Section 4
<br />Legal Framework for Water Use
<br />water storage rights, conditional water rights,
<br />augmentation plans, changes of water rights,
<br />appropriative rights of exchange, and instream flow
<br />rights, all of which allow water users to make the most of
<br />a scarce resource. In addition to making efficient
<br />beneficial use of water, interstate compacts and
<br />equitable apportionment decrees limit the amount of
<br />water Colorado can use. These interstate compacts and
<br />decrees are discussed in Section 4.2.
<br />4.1.1.1 The Priority System
<br />The priority system of water allocation is designed to
<br />cope with water scarcity.$ Under the doctrine of prior
<br />appropriation, if water is insufficient to meet the needs of
<br />all water users, those with senior rights can require full or
<br />partial curtailment of diversions by junior water users,
<br />such that users with later priorities receive less than their
<br />allotted amount of water, or none at all.9 Essentially, this
<br />doctrine protects those who first begin using the water
<br />from injury by those whose use began later in time.~o
<br />Thus, typically, the more senior the water right, the more
<br />valuable it is, particularly in times of drought.
<br />As mentioned above, water rights may be conveyed and
<br />changed to a new type, place, and manner of use. As a
<br />general matter, municipalities and other water users can
<br />satisfy their water needs by appropriating new water
<br />rights, including water storage rights, and/or by
<br />purchasing senior water rights (typically agricultural use)
<br />and changing them to municipal, commercial, or
<br />industrial uses according to the statutory procedures for
<br />changing a water right.
<br />4.1.1.2 Beneficial Use
<br />The single most important restriction on the appropriation
<br />of water in Colorado is the constitutional requirement that
<br />water be placed to a"beneficial use.°~~ "Beneficial use" is
<br />defined in the Water Right Determination and
<br />8 See James N. Corbridge Jr. and Teresa Rice, Uranesh's Colorado
<br />Water Law (Revised ed. 1999) at 2("The primary advantage of the
<br />appropriation system is the development of inethods for the orderly
<br />distribution of water in water-short regions by establishing
<br />procedures for both the quantification and prioritization of water
<br />rights").
<br />9 See CR5. § 37-92-301(3) (requiring the state engineer to distribute
<br />water in accordance with the priority system).
<br />~~ Application of Hines Highlands Partnership, 929 P.2d 718 (Cob.
<br />1996).
<br />~~ See Uranesh, supra, at 43, citing Thomas v. Guiraud, 6 Cob. 530
<br />(Cob. 1883) (referring to the beneficial use requirement as the "true
<br />test of an appropriation of water").
<br />C~A
<br />Administration Act of 1969, Section 37-92-101 et seq.
<br />(hereafter 1969 Act) as follows:
<br />Beneficial use is the use of that amount of water that
<br />is reasonable and appropriate under reasonably
<br />efficient practices to accomplish without waste the
<br />purpose for which the appropriation is lawfully
<br />made[.]12
<br />The purpose of the beneficial use requirement is to
<br />prevent waste, hoarding, and speculation by
<br />appropriators, and to encourage the quick and efficient
<br />use of the resource.13 The beneficial use requirement
<br />acts to limit the amount of water that may be
<br />appropriated for private use throughout the life of the
<br />water right. In order to establish a valid appropriation for
<br />an absolute water right, a water user must demonstrate
<br />that a certain amount of water has been applied to a
<br />beneficial use.14 The amount decreed is limited to the
<br />amount placed to beneficial use.
<br />In order to obtain a conditional water right, a right for
<br />water that has not yet been placed to beneficial use, a
<br />water user must establish that it "can and will" place a
<br />certain amount of water to beneficial use within a
<br />reasonable amount of time.15 A water user may not
<br />appropriate more water than it actually needs for its
<br />intended use.
<br />Courts have further applied the principle of beneficial use
<br />in holding that a water user has no right as against junior
<br />appropriators to divert more water than can be used
<br />beneficially,~s regardless of the amount decreed, or to
<br />expand its use beyond the amount needed for the
<br />decreed use.~~
<br />A water user that diverts more water than it can place to
<br />beneficial use may have its diversions curtailed by the
<br />1z C.R.5.§ 37-92-103(4) (2002).
<br />13 See Uranesh, snpra, citing, Combs v. Agricultural Ditch Co., 152, 28
<br />P. 966, 968 (Cob. 1892).
<br />14 See CR5. § 37-92-103(a) (this section sets forth Colorado's "anti-
<br />speculation doctrine," requiring that an applicant for an absolute or
<br />conditional water right show that the proposed appropriation is not
<br />based upon the "speculative sale or transfer of the appropriative
<br />rights[,]" and that the applicant has "a specific plan and intent to
<br />divert, store or otherwise capture, possess, and control a specific
<br />quantity of water for specific beneficial uses").
<br />15 See C.R.5. § 37-92-305(9)(b).
<br />16 See, Comstock v. Ramsay, 133 P. 1107, 1110-11 (Cob. 1913).
<br />~~ See Weibert v. Rothe Bros. Inc. 618 P.2d 1367,1373 (Cob. 1980).
<br />~~
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