Water is of extreme importance to the State of Colorado, not only for agricultural and domestic uses, but also for recreation, industrial, municipal and aesthetic purposes. Each of the arid western states, including Colorado, has adopted and enforces an appropriative water rights system. At its most basic level, that system functions under the principle of “first in time is first in right”. All of the arid western states employs a regimen – either judicial or administrative – which authorizes the use of water, monitors that usage through various state agencies, and penalizes violations of the conditions of the underlying permit or decree.
Some of the features of Colorado water law which have historically caused problems to new residents include the right of the holder of a water rights decree to transport his water over land belonging to another. Often times there is no deeded easement for irrigation or supply ditches, which means that their existence cannot be discovered from simply reading the documents in that parcel’s chain of title. Further, simply because an irrigation or supply ditch crosses a third party’s land gives her or him absolutely no right of use of that water. Another unusual feature of Colorado water law is that the appropriator of a water right has a constitutional power of eminent domain for the purpose of condemning a ditch or pipeline right-of-way across the land of another. Of course, as in other condemnation cases, just compensation must be determined and paid to the owner whose land is burdened by that structure.
Another Colorado water law practice with which a new homeowner may come in contact relates to subdivisions. Typically then a developer purchases a parcel of agricultural land and creates a residential subdivision, the agricultural irrigation water provider will require that the developer create a homeowners’ association for the purpose of taking delivery of the irrigation water and paying the provider’s charges for same. The administration of the irrigation water then becomes one of the responsibilities of the homeowners’ association, including but not limited to the scheduled rotation of that water among the lots within the development, maintenance of the ditches or underground pipeline system, collection of each homeowner’s pro rata share of the operational and maintenance costs and the enforcement of association bylaws, rules or regulations governing the receipt and use of irrigation water.
Steve Mathis of this firm has over twenty years’ experience in the practice of Colorado water law. He has also served Montrose County for fourteen years as its Director upon the Colorado River Water Conservation District, which is a state body which was formed in 1937. The principal legislative mandates to the River District include developing, protecting and preserving Colorado’s allocation of water of the Colorado River in accordance with the 1922 Colorado River Compact, and the body of water law which has developed thereunder. For more information on the River District, see: www.crwcd.org.
Steve would be pleased to assist the firm’s existing and new clients in the “navigation” of this unique and very important aspect of Colorado law.
Call (970) 249 – 1237 to schedule an appointment.
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