Series: Colorado Water Law Basics #17 - Conditional & Absolute Water Rights: What’s the Difference?

In Colorado water rights there are two stages of water rights: conditional andabsolute, which apply to all tributary water rights. Absolute water rights are a very simple concept. An absolute right is a water right which has been proved in Water Court and the owner may use it indefinitely in accordance with their decree. The only time an absolute water right is cancelled in Water Court is when the water right has not been used by its owner for an extended period of time, typically a minimum of 10 years, and then the right may be abandoned.

Conditional water rights can be thought of as a trial period for water rights. When a water user applies for a new tributary diversion from the river, new reservoir, or new alluvial well, they are first given a water right which is entirely conditional. A “conditional” water right essentially means that the owner has the right to the use of the water according to the decree but has not yet actually put that water to beneficial use. Therefore, to make a conditional water right absolute, the water right must be put to beneficial use.

Even partial use counts towards making a water right absolute. For example, if you have a conditional right for 10 cubic feet of water per second (cfs) from a river and you divert and use 6 cfs, then you can convert 6 cfs of the water right to absolute and you would still have the remaining 4 cfs as a conditional right. When you are able to divert and use the full 10 cfs during a daily period, then the full 10 cfs can be converted to absolute. Even if that 10 cfs is only diverted for a short period of time within a day, if you have proof the full amount was diverted and used, then you can make the right absolute forever. Alluvial wells are treated the same as a surface diversion, i.e., making the right absolute is also based on the beneficial use associated with an instantaneous flow rate. Surface water storage rights in reservoirs are somewhat different in that storage rights are typically based on a maximum annual storage volume so making a storage right absolute is based on the volume of water stored.

When a conditional right is used for a portion, or to the full extent, of the right, the water right owner must provide proof of that use to the Water Court. This is typically done through the diligence process. Conditional water rights are allowed to be developed over time; however, it needs to be shown that there is progress towards making the right absolute over time. While a water right is conditional, the water user must return to Water Court every 6 years for what is called a diligence hearing. The water right user must show that during the previous 6-year diligence period that the water user has been working to perfect the water right with the end goal of making the water right absolute. Some water rights can go through many diligence periods prior to the right being made absolute. A water right user can prove diligence by showing that money or infrastructure, or both, have been used to improve the ability to develop the water right. For any portion of the water right that is proven to have been put to beneficial use, the Water Court will then change that portion of the water right from conditional to absolute.

If the Water Court finds that the water user has not been diligent in perfecting the water right in a particular 6-year diligence period, or if the water user fails to file a diligence application within the 6-year period, the Water Court can cancel the remaining conditional portion of a water right. If this happens, any absolute portions of that water right are not impacted. Not having to prove diligence every 6 years is the primary benefit of converting a water right to absolute. The Water Courtmay become more aggressive about cancelling the conditional portion of a water right the older it becomes, so it is wise to make a water right absolute as fast as possible.

And if you have a need for a water resources firm for proving diligence, well drilling, groundwater modeling, water rights cases, or more, please reach out to LWS and we will be happy to put together a plan for your needs. We help with projects big and small, please contact us at 303-350-4090 or by email.

Bruce Lytle, P.E., President of LWS: bruce@lytlewater.com

Chris Fehn, P.E., P.G., Senior Project Engineer: chris@lytlewater.com

Anna Elgqvist, EIT, Senior Engineer: anna@lytlewater.com

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