RBC I As we come to the close of the year, the decision about whether to file for water rights becomes important. First, it helps to understand what a water right is. For those of you not on a city or municipal system, such as rural properties located outside of city limits, chances are you get water for your household and outdoor use from a well, or by diverting from a nearby spring, river or stream.
The State of Colorado actually owns all water in the state, but it allows its citizens to use it to the extent of their need, when water is available, whether the water right has been decreed, or not.
A water right arises by virtue of its appropriation or application of the water to a beneficial use. Examples of water use include domestic, irrigation, livestock watering, wildlife watering, recreation and fishery uses, to name a few.
A decree for a water right assigns a priority to the use of the water and secures a place in line for the water right during times of scarcity. A priority is obtained by applying for and obtaining a water decree from the state Water Court.
The year the water application is filed with the Water Court establishes the priority date by which it will be administered in relation to other decreed water rights, also referred to as the adjudication date. Water rights decreed within that year are administered based on the date the water right is actually put to use or the date the water user establishes the intent to put the water to use in the future, referred to as the appropriation date.
For example, a water application filed with the Water Court up until Dec. 31 of this year will receive a priority date of 2014. This water right will be behind, or junior, to all water rights filed in 2013 or before, yet senior to anything filed on or after Jan. 1, 2015. So, a 2014 water right with an appropriation date of 7/1/1919 will be satisfied before a 2014 water right with an appropriation date of 6/15/1972.
It is only when there is not enough water to satisfy all the decreed water rights on a particular stream system and a water right holder requests administration by the Division of Water Resources, the state agency that manages Colorado’s water, that the priority system kicks in. This is also referred to as a call.
The basic purpose of the call is to “call out” or curtail junior water rights in order to make water available to the senior water right so it may use its full decreed amount of water.
Water users diverting water without the protection of a water decree are the first to be shut off, or ordered not to divert, so that the decreed water users may receive the water.
For example, the adjustments made to headgates on the White River above Meeker were made in 2002 and 2012 by the water commissioner. These were made to avoid a call as well as protect water released from Lake Avery to sustain flows in the White River for fishery reasons.
Piceance Creek is subject to administration annually. A list of calls can be found on the Colorado Division of Water Resources (DWR) or Colorado Decision Support System (CDDS) website.
Water rights may be obtained for surface water, ground water and to store water in ponds, lakes, reservoirs, etc. The right to use surface water and to store surface water exists whether or not one has a water decree. However, drilling a well or building a pond or other type of storage structure that uncovers ground water cannot occur without first obtaining a well permit from the state.
Whether you actually need a decreed water right depends on the amount of certainty required that the particular water use will be available, when needed.
Because Colorado allows the use of its water with or without a water decree, when not needed by decreed water rights, the ability to divert depends on the amount of available water in the system at any given time.
With increased water use and an unpredictable and fluctuating water supply, administration will, undoubtedly, become more frequent. That means that instances in which undecreed, and/or junior water rights are called out to satisfy more-senior decreed water rights, will increase.
It is safe to say that if certainty of a dependable and reliable water supply isn’t a priority, then the process of obtaining a decree for that particular water right may not be important. However, if certainty is crucial, the time to obtain a 2014 priority date ends Dec. 31.
Margaret O’Donnell, Esq., of the Law Firm of Margaret O’Donnell has assisted clients in obtaining water rights in Rio Blanco, Routt and Moffat counties.
