Colorado Doctrine

In the 1860s, Colorado adopted a set of laws regarding water use and land ownership known as the Colorado Doctrine. This doctrine established four essential principles of the state’s water law that helped distinguish it from Riparian Law, which is the water law framework commonly followed in wetter, humid portions of the U.S. where there is less concern for reduction of overall flows (Water Education Colorado [WEco], 2015; Colorado Water Conservation Board [CWCB], 2011; OpenEI, 2017):

1. The state’s surface and groundwater 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 supply;
3. Water rights owners may build facilities on the lands of others to divert, extract, or move water from a stream or aquifer to its place of use;
4. Water rights owners may use streams and aquifers for the transportation and storage of water.

Prior Appropriation System

The prior appropriation system, affirmed by Colorado’s Constitution and termed the “prior appropriation doctrine,” is Colorado’s legal framework which regulates surface water and tributary groundwater use (Colorado Division of Water Resources [DWR], n.d.; WEco, 2015). This system of allocation determines who uses how much water, the types of uses allowed, and when those waters can be used, with the main objectives of preventing water waste and providing a system of allocation around a scarce resource (CWCB, 2011; DWR, 2012). Provisions of the 1969 Water Right Determination and Administration Act, as well as the 1965 Ground Water Management Act, primarily govern the prior appropriation system (WEco, 2015; DWR, 2012; Colorado Geological Survey [CGS], 2003).

Despite the addition of state statutes over the years to aid in the administration and management of Colorado’s ever-changing water landscape and users, four main guiding principles of the prior appropriation system remain (Jones & Cech, 2009):

1. In order to establish a water right, an entity must divert the water and apply it to beneficial use; however, recent provisions allow recreational and environmental appropriation as beneficial uses that do not have to be withdrawn from streams. In relation to the Colorado Doctrine’s essential principles (number one and two, listed above), the established right is usufructory, meaning (1) no entity owns the stream or water in it, but they are able to develop a right to use the water for a beneficial purpose; and (2) the right was dependent upon its continued application to a beneficial use.
2. Users with earlier adjudicated (court-decreed) rights (referred to as “senior rights”) have priority to divert in times of short supply before later-acquired rights (“junior rights”) can begin to use the water tied to their rights. This principle has provided for the system’s commonly referred to nickname, “first in time, first in right.” It should be noted, however, that the Colorado Constitution states that during times of shortage, domestic water use has preference over all other uses, and agricultural use has preference over manufacturing use during such times (WEco, 2015; Grantham, 2016). Additional exceptions to this priority order occurs when there is an approved replacement water supply plan in place allowing for out-of-priority diversions (i.e. augmentation plans, exchanges, and substitute supply plans) or because of a statutory exemption from administration (i.e. exempt and non-exempt wells).
3. Water can be removed from a stream and used in locations distant from its diversion, including in another drainage basin.
4. Once a right has been established, the right to use the associated water can be sold to third parties while allowing for the priority date to remain intact.

An appropriation is made when an individual, public agency or business physically takes water from a stream or underground aquifer and puts it to beneficial use (DWR, 2012). Before that water is appropriated, the individual or entity must submit an application for a water permit containing a plan (whether to divert, store, or otherwise capture, possess and control) that specifies the amount of water to be used, type of beneficial use, and the locations of diversion or storage (WEco, 2015). The applicant then uses the water for the approved purpose, and then, through the process of adjudication, obtains a Water Court-approved decree for their water right confirming the priority date, source of supply, point of diversion/storage, amount of water, type of use, place of use, and conditions to protect against material injury to other water rights (WEco, 2015; Water Information Program [WIP], n.d.). Most other western states with a prior appropriation system have water rights issued by a state water official or agency, making Colorado unique by having water rights issued by water courts.