Archive for May, 2009

Water Rights Colorado- Repair and Maintenance of Water Supply

Saturday, May 30th, 2009

Water rights Colorado has a lot of different information to offer to owners about what they can do with their water rights and how to best use them. However, when you are accessing a water supply that you don’t own, it might be hard to determine how to maintain or repair that water supply in the event that it isn’t working effectively. You need to determine who owns the ditch or stream that is in need of repair, because it is their responsibility to fix it.

Water rights Colorado law states that ditches and canals must be able to receive water as much as possible, by April 1st of each year. All inlets and outlets must be functioning properly, and the embankments must be clean and maintained so as to prevent flooding or other property damage. If you own water rights on a ditch, canal, or stream that isn’t functioning properly in any of these areas, you need to contact the owner of that water supply and have them make the necessary repairs or perform necessary maintenance. If you face complications with having this completed, you can always contact the State Engineer or Division Engineer where your water rights are located.

Water rights Colorado can often prove to be a complex topic, and this is just one more issue that you need to understand. You can have water rights for a particular water supply without being the owner of that water supply. The owner could be any private entity or a public division of the state that owns and maintains public water supplies. By taking the time to figure out who owns the water supply that you have rights to, you’ll be better able to get the repairs that you need in a timely fashion.

Water rights Colorado involves a lot of legalities since it is considered a legal property right. Water rights can be bought, sold, transferred, rented, and even abandoned. You need to be aware of all the different legal guidelines and practices that are applicable to your water rights in order to make the most of them. This includes ensuring that proper maintenance and repairs are taken care of by the owner. After all, what good are water rights Colorado when you can’t use them to the best of your ability because they are in disrepair? Keep these things in mind and your water rights experience should be much easier to handle.

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Water Rights Colorado- Why Buy Them?

Wednesday, May 27th, 2009

Water rights Colorado are necessary to many, but simply an amenity for some people. If you live on land that is adjacent to water, you don’t necessarily own the rights to that water. You have to apply for a permit and water rights so that you can use the water for any number of beneficial use designations. If you intend to waste the water or not make effective use of it, your permit will be denied. However, if you have an actual need for this water, such as for irrigation, drinking water, or other domestic use, you can enjoy owning water rights with the right permits.

Water rights Colorado are based on the prior appropriations doctrine. Therefore, if you were there first, you own senior rights to the water over those who come later. Water rights are not an inherent part of land ownership like they are in many of the Eastern states in the U.S., but something that you have to acquire separately. This started clear back in the early settlement of Colorado and the Western U.S. when water was scarce and the environment was hostile. While the hostility is gone, the water supply hasn’t increased, making the need for water rights regulation essential to keeping a useful and accessible water supply for everyone.

Water rights Colorado are also subject to abandonment or non use, unlike Eastern states where ownership is inherent whether the water is used or not. If you acquire water rights Colorado and do not make beneficial use of them for any period of time, the senior rights holder, usually the state, can take those rights back and you are not able to do anything other than to re-apply for the rights that you once had. You can buy or appropriate water rights for farming, irrigation, drinking water, domestic use, and any other use that is beneficial to you or to sustaining the land and life that you live.

Water rights Colorado are a hot topic, but the lack of information and structure in the overall water regulation throughout the country makes it hard to understand at times. By taking the time to learn about water rights Colorado, you will be better informed about the options that you have and what you can do to obtain water rights in your area. Remember that you can buy or appropriate water rights for any reason, as long as the use is beneficial to the sustainability of the land or your own personal life and does not create waste.

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Water Rights for Sale: Considerations when Buying Water Rights

Thursday, May 21st, 2009

Water rights for sale in Colorado can be purchased by any legal entity, including an individual, group of individuals, corporation or business, organization, government agency, etc.

Water rights for sale are considered real property in Colorado and can be bought and sold, or leased to other legal entities. The actual ownership of the water belongs to the state, however a property right exists to use the water on a priority basis. When you purchase water rights for sale, you must file a change of water right application with the water court located in the district in which the water is diverted. Your application must prove that transferring the ownership of the water rights for sale from the previous owner to you will not injure the water rights of the other appropriated users.

