PUB00105

• Year: 1999
• Title: Conference Proceedings: 24th Annual Gunnison Water Workshop
• CWCB Section: Administration
• Description: Theme of the workshop was Garden of Dreams v. High-Desert Reality
• Publications - Doc Type: Other

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INTRODUCTION TO COLORADO WATER LAW
JILL C. HARRIS
COLORADO WATER WORKSHOP
JULY 1999

I.

The Doctrine of Prior Appropriation: "first in time - first in right"

A. The first person to appropriate water and put it to beneficial use has the first right to
use water from that source.

B. Colorado's system is administered according to "priority" or seniority. The owner
of a senior water right is entitled to satisfY his water right fully before the junior
water right holder may divert any water at all.

C. The Colorado Constitution provides the basis for the prior appropriation system.

1. Article XVI, S 5: the water of all natural streams is the property of the public
and dedicated to the use of the people, subject to appropriation.

2. Article XVI, S 6: (a) the right to divert the unappropriated waters of any
natural stream to beneficial uses shall never be denied; (b) priority of
appropriation shall give the better right as between those using water for the
same purposes; (c) when there is insufficient flow, those using the water for
domestic purposes have preference over those using it for any other purpose,
and agricultural purposes have preference over manufacturing purposes.

D. The Colorado Water Right Determination and Administration Act of 1969, C.R.S.
S 37-92-101, et seq. ("1969 Act"), creates the current adjudication process and
controls the priority of water rights adjudicated after 1969.

II.

The Creation and Nature of a Water Right

A. A water right is "a right to use water in accordance with its priority a certain portion
of the waters of the state by reason of the appropriation of the same." C.R.S. S 37-
92-103(12).

B. A water right is created by an "appropriation," which means diverting or controlling
a certain amount of water and applying it to a specific beneficial use. See Farmers'
Highline Canal and Reservoir Co. v. Southworth, 21 P. 1028 (Colo. 1898); City of
Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992).

C. A water right is a property right which is severable from the land and is transferrable
in the same manner as real property, i.e., typically by deed. See Strickler v. City of
Colorado Springs, 26 P. 313 (Colo. 1891).