Chapter 2 - § 2.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 2.1 • INTRODUCTION

Colorado allocates the waters of its natural streams under the doctrine of prior appropriation, a doctrine often summarized as "first in time is first in right." This means that the earlier appropriator, or user of water, has a better or prior right to use water ahead of all subsequent users in times of shortage. The riparian rights doctrine is the other major doctrine for water allocation in the United States. Under the doctrine of riparian rights, water is reserved for use by riparian owners, those who abut natural streams. Each riparian owner has the right to have water of the same quality and quantity flow past the land.¹ Riparian law also requires "reasonable use" of the water to prevent harm to other riparian land owners. Limiting the right to use water to only those owning land adjacent to a naturally flowing stream, however, proved unworkable in dry climates such as Colorado and much of the western United States.

The practice of diverting water from a stream for use on non-riparian lands can be traced back to both the Native Americans and the subsequent Spanish settlers, who recognized the need to divert water from the streams in order to survive in this semi-arid land. Spanish settlers came to the San Luis Valley in the mid-1800s and brought with them the long-standing concept of community irrigation ditches called acequias to deliver water to their fields. Today, the People's Ditch of San Luis, which was built in 1852, is the oldest operational water right in Colorado.²

The necessity that drove the adoption of the doctrine of prior appropriation in the arid west and its implementation was explained in 1903 by Elwood Mead, a former State Engineer of Wyoming and later the head of what is now known as the Bureau of Reclamation:

As many ditches were built about the same time, it became necessary to prescribe rules for determining when the right should attach. If the right should date from the time of actual use of the water, a premium would be placed upon poor construction, and it might happen that during the construction of a large canal smaller canals or those more easily built might be begun and completed and appropriate all the water, leaving the large canal a total loss to its builders. To avoid this the doctrine of relation has been adopted; that is, the right does not date from the time the water is used but relates back to the time of the beginning of the work. To prevent an abuse, this doctrine has been modified by the

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