It’s that time again!  Once a decade the State of Colorado reviews water rights for potential abandonment.  On July 1, 2020, the Colorado Division of Water Resources released its decennial proposed abandonment lists pursuant to the State’s statutory requirement to examine water rights in the State for abandonment.  The lists released earlier this month are the beginning of a lengthy process that eventually makes its way to water court.  A court finding of abandonment terminates a water right, or a portion thereof, including the priority date.

Abandonment under Colorado Law

Under Colorado law, every ten years each Division Engineer is required to provide the Water Court in each Water Division with a list of all water rights recommended for abandonment due to non-use over the last ten years.  C.R.S. § 37-92-401(1)(a).  Non-use of water available under a decreed water right for the statutory period of ten years demonstrates a rebuttable presumption of intent to abandon, and forms the basis for listing on the abandonment list.  C.R.S. § 37-92-402(11).  To rebut a presumption of abandonment, the water right owner must provide evidence of facts or conditions excusing the non-use or that show that the owner did not intend to abandon the water right.  Haystack Ranch, LLC v. Fazzio, 997 P.2d 548, 552 (Colo. 2000).  Courts have considered several factors when making a determination of intent to abandon.  These include:

(1) repair and maintenance of diversion structures;

(2) attempts to put the water to beneficial use;

(3) active diversion records and non-appearance of the water right on the State Engineer’s abandonment list;

(4) diligent efforts to sell the water right;

(5) filing documents to protect, change, or preserve the right;

(6) leasing the water right; and

(7) economic or legal obstacles to exercising the water right.

Wolfe v. Jim Hutton Educ. Found. (In re Protest of Jim Hutton Educ. Found.), 344 P.3d 855, 859 (Colo. 2015); see also E. Twin Lakes Ditches & Water Works, Inc. v. Bd. of Cty. Comm’rs., 76 P.3d 918, 922 (Colo. 2003).

Key Dates and Process

Colorado law sets forth the timeline of events that begins with the official publication of the proposed abandonment lists.  The process takes years, but it behooves a water user to start early to identify strategies to attempt to challenge termination of a water right through abandonment.  Key dates in the process include the following:

• July 1, 2020 – Official publication date for Division Engineer’s Proposed Abandonment List
• By July 31, 2020 – Division Engineer shall send by certified mail notices to the owner or last-known owner or claimant (if known) of every water right on the proposed abandonment list.
• July – August 2020 – Publication shall be made of the respective portion of the abandonment list in each county for four successive weeks.
• July 1, 2021 – Deadline for filing a written Statement of Objection to the Division Engineer.
• By Dec. 31, 2021 – The Division Engineer shall file his or her revised abandonment list in Water Court. This is published in the Water Court resumes.
• June 30, 2022 – Deadline for filing written protests with the Water Court.

Do Not Assume You Will Be Notified

While the Division Engineer is required to mail a copy of the proposed abandonment list by certified mail to the owner or last known owner or claimant of water rights on the list, it is possible that the Division Engineer may not be able to identify the current owner, or have their correct address.  Therefore, it is prudent to check the abandonment lists if you own water rights, even if you were not notified by the Division Engineer.

Limited Exceptions

There are certain exceptions to the abandonment laws, in which any period of non-use of a water right is tolled, and intent to abandon will not be found.  These limited exceptions apply to certain specific land and water conservation programs, water banking, and loans of water or agreements with the Colorado Water Conservation Board for instream flows.

The 2020 lists also exclude “Pre-Compact” Colorado River water rights, which include water rights on the Colorado River or any of its tributaries in Divisions 4, 5, 6 or 7, with an appropriation date earlier than June 25, 1929, the effective date of the Colorado River Compact.  State Engineer Kevin Rein announced that pre-Compact water rights would be excluded from the 2020 lists in a November, 2018 email to the four Western Slope Division Engineers.  Rein emphasized the value of these Pre-Compact water rights to the state, and the value of the rights to all Coloradoans, not just the owners of the water rights.  Dick Wolfe, the State Engineer in 2010, also excluded Pre-Compact rights from the 2010 lists.

Conclusion

If you are a water right owner in Colorado, we recommend you check the proposed abandonment list for your division to ensure that your water right is not listed.  While you have one year to file a statement of objection, it is prudent to (1) determine if any of your water rights are listed, and (2) begin working early on strategies to prevent termination of all or a portion of your water right, if at all possible.  The lists are available on the State of Colorado, Division of Water Resources website here.

For more information on the abandonment process, or for assistance challenging a proposed abandonment, please contact Leila Behnampour at (303) 449-2834 or lbehnampour@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.

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