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Section 4 Legal Framework for Water Use ~~7r~~ Statewide Water Supply Initiafive a4~E~t t ~>~~.5~?'I ,o ~ -,~ 4.1 Overview of State Water Laws The following basic overview of Colorado Water Law is derived primarily from Chapter 5 of the CWCB's Drought and Water Supply Assessment Report and the Colorado Foundation for Water Education's Citizen's Guide to Colorado Water Law.~ 4.1.1 Colorado's Prior Appropriation System As in most arid western states, the allocation of water in Colorado is governed by the doctrine of "prior appropriation," commonly described as "first in time, first in right."2 Under this doctrine, rights to water are granted upon the appropriation of a certain quantity of water for a beneficial use.3 The date of appropriation determines the priority of the water right, with the earliest appropriation establishing the most senior, or superior, right.4 Thus, th right to use water in Colorado is based on a prior appropriation, rather than by grant from the state.5 The right to use water is a valuable property right that arises <~~'~t"~"'~' by placing unappropriated water to beneficial use.s This I~ right is protected under Colorado law and is rooted in ~. ~~~t ~:>;i~ Colorado's Constitution, which establishes that public ~~~ ~~~~:~~~ ~~ uses of water in Colorado are subject to the right to appropriate a water right for private use: The water of every natural stream, not heretofore appropriated within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided. Colo. Const. Art. XVI, § 5. The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Colo. Const. Art. XVI, § 6. e Like other property rights, vested water rights may not be , taken without payment of just compensation, and they may be conveyed separate from the land on which they are used.~ This overview is general in nature. For additional, more detailed information, see Chapter 5 of the CWCB's Drought and Water Supply Assessment Report; Uranesh's Colorado Water Law (Revised ed. 1999) James N. Corbridge Jr. and Teresa Rice; Citizens Guide to Colorado Water Law, (Revised ed. 2004) Justice Gregory Hobbs, Jr. See Irwin v. Phillips, 5 Cal. 140 (1885) See Colo.Const. Art. XUI, § 6(The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied"); see also C.R.S. § 37-92403(3(a) ("Appropriation" means the application of a specified portion of the waters of the state to a beneficial use pursuant to the procedures prescribed by law"); and Board of County comm'rs v. Upper Gunnison River Water Conservancy Dist., 838 P.2d 840 (Cob. 1992) ("To be effective, an appropriation must divert a definite quantity of water with the intent of applying such water to beneficial use"). See Colo.Const,. Art.XUI, § 6("Priority of appropriation shall give the better right as between those using the water for the same purpose"); Farmers' High Line Canal & Reservoir Co. v. Southworth, 21 p. 1028 (1889) ("Priority of right to water by priority of appropriation is older than the constitution itself, and has existed from the date of the earliest appropriations of water in the boundaries of Colorado"). The other major approach to water rights allocation in the United States is known as the "riparian" system, which is prevalent in the water rich states of the eastern United States. Under this system, water is allocated based on land ownership. Most riparian states now have permit statutes, under which an administrative official determines the quantity of water that may be diverted, and the terms and conditions for its use, based on criteria adopted by the legislature to protect public interests in the resource. As the doctrine of prior appropriation has been interpreted through case law, two major principles regarding the requirement of "beneficial use" and the concept of water as a property right have emerged. First, a water right does not include the right to waste the resource. Second, the right to use water must be sufficiently flexible to accommodate changes of use and the free transferability of water rights in order to allow the maximum use of water. With regard to the former, Colorado courts have required water users to employ an efficient means of diversion, and have limited the amount of water that may be appropriated to the amount necessary for the actual use. With regard to the later - flexible use of water rights - Colorado law recognizes See Sherwood Irrigation Co. v. Uandewark, 331 P.2d 810 (1958) ("Water is a valuable property right, subject to sale and conveyance"); see also Justice Gregory Hobbs, "Colorado Water Law: An Historical Overview," 1 U. Denv. Water L. Rev. 1 at 2 ("Western prior appropriation water law is a property rights-based allocation and administration system, which promotes multiple use of a finite resource." ). See Strickier v. City of Colorado Springs, 26 P. 313, 316 (Cob. 1891) ("A priority to the use of water for irrigation or domestic purposes is a property right and as such is fully protected by the constitutional guaranties relating to property in general"). ~~ S:\REPORT\WORD PROCESSING\REPORT\S4 11-7-04.DOC