History of Water in the State of Colorado

In Colorado, water is governed by the “Prior Appropriation System”.  This system allocates and controls how much water is used and by whom, the types of uses allowed, and the timing of use. When describing this system, people often state, “first in time, first in right”.  Summarizing how this system works in general: an appropriation is made when water is taken from a stream (or underground aquifer) and used for “beneficial use”. The first person who appropriated water and put it to beneficial use has the first right to continue to use that water within a particular stream system.  A court decree is required to verify priority status.  The first user became the senior water right holder on the stream; that water right must be satisfied before any more junior water rights can be fulfilled.

Beneficial use is commonly defined as agricultural, industrial or household use. Ecological purposes, such as maintaining a natural body of water and the wildlife that depends on it, were not initially deemed as beneficial uses in some Western states but have now been accepted in some jurisdictions.

Most appropriations date back to the 1800s, and the vast majority of water in the West remains allocated to agricultural uses, despite the cries for additional water from growing cities.  The legal details vary from state to state, however in general, water rights are disconnected from land ownership and can be sold or mortgaged as independent property.  When a water right is sold, it retains it’s original appropriation date. Only the amount of water historically consumed can be transferred if a water right is sold.  For example, if alfalfa, corn, or onions are grown using flood or pivot irrigation, only the amount consumed can be transferred; the return flow may not be transferred, only the amount that would be necessary to irrigate the crops historically grown.  A water right must be used to benefit crops for a period of time.

Selling or purchasing a water right requires careful research and analysis.  Our team has the experience and expertise to help you understand your options and meet your objectives. Please contact us to discuss your needs.