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Water Rights Resources

Water law is complex, nuanced, and can be difficult to understand. We delve into common water law concepts and provide tutorials that describe how it use publicly available tools to learn more about water rights. To this end, below are a series of articles that are designed to help parties develop a general understanding of some of the basic principles of water law. The information provided below is for educational purposes only and if you have specific questions about your water rights, please contact the attorneys at Nazarenus Stack & Wombacher for legal advice. Use of this information is explicitly subject the website disclaimer available at this link https://www.nswlaw.com/disclaimer

Water Rights and the Prior Appropriation System

Colorado’s Constitution establishes that the water of every natural stream in the state is the property of the public, but is subject to appropriation by private parties. Colo. Const. Art. XVI,Section6.The Constitution also establishes that the “right to divert the unappropriated water of any natural stream to beneficial uses shall never be denied.” Art. XVI, Section 6

An appropriation of water means “the application of a specified portion of the waters of the state to a beneficial use pursuant to the procedures proscribed by law.” C.R.S. § 37-92-103(3)(a).Appropriations are confirmed by one of the seven water courts throughout Colorado, and the terms and conditions under which the water maybe used are detailed in a water court “decree.” Water court decrees specify the amount of water associated with the water right, the location at which it can be diverted, the uses associated with the water right, locations where the water can be placed to those uses, and other limitations. Decrees also establish the priority date for water rights. Generally speaking, when people refer to a “water right” they mean an appropriation that has been confirmed by a water court decree. A water right is a real property right that can be transferred, similar to a property right for land, and it entitles the owner to divert and beneficially use water consistent with the terms and conditions of the relevant water court decree

Colorado’s system of allocating water between water rights is known as the “Prior Appropriation System” or, more generally, the “Priority System.” The Prior Appropriation System allocates the physical supply of water in a stream among the owners of water rights based on the priority date of their water right. Older water rights, often referred to as “senior” water rights, are entitled to receive water prior to the water rights that were appropriated later, or “junior” water rights. When used to describe water rights the terms “junior” and “senior” are not tied to any specific priority date; rather, they are simply used to differentiate between water rights that have earlier priority dates and are therefore “senior” to water rights that came later in time. The State Engineer’s Office is responsible for distributing water consistent with the prior appropriation system.

Below is a simplified diagram to explain how the prior appropriation system operates.

This diagram shows four water rights with four different priority dates: 1874, 1921,1958, and1973. In this example, the 1874 Water Right is the most “senior” and the 1973 Water Right is the most “junior.” When the river has sufficient physical supply to meet the demand of all of the water rights, such as during spring runoff, then all of the water rights can divert at the same time. However, when the physical supply falls below the demand, then a senior water right will place a “call” on the river to request that junior water rights be shut off to ensure that senior water right receives the water to which it is entitled by virtue of its water court decree. For example, if the 1874 Water Right placed a call, then the water commissioner would shut off the more junior rights as necessary to ensure that the 1874Water Right receives the amount of water dictated by its water court decree. This may mean shutting off all of the junior water rights or perhaps only the 1973 Water Right, depending on the difference between the physical water supply and the amount of water to which the 1874 Water Right is entitled. Once the physical water supply increases, the water commissioner can allow some or all of the junior water rights to begin diverting again so long as no junior water right is taking water at times a senior right is not receiving its entitlement. As one can imagine, the operation of the prior appropriation system can get very complicated given the number of water rights seeking to divert water and constant fluctuations in the flow of the river.

If you have questions about the prior appropriation system please contact the experienced attorneys at Nazarenus Stack & Wombacher LLC.

William Wombacher