The Doctrine of Prior Appropriation governs surface water in most of the western states where water is scarce. It is very different from the Riparian Doctrine used in the eastern states where water is more plentiful. The standard dictionary definition of appropriate is to "take for one’s own use or to set aside for some special use". (Webster’s) It means the same thing in water law. The Doctrine of Prior Appropriation allocates water based on use and chronological priority.

Colorado surface water law is a system of administered water rights. There are four fundamental tenets to remember.

• Own the use of the water, not the drops of water (beneficial use)

• First in time, first in line (priority)

• No injury to existing water rights

• Use it or lose it

Sometimes it’s hard to get a real feeling for abstract terms. Try the following hypothetical.

Farmer John wants to take water out of Babbling Brook ("*diversion") and use it on his farm. Back East, John would need to have property bordering the stream. In Colorado, John does not need to own property along the banks of Babbling Brook. He needs the right to use water taken from Babbling Brook. John must file his claim for a water right with a Colorado water court.

John must specify how he intends to use the water and how much he reasonably needs to use. (*Beneficial use) He must also say when he will use the water. (If John claims water to irrigate cantaloupe, he might have a hard time showing why he needs to pour it on an unplanted, frozen field in January) Since John can not own the water, he must allow any unused water that runs off his fields to return to Babbling Brook.

Other people already have rights to use water from Babbling Brook. John must show that there is unused water available for him to claim. Other water rights owners may step up and say " Hold on, court. There’s not enough water available." Or "Hey, that’s not really a beneficial use." John must work it out with the objectors in order to get his right. If the court grants his decree, his right will be final (absolute) when he actually uses the water.

John’s right to use the water will be dated. The date that the right is granted is its priority date. The older the right the more senior the right. If there is not enough water for every one on a stream, only the senior rights are filled. ("First in time, first in line.")

John’s right will be junior to everyone who already had a right when he got his. John’s right will be senior to everyone who gets a right after his is established. John’s water right will be ranked by when he got it, not by where he got it. If someone gets a right later, even if they are above him on the stream, John gets to take his water before the newer upstream right.

John’s priority date will protect his right to use the water. All established water rights, juniors as well as seniors, are protected from injury. Suppose Fred, another farmer with an old, old water right decides to stop irrigating crops, build a subdivision, make a bunch of money, and retire to Florida. Since Fred’s right is a right to use water according to the terms of his decree, Fred will have to go to water court and ask for a change of use. John may object, even if his right is junior to Fred’s. Fred’s use can not harm (materially injure) John’s use.

To keep his right, John must continue to use the water. If he intentionally does not use the water, he can lose the right to use it.

In Colorado a water right is a legal right to use water. (Beneficial use) The water right owner does not own the drops of water. (S)he owns the right to use water for a specific purpose and only for that purpose. Beneficial use is not left to the whim of the person seeking the right. There are identified legal beneficial uses. Beneficial uses include domestic, municipal, agricultural, industrial, recreational and environmental.

In Colorado, a person seeking a water right can not simply get a permit. (S)he must go to a water court. The court verifies that the proposed use is ok and determines the priority. The right will be for only the amount necessary for the use claimed under the terms and conditions specified in the water court decree that establishes the right. Unused water must be allowed to return to the stream (return flow) where it may be used by the next appropriator. The right becomes final when the water is actually used.

Under most circumstances, "use" means to take water out of the stream and do something with it. Under a few specific circumstances water may be beneficially used in the stream channel. For example, a hydroelectric facility may obtain rights to use water in the stream channel to generate electricity. The water is controlled in the stream by structures.

Environmental in stream rights are more limited. Colorado’s Instream Flow Law (ISF) was passed by the legislature in 1973 and has been amended several times. The law establishes that water kept in the stream for environmental protection or improvement is a beneficial use. Instream flow is the only beneficial use that does not require diversion. Only the state itself may hold an instream flow right.

The legislature has recently passed specific laws governing recreational in-channel use (Recreational In-Channel Diversions or RICDs). Only governmental entities may own recreational in-channel rights.

Did you note there are a few rights missing? Aesthetic preservation is not a beneficial use. A river can not own a water right. The fish in the river can not own a water right. If the legal exercise of water rights dries up the stream, the fish die. What if you wanted to buy water for a stream or for the fish? Sorry. Individuals can not obtain private water rights for the river. If you had a billion dollars to spend and you wanted to purchase water rights to protect your favorite trout stream, you could not do so.

While the law says that water can not be wasted, waste doesn’t always mean what we might think. There is an oft told joke of a man staring pensively at a river flowing past his property and saying, "Look at all that unused water just going to waste."

Key terms (see Dictionary of Basic Water Terms):

Appropriation, Water right, Diversion, Beneficial use, Return Flow, Priority, No Injury.