Water Rights – Prior Appropriation
Water rights are far from easy to explain, but the more educated you become about how water rights are treated, the easier it is to understand. The prior appropriation system of water rights is not treated the same way in all of the Western United Sates. It is extremely important to understand how your state handles water right allocations: rules, regulations, applications, procedures, and more… The theme that remains similar amongst the majority of the western states is that a water right applicant must show beneficial use, intent, and diversion when applying for a water right.
Beneficial use must be proven by an applicant in order to be granted a water right. Most beneficial uses are considered to be those with agricultural, domestic, industrial, or municipal uses. If an applicant can not prove that a beneficial use exists, it is highly unlikely/nearly impossible to be granted a water right. Depending on the state in which you reside, as stressed so many times before, beneficial use may or may not be prioritized by the use that it fulfills. In the “Landowners Guide to Western Water Rights,” this ranking system is referred to as a “preference system.”
Establishing intent is very similar to proving beneficial use. Intent is extremely important in the application process. It includes stating all of the vital information affecting the water right: point of diversion, quantity, flow rate, purpose or use, and time of use are all questions that the applicant may be required to answer to show intent. Seeking the assistance of a water rights attorney or water engineer is typically advised when trying to handle the complicated application process.
Water rights applicants need to be mindful of diversion when applying for their water right. Diversion is considered any method of changing the natural flow of water for use. Some noted methods of diversion are canals, dams, ditches, pipelines and reservoirs – to name a few. Colorado has special diversion projects that include the C-BT project. The C-BT project takes water from the Western Slope of Colorado and pumps it through pipelines, reservoirs, lakes, and more to the South Platte River Basin on the Eastern Slope of Colorado. This project is a vital part of fulfilling the water right allocations within the South Platte River Basin.
Once you have been granted a water right, it is of the utmost importance that you continue to use it as it was intended to be used. Under the prior appropriation doctrine, water rights that are not used are lost and deemed forfeited by the holder. Hence why “if you don’t use it, you lose it” is continually mentioned when referring to water rights. A water right will be accompanied by a priority date. Rights under prior appropriation are usually handled on a “first in time, first in right basis.” The rights holders that file for their right first are considered to be a “senior” rights holder; others are considered to be a junior rights holder. The rights of senior holders will be fulfilled before that of the junior rights holders. Rights holders should be mindful of their priority date, for when it has passed, the junior rights holders are then entitled to their share.
For some who look to buy, rent, or sell existing water rights – rather than dealing with the application process, they will seek the assistance of one of the water brokerages within their state.
Water Colorado is a water rights brokerage that handles water transactions for Colorado’s seven river basins. Based out of Fort Collins, Colorado, Water Colorado strives to give you a friendly and relaxed experience when dealing with Colorado water rights. We are here to answer any and all of your Colorado water rights questions – pointing you in the right path to handle your water right(s) needs.
Wolfe, Mary Ellen. “A Landowners Guide to Western Water Rights.” Roberts Rinehart Publishing. Boulder, Colorado, 1996.