Series: Colorado Water Law Basics #19 - Water Rights Abandonment List
Our LWS blogs have discussed how to obtain water rights at length, but we have not talked as much about how you can lose a water right. Outside of selling your water right, abandonment is the primary way water rights in Colorado are forfeited. An abandoned water right simply disappears. The water is left in the river or aquifer for other downstream water rights to claim, and the right cannot be revived after abandonment. This occasional process is healthy for other water rights in the area by helping to prevent very old water rights, which have been inactive or functionally abandoned, from being revived and totally changing the water rights administration regime in an area.
The purpose of the abandonment list is not to abandon active water rights, but to formally abandon water rights which the Division Engineers believe have already been functionally abandoned. To determine which water rights should go on the list, each of the 7 Division Engineers and the Water Commissioners from those Water Divisions develop a list based on use records, site visits, aerial photography, and other factors. Generally speaking, rights that end up on the abandonment list have not been used, or have been in a state of disrepair, for decades. These rights can either be absolute rights that have not been used in a very long time, or conditional rights that the Division Engineers have not seen diligence maintained. If you are unfamiliar with the difference between absolute and conditional water rights, please see our 8/17/2021 blog on the topic.
Once the list has been developed, the Colorado Division of Water Resources (DWR) releases the list on their website, local news outlets, and also sends a letter to the last known owner address from their databases. This updated list is published every 10 years and the next list is to be published in 2030, with the most recent released in 2020.
This list is not written in stone when it is released, the release of the list is simply a notice of intent from the DWR. The list is rather large, and oftentimes there are rights which should not be abandoned which end up on the list. Once published, water rights owners have one year to formally object to the abandonment of their water rights. This is often done with the help of a water attorney and a water resources engineer, like LWS. The objections to abandonment listings are often simple to resolve but have the potential to go to court if the two sides cannot come to a mutual agreement.
The main thing to remember is that if you see your water right on the abandonment list, don’t panic, this is just the first step in the process. If you are reading this blog and you have old water rights you aren’t using there are a few things you can do to avoid be listed:
Use the water right! Water rights maintenance and regular use is the best way to avoid abandonment.
If maintenance and use are not feasible for one reason or another, at least make sure the DWR has the correct contact information on file for your water right so you will know as soon as possible if you water right is listed for abandonment.
We hope this lesson in the abandonment list has been helpful and interesting. If you need any engineering assistance with your water rights, either surface or groundwater, please feel reach out to LWS. We would be happy to provide you with a no-cost proposal regarding your specific issue. You can give LWS a call at 303.350.4090 or email any of water resources specialists listed below.
Bruce Lytle, P.E. bruce@lytlewater.com
Chris Fehn, P.E., P.G. chris@lytlewater.com
Ben Bader ben@lytlewater.com
Anna Elgqvist, EI anna@lytlewater.com
Subscribe to LWS blogs HERE!
