WSP01080

• File Number: 8407.500
• Description: Platte River Basin - River Basin General Publications - Missouri River
• State: CO
• Basin: South Platte
• Water Division: 1
• Date: 6/1/1978
• Author: Missouri Basin Inter
• Title: Missouri River Basin Comprehensive Framework Study-revised Volume III-Law-policies-and Administration-Appendix
• Water Supply Pro - Doc Type: Report/Study

or underground, have always been and are hereby de-
clared to be the property of the Pllblil.:, dedicated to
the use of the people or the state, subjel.:t to appro-
priation <lnd use in <ll.:cordance with law. As inl.:ident
thereto, it shall be the policy of thIs state to Illtegmte
the appropriation. use and administration of under-
ground w<lter tributary to <I stream with the use of
surface water, in such a way as to m<lximize the bene-
f1l.:ial use of all of the waters or this state.
r!) Recognizing that previous and existmg laws
have given inadequate attention to the development
and use of underground waters of the state, Ihal the
use of underground waters as an independenl sourl.:e
or III conjunction with surf<ll.:e waters is nel.:essary to
the present ~lIld future welfare of the people of this
stJte, and thJt the future welrme of the stJte depcnds
upon a sound and flexible integrated use of all waters
of the state, it is hereby declared to be the further
polil:Y of the state of Colorado that in the determi-
nation of water rights, uses and administration of
water the following principles shall apply:
(a) Water rights and lIses heretofore vested in
any person by virtue of previous or existing laws, in.
c1uding an appropri::Jtion from a well, shall be pro-
tected subjet:l to the provisiuns uf this Jrlide.
(b) The existing USe of ground water. either in-
dependenlly or in conjunction with surface rights,
shall be recognized to the rullest extent possible, sub-
ject to the pleservation of other existing vested rights.
provided however, at his own point of diversion on <I
natural water course, each diverter must establish.
some reasonable means of effectuating his diversion.
He is not entitled to command Ihe whole now of the
slream merely to facilitate his laking (he fraction of
the whole flow to which he is enlilled.
(c) TIle use of ground water may be l.:onsidered
as an alternate or supplemental source of supply for
surface decrees heretofore entered, taking into l:on-
sideration both previolls usage and the necessity to
protect the vested rights of others.
(d) No reduction of any lawful diversion because
of the operation of the priority system shall be per.
mitted unless SUl:h reduclion would Increase the
amount of water available to and required by water
rights having senior priorities.,,2

ACQUISITION OF WATER RIGHTS

The Colorado Doctrine of Prior Apprupriation was
adoptcd in the State of Colorado in the very early irri-
gatIOn daysJ In the case of Coffin vs. Left Hand Ditch
Company, 6 Colo. 443 (1882). the Colorado Supreme
Court ~aid:

6

"We conclude, then. that the common law doctrine
giving the riparian owner J right to the flow of water
in its natural channel upon and over his lands, ev..cn
though he makes no beneficiJluse thereof, is inappli-
cable 10 Colorado. Imperative necessity, unknown to
the cuuntries which gave it birth. cUlllpels the recog-
nition of another doctrine 111 conflict therewith."
The Colurado Doctrine, <IS set forth ill the Constitution
adopled in 1876 and in judiCial d~cisions, states that: ( I)
Water in its n::Jtllral course is the property of the public.
and is not subject to private ownership: (2) a vested right
to use the water Illay be acquired by appropriation and
i.Jrplkalion 10 beneficial use: (3) the person first in time
to use the water is first in rlg.ht; and (4) beneficial use is
the basis. thc measure ami the limit of the right.4
An appropriation is accomplished by the actual diver-
sion of water from a natural water course. followed
Within a reasonJble lime thereafter by an application or
such water to a beneficial use.s An important cundition
of (he rule is that (he inilialion ufthe appropriafion must
be followed by the diligent 1.:0nstTlll'tiun of the necessary
works and the application of (he water to bencficial use.
Ir due diligence is provcn. the date of priority goes back
to the initiation of the work, usually the d<lle of the
making of the initial survey.6
TIle Colorado Constitution sets up an order of prefer-
ential use whi,h is (I) domestic, (2) irrigation. and (3)
industriaL? This preference ror l.:ertain USt'S must not be
confused with priorities. A preferred use dues not there-
by ::Jutomatkally obtain a senior priority. TIle only prac-
tical effcct or the preference is to give a preferred use
the right to condemn a subordinate use.s For example,
on occasions municipalities have obtained water rights
covered by irrigation priorities through the use of the
power of eminent domain.

DETERMINATION OF WATER RIGHTS

The General Assembly enacted legislation in 1969 which
changes the procedure for determination of water rights and
changes in and transfers of water rights, and provides for plans
of augmentation. It is not applicable to designated ground water
basins hereafter covered. Determination of water rights should
be more efficient, less expensive, faster and more accurate
under the new legislation. In the interest at brevity, the proce-
dures will be summarized in general tenns.
A water judge and water clerk are appointed for
each of the seven water divisions 111 the state. All water
matters shall be handled only by the water judge. assisted
by the water clerk. The water judge appoints one or more
water referees who make original rulings on all requests
or he may perfoml those duties himself if he so desires.l 0
Any person who desires a defermination of a water
right or conditional water right, and the amount and