This is probably a long shot, but does anyone have a recommendation for a water lawyer in Colorado?

A little background: we have a second home on 20 acres in Durango that has a water well shared by two other homes. It was supposed to be located on a 35 acre lot, but it was accidentally placed about 50 feet too far south into our lot. Colorado requires 35 acres for a shared well, but this happened 20 years ago and we've been under the radar until now. The developer did this before any of us owned the lots, and has been aware of the issue for awhile.

The other two lot owners are selling, and the title company identified the problem, so now they have written an augmentation plan they want me to sign. They are estimating the water court will require an acre foot of water per year be bought from the local water authority to compensate for excess water pulled from the aquifer, at a cost of $450 per year, shared by the three lots in perpetuity. The cost will rise, but who knows how much. The agreement also transfers responsibility of the well from the developer to the three lot owners, but he and the two selling lot owners are paying the legal costs of the plan.

I proposed that the new lot owners cover the annual, perpetual, fee and got a threatening reply from the attorney, stating the well permit will be revoked and the well shut down. One of the lots is scheduled to close this week, and this may force a delay, so they really want me to sign. After the threats, I told them I'll need my own attorney to review the agreement.

Easily John Denver's worst song.

Sounds like the developer is on the hook. Can he drill a new well in the correct lot?

They want this done now to allow the other home to close. The 35 acre lot where the well should be is not one of the three sharing the well. The plan allows the other two lots to drill their own wells and drop out of the agreement in the future.

I'm no attorney, but that sounds like a setup and you're about to get the short end of the stick. I sure hope you don't sign, especially without legal counsel.

When I owned a second home in Colorado I used Greg Watkins from Westcliffe to help me with similar issues, e.g. access easements with neighbors. He's competent, friendly and honest, and he's an Aggie. I'm pretty sure he would give you a free consultation. You can get his contact info from a word search.

Another thought - maybe check your title insurance policy to see if this kind of thing is covered.

I actually do. I live in Colorado and had to use a water attorney for some water rights stuff on the place we bought last summer.

Nicole Garrimone-Campagna
Attorney

Garfield & Hecht, P.C.

901 Grand Avenue, Suite 201
Glenwood Springs, Colorado 81601
Phone: (970) 947-1936
Email: ncampagna@garfieldhecht.com

The developer admitted knowing about this? Please tel me that's in writing, even in an email.

That's admitting fault, and he should be on the hook for all costs.

Thanks for the two referrals, I'll contact Greg Watkins first to stay in the Aggie network, though he's not specifically a water attorney.

Our title company actually gave us a letter from Colorado Water Resources when we closed on our house in 2011. They were aware of the issue because the owner of the 35 acre lot applied for a well in 2010 and was told he already had a well. He showed them the well was actually on my lot, but then sold his lot, never put in a well, and the land has been vacant ever since. It wasn't a big deal at the time, they said the developer was in the process of resolving it, but they apparently didn't push it until now that the other two homes are selling.

Your well on 20 acres, sign this for your well sounds suspect.

If you want one more referral a buddy of mine from college is now a water rights attorney in Denver.
David Bower at Johnson & Repucci LLP

Those other properties should be a bargain without water. Play hardball, buy adjacent 35ac lot cheap, replat, now you have 55ac with water!

Greg Watkins may be retired, his number has been disconnected. However, I did get a quick call back from David Bower. He can't get to my case for about a week, but he had nothing good to say about shared well agreements. Pretty much always better to drill your own well, but that doesn't help when this is holding up the sale of my neighbors' houses.

So let me get this straight:

1. Well is drilled on your property
2. You have no plans of selling anytime soon
3. They want you to sign an agreement for the benefit of a seller and the developer who screwed up in the first place without you having a chance to get an attorney involved.

Let me just say that when somebody says you have to rush into something that you didn't asked to be rushed into, and sign this life long agreement, they don't care how to affects you. They are just trying to get theirs without regard to you. I wouldn't sign anything without having a qualified attorney reviewing everything.

In all seriousness, it sounds like the best thing for everybody involved is to for you get an additional 15 acres so that you're at 35 acres and so none of the statutes apply. Everybody wins in that situation as you have described it and based on my very limited understanding of the situation.

NRD09 said:

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Those other properties should be a bargain without water. Play hardball, buy adjacent 35ac lot cheap, replat, now you have 55ac with water!

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Just saw this. If they are threatening to cutoff the water, then your neighbors will not be able to sell those homes at current prices. That's insane. It really seems like they're trying to bully you

Get a lawyer to send a letter and fook their closing

Then string them out for a looooong time

If you need an Aggie litigator in Colorado, I got this. Contact email in profile.

Yes, you need a water lawyer, and I don't like saying that.

I know enough about Colorado water law to know you are in a tough spot. Unless your property was subdivided before 1973, your well is illegal without a water augmentation plan approved by the courts.

Now that it has come to light, you might be forced into water augmentation just to keep using your well. With a proper augmentation plan, your neighbors could drill their own wells. If water is available, I'd sure push away from a shared well.

All 3 of these lots were subdivided before 1973, and the well permit states it as exempt, so I should be able to keep the well for my personal use if it can't be shared.

The other neighbors have now offered to reimburse me for 3 years worth of augmentation, but now they're estimating $900 per year divided by the 3 lots. Before it was $450.

Hopefully this doesn't get to litigation, but thanks for the referral!

CO water rights issues are one big reason for not living there.

In NM, you can legally harvest rainwater, but not in CO. It belongs to the govt.

Here is someone I found googling. http://www.white-jankowski.com/practice-areas/water-law/plans-for-augmentation-exchanges-and-recharge-water-rights

Actually Colorado now allows two rain barrels totaling 110 gallons per house. Thanks for finding another lawyer, but it looks like I don't need one anymore because I can safely refuse to sign the agreement without repercussions.

I called the water resources department district engineer, and he was very familiar with our case. He confirmed that at any time I can re-permit my well as single home residential and there will be no interruption to my water.

One of the other homes already has an approved well permit, so they can drill their own well. The other home has a problem because they are only 20 acres and have a separate building with a kitchen, so it qualifies as a second house. They have a separate well to serve that house, and they aren't allowed to drill a second well. They'll have to somehow disable that kitchen to allow their current well to serve the main house. Maybe they can use a cistern for the separate building, but I'm not sure?

I've told them sorry but I'm at a disadvantage to sign the agreement, and they need to consider a plan B.

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I proposed that the new lot owners cover the annual, perpetual, fee and got a threatening reply from the attorney, stating the well permit will be revoked and the well shut down. One of the lots is scheduled to close this week, and this may force a delay, so they really want me to sign. After the threats, I told them I'll need my own attorney to review the agreement.

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Here is where it would go south for me. I would write the homeowners directly and tell them that since their dickbag lawyer decided to play the threat game, to go ahead and get the well shut down. I would turn that whole area into the mf'ing Atacama Desert before I let that property close.