There’s a new “simplified” procedure for changing water rights.
As most water users know, obtaining a change of water right can be expensive and risky. It requires a court decree and can involve protracted litigation with experts critiquing the basis and nature of the water right. And, at the end of the judicial process, it is possible that the amount of water available to the water right is reduced or, in extreme cases, the water right is determined to be abandoned. This is because under Colorado law, when a change of water right application is filed, the status of the appropriation and the appropriator are subject to identification, examination and verification.
Senate Bill 97 creates a new category of water court application – A Simple Change in a Surface Point of Diversion – that enjoys a rebuttable presumption that the change will not enlarge the historic use of the water right and that eliminates the requirements to satisfy “can and will” and the anti-speculation doctrine.
That means a change applicant must show a legally vested interest in the land to be served by the change of use and a specific plan and intent to use the water for specific purposes. She must demonstrate that the water claimed by the conditional water right can and will be applied to beneficial use within a reasonable time and that the appropriation or the change is not speculative.
Proving that a change of water right will not enlarge the historical use of the water right can require a detailed use analysis with experts evaluating diversion records, aerial photographs, water consumption and return flow patterns. This entails a feasibility analysis that looks at multiple factors, such as the right to use the real property necessary to perfect the appropriation, water availability and need.
This new less onerous procedure for changing the point of diversion for water right is available only when the change involves a surface diversion and there are no intervening water rights between the decreed point of diversion and the new point of diversion. It can be utilized for either conditional water rights or absolute water rights with respect to a change that has already been physically accomplished or one that is anticipated.
The Applicant for A Simple Change in Surface Point of Diversion, however, still must prove that the change will not result in the diversion of a greater flow rate or amount of water than has been decreed and is physically and legally available at the original point of diversion and that the change will not cause injury to other water rights. Those burdens of proof are consistent with the requirements for any change of water right.
The “no injury” rule is derived from the concept that appropriators are entitled to maintenance of the stream conditions at the time of their appropriation. Thus, any change of a water right cannot upset the historical conditions on the stream, so that amount of water available to a water right is reduced. The most common allegation of injury resulting from a change of water right is an expansion of use. Because of the fact those qualifying for a simple change in surface point of diversion are entitled to a statutory presumption that the change will not enlarge the historical use, it should not be too difficult to make an initial showing that the change will not injure other water rights.
Water-right owners who have moved the point from which they divert their water from the stream should take advantage of this new abbreviated procedure and obtain a decree that accurately reflects the use of their water right. It is important that an appropriator’s water use is in accord with the terms of a decree because a decree provides the legal protection for a water right. When the actual water use deviates from the terms of the decree, the value of the water right could be in jeopardy.
For example, if for the last 10 years a water user has been taking her water from a point of diversion different from that set forth in her decree, it is possible that all of the historical use of the water right for the last 10 years could be called into question because the water right has not be used according to the terms of the decree. Such would directly affect the market value of the water right because of the fact that the true measure of a water right is its historical use. That is, a water right decreed for 30 cubic feet per second only has the value of a 30 cfs water if the water user can show that she has consistently diverted and applied 30 cfs to beneficial use. If the water user has historically used only 5 cfs, the value of the water right is 5 cfs, not the 30 cfs represented in the decree.
The law requires that any change of water right be approved by a court decree. When a water right is no longer used according to the terms of its decree, it becomes vulnerable to losing its protection and its value under the law. Before SB 97, the cost and risk associated with a change of water right often deterred water users from seeking a change of water right. The new simplified procedure enables water users that no longer divert their water right from the decreed point of diversion to comply with the law and protect the value of their water right.
Amy Huff is a water attorney in Durango. Reach her at amy@hufflaw.