Feldmann Nagel Cantafio Margulis Gonnell PLLC is dedicated to the preservation and advancement of our clients’ interests and the role they play in the agriculture heritage of Colorado. We are committed to providing effective, attentive and personal legal representation to each of our clients at a reasonable cost.
Feldmann Nagel Cantafio Margulis Gonnell PLLC emphasizes water and natural resources law. We represent our clients with litigation support and legal counseling, including water rights acquisitions, sales, permitting and transfers. In addition, we routinely represent clients on matters pertaining to land use, water quality, federal contracts, and real estate in both transactional and permitting contexts. We also appear before state administrative bodies, state courts, federal courts and appellate courts as litigation counsel on all manner of issues related to water resources.
Colorado Due Diligence Checklist
- How much water is needed for project? Total volume, time of use, rate of use?
- What are the land use requirements of land planning agency?
- Is water service available from a local purveyor, or will water rights be required? Will water rights be conveyed with the property? Are such rights sufficient?
- Will it be necessary to obtain water rights to dedicate to a local water purveyor in order to obtain service commitments?
- What quality standards, if any, would apply?
- Check plat card
- Obtain copies of certificates, permits, applications, or decrees and related files from Salem office
- Obtain title report for real property
- Check grantee and grantor indices at County Recorder’s office (if point of diversion and place of use in different counties, check both counties). Check back to original decree or application
- Check property deeds for inclusion of water rights by statement concerning “appurtenances,” and to make sure water rights are not separately conveyed to a third party or otherwise encumbered.
Validity of Water Rights
- Permits: Is water use developed on acres described or is amendment required? Are permits in good standing and not subject to cancellation – proofs of completion or beneficial use not overdue, necessary extensions of time granted? Can additional extensions be obtained for proving of works, for proving full beneficial use of the right? Are permitted rights of use properly assigned?
- Certificates or Adjudicated Rights: Were rights unused for any 5-year period during the last twenty years (forfeiture)? Did user intend to abandon water rights through non-use(abandonment)? Are there any existing affidavits concerning use?
- Groundwater: Review Department of Natural Resources to determine if water rights located within a study, limited, or critical groundwater area. Review well logs to determine level of withdrawal related to adjacent wells to consider possible interference.
- Storage: is there a contract or easement for use from the storage facility? Review contract for possible breaches or limitations to use of supply.
Sources of information to investigate validity:
- Maps of claims made by owners
- Irrigation district record
- Hydrographic survey report
- Aerial photos showing irrigation
- Adjudication records
Security of priority
- Issue: Is the water right threatened by some outside agency or circumstance so that it might not be available for use in the future
- Federal reserved rights B Indian reservations, federal wildlife reserves, other federal reservations
- Endangered Species Act limits on water use
- Land use changes – restrictions on allocation, use, source
- Wetlands requirements
- Interstate compact obligations
- Do water quality standards mandate flow requirements that may restrict diversion of surface water?
- Any existing disputes with other users – easements, ditches, protests?
Can the water be used for the intended place and purpose?
- What conditions apply to the water right? Season of use? Rate? Measurement? Screening? Have conditions been met?
- If change of point of diversion, manner or place of use required, will this be permitted? Are protests likely? Need to file application. Informal discussion with State and local water law participants may assist in gauging sensitivity of changes – rarely possible to get application approved within usual transactional due diligence periods. If change of point of diversion required, will it be technically and legally feasible to construct new diversion – may need easements, additional permits. If water to be conveyed through existing ditch system, are easements available?
Is the water wet?
- Watermaster Interview
- Existence of minimum stream flows or other instream requirements senior to water right?
- History of “calls” on the surface source
- Groundwater allocation schedules
- Hydrologic assessment
- Suitability for use in current place
- Suitability for transfer
- Water quality issues
- Historic shortages?
- Computer models of the area show water is available in the long term?
Draft due diligence report
- Recommendations to cure objections to the validity of the water rights
Note: This checklist is for reference only. Feldmann Nagel Cantafio Margulis Gonnell PLLC, PC represents that this is a starting place only, and you should consult an attorney who practices in this area to apply it to your particular situation.