The new falcon herald logo.
Feature Articles

Clear as Mud: Making Sense of Colorado’s Water Rights ó Part 1

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.ìWithin the state of Colorado, water rights are nearly always impacted in some way,î said Kevin†Rein, State Engineer, Director of Colorado Division of Water Resources. ìThere is rarely enough water in our basins to satisfy all the water rights on the system.îWater Rights ñ Prior Appropriation System DefinedWater 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 ìPrior Appropriation System.î This system of water allocation controls who uses how much water, the types of uses allowed, and when those waters can be used. ìThis system is often referred to as ëìfirst in time, first in right,íî 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 Coloradoís 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 Coloradoís rivers, mainly in that stateís 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.ìIn 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,î Rein said. ìThat 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.îWater Rights in Colorado CourtsShohet said water rights in the court system have been a part of Coloradoís history. †In 1874, when the Colorado Constitution was drafted and subsequently enacted upon the approval of Congress in 1876, Article XVI of Coloradoís 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 ìColorado Doctrine.î†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 RightsShohet 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 ìreasonablenessî 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.This article is from The Maverick Observer, an online media source covering El Paso County and the state of Colorado.

StratusIQ Fiber Internet Falcon Advertisement

Current Weather

Weather Cams by StratusIQ

Search Advertisers