Colorado Doctrine:

 4 essential principles of Colorado water law

o All surface and groundwater in Colorado is a public resource for beneficial use by public
agencies, private persons, and entities
o A water right is a right to use a portion of the public’s water resources
o Water rights owners may use streams and aquifers for the transportation and storage of
water
o Water rights owners can build facilities on the private lands of others to divert, extract
or move water from a stream or aquifer to its place of use, with consent of the
landowners or upon payment of just compensation
 Terms
o Adjudication
 Legal procedure by which water users can obtain a court decree for their water
rights
o Decree
 Results from Adjudication and confirms the priority date of the water right, its
source of supply, point of diversion or storage, and the amount, type, and place
of use.
 Includes conditions to protect against material injury to other water rights
o Usufructuary
 Having the right to use a resource without actually owning it
 Because ownership of the water resource always remains in the public
under Colorado’s Constitution
o Water Need
 A combination of the amount required to move water to the place where it will
be used and the amount required by the actual use
o Over appropriation
 Not enough water available t fill new appropriations without causing material
injury to existing water rights
 Can be for a watershed, stream segment, or aquifer
o Legal constraints
 Refer to the amount of water already place to use by senior water rights within
Colorado and further constrained by the amount of water Colorado must allow
to flow out of the state to fulfill interstate water compacts or U.S. Supreme
Court equitable apportionment decrees
o Instream Flows and Natural Lake Levels
 The flows or lake levels needed to preserve or improve the natural environment
to a reasonable degree
o Water Conservation District
 Local government agencies originally created to construct, pay for, and operate
water projects
  A local policy-making body that the Colorado General Assembly created directly
by statute to protect and develop the waters to which Colorado is entitled in
specific regions of the state
o Irrigation District
 A public corporation formed under Colorado law to facilitate the development
of irrigation and drainage projects
 Have taxing authority over the irrigable lands within the district in order to carry
out their functions

