Update to February 11, 2016 Blog Post/Weed and Water - Can Water Be Used for Marijuana Cultivation in Colorado

Last Year, WSMT blogged about whether water could be lawfully appropriated for Marijuana cultivation.  2/11/16 blog post.  We provided three arguments why that would be allowed.

Almost exactly a year later, the Division  water referee agreed In Re High Valley Farms, LLC, 14CW3095 with two of the reasons we set forth in our blog from last year - namely that appropriation of water is controlled by state law, and that the word "lawfully" in the state law definition of beneficial use of water means that the appropriation, not the use of the water, must be lawful.  A copy of the February 17, 2017 order is available here.

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Colorado Supreme Court Limits How Transbasin Water May Be Used and Holds That Unjustified Non-Use of Water Rights Will Count Against Water Users When They Change Their Water Rights

The Colorado Supreme Court recently addressed two previously unsettled issues that will impact other water users in Grand Valley Water Users Ass’n v. Busk-Ivanhoe, Inc., 14SA303 (2016).  First, the Court held that imported transbasin water may not be stored in the basin of import prior to first use unless the decree expressly authorizes it.  The Court reasoned that “just as the right to store water is not an automatic incident of a direct flow right, the right to store water in the basin of import prior to use is not an automatic incident of trans mountain water rights.”  Id. ¶ 49 (citations omitted). Second, the Court held that undecreed uses of the decreed amount of water could count as zero use in historical beneficial use analyses rather than be omitted from the study period.  The Court reasoned that the use of water for an undecreed purpose could be treated as “unjustified non-use” and should not be ignored by excluding it from the study period.  Id. at ¶ 71.  

The Court was split on the first issue of storing transbasin water in the basin of import prior to first use.  The dissent argued that the specific decree at issue implicitly permitted such storage.  Id. ¶ 84. It also argued generally that once water is exported it is fully consumed with respect to the basin of export so no further injury can occur there, and no one in the basin of import has any right to the imported water and can therefore not be injured regardless of its use, so the importer can use the water however it sees fit without injuring anyone in either basin.  Id.  ¶ 85.  Thus, the dissent argued, no explicit decree language is needed for storage of imported water.  Id.  

The majority, however, correctly pointed out that undecreed storage of water prior to first use for the decreed purpose makes it possible to enlarge the water right.  Id. ¶ 49.  A direct flow right can be exercised only when there is both water available for diversion and a need for the water for the decreed beneficial use.  If a water user is able to store the water prior to its actual use, the water user can divert at other times when water is available (for example outside of the irrigation season) and then apply it to its actual use later when the water is needed.  Thus, the right to store may greatly expand a water right when there is a disconnect between the timing of need and availability.  This may lead to greater diversions in the basin of export than originally contemplated by a direct flow right even if the volumetric limits of the decree are not exceeded because the ability to put the water to a beneficial use when available is the ultimate measure of the water right regardless of the maximum limits set in the decree.  Thus, junior users in the basin of export may be injured if the Court had allowed storage prior to first use to count in the historical use analysis because the actual water right that had ripened through historical beneficial use in accordance with the decree might have been much smaller than the decreed limits without such storage.  See id. ¶ 44.

One wrinkle not fully addressed by the Court was that the decree at issue permitted some storage within the basin of export.  The case was ultimately remanded, so this issue and the effect it may have on whether junior users have been injured has not yet been fully determined.

The Court used the second issue to distinguish and clarify the scope of its ruling in Burlington Ditch Reservoir & Land Co. v. Metro Wastewater Reclamation Dist., 256 P.3d 645 (Colo. 2011), as modified on denial of reh'g (June 20, 2011), where it held that it was appropriate to exclude undecreed expanded use from the historical use analysis used to determine the scope of the water right. Grand Valley Water Users Ass’n, ¶ 71.  The Court explained that it would be inappropriate to exclude from consideration use of the decreed amount of water for undecreed purposes, as opposed to use of additional amounts of water for the decreed purposes.  Id.  Periods where none of the water was used for decreed purposes should be counted in the historical use analysis as zero use periods rather than be excluded from the analysis – at least to the extent that the non-use was unjustified.  Id.  

