Buying water rights in the Western states generally falls under the rules of the prior appropriations doctrine, which comes from Roman Law and the Gold Rush era when water was scarce and everyone used ‘finders, keepers’ as a way of regulating who owned or could use what resources. Water rights, under prior appropriations, are ultimately based on a priority. If you buy a property near a stream, you must also buy the water rights in order to legally use that water for beneficial use. You can’t just assume that because you own the land you can use the water. Out in the Western states where water is scarce, this is hardly the case.
Buying water rights starts with a survey and documenting your intent to apply the water use for beneficial purposes. The appropriation date, for this particular type of water rights, is the date when the intent and the action came together. Once this idea and need for appropriation is confirmed, the state authorities have the right to determine whether it is valid and to complete the sale, or to deny the sale based on various pieces of information or for any reason they feel necessary. An application is filled out that includes a legal description of the intended use and the source in question, as well as the date that the appropriation started and the amount of water that a person is claiming.
Buying water rights is not always a simple transaction. During the process, any person or entity can come forth and state their previous claim to that water, disallowing the sale for any reason. Even if someone came before you and owns the water with no real use of it, water rights are considered tangible legal property and they might want to keep it just for the sake of having it. Of course, if your water rights purchase is denied, you can appeal the decision in most cases, all the way up to the state Supreme Court.
Buying water rights can be a lengthy process. As such, there are often conditional water rights granted during the process, where priority is always outlined. An applicant has to demonstrate their reasonable diligence in getting the appropriation rights processed effectively, which basically means that you have to have continued efforts in developing and owning the water right. Once the rights are purchased or appropriated, the conditional use is terminated and full ownership of those water rights are bestowed upon the purchaser.
Tags: prior appropriation, water rights, water rights colorado