Water Law: Five Principles That Define Colorado

• Publication year: 1997
• Pages: 165

26 Colo.Law. 165 Colorado Lawyer 1997.

1997, June, Pg. 165. Water Law: Five Principles that Define Colorado

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165

Vol. 26, No. 6, Pg. 165

The Colorado Lawyer
June 1997
Vol. 26, No. 6 [Page 165]

Specialty Law Columns
Natural Resource and Environmental Notes
Water Law: Five Principles that Define Colorado
by Lawrence J. MacDonnell

This article was written by Lawrence J. MacDonnell of Lawrence J. MacDonnell, P.C. in Boulder, (303) 545-6467

This article reflects on some fundamental choices made by the architects of Colorado water law in the development of the state's present legal system. The basic task of water law is to establish rules guiding allocation of water among human users and uses. A closely related task is to set allocation terms to achieve desired benefits and to provide a means for resolving conflicts. I have come to think of water law as the rules that guide human actions intervening in the hydrologic cycle to capture benefits from water.1

Colorado water law, as expressed in statute, case law, and water rights, is arguably the most fully articulated system of water law in the country. In some important respects Colorado water law is distinctive; in broad form, however, it espouses the same approach uniformly adopted in other semi-arid and arid western states. This article identifies and discusses five broad principles that I believe define Colorado's system of water law

ONE: Appropriators Determine Water Uses

Perhaps the most fundamental choice of water law is to determine who can use water with legal protection for their use. Under American common law as widely understood in 1859, ownership of land riparian to a surface water source carried with it the legal right to use and enjoy the benefits of the adjacent water. Miners searching for gold in the mountains of frontier California in the late 1840s paid little attention to riparian principles, choosing instead to establish their own rules based on the notion that possession or control of water establishes legal right - important because these early miners did not own the land they had claimed for mineral development, whether or not it was riparian to a stream.2 A decade later, when gold was discovered in Colorado, miners followed the California approach - basing recognized rights to use water on individual actions to take control of (appropriate) water.3

The legislature for the new territory of Jefferson (soon to become Colorado) enacted a statute in 1859 providing rules for agricultural use of water, authorizing the claimant of "lands upon any stream" to also claim the "privilege" of using water for irrigation.4 Despite this distinctly riparian language, the law also authorized "agriculturalists remote from streams" to divert and use water, and empowered any irrigator to build a ditch across the land of others so long as damages were paid.5

Article XVI of the 1876 Colorado Constitution explicitly stated that "appropriation" is the basis on which Colorado's water is to be claimed for use, asserting: "The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied."6 In a dispute involving competing claims for the same water between an upstream appropriator and downstream riparian irrigators, the Colorado Supreme Court ruled in Coffin v. Left Hand Ditch Co. that appropriation had always been the basis on which the right to use water in this state depended - a conclusion it said was compelled by the "imperative necessity" of aridity.7

The 1859 law and the Colorado Constitution also followed the California rule protecting the use of the "prior" or senior appropriator from infringement by subsequent appropriators.8 In Coffin, the Colorado Supreme Court explained that the rule of priority was essential to make irrigated agriculture possible: "Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed."9 The court also made it clear in this decision that an appropriation of water can be used anywhere, not just on land riparian to the stream or within the watershed.10

In 1885, the Colorado Supreme Court stated: "The appropriation of water within the meaning of the constitution consists of two acts - First, the diversion of water from the natural stream; and, second, the application thereof to beneficial use."11 Appropriation and beneficial use of water create a water right, and a water right is regarded as a property right.12 Once established, a water right is perpetual unless and until the user ceases its use with the intent to abandon it.13

Perhaps the single most important alteration of the original concept of appropriation was the recognition in 1884 that there could be a "conditional" appropriation, fixing the date of appropriation at the time the intent to appropriate was fully formed and clearly manifested - in recognition of the sometimes considerable time and effort required to plan and build the structures needed to capture and make water usable.14 The conditional appropriator must be "diligent" in his or her efforts to develop and use water.15 Once actual use begins, the right becomes "absolute" with respect to the use, with a priority that "relates back" to the date on which the conditional appropriation was established.16

Today, large amounts of unappropriated water no longer remain available in Colorado, especially if conditional claims and environmental values are considered. Because of intense competition among those seeking rights to use remaining unclaimed water, appropriators now must be able to demonstrate that they "can and will" put that water to beneficial use.17 Intention alone is not enough if a would-be appropriator cannot demonstrate need for the water and the legal and financial capability of developing and using it.

The principle of appropriation remains the basis on which rights to take water for human use in Colorado are established.18 Priority of appropriation remains the basis for sorting out conflicts respecting control and use of water. Increasingly, the focus of water...