The doctrine of prior appropriation has governed Colorado water law for over 125 years and has its roots dating back to early mining days. The doctrine follows the rule of first in time, first in right. Meaning the one who first appropriates/ secures water would have a senior right to any subsequent user. Water rights are directly tied to surface water and use thereof. Water rights, in general, are not conveyed by water wells although there is a connection to an extent. Most water rights will be conveyed by a quitclaim deed.
All water wells drilled after 1957 must be permitted and there are 2 classifications of wells; Exempt and non-exempt. The most common wells are exempt household and domestic wells. These exempt wells are limited to pump rates of 15 gallons per minute or less. Each allows for different uses and it is important to understand what type of well a property has or qualifies for as well as the permitted uses before you purchase. If the property doesn’t have a water source or well, a buyer should have a knowledgeable broker who can help navigate what type of well a property can qualify for.
There are additional exempt well classifications including exempt commercial wells and geo-exchange system wells. Any well that is not classified as an exempt well is considered non-exempt.
The water from and exempt water well is a permitted use and not an owned right. This means the water cannot be bought or sold and cannot be separated from the property. With this said, it is important for you to have a well permit transferred to your name after you purchase your property.
Other common questions that buyers will have when considering properties are related to ponds and springs and whether they can build a pond and what they can do with spring water. The short answer is it depends. This is where having a knowledgeable broker can be invaluable in assisting finding information and answers.
It is possible that in order to use a property for an intended use you may need to augment a water well/source through an augmentation plan. Augmentation plans often require the purchase of additional water rights to ensure senior water rights are not impacted by the proposed use of water.
The complexity of Colorado water law makes having a knowledgeable broker assisting your property sale or purchase a necessity and often will also require a good water law attorney.