Water Rights-how to Avoid Getting in Over Your Head
| Publication year | 1982 |
| Pages | 2143 |
| Citation | Vol. 11 No. 8 Pg. 2143 |
1982, August, Pg. 2143. Water Rights-How to Avoid Getting in Over Your Head
In recent years, Colorado's population has increased dramatically. However, nature has not seen fit to create any more of this state's most precious natural resource---water. As a consequence of the increased competition for water, general and real estate practitioners in ever-growing numbers have found themselves called upon to deal with questions involving water rights. The purpose of this article is to acquaint attorneys not familiar with water law with some of the more common pitfalls awaiting them in situations they are apt to encounter.
In general, every attorney whose practice involves real estate outside urban service areas should have some knowledge of water rights because of their importance to landowners and their unique position in Colorado law, even if only to know when to call in expert assistance. There is no single tome to which one can refer to ascertain what the law is on a particular water rights question, but there is generally at least one continunuing legal education seminar each year in Colorado oriented toward providing a broad overview of water and water rights to non-specialists. The printed materials which have been distributed at these seminars in the past have provided an excellent introduction to water rights practice.
At the outset, it should be noted that cases involving changes of water rights and plans for augmentation(fn1) tend to be extremely technical, often involving complex hydrological and engineering questions. It is rare for even an experienced water rights attorney to handle such a case without the assistance of a hydrologist, geologist or water resources engineer. The bulk of the testimony at trials involving changes and plans for augmentation is generally from experts in these fields. An attorney without a background in water rights and a knowledge of at least the more basic principles of hydraulics and engineering is at a decided disadvantage and, in such cases, should seriously consider consulting a water rights specialist.
On the other hand, an attorney with either a general practice or a real estate practice is likely to become involved with water rights cases in one or two contexts: obtaining a well permit or a water right decree and buying or selling an existing water right.
A water right is created by the appropriation to beneficial use of some portion of the waters of the state.(fn2) No decree is required in order to create a water right, and there is no requirement that a person adjudicate a water right. Failure to do so, however, subjects the owner of the water right to the "postponement doctrine."(fn3) The procedure involved in adjudicating an existing water right or a conditional water right is fairly clearly set forth in the Water Right Determination and Administration Act of 1969.(fn4)
No one may construct a water well without first obtaining a "permit to construct a well" from the Office of the State Engineer,(fn5) and one may not obtain a decree for a water right which requires the construction of a well until the water court has received evidence that...
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