Absolute or Conditional Water Rights

When you acquire water rights for sale, either surface water or ground water rights, they may absolute or conditional water rights. An absolute water right is one that has already been diverted from its source and put to beneficial use. A conditional right is one that may be developed in the future. It maintains its priority until the project is completed. The owner of a conditional right must prove that he or she has been diligently working toward the completion of the project and not just holding the right for speculative purposes, which is illegal. Once the project is completed, the owner of the conditional right may file to have it converted to an absolute right. Then the new absolute right will have the same appropriate date, or seniority, of the original conditional right.

A conditional water right could be considered abandoned if the owner failed to show effort to complete the proposed project. And any water right can be considered abandoned if it is not used for 10 years. But the declaration of abandonment of a water right must include the finding that the owner intended to abandon that water right, meaning water rights cannot be forfeited without some proof of intent to do so.

Types of Water Rights for Sale

Water rights for sale will typically be listed according to category:

Surface water – includes water that is pumped or diverted from rivers, streams, or creeks. It also includes tributary water that connects to a river system either above or below ground.
Ground water – includes water from the water table or aquifer
Treated water – raw or wastewater that has been purified
Reclaimed water – wastewater that has been through treatment removing organic chemicals and dissolved solids. It can be used for landscape irrigation and agricultural irrigation of certain crops.
Stored water – surface water that is held in some type of reservoir for later use
Project water – includes water from government-funded projects designed for storage or diversion
Wastewater – water containing waste or that is contaminated by waste contact and has not yet been treated
Banked water – water that is allocated to a person or entity that is not using it but does not want to put up the water rights for sale. Some water banks are created to allow multiple entities to use the same water rights while others are created to store a non-used portion of allocated water.

The Asking Price of Water Rights for Sale

The entity with water rights for sale, which could be a municipality, a water district, a farmer, etc., will set an asking price in a water rights sale that is based on a number of different factors: They include:

  • The amount of water available in the river basin in which the water rights for sale exist. The harder it is to obtain water in that location, the more expensive the water rights for sale are likely to be.
  • The source of the water, as in groundwater versus surface water or private water versus that available as part of a state or federal project. Project water rights for sale are typically cheaper because government water projects tend to be highly subsidized.
  • The kind of water as water rights for sale; for example, raw surface water versus treated wastewater.

Changing Water Rights

Because so much of Colorado’s water is over-appropriated, those applying for a new water right will find that a new right is so junior, or at the bottom of the totem pole, that it will rarely come into priority. And priority is what is required to divert water for beneficial use. Therefore, by investing in water rights for sale, you are able to get diversions under the existing water right’s more senior priority.

For more information on changing water rights or maximizing a purchase of water rights for sale, contact Water Colorado.

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Water Rights Sale: An Overview of Selling Your Water Rights

Monday, May 18th, 2009

If you have water rights that you are not using or no longer desire to own, Colorado water law allows for a water rights sale. A water rights holder may sell a water right, which may involve changing the right to another type and place of use but retaining its priority date so the purchaser maintains the water right’s seniority.

Because water rights are considered real property in Colorado, they can be subject to a water rights sale and be bought and sold, or be leased to other legal entities. The actual ownership of the water belongs to the state, however a property right exists to use the water on a priority basis. When you purchase water rights from a water rights sale, you must file a change of water right application with the water court located in the district in which the water is diverted. Your application must prove that transferring the ownership of the rights involved in the water rights sale from the previous owner to you will not affect the water rights of the other appropriated users.

Conditions of a Water Rights Sale

But any change to a water right as the result of a water rights sale is subject to obtaining a water court decree, is measured by the decreed water right’s historic beneficial use and consumption in time and quantity, and must include conditions that prevent the water right from becoming larger or somehow injuring other water rights.

One of the most critical components of the change of a water right as the result of a water rights sale is the measurement of the amount of water historically put to beneficial consumptive use by the previous water rights holder. No more water may be consumed by the new water rights holder following a water rights sale. This ensures that no more water will be removed from the stream or river than was removed by the previous water rights holder. But the priority date of the water right will remain the same, meaning the water right retains its seniority.

