Pursuant to the Colorado Constitution, the people of the State own all of the water in Colorado. With few exceptions, mere land ownership does not give the landowner any right to water under his property or flowing through that property. However, an individual, business or community may acquire a right to divert water for beneficial use (i.e., a “water right”).
Colorado adheres to the “doctrine of prior appropriation,” which is embodied in the Colorado Constitution, statutes, and case law. Under this legal theory, appropriative water rights are created by intent to place water to beneficial use, an action to implement that intent (usually the location or construction of diversion facilities or the filing of a water court application), and actual beneficial use of water. The later date of the intent and action is the “appropriation date” of the water right.
A water right need not be decreed in the Water Court. It exists as a property right when water has been placed to use. However, the adjudication process confirms the existence of the right and is required in order to establish an enforceable priority for the water right. This is because the enforceable priority of a water right against other rights is based, first, upon the court “adjudication date” of the water right and, second, upon the appropriation date. The adjudication date generally is the calendar year in which the water right application was filed. For older decrees (prior to the 1969 Water Right Determination and Administration Act), the adjudication date is the date of the Court’s decree.
Priority of right is important because, in the allocation of water under the appropriation doctrine, the owner of the most senior water right is entitled to divert the full decreed amount of that water right for beneficial use before more junior appropriators from the same source are entitled to divert any water. The appropriation doctrine has been characterized as the concept of “first in time, first in right.”
The attorneys at KNH have years of experience working with municipalities, energy companies, agricultural, recreation, businesses and individuals to protect, develop and acquire water rights in Colorado interests groups.