Considering Adjudication of Your Water Right? The following information is intended to help people who want to know what benefits result from adjudicating water rights for a well in the Dawson aquifer. The adjudication of water rights from surface water sources is not discussed. Even with that focus, because this topic is complex, advice on adjudication is not offered. Instead, the basic results of adjudication are provided followed by suggested questions that a landowner might ask a water lawyer.
The result of water rights adjudication may be different from what well owners want or expect.
What you Get from Adjudication The water court’s adjudication produces a conditional or absolute water right. The decree gives the location and size of the property, the uses that the owner lists for the water, the maximum allowed cubic feet per minute pumping rate and the amount of water that can be withdrawn per year. It does not set a limit on the number of years the water can be pumped. Adjudication does not guarantee water is present or that it will be available for any specified length of time. The water right is not exempt from administration, and the owner is typically required to install a water meter and report total water use periodically. The required augmentation plan makes adjudicated rights for Dawson wells exempt from the priority system.
The following quote is from a talk by retired water lawyer, Hank Worley, in 2019: "Benefits of Adjudication: Creation of a vested property right. Thus, if the law changed to provide a means of appropriation other than ownership of the overlying land, vested property rights will be protected but a landowner who hasn't adjudicated his/her water right will be subject to the new law. In addition, vested property rights can be condemned by a public entity only upon the payment of fair compensation."
Questions for the Experts
Information about adjudication’s pros and cons, beyond what is stated in the previous paragraph, is difficult to anticipate. Therefore, the following are questions that someone considering adjudication might ask a water lawyer or a water expert:
Referring to the quote above by Mr. Worley, what laws, or examples of laws, could be enacted by the state that could adversely affect a not-adjudicated water right but benefit an adjudicated water right?
If a public entity (a government agency) condemns land, the property owner is paid for an adjudicated water right. How is the value of the right determined? If only part of the land is condemned, how does the landowner’s water right change?
Property owners can prevent persons from using adjudicated water rights under their property without their permission. Is that also true for a not-adjudicated water right? Is this situation likely?
Landowners can get the right to all the water under their property by adjudicating their water right, including the lower aquifers, if that water is not already claimed. Can landowners sell the water rights in lower aquifers under their property separately from the water right to the aquifer they use? Is that advisable?
A water right is established for a well or wells on a defined area of land. Under what conditions could an adjudicated water right be sold?
If you decide to sell your land, does an adjudicated water right increase the property’s value?
If wells, private or otherwise, pump legally allowed amounts of water that cause neighboring wells to run dry, does adjudication provide grounds for compensation or a lawsuit? Spoiler alert: Mr. Worley, the retired water lawyer, was asked this question. He replied, “you can sue, but you won’t win.”
Adjudication with the help of a lawyer is expensive. It is possible to handle the adjudication process without one. For information, see The NON-ATTORNEY’S GUIDE TO COLORADO WATER COURTS, https://bit.ly/3AnQjTQ