WSP06802

• File Number: 8062
• Description: Federal Water Rights
• State: CO
• Basin: Statewide
• Date: 6/16/1982
• Author: USDOJ
• Title: Federal Non-Reserved Water Rights
• Water Supply Pro - Doc Type: Report/Study

, '0064
,." Wa~er Law, at 10-11 (3d ed. 1979). Similarly, a landowner
in a riparian state generally has the right to make reasonable
use of ground water arising on his land, but not to make
unreasonable withdrawals of that water if it comes from a
pool cornmonto other landowners. ld. A landowner's riparian
rights exist whether or not he actually takes steps to use
the water, and the use may be initiated at any time. See id.
at 11.

The riparian doctrine has for the most part been adequate
to allocate water rights in the eastern states, where water
is generally abundant and water problems most often involve
flooding, drainage, pollution or navigation. 6/ As the arid
and semi-arid western states were settled, however, the
riparian systeM proved to be inadequate to meet the needs of
the early settlers, particularly the miners and, later, the
farmers. 7/ The major problem faced by early settlers in
those states was a shortage of water. The two primary occupations,
mining and agriculture, required large consumptive uses of
water, which could be accomplished only by construction of
systems to divert and store available stream and ground
waters. Tying water rights to the ownership of adjacent land,
and thereby retarding or precluding the diversion of waters from
their normal channels, would have entirely frustrated development
of the west. See, e.~., California Oregon Power Co. v. Beaver
portland cementeo.-; 295 U.S. 142, 157 (1935). Accordingly,
based largely on customs of the early miners, the western
states developed what has come to be known as the "law of
the first taker," or the "appropriative" system. Under an
appropriative system, unlike under a riparian system, the
right to use water does not depend on ownership of underlying
or appurtenant lands. Rather, the right depends on capture
or "appropriation" of the water for a particular use. The
first person to put water to use is entitled to that water

6/ Although most of the states outside of the seventeen arid
or semi-arid western states still adhere to riparian rights, in
many of those states the common law has been codified or pre-
empted by statutes governing specific uses such as construction
of dams and use of water by cities, districts and state
agencies, or preserving public uses such as minimum flows
or, more recently, aesthetic and environmental values. See
F. Trelease, Water Law, supra, at 12. Some riparian states
now require administrative permits prior to the initiation
of new water uses. Id: see also F. Trelease, "Federal-State
Relations in Water Law,"-yLegal Study No.5, prepared for
the National Water Commission) at 15-18 (Sept. 7, 1971)
(hereinafter cited as .Federal-State Relations").

2/ A riparian system was particularly ill-suited for use
by the first wave of miners, who staked their claims at a
time when most of the western lands were still owned largely
by the federal government and not legally open for settlement.
Thus, for the most part there was no private ownership of
land to which riparian rights could attach. See Colum.
Note, supra n.S, at 969. ---

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