WSP03310

• File Number: 8271.200
• Description: Colorado River Basin Salinity Control Program - Development and History - UCRB 13a Assessment
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 8/13/1979
• Title: WRC Study - Draft Summary Report
• Water Supply Pro - Doc Type: Report/Study

~
~~~

f\)
00
00
,.:::,.

.:"-:~..~,
": '-;:I;:~.
.....

.' ".~:

:/::/

are not required to actually use water. As a consequence of the liberal
interpretation of "due diligence" which has. prevailed over the years, there
are many conditional rights which are 20 to 40 years old.

In the four permit States, the State Engineer, when granting a water
rights application, ordinarily requires. that the claimed water be put to
a beneficial use by a certain time. The applicant must then proceed with
"due diligence," although the State Engineer may, for good cause, issue
extensions of time within which to perfect the appropriation. As in
Colorado, the effect of these procedures is to put water under claim of
ownership prior to its actual. diversion and application to a beneficial
use.

Once acquired, a.water right is transferable,. pursuant to the laws
of all Upper Basin States, from one use to a new use, from one owner to
a new owner, and from one location to another. In all. instances, the
measure of the amount of water that can be transferred is the historic
consumptive use made by the seller of the water right. In Colorado, such
transfers are reviewed by the water courts and may be denied only if there
would be injury to other vested water rights (whether junior or senior to
the right being transferred). In the four permit States, application for
transfer is made before the State Engineer, who must also consider whether
there will be inj ury to other vested water rights (junior or senior). .
In addition, however, the laws of Arizona, Utah, and Wyoming, unlike'
Colorado, allow the State Engineer to take into account the "public interest"
or "public welfare" (the statutory language varies from State to State).
Thus, a transfer could presumably be denied even if there were no injury
to other vested water rights. In practice, however, this authority has
been used very infrequently, if at all.

While legally permissible in all five Upper Basin States, transfers
of water rights are not easily perfected in all instances. Proving what
the seller's historic consumptive use has been can be a difficult and
uncertain task. Secondly, if points of diversion.or return flow are to
be altered, the process of proving no damage to. other users, or of
preventing damage to them, can be a slow and expensive procedure. In
general, the transfer of water rights often involves a number of uncer-
tainties and time-consuming legal procedures which can make such transfers
a less desirable source of water than one might initially think.

One final point. regarding the States' water laws concerns the use of
water for fish and wildlife purposes. All five States recognize the right
of private parties to make an appropriation for such purposes so long as
water is captured (e.e., in a reservoir) or physically diverted out of a
stream (e.g" into a fish pond or to flood a marsh). However, none of the
States recognizes private rights to flows left in a stream. Furthermore,
only in Colorado is public recognition given to instream flows through a law
that pE'.rmits the State to obtain a water right in an amount "required to
preserve the natural environment to a reasonable deg'ree." Such rights are

xxxvii