The legislature, however, passed Senate Bill 15-183 while this case was pending before the Supreme Court, and it was signed into law a few months prior to oral argument.  At oral argument, the parties agreed that Senate Bill 15-183 did not apply to this case, but they also agreed that it requires that water courts, in other pending and future cases, exclude all years of undecreed use from the study period, contrary to the eventual holding in this case.  It is therefore unclear what effect this decision will have on cases filed after Senate Bill 15-183 was adopted.  Further adding to these uncertainties is the fact, pointed out by counsel during oral argument, that Senate Bill 15-183 may be subject to constitutional challenge as impermissibly retroactive or even an unconstitutional taking of private property. 
The takeaways for other water users from this case are that although transbasin water can be a very flexible source of supply, one still must comply strictly with the terms and authorized uses provided in the decree.  Additionally, the case could have a broader impact in its analysis of undecreed use, and what the Court labeled “unjustified nonuse.”  This part of the holding applies to both transbasin and other, native flow water rights.  While Senate Bill 15-183 may limit this decision’s impact regarding the effect of undecreed uses on historical use analyses, the decision still clearly holds that “unjustified nonuse” can count against a water right holder that seeks to change the water right to a new use.  The court has not provided any guidance as to what constitutes “unjustified nonuse,” however, so it is likely that there will be more litigation in the coming years that wrestles with that question.   

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Colorado Supreme Court Applies Strict Burden of Proof of Historical Use for Change of Water Rights

In late March, the Colorado Supreme Court ruled in County of Boulder v. Boulder & Weld County Ditch Co., 367 P.3d 1179 (Colo. 2016). While this case did not involve any novel questions of Colorado water law, it did provide a clear warning to applicants for changes of water rights that they must be prepared to demonstrate detailed evidence of historical beneficial use, even in very complicated situations, for their claims to be approved.

This case involved an application by Boulder County to change water rights from an irrigation ditch for use to augment groundwater depletions from gravel pit ponds to support an open space park development. The ditch at issue carried a very senior priority of 1861, and had been decreed to irrigate 120 acres. However, the original decree did not identify which 120 acres could be irrigated. The water right for the ditch had long since been divided into fractional ownership, quantified as 185 “inches” (a commonly used method to divide a flow rate into smaller interests). Boulder County owned 100 inches, and other owners held the remaining 85 inches.

The Division 1 Water Court denied Boulder County’s application, holding that the County failed to prove the extent of historical use of the water right. The water court also held that the County should have conducted a “ditch-wide” historical use analysis, rather than a parcel-specific analysis, because the County’s approach would have resulted in the County obtaining credit for almost all of the decreed water right, even though several other owners also owned fractional interests in water right.

In Colorado, water rights are decreed for specific places and purposes of use. If an owner of a water right wishes to change that water right for use at another location or for a different use, the applicant must apply for approval from the water court. In order to ensure that the water right is not enlarged to the detriment of other water users, the court will quantify the water right based on actual historical beneficial use. Often, this results in a significant reduction in the annual amount of a water right, from the original decreed limits. Therefore, applicants must conduct a detailed historical use analysis, in order to make their best case regarding the amount of the water right that should be carried forward for a new use. In some cases, it is very difficult to reconstruct the use of a water right over many past decades. Often, the original users of the water are no longer alive. Applicants must resort to field notes from state water administration officials, written statements from the former users, if they exist, aerial photographs, and interviews of neighboring landowners in order to reconstruct the historical use of the water as best they can.

The murky history of the water right at issue in Boulder County v. Boulder & Weld County Ditch Co. led to the water court’s denial of the application, and the Supreme Court affirmed that ruling. The applicant had not proven to the satisfaction of the court just how much of its water right had actually been used on one of the claimed places of use. Other water rights had also been used on that farm, and there was no direct evidence that this specific water right had actually been used there, even though it had been delivered to the landowner’s headgate. Also, the court was unconvinced that the County had not overestimated its historical use of the water right for a 22 year period, from 1950 to 1972. The court found that the historical water delivery records from 1973 to 2000 were accurately calculated, but that was not good enough. There were no delivery records for the earlier 22 year period, and the applicant was not entitled to an assumption that it had taken its full pro rata share of the water right during this period. Thus, the Supreme Court affirmed the water court’s denial of the County’s application to change the water right.

This case serves as a warning to anyone who would seek to change water rights with complicated historical use patterns to a new use. A detailed demonstration of actual historical beneficial use on specific land will be required, even if the available records are unclear. In order to protect other water users against injury due to a potential expansion of an existing water right, the court will err on the side of denying a change of use application, if it is not convinced that the new use will not be greater than the historical irrigation use. It is crucial that water right holders conduct a thorough and credible historical use analysis, and compile sufficient evidence to convince the court just how the water right had been used over time. Otherwise, applicants run the risk of expending very substantial resources and time in a change-of-use proceeding, and end up having their applications denied.

