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<br />I <br /> <br />I <br /> <br />I <br /> <br />THE PRESENT WATER RIGHTS SYSTEM <br /> <br />I <br /> <br />The doctrine of prior appropriation is the cornerstone of Colorado's <br />water rights system. It has been the basis for the distribution and <br />use of water since before statehood. Although several aspects of <br />Colorado's water rights system have changed substantially since 1876, <br />the essential elements have not been altered. The salient feature of <br />this system is that water users themselves decide upon the uses to <br />which water will be put and the geographical location of use, with the <br />"first in time" being the "first in right. II Thus, within the limits <br />of the definition of "beneficial use" and of the requirement that there <br />be a "taking of water," one making an initial appropriation is free to <br />apply water to such uses and at such locations and times as he or she <br />alone see fit, provided only that senior (i.e., earlier priority) water <br />rights are not injured. By the same token, a purchaser of previously <br />appropriated water may transfer the water, in an amount not exceeding <br />the seller's historic consumptive use, to such uses and places as <br />desired, provided only that other vested water rights (both those <br />junior and senior to the right being transferred) are not injured. <br /> <br />I <br /> <br />I <br /> <br />I <br /> <br />I <br /> <br />I <br />I <br /> <br />In the context of this system, state government has three primary <br />functions. The first and foremost of these is to insure that private <br />property rights in water are protected and that the necessary elements <br />of an appropriation are satisfied. This function is carried out by <br />the state engineer's office and the courts, which are responsible for <br />policing the system. Decisions about the use, transfer, and distribu- <br />tion of water remain, however, with the water users themselves. The <br />second function is to regulate the use of certain ground water resources. <br />Depending on the physical and legal circumstances, this function is car- <br />ried out by the state engineer, the Ground Water Commission, or local <br />ground water management districts. In this instance, government can <br />directly influence the location, rate, and amount of water use, but <br />it still has a very limited role in specifying the uses of water. <br />The third function of state government is an informal one, consisting <br />of expressions of support for, or reservation about, water use and <br />development proposals by private parties, local governments, or the <br />Federal Government. Although the state normally has no final authority <br />to approve or disapprove such proposals, this function is an important <br />one. In fact, it constitutes the primary role of the state in water <br />policy matters. While this role is typically carried out by the execu- <br />tive branch, the legislature may become involved from time to time <br />through the actions of individual legislators or through the passage <br />of resolutions or memorials which express the formal opinion of one <br />or both houses of the legislature. <br /> <br />I <br /> <br />I <br /> <br />I <br />I <br /> <br />I <br /> <br />I <br /> <br />In summary, the present Colorado water rights system constitutes <br />a private market approach to the allocation of a scarce resource, with <br />government having very little formal authority over the use of water. <br />In principle, this market system weighs the relative importance to <br /> <br />I <br /> <br />I <br /> <br />I <br /> <br />5 <br />