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Commentary and Analysis Regarding Colorado Law

Use it or Lose it

Godbehere Kara small“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

For water right owners, it’s important to start thinking about the use of your water right/s over the past 8 years, and if they have been used in whole or part.  It’s also important to note a 2015 Colorado Supreme Court case decision, Wolfe v. Jim Hutton Educ. Found., 344 P.3d 855 (Colo. 2015).  In that case, a water right owner had ceased using the decreed point of diversion and instead diverted the water for use through an alternate location.  The Court found in that case that nonuse of the decreed point of diversion can create a presumption of abandonment, and suggested to avoid such presumption, water users should do a change of water right case in Water Court to get a decree for the new point of diversion.  Note that such a presumption does not necessarily mean the water right owner loses the right – the Court was careful to clarify that this presumption may be rebutted with evidence of use and lack of intent to abandon. This case may, however, mean that we may see more water rights on the 2020 abandonment list that have not been using their decreed point of diversion over the past 8-10 years, even if they have been using the water for its decreed purposes in its decreed location.  If you think there is a risk of your rights being placed on the list due to nonuse or partial use, now is the time to start planning ahead and either a) make sure you are actually using the water rights in the amount you wish NOT to be abandoned and b) compiling information/documentation that can support a protest, in the event your water rights are placed on the abandonment list.

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