Welborn Sullivan Meck & Tooley’s water attorneys have significant experience successfully obtaining change of water right decrees for municipal, industrial, and other clients. If you are considering changing a water right to a new use, we would be happy to discuss your plans.

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Ski Area Water Rights: Federal Water “Grab” Resolved?

The United States Forest Service (“Forest Service”) manages 193 million acres of public lands that provide 20 percent of the nation’s clean water supply worth an estimated $7.2 billion per year. Management of public lands by the Forest Service includes issuance of special use permits for 122 ski area operations in thirteen states. 116 of the ski areas are located in 10 Western states, where water is often scarce. Although the U.S. Government owns the land, the ski areas must appropriate or acquire water rights under state law for snowmaking and other uses. The special use permits do not automatically give water rights to ski area lessees.

In 2011 the Forest Service issued a directive requiring joint ownership of existing water rights by ski areas and the United States. The directive sought to address the concern that ski areas might sell their water rights for a hefty profit rather than allow future operators of the ski area to continue use of the water right after an existing operator’s lease expires. Because the lessee historically held the water rights, this directive would have resulted in either: (1) a transfer of water rights into shared ownership with the Forest Service, or (2) a complete transfer of the water rights to the Forest Service. Critics of the 2011 directive quickly claimed that the proposal amounted to a federal water grab that would complicate operations, undermine the skiing industry, and devalue ski area leases. Opponents claimed that requiring federal ownership of water rights would limit ski areas’ ability to control their assets and operations.

The National Ski Areas Association sued the Forest Service to set aside the 2011 directive, arguing that the Forest Service should have allowed for notice and comment, a process providing for public involvement in federal decision-making. Nat’l Ski Areas Ass’n v. U.S. Forest Serv., 910 F. Supp. 2d 1269 (D. Colo. 2012). The court agreed and ruled that the Forest Service violated its own procedural rules, failed to evaluate the economic impact of the proposed directive, and violated the ski areas’ rights. The court vacated the 2011 directive for these failures to comply with procedural requirements.

The 2011 directive also sparked legislative reaction. Colorado Senator Cory Gardner proposed an amendment to the budget aiming to protect the supremacy of state water law over one clause of the Forest Service directive that sought to supersede state water law. The successful amendment established a deficit-neutral reserve fund relating to “protecting communities, businesses, recreationists, farmers, ranchers, and other groups that rely on privately held water rights and permits from Federal takings.” Similarly, Representative Scott Tipton proposed a specific water rights bill to “protect private water rights from uncompensated federal takings.” Although Representative Tipton’s bill did not pass, the joint Congressional efforts reflect the concern for privately-held water rights.

On June 23, 2014, the Forest Service posted notice of a new proposed directive with amended clauses addressing special use permits and associated water rights. The new proposed directive sought to provide assurances that sufficient water rights remain with the ski area permit for snowmaking and other essential operations (even if the ski resort is sold) but without requiring ski areas to transfer water rights to the Forest Service. The proposal allowed the ski area to continue to own the water rights as a special use permit holder, with the commitment that adequate water stay dedicated to operation of the ski area.

Forest Service Chief Tom Tidwell expressed his support for the proposed new directive: “Chair lifts can be replaced and lodges can be rebuilt, but once the water necessary for ski area operations is no longer available, the public loses opportunities for winter recreation. The economic effects of the loss of water may be far reaching. This issue has implications far beyond the boundaries of ski areas.”

After an extended public comment period, the Forest Service released its Final Directive on Forest Service permits for Ski Area Water Rights on December 30, 2015. The Final Directive requires an applicant for a ski area permit to submit documentation prepared by a qualified hydrologist or licensed engineer that demonstrates there is sufficient water to operate a ski area for the entirety of the ski area permit. “Sufficient water to operate a ski area” means that the applicant has adequate rights, or access to a sufficient quantity of water, to operate the permitted facilities, and to perform the associated activities authorized under the ski area permit under an operating plan. In determining whether a ski area applicant has sufficient water, the applicant’s hydrologist/engineer will consider typical conditions, taking into account variations due to weather and climate, technology, and infrastructure improvements.

