Colorado Water April 2005

• Year: 2005
• Title: Colorado Water
• Author: Water Center of Colorado State University
• Description: April 2005
• Publications - Doc Type: Newsletter

tors will not withdraw all the available water before junior
appropriators get theirs; rather, the "value of a water right is
its priority and the expectations which that right provides."
NavaioDevelo ment Co. v. Sanderson, 655 P.2d 1374, 1379
(Colo. 1982).
Nature has a way of exceeding expectations in some years,
and bitterly depriving hopes in other years.
What governors, legislators, and supreme court justices can
do is to honor and enforce the water law of the State of Colo-
rado as firmly and as fairly as they can when water scarcity
occurs. Water scarcity invented prior appropriation law in the
first place. Having a ditch or a well or a decreed water right
for that ditch or that well has never guaranteed that water will
be available to it. Ever since the founding of Colorado Terri-
tory, ditches have been built and wells have been dug on the
hope that nature will provide enough water to supply them.
And there have been many decades of senior water user com-
plaints about the building of junior ditches and the sinking of
junior wells that have no reasonable expectation of getting
water in water -short times. The answer to the seniors has
been that the juniors take the risk of being curtailed until the
seniors are satisfied in their rights.
Ditch digger and well digger beware! has always been
Colorado law.
So let's revisit how these complaints were actually being
made in the 1800s along the South Platte River —long- before
the proliferation of wells in the tributary aquifers of the South
Platte basin in the 1950s – 60s – and 70s. The following
quotations are from an 1894 Department of Interior Report:
The earliest large enterprise conducted by English
speaking farmers was probably the irrigation system
at Greeley built by the Union Colony, work being
begun about 1870. As the population of the state has
increased and the demand for agricultural products
has become greater, farmers have gradually brought
under cultivation strips or patches of arable land
wherever water can be diverted to cover it at moder-
ate expense. Thus all the easily available sources
of water have been utilized, and with increase in the
number of farmers still more land has been culti-
vated until the area far exceeds that which can be
irrigated in ordinary seasons.
F.H. Newell, Report on Agriculture by Irrigation in
the Western Part of the United States at the Eleventh
Census: 1890, 91 (1894).
Drought had settled into Colorado in the last decade of the
191h Century, and farmers were recognizing that the only re-
lief for firming up then- existing water rights was by building
reservoirs to catch excess flows in high years.
From a careful examination of the census statistics
and of replies from thousands of farmers it would
18
appear that the great need at least for the eastern
half of the state is for a more careful use of the wa-
ter and for its increase by flood storage. Far larger
areas could be cultivated with the amount now at
hand if the water were used with greater skill and
economy, and, as is well known, great quantities
run to waste each year in time of flood. As the mat-
ter now stands there is a deficiency of supply for the
land now cultivated and reported as irrigated, and
in addition there are far larger areas without water,
although under ditch.
Id. at 93.
Now here is an extended passage in the report written in
1894 that easily could have been written in 2002. Nothing
is ever new when it comes to the grief water scarcity will
cause, and nothing is ever old when the community is called
upon to abide by the law that governs all.
The Colorado laws regarding irrigation have grown
much as has the ditch system, by adding here and
there, and as a result they are far from perfect,
although better than those of many of the other
irrigating states. The farmers complain of the inef-
ficiency of present methods of distributing water, of
the apparent injustice that sometimes arises, and of
the legal costs involved in protecting their property.
In the districts where the demand for water is espe-
cially great, where old ditches have been enlarged
and new canals built, continual vigilance on the part
of irrigators and of state officials must be practiced
in order to secure and maintain a legal distribution
of water.
The theory upon which the law is based is simple,
but the details for enforcing this are complicated
and not always efficient. The primary object is to
secure to each irrigator the use of an amount of
water equivalent to that originally employed by
him according to the date at which such employ-
ment was made. That is to say, the first settler on a
stream should be secure in the use ever after of the
amount of water originally diverted and used, and
if there is a surplus the next settler should have an
amount equivalent to that originally used by him,
and so on. At times of drought the persons utilizing
the water last in order of time should be deprived
of it, and this shutting out should continue in the
reverse order of the dates of appropriation until
those holding what are known as prior rights have a
full supply....
Questions concerning priorities of right are espe-
cially perplexing in Division I, where many of the
adjudications were made before matters of that kind