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<br />0013~Q <br /> <br />Foremost among these is the adjudication and administration of <br />water rights. <br /> <br />since statehood. it has been Colorado's policy to utilize <br />judicial adjudications. rather than administrative proceedings <br />before executive branch agencies. to define the existence of <br />water rights. The court's function is largely confined to <br />determining whether the requisite steps have been taken to <br />initiate an appropriation of water. If they have. the court <br />generally must issue a decree evidencing a water right. as the <br />court does not have discretionary power to direct how. when. <br />where. and for what purposes water will be put to use. <br /> <br />If water rights are to be transferred to new places of use <br />or new kinds of use. the court is again the forum utilized to <br />determine whether this can be done. But again. the court's <br />role is limited and non-discretionary--so long as other water <br />rights will not be "materially injured" thereby. the transfer <br />must be allowed. <br /> <br />Inherent in any legal system which creates private property <br />rights is the need for governmental protection and enforcement <br />of those rights. To this end. it has long been the policy of <br />Colorado to have the State Engineer'S Office thoroughly <br />administer court decreed water rights. This is an essentially <br />ministerial function. with the role of state government in <br />"policing" the exercise of water rights being a limited one <br />which does not provide for discretion in deciding how water is <br />allocated as among competing uses. Priority of appropriation <br />is the sole determinant in that regard. <br /> <br />Recoqnition of Values Impacted by Water Diversions <br /> <br />It is a common misconception that only economic values <br />(i.e.. the production of income) are taken into account by our <br />water rights system. On the contrary. our system recognizes <br />any of the values which people place in the use of water (be <br />they economic. ecological. aesthetic. social. cultural. or <br />recreational) so long as the use entails the diversion or <br />impoundment of water from a stream. this being what makes it <br />possible to define property rights to the use of water. For <br />example. the essentially non-economic values associated with <br />diversions of water for wetlands. fish hatcheries. irrigation <br />of lawns and gardens. and with impoundments for recreational <br />and fishery purposes. have long been obtainable in our water <br />rights system. If one is willing to pay the necessary costs of <br />diverting or impounding water. then these values (benefits) can <br />be realized. <br /> <br />On the other hand. it is impossible to define privately <br />owned rights to the use of water that is left in a stream. <br />This stems primarily from the fact that water in a natural <br />stream is a "fugitive" resource. the benefits of which cannot <br /> <br />-2- <br />