Water Bank Program

In 2003, the Colorado state legislature created a water bank in each of Colorado’s water divisions. This system benefits farmers who aren’t using water rights as part of conservation efforts but don’t want to lose those rights to a water rights sale. Instead, the farmer can lease, load, or exchange water for payment without forfeiting water rights.

The Value of Water Rights

The asking price in a water rights sale per acre foot of water varies for a number of reasons. They include:
The availability of water in the river basin in which the water rights exist. The principle of supply and demand is evident here, since the more scarce the water or available water, the higher the water rights sale price per acre foot.
The source of the water, as in groundwater versus surface water or private water versus that available as part of a state or federal project. The latter is typically cheaper in a water rights sale since government water projects tend to be highly subsidized.
The kind of water being offered in a water rights sale; for example, raw surface water versus treated wastewater.

Who Makes the Purchase in a Water Rights Sale?

Water rights in Colorado may be held by any legal entity, which could include an individual, a group of individuals, an organization, a corporation, a government agency, etc. Any of these entities can participate in a water rights sale.

Buyers participating in a water rights sale can put the water to a multitude of beneficial uses. (A beneficial use must be proven in order to acquire water from a water rights sale.) They include:

  • Agricultural, used for irrigation and other farming activities
  • Municipal, used for city water systems and includes residential use and landscape irrigation
  • Industrial, used for industrial purposes including large-scale construction and mining
  • Commercial, used by private businesses or corporations
  • Private, used privately by residential homeowners
  • Environmental, used to benefit the environment by increasing streamflows, augmenting wells, managing fisheries, etc.
  • Governmental, used as part of a governmentally subsidized project for water resource management

For more information on selling your water rights through a water rights sale, please contact the water sale experts at Water Colorado.

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Buying Water Rights: How is it done?

Friday, May 15th, 2009

Buying water rights in Colorado can be a complex process; so complex, in fact, that it oftentimes requires a water attorney as well as a water resource engineer to ensure the transaction is properly completed. This article is not intended to replace the advice of an attorney or water professional, but rather provide you with an overview of the process of buying water rights to help you become better informed.

Water usage in Colorado falls under the system of allocation called the prior appropriation doctrine. This means that the first person to put the water to beneficial use, or the appropriator, has the senior right to the water, and that person’s water rights must be satisfied before any subsequent, or junior water rights holders, can receive water.

The Division of Water Resources, or the State Engineer’s Office, which falls under the Colorado Department of Natural Resources, is empowered to administer surface and groundwater rights throughout the state and ensure that the doctrine is enforced. The State Engineer oversees this process, assisted by seven field offices located throughout the major river basins in Colorado. These division offices employ water commissioners who go out into the field to review water allocations, issue water shut-down orders in case someone is illegally appropriating water, collecting water use and diversion data, and enforcing the decrees and water laws of the state.

The State Engineer’s Office also uses engineers and geologists to collect and analyze data on water supply to help ensure the water that is being requested for appropriation by someone buying water rights is actually available. They forecast streamflows, determine diversion requirements, review stream transit losses, determine evaporation losses, and calculate historic use and current conditions. They also operate a statewide monitoring system linked by satellites to provide real-time data on streamflows as part of flood monitoring.

All of this information is related to who can use what water where and how much, which is one of the reasons why buying water rights in Colorado is such a complex process.

The first step to buying water rights, also called appropriating water, is to demonstrate your intent to divert water, put it to a beneficial use, and show how you are going to divert the water in an open, physical manner. A physical demonstration of your intent, such as a field survey, a posting at your intended point of diversion, or a filing for a well permit application is usually enough notice to other water rights holders that you are in the process of buying water rights.

The next step in buying water rights is to file a water right application with the water court in the river basin in which you would like to divert water for your use. This application will verify your place in line behind other senior water rights holders. Water courts are District Courts comprising judges appointed by the Colorado Supreme Court. The judges in these courts hear matters exclusively related to water and are often involved when someone is buying water rights.

Once you file your application, you must publish a legal notice advising of your desire for buying water rights. Anyone who is against your application for buying water rights has two months to file a statement of opposition.

In the meantime, the Division Engineer of the water division in which you filed your application will review your request for buying water rights. That person will review your claims and make a recommendation for or against your petition for buying water rights to the water court.

