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State Water Laws, Policies, and Administration <br /> Preferences <br /> The Colorado constitution provides that whenever the waters of any natural <br /> stream are not sufficient, "those using the waters for domestic purposes shall have <br /> preference over those claiming for any other purpose, and those using the water <br /> for agricultural purposes shall have preference over those using the same for <br /> manufacturing purposes." The courts have held that the preference is not self- <br /> executing, but must be exercised by condemnation. Through the condemnation <br /> proceedings the preferred user, or condemner, is required to make just compen- <br /> sation to the defendant whose right is invalidated even though it be senior in priority. <br /> Surface Waters <br /> Surface waters of the State are all waters in or tributary to natural streams. <br /> The term includes continuous and intermittent flows. All waters, both surface and <br /> underground, originating in or flowing into the State are subject to appropriations <br /> and use under the law. <br /> Method of Acquiring Rights <br /> The State constitution declares that the right to divert and put unappropriated <br /> water to beneficial use "shall never be denied. " As a consequence, the method of <br /> appropriation historically has been to take unappropriated water and apply it to <br /> beneficial use. There has never been a requirement of making an application <br /> to an administrator for a permit to appropriate surface water. <br /> The first essential of an appropriation is the actual diversion of water <br /> with intent to apply it to beneficial use. What constitutes an actual diversion may <br /> depend on the facts of the case, but ordinarily a physical diversion by a structure <br /> is implied. Some of the uses recognized as "beneficial" are domestic, agricultural, <br /> industrial, municipal, and recreational, although others have also been recognized. <br /> The priority of a water right is determined in an adjudication proceeding <br /> before the water judge. An application for a determination is made, as explained <br /> above, to the division water clerk and may be referred to a referee or decided <br /> by the water judge. At a minimum, applications must set forth a legal description <br /> of the diversion, a description of the source of the water, the date of initiation <br /> of the appropriation, the amount of water claimed, and the use of the water. A <br /> priority date based on the date of initiation of appropriation is determined, but <br /> 2.6 <br />