “no intervening surface diversion points or inflows between the new point of diversion and the diversion point from which the change is being made.”  

            An applicant for a Simple Change must show that the Simple Change will not:

 (I)              Result in diversion of a greater flow rate or amount of water that has been decreed to the water right and, without requantifying the water right, is physically and legally available at the diversion point for which a change is being made; or

(II)           Injuriously affect of the owner of or person entitled to use water under a vested water right or a decreed conditional water right.

 

C.R.S. § 37-92-305(3.5)(c). 

             The main benefit of pursuing a Simple Change is the application of reduced standards of review and burdens of proof as would apply to a traditional change of water right.  The following standards apply:

  1. The Applicant enjoys a rebuttable presumption that a Simplified Change will not cause an enlargement of historical use;

  2. The decree must not requantify the subject water rights;

  3. The Applicant is not required to prove that water diverted at the new point can and will be diverted and put to use within a reasonable period of time;

  4. The Applicant is not required to prove compliance with the anti-speculation doctrine; and

  5. The Applicant is not required to provide or make a showing of future need as dictated by Pagosa Area W& S Dist. V. Trout Unlimited, 219 P.3d 774 (Colo. 2009) and City of Thornton v. Bijou Irr. Co., 926 P.2d 1 (Colo. 1996).

 C.R.S. § 37-92-305(3.5)(e).  In light of the foregoing, the simple change process can be a helpful tool for minor changes in points of diversion.

  If you have questions about simple changes of surface diversions please reach out to the attorneys at Nazarenus Stack & Wombacher LLC.

Simple Change in Point ofWilliam Wombacher