If there is no opposition to your application for buying water rights, your case then goes before the presiding water court’s water referee. This person rules on most cases before their final review by the water judge. The referee will review your application for buying water rights, ask you for any clarifying information, and review the recommendation made by the Division Engineer. The referee then makes a ruling in the case, either approving or denying your application for buying water rights. There is still opportunity for someone to disagree with the referee’s ruling and file a protest. If no one files a protest and the ruling was in favor of your buying water rights, the case goes to the judge, who signs the ruling and makes it a decree of the court.

In the situation that someone protests your application or the ruling made by the referee, the case can go before the water judge for trial, similar to a criminal trial, unless the parties in disagreement can settle their differences. If the case does go to trial, the judge will make the final determination whether your application for buying water rights should be approved. Anyone involved in this case who is dissatisfied with the judge’s final ruling can appeal directly to the Colorado Supreme Court. This process can take up to two years to resolve.

If your application for buying water rights is approved, then you receive a permit to use the appropriate the amount of water as described in your application. For more information on buying water rights, please talk to the experts at Water Colorado.

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Land Water Rights: Using Surface Water on Your Land

Tuesday, May 12th, 2009

Your land has a natural spring, stream, or irrigation ditch running through it, so the logical thought may be that the water is available to use as you please. Unfortunately, that’s not the case. Land water rights, also known as surface water rights, are strictly allocated in Colorado, which means there is a good chance the water on your land is actually already appropriated by someone else.

When you purchased your property, it may have had land water rights associated with it. These land water rights could come from a river, stream, reservoir, or well. They may come to your land directly, in the case of a river or stream, pumped from a river or stream, or conveyed by a ditch, lateral canal, or pipeline. If there is a question as to what land water rights you are entitled, you should have received a contractual agreement with a ditch company or stock certificates showing ownership of water shares from the previous property owner. There may have also been information on the land water rights associated with the property listed on the property deed. If there is still a question as to the ownership of land water rights, you can talk to the Division Office of the Division of Water Resources in your area. Experts there can help you research any land water rights that may be associated with your property. You can also review the online land water rights database at www.water.state.co.us. But if you have none, the water running through your land is already spoken for by someone else and it is a crime to use it.

Land Water Rights to a Spring

Land water rights to water flowing through a property are easy to define. But what about a spring?

Colorado state statute doesn’t provide the definition of a spring, but a standard hydrologic definition is “a discharge of groundwater on the surface in sufficient quantities so as to produce a current of flowing water.”

Frequently, landowners want to know if they have the land water rights to take the water flowing from a spring on their property and put it to some beneficial use. The first question that must be asked is: Is it a well? State statute does define a well, which is “any structure or device used for the purpose or with the effect of obtaining groundwater for beneficial use from an aquifer.” A well must have a permit, which requires obtaining groundwater rights. If a spring meets the following conditions according to the Department of Water Resources, it does not require a well permit:

The structure or device used to capture or concentrate the natural spring discharge must be located at or within 50 feet of such spring.
The structure or device used to capture or concentrate the natural spring discharge must be no more than 10 feet below the ground surface.
The property owner must adjudicate (obtain a water right through the water court) the structure or device as a spring, which would then be subject to administration in the priority system with all land water rights.

So if the spring meets the first two conditions, it is not considered a well, but you must acquire land water rights in order to use the water. If it does not meet the first two conditions, the spring is considered a well, and instead of needing land water rights, you must acquire a well permit to use the water and follow the associated laws and conditions.

Building a Pond

So you don’t have the land water rights to use the water that flows through your property. But wouldn’t it be nice to use the water to build a little fish pond on your property – the water would flow in and then flow out again, so no problem, right? No land water rights needed? Think again.

The first infringement on someone else’s land water rights would come while excavating the area for the pond. If you expose groundwater, especially if your property is in an area with a shallow water table, technically you have constructed a well. You would need a well permit and be required to follow all the laws for using the water and constructing the well. If your property is in an area of the state where water rights are already over-appropriated, you might not get a permit unless you provided a court-approved plan for augmenting water, which could become costly.

