Land Water Rights: Using Surface Water on Your Land

 

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.