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

What May Be Changec! or Transferred

An appropriative water right includes
a number of elements, most of which may be
changed in Colorado. Generally, there is a
specific point of diversion. There is a
specified rate of diversion in the case of
direct flow rights and a specific quantity of
water in the case of storage rights. Water
rights have an implied or expressed time of
use. They have an implied or expressed place
of use and they exist for specified types of
use. By statute, change may be made in the
point of diversion, in the type, place,. or time
of use, or between direct flow and storage
rights." The only limitation on such changes
is that they must not 'injuriously affect the
owner of or persons entitled to use water
under a vested water right or a decreed
conditional water right."'"

Much of the controversy in change of
water right cases arises out of uncertainty in
the scope of the original water right.
Particularly in the earlier decrees, the
elements of the water right often were not
clearly specified. Moreover, the practice of
describing direct flow water rights in terms of
flow rates without any volumetric limitation in
itself causes problems in determining the
transferable quantity of water. Many decrees
do not specify any time of use, though it may
be implied to some degree by the type of use.
Thus, for example, an irrigation water right is
limited to the usual irrigation season in the
area of use whereas domestic water use will
be year-round. Water rights often are
decreed for more than one type of use so the
actual use of water under the right may not
be apparent from the decree itself.

To provide definition to a water right
the courts often have focused on 'historic'
use of the right!'. This very practical
approach looks behind the decreed right to
see what the historical pattern of use has
been. Thus, it is not the right descnbed in
the court decree that necessarily defines the
original right but, rather, the historical

practice of appropriation and beneficial use of
toe water.

One of the attnbutes of a water right
that often varies between the original decree
and historical pattern is the quantity of water
that is used. Many early decrees provided
rates of diversion well in excess of the water
actually used." The sale and transfer of these
excess rights gave the purchaser a priority
right to water that had never been used."
Although initially refusing to consider
whether an. original decree authorized excess
rights,'" subsequently the supreme court
acknowledged that if the change resulted in
an enlarged use of water, injury could result
to other water users; thus it allowed
consideration of abandonment in a change-
of-water-right proceeding."

In a 1%2 decision, the Colorado
Supreme Court clarified the status of a water
right with a decreed rate of diversion in
excess of that actually used." The court
noted that, irrespective of the decreed
diversion right, a water right exists only to the
extent of actual beneficial use. The
remainder of the decreed righ t had not been
abandoned; it had simply never been legally
perfected.

Colorado courts have further defined
a water right so that 'diversions are limited to
an amount sufficient for the purpose for
which the appropriation was made, even
though such limitation may be less than the
decreed rate of diversion."'" In considering
the transferable quantity of water, courts have
looked to the 'duty of water" in the original
use. Duty of water is defined as 'that
measure of water, which, by careful
management and use, without wastage', is
reasonably required to be applied to any
given tract of land for such period of time as
may be adequate to produce therefrom a
maximum amount of such crops as ordinarily
are grown thereon."'" The historical use of
water could be less than the optimum rate of
use implied by the duty of water."

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