Even if you didn’t expose groundwater during your pond’s excavation, you must acquire water storage rights, which are different from land water rights, from your district water court. Because so much of the water in Colorado is over-appropriated, there may be times in the year when a holder of senior land water rights could put a “call” on your land water rights, meaning you couldn’t hold any water in your pond until enough water is available for everyone with more senior land water rights than yours. Plus the containment of water above the natural ground surface constitutes the creation of a dam, and there are all kinds of regulations related to dam building.

And then there’s the matter of filling your pond. If you don’t have the land water rights to use a stream on your property, couldn’t you just fill the pond with a hose drawn from your well? Again, the answer is no. Most wells cannot legally be used for filling ponds, as stated by the regulations for each type of well permit. The Ground Water Information office of the Department of Natural Resources can answer what uses are allowed by specific permits.

Call Water Colorado for Questions on Land Water Rights

If you have more questions about what land water rights you do have regarding water on your property, don’t hesitate to contact the experts at Water Colorado who can help clarify Colorado’s water laws about land water rights

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Groundwater Rights: An Overview

Saturday, May 9th, 2009

In Colorado, a residence not connected to a municipal water supply will most likely need to have a well for household and other water uses. As users of surface water must purchase water rights, those with wells must have groundwater rights, which comes in the form of a permit to remove groundwater.

The question of groundwater rights most frequently comes up when someone is interested in purchasing property with existing groundwater rights or when a property owner needs to purchase groundwater rights or augment existing ones.

Purchasing Property with Existing Groundwater Rights

Before purchasing property, you should find out as much about the existing water resources and groundwater rights as possible. If the property has a residence on it, find out if the residence is served by a central water supply system or if it has its own on-lot well. If there is a well, assuming it’s a legal well, then it will have groundwater rights attached to it in the form of a permit.

Every well constructed after May 8, 1972 for residential use or livestock watering purposes should have a permit file on it. If the current property owner does not have a copy of the permit, you can get one from the Division of Water resources (303-866-3447). The permit will tell you what the groundwater rights are for the property. Be aware that different permits have different water use restrictions. If your permit is for residential in-home uses only, you can’t use your well water to water your lawn or fill your outdoor hot tub. To find out about the well use restrictions for a specific type of permit, contact the Ground Water Information office at 303-866-3587.

If you decide to purchase property with groundwater rights in the form of an existing well, you need to complete a “Change in Ownership/Address” form (GWS-11) and submit it to the Colorado Division of Water Resources. You can get this form from their website at www.water.state.co.us.

Purchasing Groundwater Rights

If you purchase land and decide you want to add a well for a residence, watering livestock, or other reason, or if you have a well on your property and you would like to add another for other water uses, you will need to obtain a permit from the State Engineer’s Office that gives you groundwater rights. For each permit submitted, the staff there determines the amount of groundwater available in each particular area and analyzes what kind of injury a new permit might do to existing groundwater rights holders.

The type of permit you can obtain depends first on whether your property is located within a Designated Groundwater Basin (or Designated Basin). The groundwater within these basins is not adjacent to a continuously flowing natural stream and is in high demand. Therefore, groundwater rights in these areas can be difficult to obtain.

For areas outside Designated Basins, you can obtain a permit that falls under one of two classifications:
Exempt, which means they are exempt from water rights administration and are not administered under Colorado’s water rights priority system. Uses are limited specifically by the conditions as approved by the permit. Usually pumping rates are limited on exempt permits and they are generally not issued where there is a central water system available. Examples of groundwater rights for exempt wells include household-use only wells, domestic and livestock wells, commercial wells for small businesses, previously unregistered existing wells, and replacement wells for improving an existing well.

Non-exempt, which means they are governed by the priority system. This type of groundwater rights typically allows for higher pumping rates and greater annual withdrawals than exempt wells.  These wells are frequently used for irrigation, large commercial, municipal, and industrial uses.

In some cases, you may not be able to obtain groundwater rights without an augmentation plan. This plan is approved by the water courts and outlines how you will replace the water used by your well in areas where there are water shortages for some or parts of the year to avoid interfering with senior groundwater rights, or groundwater rights that are already in existence.