 Tributary Groundwater
o 3 basic ways of interaction between streams and tributary groundwater
 Streams gain water from inflows of groundwater
 Streams lose water to aquifers via outflows from the stream
 Streams do both by gaining water from aquifers in some reaches and losing it to
aquifers in other reaches
o Connected to a natural stream system through either surface or underground flows and
is recharged from precipitation, seasonal snowmelt, and irrigation return flows
 Geothermal groundwater
o Another classification of groundwater
o Can be tributary or nontributary and is regulated by the Geothermal Resources Act and
administered by the Colorado Division of Water Resources
 Colorado Division of Water Resources is also known as the State Engineer’s
Office
 Designated Groundwater
o Groundwater which in its natural course would not be available to and required for the
fulfillment of decreed surface rights
o Also includes groundwater in areas not adjacent to a continuously flowing stream
wherein groundwater withdrawals have constituted the principal water usage for at
least 15 years prior to initiation of a designated basin
 Nontributary Groundwater
o Water outside of a designated groundwater basin, the pumping of which will not
materially impact a surface stream in 100 years at a rate greater than 0.1 percent of the
annual rate of withdrawal
 Prior appropriation water rights
o Two basic types
 Direct rights
 Takes water directly from the stream or aquifer by a ditch or well to its
place of use
 Storage Rights
 Puts water into a reservoir for later use
 Colorado Water Conservation Board (CWCB)
o Holds instream flow rights on more than 9,700 miles of Colorado streams and 480 lakes
o Non consumptive water rights
o Only entity permitted under state law to make instream flow appropriations
 o Responsible for flood mitigation, watershed protection, water supply planning, stream
restoration, drought planning, water supply planning, and work on the Colorado Water
Plan, water project financing, and protecting Colorado’s streams and lakes
o Certain interstate compact responsibilities on the Colorado River and Arkansas River in
addition to assisting the Colorado Division of Water Resource son the other interstate
compacts
 Colorado Water Quality Control Commission (WQCC)
o The governmental board responsible for developing state water quality policies and
regulations for the surface and groundwater of the state
o Classifies all of Colorado’s streams, lakes, and aquifers for designated uses, including
aquatic life, drinking water, agriculture, and recreation
o Adopts numeric and narrative standards and other regulations to protect those uses
o Has the authority to prescribe and enforce water quality standards, but is prohibited by
state statute from requiring instream flows
 Water Quality Control Division (WQCD)
o Located in the CDPHE
o Responsible for implementing the state water quality statues and the WQCC’s rules
 Issues permits for discharges of pollutants into streams, certifies that federally
issued permits will protect Colorado water quality, evaluates proposals for new
or expanded wastewater treatment plants, and administers a non-point source
pollution control program.
 EPA
o Must approve the WQCC’s water quality classifications and standards
o Has the authority to step in and enforce state-issued permits if the WQCD does not do
so
 Water Rights
o When creating water rights, Colorado law distinguishes between (1) waters of the
natural stream, which includes surface water and tributary groundwater; and (2) other
groundwater, which includes designated groundwater, nontributary groundwater, and
Denver Basin groundwater.
 Obtain a decree for a water right
o There are 13 steps that a water user will generally follow
o Pg 14 of Water Education Colorado Text
 Types of Decrees and Water Rights
o Absolute Decree
 A water course decree recognizing that a water right has been perfected, or
made real, by placing previously unappropriated water to a beneficial use
o Agricultural Water Protection Water Right
 A unique type of water right that allows the owner of a decreed irrigation water
right to undergo a change of water rights proceeding to obtain a Agricultural
Water Protection Water Right (AWPWR) decree. After this change is decreed,
the owner of the AWPWR may lease, loan, or trade up to 50 percent of the
decreed historical consumptive use to a new place or type of use through a
Substitute Water Supply Plan
  A AWPWR proceeding is only available in Water Divisions 1 or 2
o Augmentation Decree
 A water court decree that allows a water user to divert out of priority by
replacing water depletions made to the stream system that otherwise would
cause injury to senior rights
o Change of Water Rights Decree
 A water court decree that allows an existing water right to be changed for a
different use, different point of diversion, different place of use, or other change
of the existing decree while retaining the senior priority of the original water
right. The changed use is limited to the beneficial historical consumptive use of
the original water right based on a representative time period.
 The changed use is limited t the beneficial historical consumptive use of the
original water right based on a representative time period. Change decrees also
usually include terms to maintain the historical return flow patterns of the
original use, and other conditions necessary to prevent enlargement of the
water right or injury to other water rights
 Junior water rights are entitled to the maintenance of the streamflow conditions
at the time the junior right was appropriated
o Conditional Decree
 A water court decree recognizing a priority date for a newly proposed
appropriation for a water project or use that has not yet been completed.
 The applicant for a conditional decree must show that there is unappropriated
water available and must have a plan to divert, store, or otherwise capture,
possess, and control the water. To continue to hold a conditional decree, the
potential water user must periodically prove to the water court diligent progress
toward putting the water to beneficial use.
 A holder of a conditional decree must show diligence every six years after
issuance of the original conditional decree or issuance of the most diligence
decree. A conditional water right becomes “absolute” when the water is actually
placed to beneficial use.
o Direct Flow Right
 A water right that diverts from the surface stream or groundwater for
direct(contemporaneous) application to beneficial use. It is expressed in cfs of
flow.
o Exchange Decree
 A water court decision that allows an upstream diverter to take the water that
would usually flow to a downstream diverter. The upstream diverter must
provide the downstream diverter with a suitable replacement supply of water in
amount, time, and quality from another source.
o Federal Reserved Right
 A right to water that normally carries an appropriation date a of the date of a
formal federal reservation of land.
 May also be created by implication, meaning that even if such rights were not
named explicitly, Congress implied that it was necessary to reserve water rights
 for present or future use on federal lands so as not to defeat the purposes for
which the federal reservation of land was made.
 Diligence requirements are not applicable
 Subject to quantification in federal court or state court proceedings
 Have ben decreed for tribal reservations, national parks, forests, and
monuments
o Instream Flow Right
 A non-diversionary water right held by the Colorado Water Conservation Board
to preserve or improve the water-dependent natural environment.
o Recreational In-Channel Diversion Right
 A water right held by a local government entity for structures that control the
flow of water for rafting and kayaking.
o Storage Right
 A right to impound a specified number of acre feet of water for subsequent use.
Often a rate of fill or refill is included in the decree.
 Exchanges
o 4 critical requirements for a water exchange
 The source of substitute water supply must be upstream of the senior diversion
calling the water
 The substitute water supply must be equivalent in amount and of suitable
quality for the downstream senior
 There must be available natural flow in the exchange reach
 The water rights of others cannot be injured when implementing the exchange
 Groundwater Wells
o 4 categories of groundwater wells
 Exempt wells
 Those that are exempt from water rights administration under the
priority system
 Non-exempt wells
 Those that are governed by the priority system
 Wells in designated groundwater basins governed by the Colorado Ground
Water Commission
 Nontributary and Denver basin groundwater wells
 Colorado-Big Thompson Project
o Provides more than 200,000 acre-feet of water annually for some 600,000 acres of
farmland and more than 1 million residents across 33 municipalities in northeastern
Colorado
 Fryingpan-Arkansas Project
o Supplies water to farmers and cities primarily in the Arkansas River Basin
o Diverts an average of 69,000 acre-feet of project water from the West Slope annually
o Combined with native Arkansas River water, provides an average annual water supply of
80,400 acre-feet for both municipal/domestic use and the irrigation of 280,600 acres
 Colorado Water Constraints
o Two constraints
  Water use within the state is the amount of rainfall and snowfall that occurs
each year
 Colorado has obligations to limit its uses and deliver water to downstream
states under interstate water compacts and U.S. Supreme Court equitable
apportionment decrees
o Meeting these obligations can be viewed as Colorado’s top water right administrative
priority
 Compact Clause of the U.S. Constitution
o Allows states to fix their allocations in perpetuity by contact, with congressional
approval
 An interstate compact is both state and federal law
 Promotes long-term planning and reliability and diminishes the rush to develop
water as soon as possible
 Colorado River Compact of 1922
o Divides the water of the Colorado River
 Divided up to 15 million acre-feet of consumptive use water between the upper
and lower basins as measured at Lee Ferry, just downstream of Lake Powell
 7.5 million acre-feet per year to the lower basin and 7.5 million acre-
feet to the upper basin.