Summary of a Recent
Judicial Development in
Urbanization

"Beneficial Use" Requirement for Appropriating or Changing Water Rights

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In High Plains A & M, LLC v. Southeast Colorado Water Conservancy District, 120 P.3d 710 (Colo. 2005), the Colorado Supreme Court affirmed the water court's dismissal of a private water investment company's change of water rights application because the company's proposed changes were too expansive and nebulous to ascertain whether vested water rights would be injured or to determine whether there would be a new beneficial use made of the water.

Background

High Plains A & M, LLC, a private water investment company, petitioned the water court to change water rights historically used for irrigation to any one of over fifty proposed uses in any of twenty-eight Colorado counties. Id. at 714. The water court held that the change application violated Colorado's anti-speculation doctrine because it was "so expansive and nebulous" that there was no way to determine whether vested water rights would be injured by the change or to determine whether there would actually be a new beneficial use made of the water, and also that the proposed changes were "such a deviation from the original right" that they effectively requested a new water right. Id. High Plains appealed. Id.

Arguments

High Plains argued that it was prejudiced by dismissal of its applications because of risk to its investment and because it could not enter into contracts with end users until it had court approval to change the water rights. Id. at 722.

Analysis and Holdings

The court recognized that High Plains sought the change for virtually any use where water may be necessary without identifying the specific use or end user, and agreed with the water court that its plan was so expansive and nebulous that it was impossible for other holders of water rights to determine whether they would be injured, and also noted that there was no discernible method to determine whether the water would be put to a beneficial use. Id. at 716. C.R.S. § 37-92-103(3)(a)(I) requires an appropriator of water rights to have "a specific plan and intent to . . . capture, possess and control a specific quantity of water for specific beneficial uses." Id. at 720. After examining the language and terminology of the Water Right Determination and Administration Act of 1969, the court held that the Act "anticipated, as a basic predicate of an application for a decree changing the place of use, that there is a sufficiently described actual beneficial use to be made at an identified location or locations under the change decree," and concluded that the Colorado Constitution and General Assembly did not intend that courts and potential opposers be burdened with change applications premised on conjecture. Id. at 720-22.

The court rejected High Plains's argument that it would be prejudiced by the dismissal of its applications for several reasons, and stated that "[a]pplicants for a change of water right must expect full scrutiny of their applications by opposers and compliance with applicable procedures and substantive laws." Id. at 722. Therefore, the court affirmed the dismissal of High Plains's change of water right applications as premature in absence of identified places of actual beneficial use, without prejudice to allow re-filing when a definite location for beneficial use of the water could be identified. Id. at 724.

The case was decided on September 12, 2005.