Water rights have been an issue impacting Colorado since before it became a state in 1876, and it continues as the demand for water grows. The Division of Water Resources (DWR), also known as the Office of the State Engineer, administers water rights, issues water well permits, represents Colorado in interstate water compact proceedings, monitors streamflow and water use, approves the construction and repair of dams and performs dam safety inspections.
DWR also issues licenses for well drillers and assures the safe and proper construction of water wells, and maintains numerous databases of Colorado water information.
“Within the state of Colorado, water rights are nearly always impacted in some way,” said Kevin Rein, State Engineer, Director of Colorado Division of Water Resources. “There is rarely enough water in our basins to satisfy all the water rights on the system.”
Water Rights – Prior Appropriation System Defined
Water rights in Colorado are unique compared to other parts of the United States. The use of water is governed by what is known as the “Prior Appropriation System.” This system of water allocation controls who uses how much water, the types of uses allowed, and when those waters can be used. “This system is often referred to as ‘“first in time, first in right,’” Rein said.
According to the DWR website, an appropriation is made when an individual physically takes water from a stream (or underground aquifer) and places that water for some type of beneficial use. The first person to appropriate water and apply that water to use has the first right to use that water within a particular stream system. This person (after receiving a court decree verifying their priority status) then becomes the senior water right holder on the stream, and that water rights must be satisfied before any other water rights can be fulfilled.
David M. Shohet, a water rights attorney with Monson, Cummins, Shohet & Farr, LLC in Colorado Springs, said Colorado’s gold and silver rush in the late 1850s to early 1860s led to farmers taking advantage of high food prices in the mountains and they began irrigating along Colorado’s rivers, mainly in that state’s eastern plains.
By the 1900s, the farmers along these rivers had constructed enormous and elaborate canal systems for irrigation. Water was also needed for mining purposes requiring significant diversions of water.
Availability of water was also necessary for the ranching and cattle business. Cattle barons often claimed large tracts of land along streams and springs, claiming exclusive rights to the water Shohet said development and the demand for water between miners, farmers, cattlemen, and communities soon led to violence throughout the West.
To deal with this problem, California miners developed a solution that quantified the amount of water each mine took along with the date of the initial water diversion. During times of shortage, the miners with an older claim to water would receive their quantified water.
“In the 1850s as Colorado was settling with miners, farmers and municipalities, they found the need to ensure that a person who had relied on a diversion on an appropriation the year before, be continued to rely on that in the future,” Rein said. “That is when they had to put in principle in place, that Prior Appropriation direction. That was in our Territorial law even before we were a state.”
Water Rights in Colorado Courts
Shohet said water rights in the court system have been a part of Colorado’s history. In 1874, when the Colorado Constitution was drafted and subsequently enacted upon the approval of Congress in 1876, Article XVI of Colorado’s Constitution adopted the appropriation doctrine.
In 1882, the Colorado Supreme Court in Coffin v. Left Hand Ditch expressly adopted the doctrine of prior appropriation as the central principle of all water allocation in Colorado. This case gave birth to what is known as the “Colorado Doctrine.” Within 20 years of the law announced in Coffin v. Left Hand Ditch, all eight Rocky Mountain states judicially or statutorily recognized the Colorado Doctrine.
Two Types of Water Rights
Shohet said generally, there are two water rights systems in the United States: riparian and appropriation. Both doctrines seek to define the source and nature of the legal rights and water to promote its orderly development.
Under the riparian doctrine, all users share the right to reasonably use the water with “reasonableness” defined in terms of the harm caused to other water users. The riparian right includes the right to make reasonable future uses and cannot be lost through nonuse.
The riparian right includes the right to make reasonable future uses and cannot be lost through nonuse. The date of first use gives no priority over other users under this system. Under the appropriation doctrine, the amount of water taken is quantified and prioritizes available water among water users according to when their appropriation was established. The appropriative water right can be lost through abandonment or forfeiture.
The riparian doctrine is utilized primarily in the Eastern states where there is sufficient rainfall for growing crops and river systems large enough to support commercial navigation. The appropriation doctrine is found primarily in the West, where diversions are necessary to render arid land productive and where irregular stream flow and challenging terrain make the development of commercial navigation difficult.
