PUB00148

• Year: 1978
• Title: The Colorado Water Study Directions for the Future
• CWCB Section: Administration
• Description: The Colorado Water Study Directions for the Future
• Publications - Doc Type: Historical

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water is available and if the proposed appropriation will neither
unreasonably impair vested water rights nor create unreasonable waste.
After obtaining a conditional permit, one must proceed with due dili-
gence to construct the well or other works necessary to make the appro-
priation envisioned by the conditional permit. The commission will then
order the state engineer to issue a final permit, which may contain
conditions necessary to prevent waste and to protect other appropriators.

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3. Nontributary, Nondesignated Ground Water.

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With respect to ground water which is not tributary to a natural
stream and which is not located within a designated grou1').d water basin,
the law is quite uncertain. It is unknown whether the prior appropri-
ation doctrine applies or whether the rights to extract and use th,e
water belong solely to the overlying owners.

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Over 10 years ago, the Colorado Supreme Court held that the
prior appropriation doctrine did not apply and that the rights to use
nontributary ground water belong to. the overlying owner. Since then,
however, the court has upheld the Colorado Ground Water Management Act
(which imposed an appropriation doctrine on designated water--a great
deal of which may be nontrihutary), held that the appropriation doc-
trine applies to nontributary surface wate~ and has affirmed a decree
of the water court which awarded an appropriative right for the use
of non tributary ground water. In addition, hundreds of other decrees
have been issued by the court for the appropriation of non tributary
ground water.

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On balance, knowledgeable observers in the state are simply tmable
to say with certainty whether rights to use nontributary, nondesi~~ated
ground water are obtained by appropriation or by the ownership of over-
lying land. A full description of the problem of nondesignated, non-
tributary water is contained in chapter XVI of this volume.

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D. Subsequent Allocation of Water.

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Once the initial allocation of water is complete, subsequent allo-
cations are made in two general ways: changes of water: rights, an.d
distribution by various water entities.

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1. Distribution Entities.

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A large number of public and private entities are involved in the

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