Water ownership in Colorado was the cause for litigation even before the state was formed.According to the “Citizen’s Guide to Colorado Water Law,” prepared by the Colorado Foundation for Water Education, the oldest appropriation of water established the right for Hispanic settlers in the San Luis Valley to construct the People’s Ditch in 1852. This was the beginning of the Prior Law of Appropriation that has since governed Colorado water usage.The law allows those extracting all surface and sub-surface water tributary to Colorado streams and rivers to establish water rights and be placed on a priority list. A “priority number” is assigned to water users based on the date they applied for the water right. That number is important during times of drought, or when water supplies dwindle because of overuse. Under the law, those holding the lowest priority numbers are allowed to obtain their water supplies first, giving rise to the saying, “First in time, first in rights,” often quoted in water litigation cases.In 1861, Congress carved land out of Kansas, Nebraska, New Mexico and the Territories of Utah to form the Colorado Territory. During the same year, statutes were enacted to allow irrigators to withdraw water from the streams. Five years later, Congress enacted the Mining Act, which gave states and territories the right to create their own water laws that could also be applied to public lands owned by the federal government.By 1872, the Colorado Territorial Supreme Court was already citing this law in Yunker v. Nichols to establish the right to cross public and private lands in order to build dams, ditches and pipelines to convey water.When the state of Colorado was established in 1876, water rights were addressed in the state Constitution. Article XVI, Section 6, of Colorado’s Constitution states, “The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.” And established priority rights must be honored. But, when a stream’s resources are depleted, domestic water users take priority over agricultural users, and agricultural users have priority over manufacturing. These principles still govern water law in Colorado.