When there is a water shortage, those with senior groundwater rights may place a “call” on water usage, which may result in those with junior groundwater rights needing to stop using their water. An augmentation plan would enable you, the junior groundwater rights holder, to continue to use the water for your project. To determine whether you would need an augmentation plan, you should contact your local Division of Water resources office, or the office responsible for administering the water in the area in which your project will be located.

There is more to obtaining groundwater rights than simply drilling a well on your property. To find out more information about groundwater rights and how you can use groundwater, contact Water Colorado.

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River Water Rights: Understanding Colorado Water Law

Wednesday, May 6th, 2009

The framework that establishes Colorado water law was mandated in Colorado’s Constitution. It’s called the prior appropriation system, and it regulates river water rights in Colorado, including the use of surface water in rivers or tributary groundwater (also known as shallow groundwater, it is below the surface but still connected to a river system) connected to a river basin. Broken down, this means:

Prior: Water users with earlier river water rights decrees (senior rights) have better rights in times of short supply and can fill their water use needs before others (those with junior rights) can begin to use water. The term “first in time/first in right” is often a shortened way of describing the prior appropriation doctrine.

Appropriation: This occurs when a public agency, private person, or business puts water to a beneficial use according to law. River water rights can only be granted to previously unappropriated water. Before being allowed to put the water to beneficial use, the appropriator must have a plan to divert, store, or otherwise capture the water and possess and control it.

System: The system is a legal procedure by which water users can get a legal decree from the water courts for their river water rights. The court approval is called adjudication and it sets the priority date of the river water right, its source of supply, its amount, its point of diversion, its type, and its place of use. It also confirms that it won’t cause injury (cause river water rights holders to suffer loss of water during the time, place, and amount that they are entitled to use that water) to any existing river water rights holders. There are two types of prior appropriation river water rights. One enables the river water rights holder to take water directly from the river to its place of use and the second allows water to be stored in a reservoir for later use.

Usufructary Rights

In Colorado, river water rights fall under the category of property rights known as usufructary rights. Usufructary means having the right to use a resource without actually owning it. So while you may have river water rights to a certain amount of water in a certain river, you never actually own the water. According to Colorado law, the ownership of the water resource always remains in the public domain.

Usufructary rights have many facets. One of them is the idea of “use it or lose it,” which means if you don’t need to use all or part of your river water rights as decreed to you, the water goes to those who can put the water to beneficial use according to the priority dates established in their river water rights decrees.

But a river water rights holder may not take from the river any more water than is needed for beneficial use at the time the water is actually diverted, despite the amount that is allowed based on the river water rights decree. Diverting more than what is needed

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Colorado Water Rights – Protection and Conservation of Natural Resources

Sunday, May 3rd, 2009

Colorado water rights are given out to those who express a need to appropriate certain water supplies on a priority basis. The Colorado water authority operates on a first in time, first in right system under which it is stated that no party showing a legitimate need to appropriate the State’s water will be denied. This means that if you have a legitimate need to appropriate a portion of the State of Colorado’s water system, you will be granted that right, eventually. Like anything that requires bureaucratic approval it can take some time to actually appropriate those rights.

With Colorado water rights, if it seems like it will take a long time to actually appropriate water rights, then a conditional water right can be granted for a project with definite priority. In the case of a conditional right the applicant must demonstrate very six years for the Colorado Water Court that they are indeed doing everything they can to develop and go forward with whatever project the water rights are being appropriated for. To convert the temporary water rights over to permanent rights, the applicant must be able to prove that the water is being used for a beneficial use. Once that has been done the water right becomes absolute.

Under Colorado water rights rules, during times of drought or water shortage a senior priority water rights owner may out in what is termed a call and exercise his propriety rights to the body of water in questions. This is what is meant by the priority appropriation systems. This occurs also when there is a conditional right in question. The priority rights holder will supersede a lesser priority water rights holder. It is important to keep in mind that un-appropriated rights that flow into a body of water with rights attached may be appropriated by the rights holder as well. This includes seepage that may come from a reservoir and find its way back into another body of water.

Colorado water rights are designed to conserve and protect this precious natural water system without denying citizens the beneficial use of Colorado’s water system. The idea is to keep productive use of the water high while making sure the water system is not abused or compromised by harmful development. The State of Colorado makes it as easy as possible for water rights applicants to appropriate those rights and use them well.

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