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Colorado Water Rights
Understanding Water Rights: Water rights and water allocation programs in the US have largely been the provinces of the states. At this time, there is no national water rights system. Water rights law and water allocation arrangements reflect differing traditions and conditions across the country. In water resources, the challenge for government is not one of regulation, but of fair and even-handed allocation. The law of water rights in the US has included two basic systems: riparian rights in the East and the appropriation doctrine in the West.
Appropriation System: The arid climate of the western US is less conducive to the use of the riparian system than that of the wetter eastern US. As early trappers, miners, and settlers migrated west, they encountered a hostile environment. Early explorers referred to the Great Plains as the Great American Desert and not all believed that it could be settled. It was obvious that most of the land would require irrigation. Limiting use of streams to only adjoining landowners was not practical; such an action would drastically curtail the settlement and development of the new lands, because non-riparian lands would be practically useless. The early miners are credited with finding a solution to the problem. By custom, they all accepted the fact that the first miner who used water from a stream to work a placer claim was protected against latecomers. Soon this custom expanded to include the use of water for all purposes, not just for mining. Finally, as the land was organized into territories and then into states, the custom became law through express recognition by court decisions, constitutional provisions, and state statutes. The appropriation doctrine envelops several interrelated concepts. The two major concepts are: 1.)appropriation a water right is a right to the use of the water; the right is acquired by appropriation; and 2.) an appropriation is the act of diverting water from its source and applying it to a beneficial use. Under appropriation doctrine, the oldest rights prevail. The earliest water users have priority over later appropriators during times of water shortage. Another fundamental philosophy expressed in western water law is that public waters must be used for a useful or beneficial purpose. The appropriator can use only the amount of water presently needed, allowing excess water to remain in the stream. Once the water has served its beneficial use, any waste or return flow must be returned to the stream. In contrast to a riparian right, an appropriation right is independent of land ownership; the right to a certain quantity of water may be acquired by appropriating and applying water to a beneficial use. (the preceding was based on Water Resources Planning AWWA Manual of Water Supply Practices M50 No. 30050)
Background on Colorado Water Rights System: Under Colorado water law, the right to utilize the waters of the State is based on the priority of a party's appropriation of a specified amount of water, at a specified location, for specified uses (a "water right"). The essence of a water right is its place in the priority system. Colorado's "first in time, first in right" or "prior appropriation" doctrine applies to both surface water and groundwater tributary to a surface stream. In times of water shortage, a senior right may place a "call" on a stream to obtain a full supply.
Plan of Augmentation - Water Critical Basins If an established municipal water supply is not physically and economically feasible for a new project, the Project may obtain a junior water supply from wells or through stream diversions without the constant threat of curtailment by senior water rights by "augmenting" or increasing the water supply in the stream through a court-approved plan of augmentation. The amount of augmentation water that will need to be provided and the time during which it will need to be available will depend on the amount of water and the timing of the stream depletions of the development, i.e. diversions less return flows. A plan of augmentation may take a number of forms. A developer could acquire senior water rights, stop the former uses, and transfer this water to the development. In the alternative, a developer may construct a reservoir to store water early in the year when the stream is not on call for release later in the year when the stream is under administration.
Wells Colorado has both an administrative and a court system for determining the right to produce and utilize groundwater. To have permission to drill a well, an applicant must obtain a well permit from the State Engineer's Office ("SEO"). The SEO must grant the permit if the well will not injure the vested water rights of others. When a stream system, including tributary groundwater, is designated water critical, the permit will be denied unless the application can demonstrate a source of augmentation water which will avoid such injury. An applicant, however, may drill test wells without an official well permit if the driller follows certain notification procedures. Non-tributary water rights are subject to far less administrative restrictions.