A. Surface rights.
1. In Colorado, a water right is based on the doctrine of prior appropriation. Colo. Const. art. XVI. § 6. See also Coffin v. Left Hand Ditch Company, 6 Colo. 443, 447 (1882). The doctrine is administered by priority dates, which are a function of the appropriation dates and the adjudication dates.
2. To obtain a water right and to preserve relative priority among all other water rights, landowners must obtain a Water Court decree that confirms the water right. Appropriation dates determine the relative priority when multiple water rights were decreed/adjudicated in the same year. See C.R.S. §§ 37-92-101, et seq. For real estate diligence, paper is important—if a water court case number is referenced in a deed or in the title, then that decree should be examined.
3. Colorado recognizes both absolute water rights and conditional water rights. A decreed absolute right is a water right that is fully-developed—the water has been put to beneficial use at the time of the decree. A decreed conditional water right holds the place in line; i.e., a conditional water right preserves the owner’s relative priority while allowing for the right’s future development. C.R.S. § 37-92-103(6). After a conditional water right is decreed, every six years the owner is obligated to prove to the Water Court that the conditional use has been diligently developed. C.R.S. § 37-92-301(4)(a)(1). If such proof is not made to the Court, the conditional right shall be considered abandoned. Id. The water right owner can also seek to have the right declared absolute after it is partially or fully developed. A buyer should also be aware that a conditional water right generally means that the right (pond, well, ditch, pipeline, etc.) is not yet built and delivering water.
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Alix L. Joseph, Esq.
Burns, Figa & Will, P.C.
- Shareholder in the law firm of Burns, Figa & Will, P.C.
- Practice emphasizes all aspects of Colorado water law, including water and environmental law
- Represents governmental entities, businesses, developers and individuals in acquiring and managing water rights, from preparing sales and lease contracts, performing due diligence, documenting financing, preparing conveyance documents and protecting water rights by filing and participating in actions in Water Court
- Assists clients with resolution and litigation of disputes involving water
- Frequent speaker at seminars on water rights issues, particularly with respect to water rights issues arising in the context of real estate transactions; conducted regular seminars and workshops on the nature of Colorado water rights and transferring water rights
- Member of the Colorado Water Congress, the American Bar Association, and the Colorado Bar Association
- J.D. degree, with honors, George Washington University Law School; B.A, degree, Haverford College
- Can be contacted at [email protected]
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