Water Law

Adjudication of Water Rights

In the western states, the doctrine of prior appropriation ("first in time is first in right") determines how water rights are created.   The procedures to perfect water rights, however, vary significantly from state to state.   In "permit" states, rights in surface and underground water are normally obtained by applications to state administrative officials.   In other states, such as Colorado, water rights are generally created by individual actions and confirmed by judicial decrees.   Each system has a number of idiosyncrasies.   In Colorado, for example, water rights to certain groundwater are the subject of permits issued by state agencies.   White & Jankowski provides representation to help clients establish secure rights to all classes of surface and groundwater in judicial and administrative proceedings.   Return to top.

Diligence and Conditional Rights

In Colorado, court decrees may be obtained for uncompleted, "conditional" water rights.   The first actual use of such rights may take place years after the decree is obtained, and a decree holding one’s place in line to use water is highly valuable.   Conditional water rights can be kept alive only by periodically showing diligent efforts toward putting the water right to actual use and, ultimately, by actually using the water right.   White & Jankowski advises clients regarding the maintenance and development of conditional water rights and, represents clients wishing to establish, protect, and place conditional water rights to use.   Return to top.

Water Rights Transactions: Acquisition, Disposition, Financing, & Title Work

Water rights are property rights which may be purchased, sold and leased in Colorado with, or separately from, the land on which they have been used.   The most reliable and valuable western water rights are usually those established for irrigation purposes during the 1800's.   As western economies grow less dependent on agriculture, and as the completion of new water projects is frustrated by environmental limitations, new uses are emerging for existing water rights and new markets are being created for reliable senior water rights.   In recent years, municipalities, industries and developers have increased the demand for those rights, seeking firm supplies that will carry them through periods of drought.   The result has been an increasingly active market for the sale and lease of water rights at higher prices.   Transactions involving water rights can be complex and sophisticated, requiring an understanding of corporate and real estate law, including questions of title, as well as the intricacies of water law, and requiring experience in negotiating and drafting a variety of instruments.   No water right should be acquired without an intensive investigation of its historic use and its ownership, both of which affect the purchase price.   Historic use investigations are generally performed by a team of water lawyers and water engineers, whose task it is to estimate the amount of water which eventually can be devoted to the new proposed use of the water.   Ownership determinations normally require detailed investigations going well beyond a simple review of land abstracts.   White & Jankowski's attorneys have performed numerous investigations of the historic use and ownership of existing water rights, and have extensive experience structuring, negotiating, and preparing the documents for such water right transactions.   Return to top.

Changes of Water Rights

People who acquire valuable senior water rights often do so to change their use from agricultural to municipal or other purposes.   A new use of a water right must be authorized by a special proceeding in the water court, or before administrative agencies, where it must be shown that the change will not injure other water users.   Generally this requires in-depth engineering and legal analyses of the historic use of the water right, and development of procedures to ensure that historic stream conditions are maintained after the change.   White & Jankowski represents parties on either side of these cases: Applicants for changes of water rights or other water users desiring to protect their rights from injury that could be caused by such changes.   The firm prepares and pursues the necessary water court actions on behalf of its clients, and works with water engineers throughout the process.   Return to top.

Water Exchanges and Plans for Augmentation

Along with a change to new uses, frequently the use of senior rights may be further enhanced by development of water exchanges or augmentation plans which allow the diversion of water at times when the water right normally would not be allowed to divert, in exchange for the release to the river of substitute water.   However, one must demonstrate that the plan can be accomplished without injury to the water rights of others on the river system.   These techniques have been used throughout the West not only to enhance the amount of existing water supplies through indirect reuse, but also to allow the diversion of higher quality water, and may present sophisticated issues of potential injury.   Plans to exchange upon or augment one's water supply require judicial or administrative approval, or both, in the western states.   The proceedings to obtain approval of one's plans, or to test the sufficiency of another party's plans, are typically complex and, along with legal representation, require the assistance of technical experts in the fields of water resources and water quality.   White & Jankowski prepares and pursues the necessary proceedings on behalf of its clients.   Return to top.

Disputes Among Water Users or With Regulatory Officials

Each western water right has a priority.   The better the priority, the more senior the water right.   In periods of drought the priority system is most keenly observed and enforced.   Since a senior right may be able to use all the water to which it is entitled before a junior right can take any water, disputes frequently arise over relative priorities, the amount and use of water to which a senior right is entitled, and the source from which that water may be taken.   These disputes may arise in several forms.   A breakdown of the priority system on a particular stream may result in orders to discontinue diversions issued by state officials, state adoption of rules and regulations, and/or injunction proceedings between individual water users based on an asserted expanded use or other misuse of a water right.   Often those disputes involve interpretation of historical water right decrees.   When the continued use of water is vital to economic survival, these disputes assume monumental proportion, involving protracted and complex litigation and appeals.   White & Jankowski represents clients in priority disputes against other individual users and against the imposition of undue regulatory restrictions by state officials.   Return to top.

