Commentary and Analysis Regarding Colorado Law

Water rights in Colorado are prioritized and administered based on the year of their decree and date of appropriation. The oldest decreed water rights are most senior and are entitled to divert their decreed flow rate when water is in short supply. If there is not enough water in the stream at their diversion point, they can place a call for the delivery of water against junior water users to satisfy their full demand. The State Engineer and Division Engineers can also shut down water diversions that cannot be adequately administered to protect other water users.

In many parts of Colorado, the streams have been over-appropriated for 100 years or more at certain times of the year, and calls for water rights may be as senior as the 1860s. Water rights on the main stem of the Yampa River had never been called out until 2018. It happened again in 2020. Those highly publicized calls were placed to protect water rights decreed in 1951 through 1963 near Dinosaur National Monument. The calls lasted about 23 days in 2018 and only ten days in 2020, assuming the early September snowstorm puts an end to calls this year. Those calls would have lasted longer if it had not been for tremendous cooperation between the water users, Division Engineer, Tri-State, Colorado Water Trust, and the Colorado River District.

“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.