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• Board Meeting Date: 5/21/2008
• Description: IWMD Section - Presentation of Agricultural Water Conservation Paper
• Board Meetings - Doc Type: Memo

Section 5
Legal and Engineering Considerations
Water seeping from otherditches and from irrigation of lands is presumed to belong to the
riversystem and is subjectto appropriation and administration in orderof 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
dependentfor its supply, and foryearsand 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 f low 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 f ree transferability of water rights in order to allow the maximum use of
water. With regard to the f ormer, Colorado courts have required water users to
employ an of f icient means of diversion, and have limited the amount of water that
maybe appropriated to the amount necessary f or the actual use. The Water Right
Determination and Administration Act of 1969 def fined benef icial 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 lawfully made.
Courts have applied the principle of benef icial use in holding that a water user has no
right to divert more water than can be used beneficially, regardless of the amount
decreed, or to expand its use beyond the amount needed f or the decreed use.
With respect to flexible use of water rights and the right to buy and sell water rights
apart f rom 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 f or water
rights to be bought and sold on a willing buyer/ seller basis allow water to be
transf erred f rom 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