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

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A few states allow instream uses on a discretionary basis 11/
or provide that state agencies may make appropriations of
minimum instream flows for recreational, wildlife or other
purposes. .!i/ -

Third, when there is insufficient water to meet the needs
of all appropriators, priority among appropriators is established
chronologically, based on the time the various appropriators
first put the water to use, rather than based on any proration
that takes account of the utility of the competing uses.
The priority date gives an appropriative water right its
primary value, because it guarantees that a senior (in time)
appropriator will receive the entire quantity of water to
which he is entitled prior to delivery of any water to a
more junior appropriator. Originally, priority dates were
established on the basis of when the water was actually put
to use. Most western states, however, have enacted statutes
requiring noticing or filing of applications for new water
uses. In many western states, that statutory procedure is the
exclusive means for acquiring water rights. In these so-called
"permit states," priority dates are normally fixed by the
date of application for the water right rather than the date
of actual use. See 5 Clark, supra, at S 410.1. In permit
states, it is poSSIble that an appropriator who fails to
make the filings or applications required by state law but
actually puts the water to use may find his rights cut off
by a more junior appropriator who makes a timely filing. 15/

Fourth, an appropriation of water is a transferable
right of permanent, or at least indefinite duration, pro-
vided the use is continued. It may be sold or transferred
with the land or separately. Changes in the location or nature
of the use (but generally not the quantity) may be permitted,
provided they do not injure the rights of other appropriators,
but in most cases must be approved in advance by the state.
See 5 Clark, supra, at S 4121 Trelease, "Federal-State Relations,"
supra n.6, at 33.

All the western states have developed administrative
or judicial systems to recognize, administer and enforce water
rights. In most of these states, new appropriations must be

13/ See, e.~., Wyo. Stat. S 41-3-306 (1977)(State Engineer
can make aTlowances for instream stockwatering, without
recognizing a right to such use).

14/ See, e.~., Colo. Rev. Stat. S 37-92-102(3), 37-92-103(3)
(4) ,-rI0)-(1973) (state agency may make appropriations
of minimum instream flows).

15/ particularly where water rights may antedate water
codes or adjudication statutes, rights in those states may
in some cases be awarded priority by equity decrees or other
adjudicative procedures, despite a failure to make the
requisite filing. See 5 Clark, supra, S 410.1.

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