The Final Directive further provides that if there is a change in ownership at any time, and a ski area “water facility” (defined as “a ditch, pipeline, reservoir, well, tank, spring, seepage, or any other facility or feature that withdraws, stores, or distributes water”) will no longer be used primarily for operating a ski area, the authorization for the facility under the ski area permit will be terminated and the water facility must be removed from Forest Service lands. If a ski area permit is terminated or revoked, the holder must give a right of first refusal for the water rights associated with the permit to the succeeding ski area permit holder. If the water use right is jointly owned with the United States, the holder must give a right of first refusal to the government.

Water use rights are valuable business assets for ski areas and considered necessary for operation in the arid West. Both the Forest Service and the ski industry consider the Final Directive, which took effect on January 29, 2016, to be a success. Time will tell if the dispute is truly resolved. In the meantime enjoy the powder!

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Weed and Water - Can water be used for marijuana cultivation in Colorado?

The question has become important to marijuana growers after the Colorado Supreme Court’s decision in Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. 2015), where the Court held that an activity is only “lawful” if it violates neither state nor federal law.

The issue has now arisen in the water context before Water Division 5. In Re High Valley Farms, LLC, 14CW3095. In that case, the Division Engineer has demanded that “[t]he applicant must explain how the claim for these conditional water rights [the water is to be used for an indoor marijuana grow facility] can be granted in light of the definition of beneficial use as defined in C.R.S. § 37-92-103(4). Specifically, beneficial use means ‘the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’”

In Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. 2015), the Colorado Supreme Court held that “lawful,” as used in an employment statute where it was not further defined, should be interpreted based on its ordinary meaning. Id. at 150. The “ordinary meaning of ‘lawful’ is that which is ‘permitted by law.’” Id. So, “for an activity to be ‘lawful in Colorado, it must be permitted by, and not contrary to, both state and federal law.” Id. at 151.

Like the statute in Coats, the statutes governing water rights in Colorado do not define “lawful.” Thus, Coats seemingly dictates that the ordinary meaning of “lawful,” as meaning lawful under both federal and state law, applies. That would mean that growing marijuana is not a beneficial use and therefore not an allowed use of water pursuant to Colorado water law. There are, however, at least three reasons to believe that growing marijuana can be considered a beneficial use despite the broad language in Coats: 1) there is a constitutional right to divert water that cannot be curtailed by statute, 2) the statutory definition of beneficial use does not necessarily prohibit using water for illegal purposes, and 3) policy considerations in the water context, unlike the employment context, weighs in favor of interpreting lawful to mean lawful under state law only.

First, although beneficial use is statutorily defined, the right to divert for beneficial use derives from the Colorado Constitution. Colo. Const., Art. XVI, §§ 5-6. The Colorado Supreme Court has interpreted this to mean that the legislature “cannot prohibit the appropriation or diversion of unappropriated water for useful purposes.” Fox v. Div. Engineer for Water Div. 5, 810 P.2d 644, 646 (Colo. 1991). The Colorado Constitution establishes that marijuana grow is a useful purpose. Colo. Const., Art. XVIII, § 16. It should therefore be possible to appropriate water to grow marijuana, regardless of the statutory definition of beneficial use, because the legislature cannot abrogate the constitutional right to divert water for a purpose that is protected by the constitution.

Second, it is not readily apparent that “lawfully” modifies “the purpose” in the statutory definition of “beneficial use.” Pursuant to the last-antecedent canon of construction, “lawfully” modifies “appropriation” – not “purpose.” Thus, the appropriation must be accomplished lawfully in accordance with Colorado water law, but the water does not necessarily have to be used for a lawful purpose to effect an actual appropriation. In fact, the prior appropriations doctrine arose in the west to administer water rights when miners were using water to illegally mine federal lands prior to the General Mining Act of 1872. Thus, the statutory definition of “beneficial use” does not preclude appropriation of water for an illegal purpose as long as it is diverted in accordance with the law.

