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I recently had the opportunity to speak during the Reshaping the River: Reimagining Water Use and Management in the Upper Colorado River Basin Forum that was held in Grand Junction, CO on October 30-31^st. During the conference, I gave a presentation entitled Uncertain Future: How Conditional Rights can impact the Prior Appropriation System, which examined how Colorado鈥檚 treatment of conditional water rights is different from nearly every other state in the Western United States and proposed potential solutions for changing how these rights are treated under the law. My summary of the presentation is included here for those unable to attend the conference in person or those who are generally interested in water law issues within Colorado.

Conditional water rights are water rights which have been granted by the water court, but those rights have not been applied to any beneficial use by the appropriator. In Colorado, these rights have three unique features which distinguishes them from other prior appropriation states:

• There is no time limit for applying water to a beneficial use or finalizing construction of water diversion projects
• The courts treat these rights in the same manner as fully vested water rights by allowing the holder to transfer, change, or sell them before applying water to a beneficial use
• If and when these rights begin coming 鈥渙nline鈥� they will result in line jumping 鈥� line jumping occurs where condition rights begin diverting water after years of non-use, and that use begins to curtail users who have been receiving water for years or decades.

Conditional rights are also unique because the courts and legislature have created various exemptions or carveouts which have allowed the holders of these rights to continue their delayed application of water to a beneficial use. The holders of conditional rights must re-certify their diligence every six years until the right has either been perfected or abandoned. Meeting this diligence requirement has become easier for two primary reasons: (1) holders of conditional rights can meet their diligence requirement, despite taking few actions to protect or advance their water right, if their project is currently economically unfeasible, and (2) where the holders of these rights are working towards completion of one portion of a larger project, a finding of diligence will not be affected by the failure to develop every portion of their project. In practice, both of these statutory requirements have made it easier to tip the scales in favor of water users who have failed to effectuate application of water to a beneficial use. These practices can have consequences to both water users within the state, and throughout the Colorado River Basin.

As previously mentioned, conditional rights are likely to result in line-jumping and will reduce flows to others within the same watershed. Because of the varied and widespread potential impacts that conditional water rights have on the prior appropriation system, reform of how these rights are treated under the law is necessary and vital to ensure our commitments to water users across the Colorado River Basin.

To effectively mitigate issues stemming from conditional water rights, the legislature needs to declare that these rights are not to be treated in the same manner as vested water rights because beneficial use should be the basis, measure, and limit of a water right. The legislature will also need to reform due diligence standards in three particular ways:

• Adding in a time limit for the application of water to a beneficial use,
• Requiring that users have all the plans, permits, approvals, and funding needed to complete a diversion of water for beneficial use before application in water court is sought
• Start diligence proceedings with a presumption of abandonment, which can only be rebutted by showing the actions taken within the six-year diligence period and how they have advanced the states need to apply water to beneficial uses.

Taking these actions will allow water rights holders to show how they are using the states resources conservatively and reducing attempts at speculation in the process. If the water community is able to come together and advocate for these meaningful reforms, we can ensure water security for users within our state as well as across the Western United States.