Abandonment of a water right requires non-use and intent to abandon. Every decade, the Colorado State Engineer’s office prepares a list of water rights that it believes have been abandoned. The list often includes water rights that the owners do not intend to abandon. I assist clients in removing listings and defending water rights that have appeared on the list that have not been abandoned.

This is the process of obtaining court confirmation of a water appropriation in the form of a decree. Adjudication allows a water right to be administered under the prior appropriation system. Successful water rights adjudication requires careful planning involving the client, the engineering team, and the attorney. I help clients translate their business goals into specific technical questions and requirements that support a water rights filing.

Plans for augmentation are important tools in designing modern water systems. They allow out of priority diversions by junior water rights so long as all injurious depletions to the stream system are replaced by another adequate water source. As a practical matter, plans for augmentation allow new uses of water to be developed by junior water rights when and where they are needed. The stream depletions from new uses are then offset by another source of water. For example, a new well can be located directly at a business, while the replacement water supply is contracted out of an existing reservoir.

With an increasing number of Colorado’s streams reaching over-appropriated status, changes of water rights are increasingly important for securing a firm water supply. Changes of water rights are a detailed process that evaluates all aspects of the historical use of absolute water rights. Successful change cases require close collaboration with water engineers who perform the technical investigations regarding historical use. I have extensive experience in preparing and litigating change of water right cases, including working on one of the largest successful changes of use in Colorado. I also have experience with small and streamlined change cases such as simple changes in points of diversion.

Conditional water rights are awarded a place in Colorado’s priority system before the completion of the appropriation and actual beneficial use of water. This special process requires regular filings in water court to confirm reasonable diligence toward the completion of the water right. These filing also require compliance with Colorado’s anti-speculation and “can and will” doctrines. I assist clients with all manner of diligence planning and filings related to diligence and making water rights absolute.

These are relative newcomers to the administration of Colorado water rights but that doesn’t make them less important. New statutes and new science make this a rapidly evolving area with room to get creative. I have experience representing environmental and recreational interests with concerns about proposed water exports. I also have experience with planning and adjudicating water rights for ponds and raft and kayak courses.

There are four different sets of rules for administering groundwater in Colorado. Many shallow wells are tributary and will be administered as part of the prior appropriation system, often as junior rights. These wells need a plan for augmentation to operate in an over-appropriated river system. Nontributary water is typically located much deeper underground and is allocated based on land ownership. Designated groundwater in certain areas is managed by a local district and overseen by the Colorado Ground Water Commission. And finally, the Denver Basin aquifers include “not nontributary” ground water, which is governed by special statutes.

With increasing competition for water in Colorado, individual homeowners are subject to strict enforcement on water issues. Certain properties are entitled to use a domestic well that is exempt from administration in the priority system, but there are limits on both eligible properties and permissible uses. In addition, some properties have decorative or recreational ponds that were not decreed as water rights when they were built. Sometimes ponds appear to be recreational but are in a plan for augmentation and may be drawn down at times. I assist homeowners in understanding the water laws that apply to them and working with the State Engineer to try to resolve enforcement issues without litigation.

Multiple deeds to the same water. Conveyance by stock certificate that does not match a deed. Interference with a conveyance ditch. Adverse possession. There are many circumstances that can lead to water rights ownership or control disputes. Vague historical documents often make resolution more difficult. I have extensive experience with water title investigations and historical document research, as well as experience litigating and settling disputes involving water rights and shared water structures.

When it comes to water court filings, it’s still the wild west in Colorado. Water users outline proposed new water rights or changes in water operations in monthly resumes published online for each water court division. Frequently, the resumes include plans that may injure other water rights, for example by diverting out of priority without a firm replacement supply. I help clients determine which third-party filings might injure their water rights, and file statements of opposition where necessary to protect their interests. The cost benefit calculations in this area can be very sensitive to strategy, and there are many distractions to avoid. With more than a decade of experience working in Colorado’s busiest water divisions, I help clients develop a cost effective strategy for water rights defense.

When buying and selling property in Colorado, it is important to be aware of and properly handle any water rights to be included or excluded from the transaction. Water rights are typically passed by deed and recorded like other real property. However, they are not always mentioned by name, and some types of water rights (e.g. shares in ditch companies) have special transfer processes and restrictions. I have worked on more than 100 water transactions and have experience with the issues that can arise. I can guide prospective purchasers regarding the appropriate title investigations to confirm ownership, different ways to value water rights, and the proper paperwork to ensure a clean and complete transaction.

Sometimes there are so many interlocking issues that it’s hard to know where to find leverage points. Sometimes clients want to explore and budget for drastically different solutions to a single issue before deciding how to proceed. Sometimes they have a small question that is worthy of careful consideration. I enjoy these challenges. There doesn’t need to be an adverse party or a prospect of litigation. I am here to help.