This article addresses originating principles of Colorado prior appropriation water law and demonstrates how the Colorado Supreme Court has applied them in significant cases decided during the first decade of the twenty-first century, a sustained period of drought. These principles include public ownership of the water resource wherever it may be found within the state, allocation of available unappropriated surface water and tributary groundwater for appropriation by private and public entities in order of their adjudicated priorities, and the antispeculation and beneficial use limitations that circumscribe the amount and manner of use each water right is subject to. Demonstrating that Colorado water law is based on conservation of the public's water resource and its use by private persons, public entities, federal agencies, and Indian Tribes, the article focuses on the following points. Colorado's prior appropriation doctrine started off recognizing adjudication only of agricultural uses of water. Now it embraces environmental and recreational use, in addition to serving over five million persons, most of who live in urban and suburban areas. The viability of the water law is dependent upon faithful enforcement of water rights in order of their adjudicated priorities when there is not enough water available to serve all needs. At the same time, innovative methods have emerged to ameliorate strict prior appropriation enforcement. Conditional water rights are placeholders in the priority system and should not be decreed in the absence of proof that the water can and will be placed to actual beneficial use in the amount and for the purpose claimed. Unadjudicated water use practices and undecreed enlargements of water rights will not be recognized because they have not been subjected to the water court notice and decree procedure enacted by the General Assembly for the protection of other water rights. The Colorado General Assembly may fashion new conjunctive use management tools for operation of the surface water and tributary groundwater regime consistent with the Colorado Constitution's prior appropriation provisions. Through legislative enactment, sustainability now joins optimum use and protection against injury as goals of the water law.
Gregory J. Hobbs, Jr.,
Reviving the Public Ownership, Antispeculation, and Beneficial Use Moorings of Prior Appropriation Water Law,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol84/iss1/4