The primary advantage of the riparian doctrine is that it is incredibly flexible as it allows new reasonable uses of water as new technologies are developed, and social trends change. However, the riparian doctrine fails under water shortage conditions due to its uncertainty of the extent of a defined, quantified right. This can make planning difficult as reasonable uses may change over time and downstream water users have little to no assurance that new uses by upstream water users will not jeopardize or take the water supply in the stream.
The primary advantage of the appropriation system is that it allows for the orderly distribution of water in water-short regions by establishing procedures for quantifying and prioritizing water rights. However, it is less flexible in allowing new uses.
Prior Appropriation System Applies to All Surface and Groundwater
“In 1969, our General Assembly codified the notion that groundwater is connected to surface water, and needs to be applied in that Prior Appropriation system,” Rein said. “It is statewide, but of course, we have some aquifers that are distinct and disconnected from the surface water. They are what we call non-tributary, and they are allocated under the primary authority of our General Assembly, but all other waters of the state applicable to this Prior Appropriation system.”
Rein said water rights are meant to be used in the present, and not held for possible use in the future. He said when water rights usage is questioned, abandonment of those rights can occur.
Abandonment Still an Issue
Legally speaking, abandonment is the termination of absolute water right in whole or in part because of the intent of the owner to discontinue permanently the use of all or part of the water available thereunder.
The failure to apply a water right to beneficial use when water was available for a period of 10 or more years results in a rebuttable presumption of abandonment.
Once the rebuttable presumption is established through non-use, the burden shifts to the owner of the water right to prove that they did not intend to abandon the water right.
“It can’t be speculative, it has to be for your beneficial use that you can show today,” Rein said. “Abandonment was a concept recognized by our courts as much as 100 years ago. It is simply that a person who made that appropriation, and even got an absolute water right by their use of the appropriation, cannot continue to hold that appropriation if they are not using it.”
Water Right Cases Land in Water Court
The Water Right Determination and Administration Act of 1969 created seven water divisions based on the drainage patterns of various rivers in Colorado.
Each water division is staffed with a division engineer appointed by the state engineer, a water judge appointed by the Supreme Court, a water referee appointed by the water judge, and a water clerk assigned by the district court. Water judges are district judges appointed by the Supreme Court and have jurisdiction in the determination of water rights, the use and administration of water, and all other water matters within the water division.
Each water division has a water court that has exclusive jurisdiction over water matters within that water division. Water courts have jurisdiction over the determination of water rights, changes of water rights, adjudication of plans for augmentation, and other water matters.
Every 10 years, the division engineer is required to present to the water court a list of water rights that the division engineer has found to be abandoned.
“It directs our division engineers that oversee certain basins to evaluate each water right, and if there is no evidence of that water being diverted for 10 years, then it is presumptively abandoned,” Rein said. “The owner cannot overcome that in water court (unless) they can show evidence that they have diverted it, that it won’t be abandoned. You can’t sit on the water right indefinitely if you don’t have a use for it.”
According to the DWR website, water matters are generally commenced in a water court by the filing of an application with the water clerk.
The water clerk publishes a summary of each application that is filed in the monthly water court “resume” and in a legal notice in one or more newspapers. Interested persons may then file statements of opposition to an application within the time allowed by statute.
Because claims in water rights adjudications may affect, in priority or otherwise, any water right claimed or previously adjudicated within each division, owners of affected rights must appear to object and protest as provided in the 1969 Act or be barred from claiming injury to their water rights as a result of claims made in an application.
All water courts operate under a standard case definition approved by the Supreme Court in 1981. This made possible the establishment of water court filings standards, which have been reported annually by the water division since July 1, 1981.
Water Rights Will Continue to Evolve
Rein said water will continue to come at a premium as the western half of the United States deals with a lingering drought. He said state legislators and water users will need to work together to create a strategy that benefits Colorado in the long run.
“I think our General Assembly and water users will continue to develop different ways of managing and optimizing our water all within that Prior Appropriation system,” he said.
For more on Colorado’s water issues, check out The Concerning Truth About Colorado’s Depleting Water Supply.
