28 - Laserfiche WebLink

Home Browse Search

Section 5 Legal and Engineering Considerations Water seeping from other ditches and from irrigation of lands is presumed to belong to the river system and is subject to appropriation and administration in order of priority. Flowing water, even diffuse runoff and seepage that is not in a defined channel, is presumed to be tributary to the river system. The'No Harm Rule' disallows changes that deprive juniors of a senior's return flows which supply their appropriations. Recognition "of the fact that practically every decree on the South Platte River, except possibly only the very early ones, is dependent for its supply, and for years and years has been, upon return, waste and seepage waters." Waters remaining after applying them to a decreed use belong once again to the river system at the moment they are released by the users...and start to flow back to the river. (Comstock v. Ramsey-1913) Water Must be Placed to Beneficial Use and is a Property Right As the doctrine of prior appropriation has been interpreted through case law, two premises of water as a property right have emerged. First, a water right does not include the right to waste the resource. Second, water rights are property rights that can be bought and sold, even apart from the land where they were originally used. The right to use water must be sufficiently flexible to accommodate changes of use and the free transferability of water rights in order to allow the maximum use of water. With regard to the former, Colorado courts have required water users to employ an efficient means of diversion, and have limited the amount of water that may be appropriated to the amount necessary for the actual use. The Water Right Determination and Administration Act of 1969 defined beneficial use as: ... the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is Iawjulty made. Courts have applied the principle of beneficial use in holding that a water user has no right to divert more water than can he used beneficially, regardless of the amount decreed, or to expand its use beyond the amount needed for the decreed use. With respect to flexible use of water rights and the right to buy and sell water rights apart from the land where it was historically applied -Colorado law recognizes water storage rights, conditional water rights, augmentation plans, changes of water rights, appropriative rights of exchange, and instream flow rights, all of which allow water users to make the most of a scarce resource. These tools and the ability for water rights to be bought and sold on a wilting buyer/seller basis allow water to be transferred from uses of lower economic value to uses of higher economic value. In addition to making efficient beneficial use of water, interstate compacts and equitable apportionment decrees limit the amount of water Colorado can use. DRAFT 5-4