The laws pertaining to Colorado water rights are unique in the country. Where most of the eastern United States follows riparian rights (he who owns the stream bank or lake bank, owns the water), most of the western portion of the country, including Colorado, follows the appropriation system (he who gets there first, owns the water). But within the appropriation doctrine is included the “beneficial use” clause; the owner of the land and/or water must show that the water is being put to a beneficial use. Kansas uses administrative proceedings to grant water rights, where in Colorado, the courts are used to make determinations not only of claims, but what constitutes “beneficial use.”
Beneficial use is commonly categorized as household, agricultural, or industrial use, although ecological use, such as maintaining a wetlands environment for certain animal or bird species has been recognized as beneficial use in some court jurisdictions. Again, the courts make these determinations in Colorado.
Appropriation rights, are subject to abandonment. How long the water must be unused, or abandoned, varies from state to state. After 5 years of non-use of a water right in Kansas, the claim is considered “abandoned”; in Colorado the abandonment time period is double that, or 10 years. The state’s Division of Water Resources keeps a list of claims considered abandoned, categorized in each of the seven major river basins in the state. These abandoned claims can then be re-claimed.
Colorado courts determine a water rights decree and priority date. The earlier your priority date, the higher up in the chain your water rights are. Of course, not every drop of water is controlled through the courts or appropriation rights. Low-flow wells (under 15 gpm) and those for stockwater use, among others, are considered exempt from the appropriation process.
If you wish to drill a well in Colorado, the first thing you need to do is obtain a permit from the State Engineer’s Office. That office will check to see if anyone currently owns the water rights in the proposed location, and if your well will negatively impact those Colorado water rights already being used. If it will, you may have to establish a plan of augmentation, where you outline a method for augmenting the water you’ll be diverting from the surface or groundwater. That may mean you plan to purchase senior Colorado water rights (placing you closer to the front of the line, as far as Colorado water rights are concerned), or it may mean building a reservoir, stocking it when water is in low demand, and drawing from it when water is in high demand, so less of a negative impact will fall on the owner of the senior rights.
As you can imagine, this can get expensive quite quickly. Senior Colorado water rights are not relinquished lightly, if at all. That’s especially true these days, when population growth, mining, pollution, and invasive plant species are all drawing more water than ever before. Also, the permitting process can get lengthy. Over 10,000 applications are reviewed annually by the Colorado Division of Water Resources. Because of the volume of applications and the research involved in each one, it is often months—sometimes years—before a final decision is reached.