Water in a stream belongs to the public. Individuals, corporations, municipalities and others can take that water and put it to a beneficial use and establish a right to the water they need. This is a water right. Water rights are a property right, although the property is the right to use the water, not the water itself. This is what is known as a usufructuary right, the right to use the property of another without damage or diminishing it. As such it is a right that can be taken away if used improperly.
A water right is obtained by either putting water to a direct beneficial use, or by notifying the Courts that you plan to do so. Commonly a water right is obtained by direct diversion from a stream. A properly decreed water right has several important elements.
•Appropriation date– Perhaps the most important element is the priority date. This is established when water was first put to beneficial use or applied for in water court.
•Decree – The court finding establishing a legal water right, setting the appropriation date, amount, point of diversion, place and type of use, time of year water can be taken.
•Absolute Right – is a perfected “wet” water right where the water is actually being put to beneficial use.
•Conditional Right – This is a right for water that is to be applied to a beneficial use in the future. Obtaining a conditional right holds an appropriation date “place marker” until the right is perfected and made absolute.
•Due Diligence – proof that work is being done to perfect a conditional right. Conditional rights holders have to come to the Water Court every six years and show what they are doing to develop and perfect that right.
When there is a shortage of available water the system of prior appropriation kicks in. Those with senior, older rights have their needs filled first.
•Calls – when there isn’t enough water a senior right, one that was there first, calls out those rights that came later in tie, the junior rights, forcing them to curtail or even stop diverting. A junior right can continue diverting with augmentation.
Augmentation – Replacement water allowing a junior user to divert out of priority, as long as replacement water meets the needs of senior rights at the time, quantity, place and quality they would have without the diversion.
Storage – the right to impound water, in priority or with augmentation, exchange or substitution, for later use.
Other considerations and aspects of a water right
Direct flow rights are measured in cubic feet per second (cfs), one cubic foot is about the same volume as a basketball.
Storage rights are measured in volume by acre feet (enough water to cover one acre one foot deep; 325,829 gallons). One acre foot is enough water for two average families annually.
Consumptive use and Return Flows – amount of water actually “consumed” and that water returned to the stream. Consumed water is the difference between amount diverted and amount returned. Junior rights downstream have a legal right to Return Flows (but not “Waste Water”) and can not be injured by any change in a senior right above. Trans Basin water is 100% consumptive.
Use it or Lose it – A junior right may claim all or part of a more senior right that is not being put to “beneficial use”.
Abandonment – If decreed water is not used it can be declared abandoned by the Court. Every ten years the Court compiles an abandonment list based on records from the State Engineers office. Abandonment also requires that there be a clear intent to abandon the water right. When water is declared abandoned it simply returns to the stream. As an existing right it cannot be “snatched up” by others. The water returned to the stream can be subject to a new appropriation.
A water right is required for any water use in Colorado, even for a well, a spring and decorative fish ponds in landscaping. It is still illegal, except in certain cases, to collect rain water.