S4_11-15-04

• Basin: Statewide
• Title: SWSI Phase 1 Report - Section 4 Legal Framework for Water Use
• Date: 11/15/2004
• Author: CWCB
• SWSI - Doc Type: Final Report

Section 4
Legal Framework for Water Use
allocating or administering water, the only way for the
state to ensure protection of stream flows for public
purposes is by acquiring water rights, itself, within the
priority system. By acquiring a water right with an
enforceable priority, the state can place environmental
concerns on equal footing with agricultural, commercial,
municipal, and other uses of water. This means that in
times of scarcity, the state's instream flows will be
protected in a manner consistent with their priorities - to
the extent the priorities are junior to other water rights,
the CWCB's instream flows will be curtailed to make
water available to other senior water users, and to the
extent the CWCB's priorities are senior, the CWCB may
request the Division Engineer to curtail more junior users
to protect its instream flows.
In Colorado, recreation is a recognized beneficial use.
Governmental entities can appropriate water solely for
the purposes of recreation and boating. Recent
enthusiasm for kayaking, and the appropriation of water
for in-channel use, has sparked further debate among
water users regarding this use of water.
For example, the City of Golden pursued an application
for an in-channel water right for a kayak course. Golden
sought to appropriate 1,000 cfs for this purpose, which
essentially equates to all the water in Clear Creek during
peak flow in most years. On appeal, the Supreme Court,
from which one member recused himself, split equally,
so that the water court's decree adjudicating this issue
was affirmed.
4.3.7 New Appropriations
Making a new appropriation is always an option for water
planning. Although some river basins are currently over-
appropriated, in every basin there are usually a few days
a year in which a free river condition exists and all rights
can divert. Thus, while a 2004 priority is a very junior
right, and will probably not have a reliable supply of
water during the periods of high senior demands, it may
still be possible to divert water under such a right at peak
flow times. In addition, one could use an augmentation
plan in conjunction with a very junior right to obtain a
stable water supply.
To make an appropriation, one must have a specific
intent to divert water for a beneficial use and perform a
physical act in furtherance of that intent. Today, new
appropriations are often made by filing an Application for
a Water Right in the water court. However, no
appropriation can be made when "the proposed
appropriation is based on the speculative sale or transfer
of the appropriative rights."53 This anti-speculation
doctrine prevents individuals or entitles from acquiring
water rights solely to sell to others. The waters of
Colorado are a public resource and as such are not to be
hoarded by those who do not have a present use for the
water.
4.3.8 Groundwater Rights
In Colorado, there are four different types of
groundwater:
In reaction to various claims for in-channel recreation
rights, the General Assembly enacted legislation limiting
the right to appropriate RICDs to municipal entities for
"minimum streamflow as it is diverted, captured,
controlled, and placed to beneficial use between specific
points defined by physical control structures for a
reasonable recreation experience in and on the water." 50
Applicants for such rights now must forward their
application to the CWCB for review.51 After reviewing the
application, the CWCB makes a recommendation to the
water court on whether the application should be
granted, granted with conditions, or denied. 52
so § 37-92-103 (10.3), C.R.S.
51 § 37-92-102(5), C.R.S.
sz Id.
J~~a
$~ole'ri~ice Wo~e' $upplY Initia~ive
^ Tributary groundwater
^ Non-tributary groundwater
^ Not non-tributary groundwater
^ Designated groundwater
The classification in which the groundwater falls
determines how the water is allocated. Thus, while
tributary groundwater is subject to the prior appropriation
system, non-tributary groundwater and not non-tributary
groundwater is allocated according to land ownership,
and designated groundwater is subject to a modified
prior appropriation system within each designated basin.
Tributary groundwater is water that is hydrologically
connected to a surface stream.54 In Colorado, all
groundwater is presumed to be tributary to a surface
s3 § 37-92-130(3)(a), C.R.S.
54 McClennan v. Hurdle, 33 P. 280 (Colo. 1893).
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