While the year 2020 welcomes the advent of a new decade, in Colorado, for our state’s water rights system this year also marks the initiation of the state’s decennial abandonment process.
Under Colorado Constitution’s Article XVI § 5, water is the property of the public and our state’s priority system of water appropriation gives users the ability to claim a right to water by putting it to beneficial use. In order to account for all of Colorado’s water and to ensure that water users are putting their decreed water right to beneficial uses, every ten years, the Colorado Division of Water Resources (DWR) prepares a list of potentially abandoned water rights. Once a water right is determined to be abandoned, the water belongs to the public and is available to satisfy other appropriations in order of their seniority.
The Colorado State Engineer is in charge of the administration of most Colorado water rights by representing the state in interstate water compact proceedings, issuing water well permits, monitoring water usage and streamflow, and approving dam construction and repairs. Moreover, the State Engineer maintains a multitude of records and databases pertaining to Colorado’s water information. The State Engineer also helps oversee the seven water court divisions, which were created based on the drainage patterns of Colorado’s largest rivers. All water court divisions have their own Division Engineer each of whom is tasked with preparing the abandonment list for the particular division, subject to the approval of the State Engineer.
Abandonment under the Law
Under Colorado law, a rebuttable presumption of abandonment is created when a water user has failed to put their water to use for a period of ten years or more. However, abandonment is disfavored under the law. Division Engineers have a lot of discretion in abandonment proceedings and may take special circumstances into account that could lead to the office waiving this presumption. Special circumstances can include, for example, if a water right owner has been attempting to sell their water right, if a diversion structure is damaged, or if economic circumstances have prevented diversion and use or the water right.
Important Deadlines for the 2020 Abandonment List
Beginning on July 1, 2020, each Division Engineer will be issuing their Initial Abandonment List of water rights that appear to be abandoned, either in whole or in part. Water rights owners will then have until July 1, 2021 to file a written Statement of Objection to the Initial Abandonment List. Division Engineers can talk to any interested persons - neighbors, water users, other engineers - in considering any of the issues raised in a Statement of Objection.
No later than December 31, 2021, each Division Engineer will make any revisions to the Initial Abandonment List and will then file their Revised Decennial Abandonment List with the water court recommending that the rights on the final list be found to be abandoned.
If a water right appears on the Revised Decennial Abandonment List filed with the water court, the owner has until June 30, 2022, to file a written Protest with the respective division water clerk. This deadline occurs five months after the publication of the Revised Abandonment List, giving the water right owner time to resolve disputes and possibly avoid the need to file a formal Protest. The last important deadline is that by August 31, 2022, an Entry of Appearance must be filed with the water court on behalf of any person who may be affected by the filing of the Protest.
The Entry of Appearance form, which will be available on each water division’s website, must identify: (1) The specific portion of the decennial abandonment list for which the filing of the appearance is being made; (2) Whether the person is participating in support or in opposition to abandonment of the subject water right(s); (3) Any factual and legal basis for any allegation that the person may be affected by the subject matter of the Protest or by a ruling on the Protest; and (4) Any claim of ownership in the subject water right(s).
If you are concerned that your water right may be found to be partially or fully abandoned, contact one of the attorneys in the Dietze and Davis Water & Natural Resource practice group and they will be happy to help.
submitted by: K.C. Cunilio