Water is the basis for all life. Nowhere is that more apparent than in the dry climates of the American west. With an average annual precipitation of only 15.47 inches, Colorado ranks as one of the driest states in the country.[1] Naturally, this precious resource and the rights associated with it shaped the development and preservation our lands and associated ecosystems from their territorial days through to modern times. These rights are so important that they are memorialized in the Colorado Constitution.[2]

Colorado law places water into two general categories: Surface water and ground water. These categories determine whether your water issue will be overseen by the applicable water court or by the Groundwater Colorado Groundwater Commission. Additionally, there are different categories of groundwater that will determine how your rights are determined and managed: 1) tributary groundwater, 2) designated ground water, 3) non-tributary ground water, and 4) Denver Basin ground water.

In Colorado, a person or entity seeking to create, transfer, or change a water right or support/oppose any of these actions may find that their situation, like the water itself, is fluid. In other words, there are many factors at play and things to consider – historical consumptive uses, return flows, instream conditions, exchange agreements, well permits, augmentation plans, title opinions, environmental issues, etc.[3]

At Columbine Law Group our attorneys can help navigate you through Colorado water law and set your course toward a successful and cost-effective resolution of your issue. If you would like to discuss our availability to assist you with a specific issue, please contact us at (720) 787-7870.

[1] Precipitation totals, https://nationalmap.gov/small_scale/printable/images/pdf/precip/pageprecip_co3.pdf; see also https://www.ncdc.noaa.gov/temp-and-precip/us-maps/.

[2] CO Const. Art. XVI, §§ 5 and 6.

[3] This list is not exhaustive. Many other issues could arise when dealing with water law.

Section 858 of the Restatement (Second) of Torts states: Liability for Use of Groundwater,

(1) A proprietor of land or his grantee who withdraws groundwater from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless

(a) the withdrawal of groundwater unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure,

(b) the withdrawal of groundwater exceeds the proprietor’s reasonable share of the annual supply or total store of groundwater, or

(c) the withdrawal of the groundwater has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use of its water.

(2) The determination of liability under clauses (a), (b) and (c) of Subsection (1) is governed by the principles stated in §§ 850 to 857.

The allocation of water depends on each state’s laws with little federal law considered. Each state has its own regulatory system for surface waters and groundwaters. Whether the Riparian Doctrine, Prior Appropriation Doctrine (Colorado follows this doctrine), or a hybrid system depends largely on the area of the United States in which water use is being considered. Regardless, states often may not fall clearly within a particular doctrine, and may use components of two or more systems. Other rules surrounding water law issues include Absolute Dominion Rule, Correlative Rights Doctrine, or the Reasonable Use Doctrine.