Third, Coats involved employment discrimination, an area of extensive federal regulation where policy concerns weighed in favor of allowing employers to discharge employees for violations of federal law. Id. Unlike employment law, water law is uniquely controlled by state law. 43 U.S.C. § 666 (subjecting the U.S. to state law in water rights cases); See also Bureau of Reclamation, Reclamation Manual (Temporary Release): Use of Reclamation Water or Facilities for Activities Prohibited by the Controlled Substances Act of 1970, PEC TRMR-63 (May 16, 2014) (prohibiting the use of BOR water for marijuana grow facilities, while not prohibiting the use of other water passing through BOR facilities for marijuana grow facilities). Further, policy arguments favor interpreting beneficial use as encompassing marijuana grow because the objective of Colorado water law is “the optimum use of water consistent with preservation of the priority system of water rights” C.R.S. § 37-92-501(2)(e). There is no doubt that marijuana grow is optimal in the sense that it can lead to greater revenues both per acre planted and per acre-foot of water used than most other crops grown in this state. Lawful should therefore, for the purpose of water law, be interpreted to relate only to state law.

While marijuana growers in Colorado should prevail against a challenge that their use is not beneficial, the safer course of action may still be to apply for indoor irrigation, commercial, and industrial use, without specifying the type of crop to be grown. That may also allow greater flexibility for future changes in the type of crop grown.

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Are Draft Expert Reports “Discoverable” in Water Court Proceedings?

     Pretrial discovery (where a party to a legal proceeding can see the evidence the other side will use) has been undergoing big changes in Colorado. One of the most significant recent changes to the Colorado rules of civil procedure is that draft expert reports and communications between experts and attorneys are now protected from discovery under C.R.C.P. 26 as trial preparation materials. For background see http://www.wsmtlaw.com/blog/changes-in-colorado-s-rules-of-civil-procedure-aimed-at-frontloading-litigation-to-decrease-costs.html.

     The question addressed at the annual Water Division One Bench-Bar Meeting, held on August 17, 2015, was whether this change in civil discovery would apply to Water Court proceedings. From the discussions, it appears that there is some uncertainty about whether the new C.R.C.P. 26(b)(4)(D) will protect draft water expert reports in a water court proceeding. For example, some take the position that this rule does not apply in water court proceedings because the official comment to Rule 26 expressly excludes water law from its scope. Others counter that Rule 26 generally applies in water court proceedings because the Uniform Local Rules for All State Water Court Divisions incorporates Rule 26, except as expressly modified by Local Rule 11. Arguably, the new rule protecting draft expert reports from discovery is not in direct conflict with a specific water court rule or the modifications expressed in Local Rule 11 and should therefore apply in water court proceedings.

     The water court has not had the opportunity to express its opinion on this issue yet. At the meeting, it was noted that where the general rules of civil procedure are discretionary in water court proceedings, the court would apply them unless it is convinced by the facts of a particular case that the general rule should not apply. This approach is consistent with either interpretation of the applicability of Rule 26. The comment to Rule 26 regarding its scope, which provides that a water court may use those rules, suggests that the rules are discretionary. Local Rule 12, which provides that a water court may modify the local rules on a case-by-case basis “to avoid substantial injustice or great hardship,” suggests that the local rules and those general rules, incorporated through the local rules and not independently applicable, are subject to modification on a case-by-case basis by the court. Thus, even if applicable, the new rule is subject to modification by the court.

     At the meeting, the question was asked whether the attorneys present were for or against applying this rule in water court proceedings. A number of attorneys expressed their support for the rule protecting draft expert reports from discovery, and no one expressed opposition to the rule. Thus, there may not be many challenges to the position that draft expert reports will be protected from discovery in water court proceedings, but there is room for a contrary interpretation.

     Experts and attorneys should be aware of this possibility for disclosure in water court proceedings and take some steps to ensure their draft reports and communications are protected. Given the strong support expressed by water lawyers at the Division One Bench-Bar Meeting for this protection from discovery, it may be possible for experts and attorneys to protect themselves against this uncertainty by getting all parties to stipulate that Rule 26(b)(4)(D) will apply to their case.

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Colorado Supreme Court Issues Important Water Rights Opinion in Wolfe v. Sedalia Water & Sanitation District.

The Colorado Supreme Court has now determined the standard for quantifying water rights that have already changed from one use to another in a prior case. This is an issue that has been very unclear for some time, and many water users have been uncertain about how this issue would be addressed, until now.

In this case, the Court considered an appeal from an application to change the use of a water right that had originally been decreed for irrigation purposes, with an 1872 priority date. In 1986, the owner of the water right had obtained a water court decree, changing the use of the water right from irrigation uses to replacement purposes for an augmentation plan. In the 1986 case, the water right was quantified with an annual average of 13 acre feet per year for augmentation purposes, based on the long-standing principle that water rights will be limited to their historical beneficial use amount when they are changed to new uses.

