In Colorado, all water in or tributary to natural surface streams have always been and are declared to be the property of the public, dedicated to the use of the people of the state, subject to appropriation and use. Appropriation is considered to be the application of a specified portion of the waters of the state to a beneficial use pursuant to procedures prescribed by law, and beneficial use is considered to be the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made. Unlike the riparian doctrine, a land owner does not have to have a natural water course running through their property to obtain a right to the water in said water course. In Colorado, the use of water is governed by what is known as the “Prior Appropriation System”. A simplified way to explain this system is often referred to as “first in time, first in right”. In many drainage basins within the state, such as the Arkansas River basin, one must own a water right that is in priority in order to divert water, while in other parts of the state (such as the White River basin) water is typically available for appropriation and thus water may be diverted absent a water right. However, the right to divert water from a stream system can only be secured by applying for and obtaining a decree for a water right from the Division Water Court.
A water right decree establishes the location of diversion points; the source of the water (stream system); the amount of water that can be diverted or stored; the type and place of use; and the priority. The priority is based on when an application is filed with the Water Court (also known as the adjudication date) and the appropriation date, which is the date an intent to divert and use water is formed, accompanied by some open physical demonstration of the intent. The first water right decreed on a stream system has the first right of use of available water, up to the decreed amount. All subsequent water rights are given priorities to establish the order in which water can be diverted; hence the expression, first in time, first in right. During periods of high flow, there is generally sufficient water available for all users. As stream flows drop at the end of the run-off season, junior water rights are curtailed to satisfy the senior rights provided a call is made by a senior water right holder. There may be times however when there is not sufficient water available even for senior water rights.
Types of Water Court Decrees
There are three basic types of Water Court decrees:
- Surface Water Rights (springs and streams);
- Water Storage Rights (ponds and reservoirs);
- Underground Water Rights (wells).
Each of these water rights requires an application along with a filing fee, to be submitted to the Water Court. A change in water right application also has a filing fee. The Office of the Division Engineer can provide some assistance in completing water right applications, as do water attorneys. Following the date of the application, for approximately two months, there is an established process for verifying the accuracy of the application and providing publication of the application in local newspapers, during which time other persons may file opposition to the claim. The Division Engineer is required to make a recommendation to the Water Court concerning the water right claims. Depending on the recommendations, the Water Court may enter a decree or require the applicant to address any concerns outlined in the Division Engineer’s report to the Court prior to entering a decree.
Common reasons for denial of water decrees are:
- Incomplete applications
- There would be injury to other vested water rights if awarded
Water Ditches and Easements
When purchasing land with existing ditches, the owner(s) of the water right(s) decreed to the ditch has(have) the right and duty to use and maintain their ditch across your property. Adequate head gates and measuring devices are required to allow flows from the stream system to be controlled and measured. Water right owners are required to keep their ditches in good repair to prevent unnecessary flooding and the wasting of water. Owners also have a duty to divert only the amount of water needed for the decreed uses. If you do not own shares/rights in the ditch on your property, you do not have the right to use, withdraw or impede the flow of water in the ditch. This is not to say you may not initiate an appropriation of water by utilizing the ditch; however, approval from the existing owners of the ditch should be obtained first.
There are three basic classifications of ponds/reservoirs that can be built: livestock tanks, on-jurisdictional water impoundments and jurisdictional sized dams.
Livestock water tanks must be located on drainages that are dry 80% of the year and are governed by the Livestock Water Tank Act. These types of structures are not decreed or approved by the Water Court; rather they are approved by the Division Engineer’s Office. The Natural Resource Conversation Service (NRCS) can provide cost–share assistance in the design and construction of these dams.
Non-jurisdictional Water Impoundments include any dam to be constructed to the height of ten feet or less measured vertically from the elevation of the lowest point of the natural surface of the ground where that point occurs along the longitudinal centerline of the dam up to the crest of the emergency spillway; impounds less than 100 acre feet; and has a surface area at the high water line of less than 20 acres. Prior to constructing a non-jurisdictional dam, a Notice of Intent to Construct must be approved by the Division Engineer.
Jurisdictional sized dams are any dams constructed or to be constructed which exceed any of the limits described above for non-jurisdictional impoundments. The construction of these dams requires plans and specifications prepared by an Engineer, be approved by the State Engineer.
The primary responsibility for maintaining a safe dam rests with the owner. State statute places liability for damages on the owner if the dam fails.
A permit is required prior to the construction of a new well, replacement of an existing well, change or increase in use of a well, or change in source for the well, for example drilling deeper. Well permits are also required if groundwater is intercepted while constructing an off-channel pond. Application forms and assistance can be obtained from the Division Engineer’s Office. There are two basic types of well permit applications: General Purpose (non-exempt) and Residential (exempt). To determine which application should be used, it is recommended that the Division Engineer’s Office be contacted. The distinction between non-exempt and exempt wells are that exempt wells are exempt from administration while non-exempt wells are not.
Additional resources available:
Irrigation Ditches and their Operation. CSU Extension Factsheet 6.701
Private Wells for Home Use. CSU Extension Factsheet 6.700
For additional information or for help, contact:
Colorado Division of Water Resources, Division 6
505 Anglers Drive, Suite 101 (physical)
P.O. Box 773450, 80477 (mailing)
Steamboat Springs, CO 80487
Fax: (970) 879-1070