FLOOD00515

• County: Statewide
• Community: State of Colorado
• Title: Water Rights Determination Systems Study CWCB
• Date: 6/1/1987
• Prepared By: CWCB
• Floodplain - Doc Type: Educational/Technical/Reference Information

Introduction

Colorado water policy traditionally has
emphasized fle:nbility in the use of the state's
water resources. It promotes this objective in
several ways. FIBt, Colorado Jaw regards
water rights as wsted property rights which
may be freely transferred in the same manner
as other property rights. Second, it limits the
basis for legal review of changes of water
rights. Third, it treats water resources as
largely interchangeable and promotes their
optimal utilization. As a consequence of this
polity, transfers of water rights, changes of
rights, exchanges, and substituted supplies are
all common practices in Colorado.

This chapter presents the results of an
examination of Colorado law and experience
in the transfer of the use of water. The first
section provides a summa!)' of Colorado law
applying to water transfers. The second
section reports the results of an empirical
examination of all change-of-appropriative-
water-right activity involving a change in the
use of water between 1975 and 1984. Section
three presents a number of case studies
including an analysis of a random selection of
change cases filed between 1975 and 1984 as
well as more general studies of transfer of
. water right activity in lower Oear Creek
basin, in the South Park area, and in the
lower Arkansas basin. The fourth section
includes the results of our analysis of
transactions costs for nine randomly selected
change-of-water-right cases. The final section
attempts a preliminary analysis of several
important issues that emerge from this
research. These include questions about the .
effectiveness of the transfer review process
and the adequacy of review considerations.

&..6uu 1:

I.epl/IDltitutiooal Analysis

Water rights in Colorado are of two
basic types those based on appropriation of
water and those based on land ownership.

Simple changes in ownerShip of water rights
may oa:ur. without restriction. Transfers
involving changes in other. attnbutes . of the
water right such as purpose of use, however,
are subject to legal review.
,

This section begins with a brief
introduCtion to water rights law in Colorado.
Then it turns to the law respecting changes
of water rights. It describes other legal
mechanisms available in Colorado for
changing water use including exchanges,
substituted supplies, and plans for
augmentation. Next the section addresses the
transferability of a number of legally
distinctive categories of water. Finally it
discusses . the transferability of water uses
controlled by several types of water supply
organizations.'

Water Rights in ColonuJo

In its 1876 Constitution, Colorado
formally adopted the prior appropriation.
doctrine as the method for allocating rights
to the use of the water "of eve!)' natural
stream." Uniquely among the western states,
Colorado retains much of the original notion
of the appropriation doctrine that decisions
about allocation and use of the resource are
made by actions of individual appropriators,
with the role of the state primarily limited to
sorting out priorities. A specially constituted
water court "determines" that a physical
appropnation of water has occurred and that
the water has been applied to a beneficial
use.' It also determines the priority date of
the appropriation in a proceeding that
essentially amounts to an ongoing general
adjudication. The exercise of these water
rights is closely administered by the state
engineer's office through the seven division
engineers and the water commissioners
responsible for the state's streams.' A map of
Colorado showing the seven water divisions is
shown in Figure 1.1.

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