Chapter 9 - § 9.4 • TYPES OF SURFACE WATER RIGHTS

• Jurisdiction: Colorado

§ 9.4 • TYPES OF SURFACE WATER RIGHTS

Surface water rights include two broad categories: (1) direct flow rights and (2) storage rights. Storage rights generally entail placing water in some type of reservoir for later use and are addressed separately in Chapter 12 of this Benchbook.

§ 9.4.1—Direct Flow Rights And Storage Rights

Direct flow rights entail diverting water from a stream for direct application to the place of use (concurrent use). Direct flow rights must be used concurrently unless there is a separate storage right. Direct flow rights are initially quantified in terms of rate of flow.

One cubic foot per second (cfs) is approximately:

• 449 gallons per minute (gpm)
• 1.98 acre-feet (af) per day
• 0.65 million gallons per day (mgd)
• 646,320 gallons per day (gpd)

When quantified volumetrically (see § 9.6), an amount in acre-feet is assigned. An acre-foot is that quantity of water necessary to cover an acre of land with water one foot deep (325,851 gallons).

Direct flow rights encompass nearly all types of water rights other than those for storage and those involving certain types of ground water. Direct flow rights also include two somewhat unusual subcategories that are articulated in the definition of "beneficial use:"

1) "Instream flow rights," also known as "minimum streamflow rights." These rights are created to maintain a certain amount of flow in a stream segment (a "stream reach") in order to "preserve the natural environment to a reasonable degree."³³ Adjudication of an instream flow right provides for maintenance of stream conditions existing at the time of appropriation.³⁴ What is necessary to meet this standard is often the subject of debate. In Colorado, the Colorado Water Conservation Board is the only entity that may appropriate instream flow rights. These rights are most frequently seen in the context of flows necessary to maintain fish habitat, and other piscatorial purposes.
2) Recreational in-channel diversion. This type of water right is held by a governmental entity for recreational purposes.³⁵ The most controversial of these rights are kayaking rights.

§ 9.4.2—Absolute And Conditional Water Rights

A water right is considered to be perfected once it has been made absolute by virtue of placing the subject water to actual beneficial use. At this point, the water right is not subject to attack unless conditions subsequently are altered (for example, failing to use the water for an extended length of time may divest a water right holder of the right by abandonment).

By contrast, a conditional water right is a right to perfect a water right with a fixed priority upon the future completion of an appropriation, which must be pursued with reasonable diligence.³⁶ "No claim for a conditional water right may be recognized or a decree therefor granted except to the extent that it is established that the waters can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time."³⁷ This is what has become commonly known as the "can and will" test. Pursuant to the 1969 Act, an application for a finding of reasonable diligence must be filed for every conditional water right every six years, or the right shall be considered abandoned (unless the water court fails to notify the water right holder, in which case the diligence period is tolled).³⁸ Infeasibility of development of the conditional water right due to current economic conditions should not provide grounds for loss of the right.³⁹ Evidence of due diligence includes engineering activity, structural progress, permitting activity, expenditure of money (including legal fees), and the like.

§ 9.4.3—The Anti-Speculation Doctrine

In Colorado Water Conservation District v. Vidler Tunnel Water Co.,⁴⁰ the Colorado Supreme Court, in an opinion by Justice Carrigan, held:

Our constitution guarantees a right to appropriate, not a right to speculate. The right to appropriate is for use, not merely for profit. As we read our constitution and statutes, they give no one the right to preempt the development potential of water for the

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