Colorado water law aims to provide security, reliability and flexibility in the development and protection of the state’s scarce water resources. Laws that originated in the 1860s and ‘70s before statehood form the backbone of Colorado water law today. While this legal framework is more than a century old, the law continues to evolve to meet the challenges of our time. Those foundational laws include:
COLORADO DOCTRINE
The Colorado Doctrine is a set of laws which define four basic principles of water law:
1. All surface and groundwater in Colorado is a public resource for beneficial use by public agencies, private persons and entities.
2. A water right is a right to use a portion of the public’s water resources, a “usufructuary right.”
3. Water rights owners may use streams and aquifers for the transportation and storage of water.
4. Water rights owners can build facilities on the private lands of others to divert, extract or move water to its place of use, with consent of the landowners or upon payment of compensation.
PRIOR APPROPRIATION SYSTEM
The prior appropriation system, commonly referred to as the system of “first in time, first in right,” is a legal framework that regulates the use of surface water and tributary groundwater connected to streams. In times of short supply, court-decreed water rights with earlier dates (senior rights) can use water before decreed rights with later dates. The prior appropriation system is mandated by Colorado’s Constitution.
Need to Know
• Adjudication The process through which water users obtain a court decree for a water right. Adjudication results in a decree that confirms the priority date of the water right, its source of supply, point of diversion or storage, and the amount, type and place of use.
• Appropriation Putting a portion of the waters of Colorado to a beneficial use pursuant to legal procedures. Only previously unappropriated surface water or tributary groundwater can be appropriated. The appropriator must have a plan to divert, store or otherwise capture, possess and control the water for beneficial use.
• Beneficial Use The basis, measure and limit of a water right. Colorado law broadly defines beneficial use as a lawful appropriation that employs reasonably efficient practices to place water to use. The types of uses considered “beneficial” continue to increase and include everything from domestic, commercial and agricultural uses to snowmaking, recreational in-channel diversions, instream flows, flood control and more.
• Call Demand for administration of water rights. In times of water shortage, the owner of a water right will make a “call” for their water. The call results in curtailment orders against undecreed water uses and junior rights.
• Injury An action that causes or may cause the holders of decreed water rights to lose water at the time, place and amount they would be entitled to use their water rights had that action not occurred.
• Interstate Compact A contract between states governing the allocation and use of interstate waters.
• Priority The ranking of a water right vis-à-vis all other water rights drawing on the stream or groundwater system. Priority is determined by the year in which the water right application was filed.
• Water Right A legal property right to use a portion of the public’s surface or groundwater.
LEARN MORE
For additional information and resources, read the Citizen’s Guide to Colorado Water Law.
Who Administers Water Rights?
The Colorado Division of Water Resources (DWR), which includes the State Engineer, division engineers and water commissioners, has the authority to administer all surface water and Denver Basin, tributary and nontributary groundwater in Colorado. Water rights holders depend on DWR to shut down or reduce junior decreed uses and undecreed uses to satisfy the demand of decreed senior uses.
Colorado water courts have been setting water right priority dates and amounts since 1879. A water court decree confirms a water right. There are seven water divisions in Colorado, based on the state’s major watersheds, with water courts and division engineer’s offices in each division. Water courts have jurisdiction over all water right applications. They review cases for changes of water rights, exchanges and augmentation plans, appeals from certain actions from DWR, enforcement orders, and more. Appeal of any water court decisions goes directly to the Colorado Supreme Court.
COLORADO WATER DIVISIONS
Division 1 — South Platte, Republican and Laramie rivers
Division 2 — Arkansas River
Division 3 — Rio Grande River
Division 4 — Gunnison, San Miguel and portion of Dolores rivers
Division 5 — Colorado River
Division 6 — Yampa, White, Green and North Platte rivers
Division 7 — San Juan, Animas and portion of the Dolores rivers
What Type of Water?
The prior appropriation system only applies to certain types of water.
Surface water and tributary groundwater, or water that’s connected to a stream system through surface or underground flows, is governed by the prior appropriation system but
other types of groundwater are not. Designated groundwater wells are governed by the Colorado Ground Water Commission, nontributary groundwater permits can be obtained from the Colorado Division of Water Resources, and Denver Basin groundwater wells require a percentage of the water pumped to be replaced or relinquished.
