When evaluating Colorado Ranches, it is important for buyers to fully understand a ranch’s water resources and water rights. The presence or absence of water on a ranch can affect a wide spectrum of issues, including land values, agricultural production, wildlife enhancement opportunities, and development or conservation strategies.
Water (and the water rights or permits that govern its use) can be an extremely confusing and complex subject that can quickly require the assistance of an experienced water rights attorney. However, it is important for landowners to know some of Colorado’s basic water terminology, so as to have a high-level understanding of the most basic issues and how they may possibly affect their land.
Below is some introductory information on the four fundamental types of water, as defined by the State of Colorado:
Tributary Water: This is Colorado’s largest classification of water and refers to any water that is connected to natural flowing surface streams and any aquifers directly associated with those streams. Tributary water is also defined as any type of water other than Non-Tributary and Not Non-Tributary Groundwater, Designated Groundwater, or Exempt Wells (all three described below). In Colorado, all ground water is assumed to be tributary unless it can be proven otherwise. In order for a landowner to divert, store, or use tributary water, the landowner must own a water right that has been properly adjudicated in Colorado’s water court.
Non-Tributary and Not Non-Tributary Groundwater: Non-Tributary refers to water found in deep aquifers that are not geologically or hydrologically connected to streams, rivers, or creeks. Use of this type of water requires a permit issued by the Office of the State Engineer. Non-tributary ground water can also be decreed, which is a much lengthier process that requires going through Colorado Water Court. Not Non-Tributary groundwater does influence streamflows, but are not classified by the state as tributary due to either potential economic benefits or unique hydrologic characteristics. Use of Not Non-Tributary water requires a permit and state-approved water augmentations plan.
Designated Groundwater: This category of water is managed by the Colorado Ground Water Commission and does not supplement or recharge natural flowing surface streams. This type of water is found in specific designated ground water basins throughout Colorado, primarily along the Front Range and in the eastern plains where surface water is scarce and groundwater is the primary source of all water. There are currently eight different designated basins: Camp Creek, Southern High Plains, Kiowa Bijou, Upper Black Squirrel Creek, Upper Big Sandy, Lost Creek, Upper Crow Creek, and the Northern High Plains.
Exempt Wells: Water from Exempt Wells can be obtained from practically any aquifer in the state, so long as the well is small capacity, generally with a pumping rate of 15 gallons per minute or less. Examples include wells used for stock watering, domestic, or low-intensity commercial purposes. Domestic wells drilled prior to 1972 did not require any sort of permit and are still classified as “exempt.” In order to drill an exempt well, the landowner must apply for a permit with the Office of the State Engineer.
For further reading on Colorado water, water rights, and all of the issues and history associated with subject, I highly recommend the book Colorado Water Law for Non-Lawyers. It is a very thorough account of the history and current state of Colorado water law, but written in a relatively easy-to-digest manner. Another excellent resource is the Water Rights Handbook for Colorado Conservation Professionals. Despite the detail in each of these books, they barely scratch the surface of the complexities associated with water and water rights on Colorado ranches for sale.
As with all complex legal matters, we advise consulting with an experienced professional who can assist landowners as they work through these issues. Here at Mirr Ranch Group, we have long-standing relationships with some of the West’s most accomplished water rights attorneys, and we are happy to make introductions for any of our clients.