7936

• UCREFRP Catalog Number: 7936
• Author: McDonald, J. W.
• Title: A Primer On Colorado's Water Policies.
• USFW Year: 1988.
• USFW - Doc Type: \
• Copyright Material: NO

Foremost among these is the adjudication and administration of
water rights.
Since statehood, it has been Colorado's policy to utilize
judicial adjudications, rather than administrative proceedings
before executive branch agencies, to define the existence of
water rights. The court's function is largely confined to
determining whether the requisite steps have been taken to
initiate an appropriation of water. If they have, the court
generally must issue a decree evidencing a water right, as the
court does not have discretionary power to direct how, when,
where, and for what purposes water will be put to use.
If water rights are to be transferred to new places of use
or new kinds of use, the court is again the forum utilized to
determine whether this can be done. But again, the court's
role is limited and non-discretionary--so long as other water
rights will not be "materially injured" thereby, the transfer
must be allowed.
Inherent in any legal system which creates private property
rights is the need for governmental protection and enforcement
of those rights. To this end, it has long been the policy of
Colorado to have the State Engineer's Office thoroughly
administer court decreed water rights. This is an essentially
ministerial function, with the role of state government in
"policing" the exercise of water rights being a limited one
which does not provide for discretion in deciding how. water is
allocated as among competing uses. Priority of appropriation
is the sole determinant in that regard.
Recovnition of Values Impacted by Water Diversions
It is a common misconception that only economic values
(i.e.,-the production of income) are taken into account by our
water rights system. On the contrary, our system recognizes
any of the values which people place in the use of water (be
they economic, ecological, aesthetic, social, cultural, or
recreational) so long as the use entails the diversion or
impoundment of water from a stream, this being what makes it
possible to define property rights to the use of water. For
example, the essentially non-economic values associated with
diversions of water for wetlands, fish hatcheries, irrigation
of lawns and gardens, and with impoundments for recreational
and fishery purposes, have long been obtainable in our water
rights system. If one is willing to pay the necessary costs of
diverting or impounding water, then these values (benefits) can
be realized.
On the other hand, it is impossible to define privately
owned rights to the use of water that is left in a stream.
This stems primarily from the fact that water in a natural
stream is a "fugitive" resource, the benefits of which cannot
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