Water rights also mean owners have responsibilities

With irrigation season comes the cleaning and repairing of irrigation ditches. Colorado law saddles water-right owners with a number of legal responsibilities. It also, however, affords water-right owners significant rights. If you own a water right or if your property is burdened with an irrigation ditch that delivers water to your neighbor’s property, you need to know the legal rights and duties of a water-right owner.

A water-right owner’s legal right to water delivery depends on the priority of the water right, but the priority of a water right alone does not guarantee that a water-right owner will receive his legal entitlement. The majority of water users in Colorado obtain their water from ditches that divert water from a river and carry it through property they don’t own. Thus, the physical condition of the water-delivery system and the conduct of other water users can also affect water delivery.

Some ditches are incorporated, which means the right to use water is based on ownership of stock in the ditch company. Other ditches are not. When a ditch is not incorporated and more than one property owner is using the ditch, the property owners are co-owners of the ditch. A water user who obtains water via share ownership in a ditch company might not have the same ditch maintenance obligations and water delivery concerns a water user who obtains water via an unincorporated ditch.

A ditch company, not an individual water user, typically maintains and allocates water along the company’s ditch. As a general matter, however, a ditch company does not maintain or allocate water on any lateral ditches. For that reason, if the ditch at issue is the main ditch of a ditch company, the company (and not the individual water user) will have the legal obligations discussed herein. When the ditch at issue is a lateral ditch or is an unincorporated ditch, all of the co-owners in the ditch must comply with the following laws.

Colorado’s General Assembly requires ditch owners to measure their diversions, to maintain and repair their ditches, and to ensure that they do not divert more water than the law allows. Ditch owners must install and maintain headgates and measuring devices at the point of diversion on the river. Ditch owners must also carefully maintain the ditch embankments so that the water carried therein does not “flood or damage the premises of others.” This, however, does not mean that a ditch owner is strictly liable for all seepage from the ditch. As long as a water user maintains his ditch with ordinary care, he is not liable for damages that might be caused by his irrigation ditch.

Moreover, “it is the duty of every person who is entitled to take water for irrigation purposes from any ditch, canal or reservoir to see that he receives no more water from such ditch, canal or reservoir through his headgate, or by any ways or means whatsoever, than the amount to which he is entitled.” In order to ensure that water is not wasted, ditch owners are required to make a tail ditch that returns “the water in such ditch with as little waste as possible into the stream from which it was taken.”

The law provides that any person who “knowingly and willfully cuts, digs, breaks down or opens any gate, bank, embankment or side of any ditch, canal, flume, feeder or reservoir” is guilty of a misdemeanor and will be subject to a fine or imprisoned. It is also against the law for any person “to run through his irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his land, and for domestic and stock purposes.” And, when a ditch owner knowingly permits extra water to come upon his land or fails to take steps to prevent extra water from flowing upon his land, he is liable for the actual damage sustained by the party aggrieved.

In order to comply with the host of legal obligations regarding ditch maintenance and water delivery, Colorado law grants ditch owners the right to inspect, operate, maintain and repair their ditch, even when that means entering someone else’s property. Colorado law also provides “the owner of property burdened by a ditch easement may not move or alter that easement unless that owner has the consent of the easement’s owner,” or has obtained a judicial determination authorizing relocation of the ditch.

If you are a ditch owner, it’s time to inspect your ditch to ensure that you can comply with your legal obligations. If you are a property owner burdened by an irrigation ditch, be friendly to your neighbors. They have a right and an obligation to inspect, maintain and repair their ditch.

Amy Huff is a water attorney in Durango. Reach her at amy@hufflaw.com.

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