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What is a Colorado Water Right?

8/8/2015 | SPENCER WILLIAMS

What is a Colorado Water Right?
Spencer Williams

Spencer Williams | Director of Business Development | Bio

There’s something counterintuitive about buying acreage, but somehow not receiving any right to use the water “on” the property. Such confusion can usually be resolved with a quick lesson on Colorado water rights. To save you the headache of finding out about Colorado’s complex water allocation system the hard way, we’ve put together this post to explain the basics of a Colorado water right.

It’s all too common to find new landowners in Colorado looking angrily at the stream or creek running through their property when they’ve been told they can’t use a drop of the water. There’s something counterintuitive about buying acreage, but somehow not receiving any right to use the water “on” the property. Such confusion can usually be resolved with a quick lesson on Colorado water rights. To save you the headache of finding out about Colorado’s complex water allocation system the hard way, we’ve put together this post to explain the basics of a Colorado water right.

Simply put, a water right in Colorado is a private property right to use water. Unlike some states where water rights are awarded based on a permit system governed by an executive agency, water rights in Colorado are confirmed by the state judicial system through its seven water courts.

Applicants initiate legal proceedings with the water courts to determine whether they have met the legal requirements to establish a water right, and thus gain protection from other water users. Colorado’s oldest water rights date back to the mid-1800’s. Today, almost every river basin in Colorado is over appropriated, meaning that the combined rate of all vested water rights exceeds available stream flow.

Like any private property right, water rights can be bought and sold, inherited or encumbered. In Colorado, water rights are generally conveyed like real estate –by deed recorded with the county where the rights are located.

Although a water right is a private property right, it is a special type of right called a usufructuary right, meaning it is a right to use water, not to possess or own water. A common misconception is that a water right grants its owner a certain amount or volume of water to use however the owner pleases. To the contrary, a water right allows its owner to divert water only if it can be applied to a beneficial use. Colorado law has defined beneficial use broadly to include a host of applications, from municipal and industrial, to environmental and recreational. However, all beneficial uses in Colorado come with two explicit limitations: the prohibitions against waste and speculation. With regard to waste, a water right may only be used in the amount necessary to accomplish its purposes using reasonably efficient practices. As to speculation, there must be a present demand for the water delivered by the water right –one cannot divert and hoard water, without some immediately apparent need.

The most important, and potentially valuable, attribute of a Colorado water right is its priority. Priority is a function of the prior appropriation doctrine, which is the foundation of Colorado’s water allocation system. Under this doctrine, senior, i.e. older, water rights, divert water to the exclusion of junior, or newer water rights. In times of drought or shortage when there is not enough water available to satisfy all users, any water right holder may “call” the river. If a call is valid, that is there are no other calling downstream senior water rights, the local water commissioner will cut off or “curtail” upstream junior water rights diversions in order to provide water to the calling senior. Calls are enforced by the State Engineer’s Office, which employs the water commissioners and an array of other staff for the purpose of administering water rights.

Last, water rights limit the time, place, and amount of water that may be used pursuant to the right. For instance, a typical irrigation water right may only protect diversion of a specific rate of water (usually measured in cubic feet per second), from a certain point on the stream, during the summer irrigation season, for use only on a particular area or property. These limitations are extremely varied over different water rights, some with very few restrictions and others with many. The common thread among all such limitations is that they are tied to the concept of beneficial use –the actual rate of use will not exceed the carrying capacity of the structure used to divert water, the place of use will be limited to the area where water can actually be delivered, and the time of use will reflect when there is an immediate water demand.

Although water rights and their administration may seem counterintuitive coming from a region of plenty, living and working in the West illuminates the immense value that water rights have in apportioning a scarce resource. Want more information on water rights in Colorado? Check back in to Currents, the Water Sage blog. We’ve got several posts slated for the coming months on topics ranging from water rights management to the latest developments in Colorado water law.