Community Agriculture Alliance: How diversion of water affects value
October 13, 2016
You may have heard some discussion lately about the phrase, "use it or lose it," first, about how it is a guiding principle when using water under Colorado's prior appropriation system, then, more recently, about how it can be a misleading cliché.
It's true that, in certain, straightforward situations, failure to use a water right for its decreed use will result in the loss of some or all of the water right. However, from there, it gets more complicated.
In 2015, a group of Colorado water professionals representing interests from around the state collaborated to explore "use it or lose it's" application to water use. The discussion was initiated by the Colorado Water Institute. The Water Institute approached the discussion of the concept by first identifying five areas in which water users may have a concern about losing their water right.
The first three areas of concern are maintaining a conditional water right, the continued use of an absolute water right and abandonment of a water right. In Colorado, a water user may obtain a conditional water right based on a non-speculative plan to use the water. If that person does not apply the water to its decreed use within a period of time, or at least maintain a diligent effort to develop the water right, it may be terminated by the water court.The water right is lost due to lack of use.
However, once a water right is made absolute, while its beneficial use may vary from time to time, absent an abandonment action by the water court, its continued use is generally not limited to an amount less than its decreed amount. The water right is not lost due to occasional lack of use. However, if the water right is not used for an extended period of time, the water court may find that the water right has been abandoned and terminate it. In this case, the water right is lost due to lack of use.
When the owner of a water right considers the risk of abandonment of some portion of a water right or the possibility of changing a water tight to a different beneficial use (the fourth area of concern), the owner of the water right may consider it advantageous to divert as much water as possible — more than is needed for the applied use.
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The unintended consequences of doing that can range from unnecessarily taking water that could be used by water rights immediately downstream, to impacting sensitive fish and wildlife habitat, to increasing the water right owner's return flow obligation if the use is changed.
Further, the water court doesn't consider water diverted but not consumed as water that may be applied to a new use. So the practice of diverting more water than is needed, which is called "waste" in water administration, can actually be detrimental.
A fifth area of concern is the effect that conservation and sustainability efforts can have on the value of a water right. To understand more about that area of concern and the rest of this issue, read Special Report No. 25: "Is 'Use It or Lose It' an absolute?" available on the Colorado Water Institute home page.
Kevin G. Rein is deputy state engineer for the Colorado Division of Water Resources.