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Water Rights

Prior Appropriation System

Water rights in Colorado are unique when compared to other parts of the United States. The use of water is governed by what is known as the "Prior Appropriation System". This system of water allocation controls who uses how much water, the types of uses allowed, and when those waters can be used.
 

A simplified way to explain this system is often referred to as "first in time, first in right." An appropriation is made when an individual physically takes water from a stream (or underground aquifer) and places that water to some type of beneficial use. The first person to appropriate water and apply that water to use has the first right to use that water within a particular stream system. This person (after receiving a court decree verifying their priority status) then becomes the senior water right holder on the stream, and that water right must be satisfied before any other water rights can be fulfilled.

In Colorado, water right applications are under the jurisdiction of the water courts.  There are seven water courts, one in each of the seven major stream basins in Colorado.  Visit the Water Court Website in the important links section below for water court forms and additional information on water rights, the water court process, and the location of the seven water courts. 

 

Futile Calls

Some junior water rights holders may be allowed to use water out-of-priority in Colorado under a “futile call” determination by the Division Engineer in accordance with section 37-90-502(2)(a), C.R.S. Division Engineers make a futile call determination, which permits the junior user to divert water out-of-priority to a beneficial use, when the diverted water would not reach a downstream senior water right at the time and place of their need. 

Although the statutory allowance for diverting with a futile call determination has remained the same, a legal and scientific understanding that groundwater is connected to surface water unless proven otherwise has developed. When surface water disappears into the ground, it becomes part of the groundwater system but is in connection with the stream system. When a junior water right diverts water that causes a depletion in surface flows at a time that a senior water right would have been entitled to divert, regardless of whether the stream between the junior and senior is dry, a futile call determination allowing the junior water right to use water cannot be allowed. This is the case in Division 2 in the Arkansas River Basin, where water users in certain areas have routinely diverted under a futile call, although there is a year-round call downstream. Consequently, the Division of Water Resources plans to phase out the general use of futile call determinations that are not substantiated by proof of a surface and groundwater disconnection in areas where such diversions result in injury to senior water rights. This will reduce or eliminate the times that some junior water rights can divert and use water out-of-priority in the way they historically have. For more information on the process in the Arkansas River Basin, including virtual and in-person public meeting times, and local contacts, review the informational pamphlet. 

Important Links

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Water Rights Abandonment

Abandonment is the termination of an absolute water right in whole or in part as a result of the intent of the owner to discontinue permanently the use of all or part of the water available thereunder. Failure to apply a water right to beneficial use when water was available for a period of ten or more years results in a rebuttable presumption of abandonment. Once the rebuttable presumption is established through non-use, the burden shifts to the owner of the water right to prove that they did not intend to abandon the water right.


Every 10 years, the division engineer is required to present to the water court a list of water rights that the division engineer has found to be abandoned.  The process and timeline of the decennial abandonment process are guided by statutory requirements as follows: (for detailed timeline, see important links)

The initial list of water rights determined to have been abandoned by the division engineer shall be prepared by July 1, 2020 with publication and notice mailed to the last known owner by July 31, 2020.

Division Engineer's 2020 Initial Abandonment List (pdfs by division and sortable spreadsheet for all of Colorado)

 

Final Revised Abandonment Lists:

The final revised abandonment list is filed with the water court and posted on DWR's website no later than December 31, 2021.

The Division Engineers develop final revised abandonment lists in consultation with the State Engineer to contain water rights that have been abandoned in whole or in part.  The revised abandonment lists, when concluded by judgment and decree of the water court, are conclusive as to the water rights determined to have been abandoned.   


Any person who wishes to protest the inclusion of any water right on a final revised abandonment list shall file a written protest with the Water Court in that division not later than June 30, 2022 along with the required forty-five dollar ($45.00) fee. The protest shall set forth in detail the factual and legal basis for protesting the abandonment. A form for such protest is available on the Colorado Judicial Branch Forms Webpage.   

Rule 12 of the Water Court Rules provides additional detail about abandonment proceedings.  Protests accepted by the water court automatically trigger a bifurcation from the original case in which the decennial abandonment list was filed. Each bifurcated protest case is assigned a new case number and is published in the water court resume and newspapers. Any person desiring to participate in a protest case must file an entry of appearance with the court, in most cases by August 31. For the water rights remaining on the abandonment list with no protest, the Division Engineer may file a motion requesting that the water court confirm the abandonment of those water rights.

 

Division Engineer's December 2021 Final Revised Abandonment Lists (pdfs by division and sortable spreadsheet for all of Colorado)

 

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Water Rights Documents