Groundwater

With the over-appropriation of many surface water sources, groundwater supplies have gained a new importance for development, and in many growing areas of the West, groundwater remains the only reasonably available water supply alternative.   In few, if any, other areas of water practice is there greater legal uncertainty or factual complexity than with respect to groundwater.   In Colorado, groundwater is classified into at least four categories: tributary; nontributary; not-nontributary, and designated.   Substantially different legal requirements govern the development and use of each of these types of water.   White & Jankowski represents clients in all administrative and judicial proceedings necessary to secure or to protect their rights in all of these types of groundwater.   Return to top.

Water Quality

Water quality matters encompass a broad spectrum of legal issues arising under both state and federal law.   They may involve regulatory or enforcement proceedings before state and federal agencies, participation in proceedings to allocate Total Maximum Daily Loads (TMDLs), opposition to polluting activities by both public and private claimants, or claims for damages from such activities, or both.   White & Jankowski is experienced in handling both surface and groundwater pollution matters including regulatory compliance proceedings and public and private damages actions under statutory and common law theories.   Our firm is experienced in coordinating with water quality experts on issues relating to surface and groundwater pollution, chemical pollution analyses, fisheries protection, soils, and in other disciplines.   White & Jankowski represents clients in the following water quality arenas:

Litigation in Water Court

White & Jankowski litigates water quality issues as they pertain to water rights in Colorado Water Courts.   These types of litigation have allowed our lawyers to develop substantial experience in the interplay between water quality laws and water rights laws, an important and quickly growing area of the law.

Administrative Rule-making

White & Jankowski litigates water quality issues as they pertain to water rights in Colorado Water Courts.   These types of litigation have allowed our lawyers to develop substantial experience in the interplay between water quality laws and water rights laws, an important and quickly growing area of the law.

Administrative Adjudication & Appeals

Our lawyers also have extensive experience with representing clients in adjudicatory actions and appeals of agency actions pertaining to water quality, including section 402 point source discharge permitting, section 401 water quality certification, and section 208 water quality planning.  

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Water Rights as Security

Many lenders and sellers take purchase money mortgages or deeds of trust on lands served by water rights.   In spite of the fact that those water rights may give the land its real value, in a surprising number of these transactions the water rights are carelessly researched and described — if not ignored.   In Colorado and other western states, careful drafting is necessary to assure that a mortgage or deed of trust is properly secured by the water rights associated with the encumbered land.   In addition, because the value of a water right is generally limited by its historic use, and because paper records alone cannot be relied upon by a lender taking water rights as security, a careful examination of the water proposed as security should be undertaken by a team of water lawyers and water engineers before any transaction is completed.   White & Jankowski performs all legal services necessary to assure that water rights are properly taken as security when such is desired.   Return to top.

Federal Reserved Rights, Including Indian Water Rights

Water rights diverted from a stream system that also supplies an Indian reservation or other large federal land holding, even if located some distance away, may be subject to federal reserved rights with very senior priorities. Those rights continue to be adjudicated throughout the western states.   White & Jankowski has extensive experience advising clients ranging from private individuals to state governments regarding the potential effect of this class of water rights.   Return to top.

Treaties, Interstate Compacts and Equitable Apportionment Decrees

While each state is free to allocate water under whatever system it adopts, subject to federal law, no state can allocate more than its own share of interstate rivers.   Its share may be established by interstate compacts, equitable apportionment decrees of the United States Supreme Court, and international treaties.   Colorado's waters, for example, are subject to nine interstate compacts, three apportionment decrees and one treaty, all of which impose substantial limitations on the use of water in the state.   When reviewing water availability for major projects, one should expect a water lawyer, with engineering assistance, to analyze carefully the present and future impact of interstate compacts.   White & Jankowski has provided such services to public and private clients in Colorado and other western states.   Return to top.

Drainage Issues

While water is one of the West's most precious resources, it can often cause dramatic injury, loss of life, and property damage.   Flooding, seepage, and landslide cases raise a host of factual and legal issues which transcend the typical lawsuit.   Although there may be absolute liability for some dam failures, relieved only by "an act of God" defense, issues of duty, causation, and damages remain in other situations.   Consequently, with over a hundred years of conflicting case law addressing these matters, combined with convoluted factual issues, the use of an experienced inter-disciplinary team of lawyers, engineers, hydrologists and soil scientists is a practical necessity.   White & Jankowski provides legal representation in cases dealing with this unique type of property damage.   Return to top.