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Colorado Water Law Resolution to Restore Pre-Existing Water Law
The Restoration of Pre-existing Water Law
C.R.S. 37-92-102 Legislative declaration basic tenets of Colorado Water Law
Whereas, the State of Colorado Constitution guarantees the protection of life and property, and
Whereas Water Rights are property rights, and
Whereas Water is essential to sustain life, and
Whereas the Colorado State legislature has enacted laws to protect property owners in Water Rights, and
Whereas to prevent breaches of the peace by preventing theft of property through unlawful diversion and conversion of water rights, and
Whereas the Governor and State Engineer are charged to administer Water Rights in Prior Appropriation
Whereas failure to do so violates the State Constitution and is a clear threat to the lives and property of Coloradans,
Therefore, be it resolved that the Governor and State Water Engineer –
Shall: Enforce State Water-law as strictly guaranteed by the Constitution in Prior Appropriation allowing supplementation of senior surface Water Rights by use of pre-1969 supplemental wells up to their full appropriation amounts prior to allowing junior owners to pump and divert their Water Rights.
PRE-EXISTING WATER LAW
C.R.S. 37-92-102 Legislative declaration basic tenets of Colorado Water Law
(2) Recognizing that previous and existing laws have given inadequate attention to the development and use of underground waters of the state, that the use of underground waters as an independent source or in conjunction with surface waters is necessary to the present and future welfare of the people of this state, and that the future welfare of the state depends upon a sound and flexible integrated use of all waters of the state, it is hereby declared to be the further policy of the state of Colorado that, in the determination of water rights, uses, and administration of Water, the following principles shall apply:
- (a) Water Rights and uses vested prior to June 7, 1969, in any person by virtue of previous or existing laws, including an appropriation from a well, shall be protected subject to the provisions of this article.
(b) The existing use of groundwater, either independently or in conjunction with surface rights, shall be recognized to the fullest extent possible, subject to the preservation of other existing vested rights, but, at his own point of diversion on a natural watercourse, each diverter must establish some reasonable means of effectuating his diversion. He is not entitled to command the whole flow of the stream merely to facilitate his taking the fraction of the whole flow to which he is entitled.
(c) The use of groundwater may be considered as an alternate or *supplemental source of supply for surface decrees entered prior to June 7, 1969, taking into consideration both previous usage and the necessity to protect the vested rights of others.
(d) No reduction of any lawful diversion because of the operation of the priority system shall be permitted unless such reduction would increase the amount of water available to and required by water rights having senior priorities.”
*Supplemental -well drilled prior to 1969 will have the same priority date as the original surface appropriation and can be used to supplement the surface allotment quantity only up to the appropriated amount of the original surface appropriation. Any Water pumped above the total original surface appropriation amount will only have a priority of the date upon which the well was drilled and put to beneficial use. This was the intent of the State legislature as expressed in this Statute.
*First in time, first in right. An appropriation is made when an individual physically takes Water from a stream (or underground aquifer) and places that Water to some type of beneficial use (could be to the mouth of a cow). The first person to appropriate Water and apply that Water to use has the first right to use that Water within a particular stream system. This person (after receiving their date of Appropriation and Allotment Quantity and maybe a court decree – Adjudication – verifying their priority status) then becomes the senior Water Right holder on the stream, and that Water Right must be satisfied before any other Water Rights can be fulfilled.
*Priority date: “previous, existing, pre-existing, valid, vested and senior Water rights.” and amount (Allotment Quantity) of surface and groundwater connected – not separate.
The appropriation date of a Water right is the earliest date on which the applicant can demonstrate the initiation of the appropriation and applies to surface and groundwater (conjunctive use) tributary to a surface stream. Surface water and groundwater are connected.
*Allotment Quantity: Assume three water-users exist on a stream system with adjudicated water rights totaling 5 cfs (cubic feet per second). The user with the earliest priority date has a decree for 2 cfs, the second priority has a decree for 2 cfs, and the third priority right has a decree for 1 cfs of water. When the stream is carrying 5 cfs of water or more, all of the rights on this stream can be fulfilled. However, if the stream is carrying only 3 cfs of water, its priority number 3 will not receive any water, with priority number 2 receiving only half of its 2 cfs right. Priority number 1 will receive its full amount of 2 cfs under this scenario.
This process of allocating water to various water users is traditionally referred to as “Water Rights Administration,” and is the responsibility of the Division of Water Resources.
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Consumptive Use: Consumptive Use is later based on the amount a Water Right Owner uses on their crop/stock etc. Consumptive Use is ever flexible, as Owner rotates crops, lessens or increases stock numbers etc.