FLOOD05728

• County: Statewide
• Community: State of Colorado
• Basin: Statewide
• Title: Water Quality/Quanity Relationships
• Date: 6/1/1989
• Floodplain - Doc Type: Educational/Technical/Reference Information

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acquir,ed in accordance with the doctrine. Section 6 of article XVI
nes the essential sticks in the appropriative bundle: A water right
ties an appropriator to assert a claim in priority to the exclusive
of a certain quantity of water from the source of supply, which
rn is superior to those of junior claimants. Conversely, the right is
ntially destroyed if the water to be used must be shared or if it can
eallocated to others outside of the priority system. This aspect of
appropriative right can be characterized as the "exclusive right" to
a quantity of water from the natural stream.223 .
The police power does not exist in the abstract. In the context of
:xclusive right of use, a finding that the right should be restricted to
e other "public" purposes assumes that the public has a competing
greater need for the water. However, under the Colorado Consti-
ln, competing demands for the water resource are to be resolved
er the doctrine of prior appropriation, and a senior right to use
~r in priority for beneficial uses cannot be denied or restricted in
:r to protect junior appropriators or interests that are not repre-
ed by an appropriation.22'
. Attempts to justify the application of the police power to an ap-
,riator's exclusive right of use by analogy to the regulation of land

:22. See Martz & Raley, supra note 195; Hobbs & Raley, supra note I.
23. Navajo Devel. Co. v. Sanderson, 655 P.2d 1374, 1377 (Colo. 1982) ("value" of water right
It it allows a priority to the use of a certain amount of water at a place somewhere in the hierarchy
r.s who a/so have rights to waler from a common source such as, a lake or ,ive," (emphasis added));
l1ited States v. Jesse, 744 P.2d 491, 500 (Colo. 1987) ("The doctrine of prior appropriation tradi-
Iy protects only the right to divert water from the natural stream and to put that water to a
cial use.").
24. A review of the proceedings of the Colorado Constitutional Convention reveals that several
tion methods were discussed. One of the first proposals declared: "The primary right of owner~
1 the waters of all the streams in this State is and shall be at all times in the State, and the said
IS and the waters therein are and shall be subject to the control of the Legislature." PROCEED-
)F THE CONSTITUTIONAL CONVENTION HELD IN DENVER, DEe. 20, 1875, TO FRAME A CoN-
nON FOR THE STATE OF COLORADO TOGETHER WITH TIlE ENABLING ACT PASSED BY THE
If,ESS OF THE UNITED STATES AND ApPROVED MAR. 3, 1875, THE ADDRESS TO THE PEOPLE
o BY THE CoNVENTION AS ADOPTED, AND THE PRESIDENT'S PROCLAMATION 44 (1907). Later
lals added the appropriation concept, but retained state ownership of waters. Various modifica.
If the priority doctrine were also e;o;plored, including the recognition of !Ii priority of certain types
over other types of use. The final product rejected state ownership, guaranteed the right to
)riate unappropriated waters, and preserved the application of the priority doctrine. This shift
es additional support for the cone/usion that sections 5 and 6 of article XVI established the
It of prior appropriation as the exclusive allocation method for the right to deplete the waters of
I streams, and that neither the state nor the legislature can substitute an alternate allocation
~ in its place.