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. - Colorado Water Resources Research Institute More on Water Law in Colorado and the West The system of water rights cum:otJy used in Colorado be~ with the gold rush that followed !.be discovery of gold II Sutler'S Mill. California in 1848, Min- ing required large volumes of water. and early miners frequently were in cooflicL The syslem of riparian riglns used in eastern Slates was inappropriate for me arid west because it restricted wiler rights to those owning property adjaceDl 00 streams and other bodies of watet, Due to more arid conditions, streamflOYl in the west was far lower d1a.n in the east. Mining activities and inigatioo farming required the diversion ci water away from riparian lands. however land bcloaged DOl 10 water users but to the federaJ government Those who were effectively squatters on public Lands had no riparian right to the walefS thai Hawed past them. Settlers developed rules and proce- dures governing the aUocatioo of water that resembled the staking of mining claims. The first person to diven and uti. lize water from a stream had rights 10 the amount of water divened, thus becoming the sen.ioc appropriator on that stream, All subsequent water users were junior appropriatOfS wbose right to divert waler depended upon the s,atisfactioo of more senia rights. The Irior appropriatioo doctrine remained the basis of water rights Law in the West when the United StaleS di~ lands through such law, as the Hcmestead Act of 1862. the 1866 Mining Act. and the 1877 Desen Land Act. The doctrine of prior appropriation is also called lhe Colorado Doctrine because it fint became law in Colaado in 1876. The eight most arid states (Ari. zona. CoJOOIdo. Idaho. Montana.. Nevada. New Mexico. Utah. and Wyo- ming) adopted prior appropriauoo as the only method for acquiring waler rights. 'These Slates still use prior appropriation loday. although statutory SyslemS for appropriation, distribution, and enforce. menl differ among them. . . . and a use 10 which the waler may ~ PUI Such uses include irrigatioo, domesUI suppl)'. recreatioo. power production and municipal supply. among many 0I.h en. MlCb of the ca.'ie load in a moderr Colorado water court involves the !rans fer of water rights amoog different use' and users. If an agricultural righl holde, wished to <liven hiSJher waler al a differ ent ditch to irrigate a given field mon easily a efficiently. the decree wouh need 10 be modified accordingly Increasingly, agricultural waterrighls art being sold 10 municipalities willing I( pay more for water than il would yield it agricultural pm:luction.. In such ttansfw the water court must determine thai DC injury will come to holders of mon senia rights by modifications in lhe use of a given right. Different uses vary greatly in th( timing and amount of rerum Bow. Wber a water right is (]"anst'em:d by coon decree from one use to another, the appellale must convince the coon that DC harm will result 10 other water user.; from changes in timing or amount of return flows, Watcr Rights Adjudicatioo To have protectioo by administrative statutes. a water right must be adjudi- cated..sanctiooed by a water court. A deaee establishing a water right sped. fies a JIiority dale. a maximum amount. Protecting Instrcam Flows The right to divert water under the prior appropriation syslem of water law has alwa.ys been contingent upon the waler being put to beneficial use. Traditionally. ..teneficaJ" has been construed in terms of consumptive uses. a ibose involving diversion m...."31er for mining. irrigation. and domestic and indusuial supply. Increasingly, maintenanceoffree..ftowing water to suppca1 recreation. fish and wildlife habitat. \'Irater quality. and aesthetics has cane 10 be !een as bcrk=ficial As:suring: iastream 80l.\1> on the South Platte and othe.c Weslem rivets is a complex legal proposition. Typic.aIly. water rights for irrigation are more senior than others in the West. Acquiring rights ",ith the seniority needed to protl:Ct instream 80'1l0"S in time of drought ()[' shoctage is quiti- <<tell flrl1nil"flly or financially problematic. Western "ates differ both in their level of recognition of i:astteam flows as beneficial uses. and their institutiona1 programs directed at: ~g instream Bows. In Co1arado. the Colorado Water Coo.servarlan Boardcomprise$ fi\le elected ofii.ci.ah and oint members a.ppointed by the goo.-ertU.1be Water Conservatioo. Board may appropriate water for instream Bow and lake level rnAmlPnltT1(."C. aDd is respon_ sible for filing objections to water transfer.; which may impair instream 1I0'iV rights. SPWRMS can help water administratcrs 00 the South Platte River procect instream. flooa.'s, By pro.'iding near real-time iDfoonation CQOCemmg: the S!.Ste of the mer and its tnootaries, SI~MS can help ensure that r1\1er Bows do not ~ below specified. minimum levels. At the same time. the system can help avoid higbe:r-ttLtIH!I~cess8r)" instream fiCJl,\'S _ an UD.IlCCeS~ sa.ry COSt to colorado waler nsers. G'jl\O 7