Series: Colorado Water Law Basics #1 - What is the Colorado Prior Appropriation Doctrine?
What is the Colorado Prior Appropriation Doctrine?
You may have heard of the Doctrine of Prior Appropriation if you have dealt with water rights in the west, but what does it really mean? Prior appropriation water rights are a rather simple concept, which boils down to “first in time, first in right.” This means an older, or “senior,” water right diversion from the stream must be fully satisfied before newer, or “junior,” water rights upstream can take their diversions. If a senior water right user does not have enough water, they must formally request water by placing a “call for water,” often shortened to just a “call” on the river. For example, if an 1880 water right on the South Platte River in Fort Morgan places a call, no one upstream of Fort Morgan with a water right junior to 1880 can divert water until the 1880 call is fully satisfied. This includes any creeks or other tributaries that flow into the South Platte above Fort Morgan. When the junior water rights cannot divert due to a senior call we say that they are being called out. The people who manage these calls are the local Water Commissioners. Water Commissioners work for the State of Colorado and ensure that the people are diverting only the water to which they have a right.
“Free river” is the term used to describe when there is no call on the river. During these times there is enough water for everyone, and even people without water rights may divert water from creeks and rivers since there will be no injury to downstream senior water users. For people who turn on their taps every day and always have water, this system may seem rather strange, but this is how water law has worked in Colorado since 1872.
That covers when a water right can divert water off a stream in the prior appropriation system, but what can the water be used for? Water rights in Colorado are confirmed by the State Water Court system that was established by the 1969 Water Rights Determination and Administration Act. The Water Court issues decrees to water users that specify your appropriation date, or place in the line for water, and also specify to what uses you can put the water. Common water right uses in decrees are irrigation, municipal, commercial, mining, fire protection, recreational, and many others. Decrees also specify where the water can be used, and place limits on the times of year when the water can be used.
In terms of water rights diverting directly from streams, it is a straightforward process, water can be diverted from streams based on priority and the amount of water decreed, with water diversions being allowed up to the water available in the stream. For groundwater diversions it is a much more complicated process [watch for upcoming blog]. Surface water rights can be very old. The oldest water right in Colorado is the San Luis People’s Ditch, which started diverting water in 1852.
This is a 30,000 foot view of the prior appropriation water rights system in Colorado, which can be extremely complex, but here are some of the frequently asked questions about Colorado water rights:
Does a water right mean I own the water? No, the water is owned by the people of Colorado, you simply have a legal right to use the water according to your decree.
Can water rights be passed down? Yes, water rights in Colorado are viewed as real property rights. This means the right to the water can be passed down as well as bought and sold.
Can anyone apply for a water right? Yes, but you need to show the Water Court information about how you will divert and use the water, and you need to prove you can, and will, put the water to beneficial use. The Water Court will not grant a water right unless you can specify the beneficial use of the water and the use is not speculative.
I have a water right that has not been used in a very long time, can I start using it again? Water rights that are not used for long periods of time are at risk of being abandoned by the State. If your water right has been abandoned, you have to apply for a new water right. If your water right has not been abandoned then, yes, you can begin using it again, but only in accordance with your decree. Calling your local Water Commissioner is the best way to see if your water right has been abandoned.
How do I know what the call on the river is? We have a previous blog post all about how to get real-time water resources data at this link to help you.
If you have any questions regarding your water rights, please give Lytle Water Solutions a call at 303.350.4090, or send us an email, LWS will be happy to help. Stay tuned to our blog, we will be posting more about basic water law, including basic water law on wells.
Bruce Lytle, P.E. bruce@lytlewater.com
Chris Fehn, P.E., P.G. chris@lytlewater.com
Ben Bader ben@lytlewater.com
Anna Elgqvist anna@lytlewater.com
