River Water Rights: Understanding Colorado Water Law

 

The framework that establishes Colorado water law was mandated in Colorado’s Constitution. It’s called the prior appropriation system, and it regulates river water rights in Colorado, including the use of surface water in rivers or tributary groundwater (also known as shallow groundwater, it is below the surface but still connected to a river system) connected to a river basin. Broken down, this means:

 

Prior: Water users with earlier river water rights decrees (senior rights) have better rights in times of short supply and can fill their water use needs before others (those with junior rights) can begin to use water. The term “first in time/first in right” is often a shortened way of describing the prior appropriation doctrine.

 

Appropriation: This occurs when a public agency, private person, or business puts water to a beneficial use according to law. River water rights can only be granted to previously unappropriated water. Before being allowed to put the water to beneficial use, the appropriator must have a plan to divert, store, or otherwise capture the water and possess and control it.

 

System: The system is a legal procedure by which water users can get a legal decree from the water courts for their river water rights. The court approval is called adjudication and it sets the priority date of the river water right, its source of supply, its amount, its point of diversion, its type, and its place of use. It also confirms that it won’t cause injury (cause river water rights holders to suffer loss of water during the time, place, and amount that they are entitled to use that water) to any existing river water rights holders. There are two types of prior appropriation river water rights. One enables the river water rights holder to take water directly from the river to its place of use and the second allows water to be stored in a reservoir for later use.

 

Usufructary Rights

 

In Colorado, river water rights fall under the category of property rights known as usufructary rights. Usufructary means having the right to use a resource without actually owning it. So while you may have river water rights to a certain amount of water in a certain river, you never actually own the water. According to Colorado law, the ownership of the water resource always remains in the public domain.

 

Usufructary rights have many facets. One of them is the idea of “use it or lose it,” which means if you don’t need to use all or part of your river water rights as decreed to you, the water goes to those who can put the water to beneficial use according to the priority dates established in their river water rights decrees.

 

But a river water rights holder may not take from the river any more water than is needed for beneficial use at the time the water is actually diverted, despite the amount that is allowed based on the river water rights decree. Diverting more than what is needed constitutes waste, and wasting water is not one of the rights granted by a river water rights decree.

 

Many types of water use produce return flows, either in the form of groundwater or surface water. These return flows do not count as waste, as many river water rights downstream depend on return flows. Junior river water rights holders cannot intercept return flows on which senior river water rights depend unless the junior rights holders replace these flows with another water supply of suitable quantity and quality based on the historic use of the senior rights holder.

 

Over-Appropriation of River Water Rights

 

A river is considered over-appropriated if the water court has approved more river water rights decrees on that particular river than there is water actually available. Water availability is determined by physical and legal constraints:

 

  • Physical constraints refer to the water supply available from natural stream flows and tributary aquifers.

  • Legal constraints refer to the amount of water already appropriated by senior river water rights within Colorado and the amount of water the state must allow to flow downstream in order to fulfill interstate water compacts.

 

In over-appropriated river basins, water users have increased the use of groundwater, conservation, the re-use of water imported into the river basin, the change of agricultural rights to municipal use, water exchanges, and augmentation plans, where junior river water rights holders must augment their water use so as not to cause injury to senior river water rights holders.

 

More recent provisions of water law management allow newer uses of water, such as for municipal, environmental, and recreational uses, to be established even if a river basin is over-appropriated. These are allowed only because water court decrees for new or changed uses include provisions that prevent damage to other river water rights.

 

For more information on Colorado water law or river water rights, talk to the experts at Water Colorado who will be happy to answer your questions.