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State Water Laws ,:,:::(",:, ~.:.....:--.~ ....:..... M 00 00 W While the "Law of the River" governs the allocation of water among the States of the Colorado River. Basin, the use of water by individual claimants within a State is subject to the water laws of each State. Surface Water. Although each Upper Basin State has its own water rights system, the basic elements of these are sufficiently similar to permi! certain. generalizations to be made for the purposes of this assess- ment. The cornerstone of each Upper Basin State's water rights system is the doctrine of prior appropriation. Under this doctrine, those who are first in time to take steps to divert and apply water to a beneficial use (i.e., senior rights) have a right that is superior to those who subse- quently initiate an appropriation (i.e., junior rights). As a consequence,. junior right holders are required to cease diverting or storing water whenever the remaining flow of a river is not sufficient to satisfy all senior downstream rights. With respect to the right to obtain an appropriation, the water laws of the Upper Basin States fall into one of two basic categories. In Colorado, the right to make an appropriation of water (i.e., to divert water and apply it to a beneficial use) is subject only to the limitation that other vested water rights cannot be impaired. Thus, neither the courts nor the executive branch of government has discretionary authority over the type, place, or quantity of use. ~{tl~ In contrast to Colorado, the other four States (Arizona, New Mexico, Utah, and Wyoming) employ a permit system in.which the right to appropriate .water must be approved by the State Engineer. In each State, as in Colorado, the right to appropriate is subject to the condition that other vested (i.e., senior) water rights not be impaired~ Unlike Colorado, however, the laws of the other four States permit the State Engineer to deny an application if it is found to be contrary to the "public welfare" or "public interest'" (the actual statutory language varies from State .to State). However, the exercise of this authority in the past has been very limited. In recognition of the fact that it takes a good deal of time to plan for and actually construct a water diversion facility, each of the Upper Basin States allows water rights to be claimed as of the date the first steps were taken to actually divert water or an application was received. However., it may be many years before water is actually put to a beneficial use. In Colorado, conditional rights are granted by the water courts. Claimants who are, with "due diligence," proceeding to perfect their rights I. The reader is cautioned, however, against relying upon this discussion to answer detailed water law questions since the specifics of each Upper Basin State's water laws vary considerably from State to State. ~'~" ";. '''':-',-; xxxvi