CHANGE OF WATER RIGHT
Most of Colorado is over appropriated, which means that someone coming in today for a new water right will find that a new water right is so junior that it will rarely come into priority. Diversions can only be made under a water right when that water right is in priority. This situation poses a problem for someone who needs water for a new business, a land development, a farm, or any other use if they are outside of a water supply area typically provided by a municipal government or water district.
Changing an existing water right for a new use is possible so that diversions can be made for the new use under the existing water right's more senior priority. Since water rights in Colorado are a property right, these rights can be bought and sold. However, a change of water right must be made in water court before it can take place. A change of water right is not required for simply a change in ownership, but it is required for any change in use, place of use, or season of use of the existing water right. Only the historical consumptive use of the water right may be changed to a new use, not the historical diversion. The reason for this is that no other water rights holders may be injured by the new change of water right.
Since 85%-90% of the existing water rights in Colorado are used for agriculture, the logical change of use for many water rights are a change from irrigation to some other use. In this case, the historical consumptive use is calculated by determining how much water the crop actually consumed historically. Due to irrigation inefficiencies, much of the water diverted for irrigation was not consumed, but rather, made it back to the river as subsurface flow. That historical return flow must be maintained in time, place, and amount after the change of water right is made so that no injury occurs to other water rights holders who have come to depend on that return flow.
A change of water right must be completed in water court, and therefore, the applicant will find it necessary to hire a water rights attorney to take this case through the court process and a water resources engineer to determine the historical consumptive use of the water right and the historical return flow factor. Temporary changes of water right may also be obtained through substitute water supply plan approved by the State Engineer.
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