The new owner of the water right, a water and sanitation district, acquired this water right, and sought to change it again, from augmentation purposes to municipal purposes. The central issue in the case was whether the applicant was entitled to rely on the previous quantification of the water right from 1986, or whether the court would need to consider the use of the water right since the last quantification and re-quantify the water right based on average historical use, including those years. This would have been a real problem for the applicant, because the water right had not been used at all since it was originally changed to a new use in 1986. Thus, if the water right needed to be requantified again based on a historical use study including those years, the yield of the water right likely would have been reduced substantially.

The Colorado Supreme Court ruled that the doctrine of “issue preclusion” (also known as collateral estoppel) will prevent relitigation of the historical beneficial use of previously changed water rights in many cases. However, in a subsequent change of water rights case, the court should take into evidence any periods of nonuse of the water right since the previous change case. If the water court determines that there has been “prolonged and unjustified nonuse” of the water right, since it was changed the last time, then this will be a legal basis to determine that “changed circumstances” have occurred. In that event, the water court should consider the nonuse of the water right since the last change decree, and requantify the water right based on a new historical use analysis.

While this decision provides some guidance to those seeking to change their water rights that may have been changed once before, it still leaves open some uncertainty. Subsequent cases will need to address what qualifies as “prolonged and unjustified nonuse” of a water right, thereby triggering a new historical use analysis. Also, a bill is currently pending in the Colorado Senate, SB 15-183, which would remove the “prolonged and unjustified nonuse” exception. If this bill passes, then prior quantifications of changed water rights will be preclusive, regardless of whether the water rights have been used since the first quantification. The bill does not address abandonment of water rights due to non-use, however. Therefore, water rights that have been previously changed but not used for an unreasonable length of time since then may still be susceptible to claims that they have been abandoned and are therefore no longer valid.

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Top Ten Tips for Acquiring a Water Supply

Plan Ahead – In Colorado, a complex set of laws and regulations govern when and where water can be taken and used. The process of determining whether water is available for your needs and obtaining a legal water supply can be a lengthy process.

Need Water Quickly? – The best option in this case may be to lease treated effluent water from a municipality that has a supply that is “fully consumable” and can be legally used at any location and for any purpose. This water may be expensive, however.

Ensure The Source is Legally Available – Just because someone has a water right and they are willing to sell water, does not mean that the water can legally be used for industrial purposes. Water rights are limited by point of diversion, place of use, and purpose of use. A water court process may be needed to change it so that it is available for different purposes.

Determine if there is “Nontributary” Water Available – Parts of Colorado have aquifers that have been legally designated as “nontributary.” Unlike other water rights, overlying landowners own the right to this water. These water rights often have less restrictions than tributary groundwater or surface water, and can be a good option for industrial uses. The surface owner may have nontributary water rights that can be leased for energy development purposes.

Produced Water – In Colorado, there are specific regulations to determine whether produced water requires a water well permit and whether the water can be beneficially used. Depending on the circumstances, this water may be available for subsequent use.

Pitfalls with “Tributary” Wells – If a water well pumps water from an aquifer that is connected to a surface stream, which is the presumption in Colorado, then the well cannot be used unless it is part of a court-approved augmentation plan or an administratively approved substitute water supply plan. In either case, a replacement water source is required to replace depletions caused by the groundwater pumping.

Get to Know the Local Water Commissioner – The Water Commissioner is the “water cop” for a particular geographic region, who makes sure that water users comply with legal requirements. This person knows and understands the river systems and water users in an area better than anyone else. The water commissioner can be an invaluable resource for ideas of available water supplies in a given area. Once you obtain a water supply, you will need to follow this person’s requirements as well!

Year Round Supplies Often Require Storage – If you need a supply that is available all year, then a storage reservoir such as a reclaimed gravel pit, may be an important component to consider.

Designated Groundwater Basins – Much of eastern Colorado is located within designated groundwater basins, under the jurisdiction of individual groundwater management districts.

Call the Experts – In order to successfully navigate the laws and technical requirements for the diversion and use of water, it is important to obtain legal counsel and an experienced water resources engineer from the outset to avoid pursuing options with legal or technical fatal flaws.


CAROLYN BURR cburr@wsmtlaw.com

JAMES NOBLE jnoble@wsmtlaw.com

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