The Complicated Consequences of a Simple Change

Colorado water law provides a simplified procedure to change a water right when the only change is in the point of diversion of a surface water right where there are no intervening diversions or inflows between the old and new locations. C.R.S. § 37-92-305(3.5). This simplified procedure makes it easier to replace old diversion structures by constructing new ones nearby without many of the risks involved in a full change of water rights proceeding.

In Select Energy Servs., LLC v. K-LOW, LLC, 2017 CO 43, 394 P.3d 695, the owner of a water right used the simplified procedure to change its point of diversion from an old ditch to a new pump downstream of the ditch. The water rights owner afterwards quit-claimed its remaining interest, if any, in the old ditch to the defendant. Id., ¶ 8. Because the water rights owner merely had an easement for the old ditch based on its water right and no ownership of the underlying land, the issue was whether it had any interest to convey to defendant after it changed its water right. Id.

The Court held that even though accretions to the old ditch were listed as a source of supply, the water rights owner could no longer use the old ditch to convey water pursuant to its changed water right because the change decree listed the downstream pump as the only point of diversion. Id., ¶¶ 19-20. Accordingly, the easement terminated and the quit-claim deed conveyed no interest to defendant. See Id., ¶ 1.

Water users should therefore be aware, before changing their water rights, that even a simple change of the point of diversion may have complicated consequences to other property rights.