Colorado Water Law

Two succinct phrases perhaps best summarize the past and current history of water in the west, and in Colorado in particular:

"Whiskey is fer drinkin'-water is fer fightin'"

Although gold, silver and other minerals have played significant and intense parts in Colorado's history, water, its ownership, distribution and protection, is possibly the most important, long-lived and contentious issue in our state. The range wars and battles between adjoining landowners, settlers, miners and entrepreneurs, more often than not, centered on the ownership and control of water.

"Water flows uphill--towards money."

As in many other human endeavors, those with the most money have an advantage in the struggle to control the flow of water. This is most evident in the ongoing efforts of Colorado's Front Range to supply water to its growing population. Beginning in the early part of the 20th century, and continuing to the present, many projects seek, in one way or another, to transfer abundant Western Slope water to the Front Range. That water will flow "uphill" across (or really under) the Continental Divide to the Front Range as sufficient political and economic power is brought to bear on the problem.

The authors of these aphorisms, if they were every known, are long forgotten, but the wisdom of their words still rings true. As demand for the State's jobs, scenery, resources and lifestyle continues to grow, the question that is asked more and more often is, "Where is the water coming from?"

It is deceptively easy to think only of the water necessary to boil the eggs, run the dishwasher, shower, wash the clothes, irrigate the landscaping and flush the toilet. However, as our population grows, the demand for water seems to increase exponentially. A new home does not just add a new shower, it may also add steam showers, saunas, multi-head showers the size of a small bathroom, and bathtubs the size of stock tanks. After you leave the house in the morning, it takes water to operate the gas station where you stop to fill up (restrooms, food service, carwash, windshield service). The coffee shop you use for the morning "jolt" uses water not only for the various drinks, but, again, for restrooms, cleaning, etc. Even if the office in which you work does no more than supply a break room and bathrooms for the employees, a lot of water is consumed every day. The grocery store you visit on the way home consumes huge amounts of water in its operation, and, of course, the farms and ranches that provide the food in that grocery store need a great deal of water to supply the meat and produce you consume. According to the Colorado River Water Users Association, municipalities represent just under 7% percent of the state's total water consumption. Agriculture uses over 86% of our water, and business, industry and, increasingly, recreation (e.g., snowmaking) account for the remaining 7 percent of water consumed in the state. Tourism and recreation have grown steadily in Colorado and is now the state's second largest industry. Much of that growth is attributable to increases in outdoor pursuits, including skiing, fishing, hiking and rafting. Downhill skiing alone contributes $2.5 billion to the state's economy. Accordingly, free flowing rivers and streams and additional wintertime water supplies for snowmaking are under increasing demand.

It would appear at first glance that water will become the sine qua non of continued growth and prosperity in Colorado. Subdivisions will not be built (or should not be built) in the absence of an assured supply of water. New industry will have to demonstrate how, and at what cost, its water needs will be met. Politicians that promise unending growth and affluence must be challenged to tell us where the water will come from to fuel that kind of growth.

However logical this may seem, it may also be inaccurate. "The relationship of water and growth in the modern West is often misunderstood. Historically, it has been assumed that water development was a necessary precursor to growth and, similarly, that a lack of water development could act as a deterrent to growth. While these premises may have been true at one time, recent experience in Colorado and other western states shows both ideas are now unsupportable (sic). To the contrary, many of the regions showing the highest rates of growth in the West--from Douglas County, Colorado to Las Vegas, Nevada--show the opposite trend; growth is actually highest in some of the driest regions. Similarly, the veto of the proposed Two Forks dam on the Front Range by the Environmental Protection Agency in 1990 certainly did not deter growth in the Denver-Metro area." Peter D. Nichols et al., Summary Report: Water and Growth in Colorado, UNIV. OF COLO., NRLC, 1 (2001). (emphasis added)

As you can see, lack of water has not necessarily acted as a curb to growth, at least without additional controls or requirements imposed by governmental entities.

(NOTE 1: The terms "he", "she", "his", "hers", etc., are used interchangeably throughout the course, and have no meaning beyond a gender-neutral indication of the person being described. Also, whenever the term "Court" is used, the reference is to the Colorado Supreme Court, unless the context or the language specifically indicates otherwise. References to C.R.S. are to Colorado Revised Statutes, the laws of the State of Colorado. These can be found online)

(NOTE 2: You may see a familiar pattern. First, the basic concepts or rules of the issue under discussion are outlined. Exceptions, things to look out for, or other relevant matters are mentioned. Finally, the student will be cautioned that the issue is more complex than it might appear from the discussion, and is encouraged to seek counsel with expertise in water law and administration, and/or to recommend such counsel to his/her client. While a certain amount of such advice is to be expected in any course dealing with legal issues presented to non-lawyers, it is particularly appropriate in the water law setting. The purpose of the course is to provide the real estate professional with a better understanding of how water law works in Colorado in order that he/she can spot potential concerns and, at the very least, direct the client toward the person(s) that can investigate and solve or avoid the problem. It is not intended to replace competent legal counsel, but neither is it intended as a "feeder" to push new clients to hire water lawyers. Many professionals (especially lawyers and real estate agents) have found themselves in trouble by thinking they have the knowledge or expertise to handle an issue, only to find that a little knowledge is a dangerous thing. The most astute and successful agents/brokers are those with a broad range of knowledge of their profession and the various things that impact a transaction (price, location, competition, financing, zoning, water, Esc,), who use that knowledge to recognize areas in which a specialist is necessary, and are not reluctant to suggest or bring in the specialist.

One of the most important and famous cases in Colorado water law is Coffin v Left Hand Ditch Co., (6 Colo. 443) in which the court set forth the basis for Colorado water law. Ruling on this case in 1882, the Court said:

"We conclude, then, that the common law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable in Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. And we hold that, in the absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has, with the qualifications contained in the constitution, a prior right thereto, to the extent of appropriation."

One way to remember this is that the Coffin case was the "coffin" for the riparian doctrine in Colorado. It was the judicial declaration of the "Colorado Doctrine" relating to water law.

The foundation of Colorado water law is language found in the Colorado Constitution of 1876, which states, in Article XVI:

"Sec. 5. The water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided.

Sec. 6. The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes.

Sec. 7. All persons and corporations shall have the right of way across public, private and corporate lands for the construction of ditches, canals and flumes, for the purpose of conveying water for domestic purposes for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation."

Unappropriated water belongs to the public, is available for appropriation for beneficial uses, and if necessary, rights-of way for ditches, canals and flumes for the purpose of conveying the water to the place of use can be condemned so long as just compensation is paid. From those few words have sprung thousands upon thousands of lawsuits, laws, regulations, etc., and probably millions of pages of discussion, analysis, legal opinions, rulings by water courts and the Colorado Supreme Court.

Written and Published by: VanEd



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