Commentary and Analysis Regarding Colorado Law

The Colorado River serves over 40 million people across seven states and Mexico, and the basin has been experiencing historic drought conditions since 2000, according to the Department of the Interior.  The Upper Colorado River Commission, formed in 1948 to help the “Upper Basin” states of Colorado, Wyoming, New Mexico, and Utah administer the Colorado River Compact, unanimously agreed Wednesday, December 12, 2018 to enter into three agreements addressing drought contingency planning.  The agreements, in conjunction with a similar set of agreements currently being negotiated between the “Lower Basin” states of California, Nevada, and Arizona, are intended to increase water levels in Lake Powell and Lake Mead.  The Lower Basin states have been given a deadline of January 31, 2019 by the federal government to complete their agreements, or risk federal involvement in the matter. 

The agreements approved by the Upper Basin states address increased collaboration between the states and the Bureau of Reclamation to manage reservoir releases in the basin, increased allowable storage in Lake Powell if such water is available for storage as a result of conservation efforts in the Upper Basin States (Lake Mead is located in the Lower Basin), and increased cooperation between the Upper and Lower Basin states regarding water conservation and increased storage in Lake Mead.

“Use it or lose it” is often colloquially used to describe the prior appropriation doctrine for water rights in Colorado.  Nowhere is that phrase more accurate than when it comes to the decennial abandonment list.  CRS § 37-92-401(1)(a) requires the Division Engineer to maintain a tabulation of water rights and priorities in their Water Division, but also to “prepare decennially, no later than July 1, 1990, and each tenth anniversary thereafter, a separate abandonment list comprising all absolute water rights that he or she has determined to have been abandoned in whole or in part and that previously have not been adjudged to have been abandoned.”  The next issuance of this decennial abandonment list will happen in 2020, and there are some important considerations of which water users should be aware before that list is issued.

Water rights can be abandoned in whole or in part.  The Division Engineers office may physically inspect diversion structures and/or diversion records, if kept, to determine if water rights have actively been used over the past ten years.  They may be placed on the abandonment list if they haven’t been used at all, but also if they have only been used in amounts less than the decreed amount. In addition to non-use, the water right owner must intend to abandon the right.  See CRS § 37-92-103(2), also Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (Colo. 1982). This is a very important element to note in the abandonment process, as the burden is on the water right owner to show they did not have an intent to abandon, if they wish to have their water rights removed from the list. Pursuant to CRS § 37-92-103(5)(a), any water right owner who wishes to protest inclusion of their water rights on the abandonment list must file a protest no later than “June 30, 1992, or the respective tenth anniversary thereafter” (so for the upcoming 2020 abandonment list, no later than June 30, 2022).  The forms for protesting inclusion of water rights on the abandonment list can be found here: https://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=10.