appropriation doctrine in Colorado

2025Thus, augmentation plans offer a method by which to "implement a policy of maximum flexibility" while also "protect[ing] the constitutional doctrine of prior appropriation." Empire Lodge , 39 P.3d at 1150. 32 ¶52 Given the distinct purposes of the anti-speculation doctrine and augmentation plans, applying the anti-speculation doctrine to applications for such plans (or amendments thereto) would make no sense.

2025Thus, the statutory scheme governing augmentation plans tolerates some degree of uncertainty in the future operation of the plan to "implement a policy of maximum flexibility that also protect[s] the constitutional doctrine of prior appropriation." Empire Lodge , 39 P.3d at 1150. ¶58 Indeed, a water court decree approving an augmentation plan represents no more than a " prediction of how the plan can operate" to permit out-of-priority diversions "without causing injury to existing water rights." Well Augmentation Subdistrict of Cent.

2015T 47 Specifically, when the General Assembly enacted the Management Act, it affirmed that the prior appropriation doctrine applies to designated ground water, and it directed the Commission to protect senior appropriators of ground water. §§ 37-90-102(1), 37-90-111(1)(a); Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489 , 575 P.2d 372, 381 (1978).

2015Such a ruling would be inconsistent with the legislature’s declared policy with respect to designated ground water. ¶47 Specifically, when the General Assembly enacted the Management Act, it affirmed that the prior appropriation doctrine applies to designated ground water, and it directed the Commission to protect senior appropriators of ground water. §§ 37-90-102(1), 37-90-111(1)(a); Thompson v. Colo. Ground Water Comm’n, 575 P.2d 372, 381 (Colo. 1978).

2011See, e.g., Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (1882) (noting that the territorial legislature in 1864 recognized the doctrine of prior appropriation).

2011See, e.g., Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (1882) (noting that the territorial legislature in 1864 recognized the doctrine of prior appropriation).

2015The legislature also recognized, however, that the doctrine “should be modified to permit the full economic development of designated groundwater resources.” § 37-90-102(1); accord Goss, 993 P.2d at 1183 ; Thompson, 575 P.2d at 381 . ¶48 The legislature thus rejected a pure appropriation doctrine for designated ground water because, whereas surface streams “are subject to seasonal recharge,” water can be “mined” from an aquifer to the point that it could take many years to restore the water level.

2009Thus, in designated groundwater areas, "Iwlell users are not entitled to command the aquifer through a diversion that prevents other permittees from enjoying reasonable use of the ground water resource that is being depleted." Goss, 993 P.2d at 1189 ; see Danielson v. Kerbs Ag., Inc., 646 P.2d 363, 370-71 (Colo.1982) ("Unlike the appropriation doctrine as applied to a natural stream, where appropriation of water is permitted so long as there is water in the stream, the doctrine is also modified when applied to designated ground water to insure that no more than a reasonable depletion, as deter

2017Sportsmen’s Ranch LLP v. Bargas, 986 P.2d 262, 265 (Colo. 1999) (“In Colorado, ground water that is hydrologically connected to a surface stream is generally considered ‘tributary’ and is subject to the constitutional doctrine of prior appropriation.”); see also § 37-90-103(10.5) (defining non-tributary groundwater based on the rate at which the groundwater will affect surface waters).

2002Owners Ass'n, 956 P.2d 1260, 1268 (Colo.1998) (stating that water is a public resource and the "right to use nontributary ground water outside of a designated basin is purely a function of statute and landowners do not have an absolute right to ownership of water underneath their land"); Park County Sportsmen's Ranch v. Bargas, 986 P.2d 262, 275 (Colo.1999) (holding that ground water beneath lands in South Park is tributary and is subject to the doctrine of prior appropriation).

2009Thus, in designated groundwater areas, "Iwlell users are not entitled to command the aquifer through a diversion that prevents other permittees from enjoying reasonable use of the ground water resource that is being depleted." Goss, 993 P.2d at 1189 ; see Danielson v. Kerbs Ag., Inc., 646 P.2d 363, 370-71 (Colo.1982) ("Unlike the appropriation doctrine as applied to a natural stream, where appropriation of water is permitted so long as there is water in the stream, the doctrine is also modified when applied to designated ground water to insure that no more than a reasonable depletion, as deter

1987In Danielson v. Kerbs Ag., Inc., 646 P.2d 363, 370 (1982), this court recognized that the legislature “modified” the appropriation doctrine as applied to designated ground water in order to accommodate the important differences between surface water and designated ground water.

2015Owners Ass’n v. Simpson, 990 P.2d 46 , 53–54 (Colo. 1999), “one does not ‘own’ water but owns the right to use water within the limitations of the prior appropriation doctrine,” Kobobel, 249 P.3d at 1134 (emphasis added); see also maj. op. ¶ 14. ¶38        Given the demand for water, there is no guarantee that sufficient water will be available to satisfy all claims to this scarce resource.

2015Owners Ass'n v. Simpson, 990 P.2d 46, 53-54 (Colo.1999), "one does not 'own' water but owns the right to use water within the limitations of the prior appropriation doctrine," Kobobel, 249 P.3d at 1134 (emphasis added); see also maj. op. ¶ 14. 138 Given the demand for water, there is no guarantee that sufficient water will be available to satisfy all claims to this searce resource.

2011Ditch Co., 1 Colo.App. 49 , 57, 27 P. 235, 237-38 (1891). *1138 The 1969 Act's language stating that water rights vested prior to 1969 "shall be protected subject to the provisions of this article," does not alter the fact that the well owners' water rights have always been subject to the prior appropriation doctrine enshrined in article XVI, sections 5 and 6 of the Colorado Constitution.

2011Ditch Co., 1 Colo.App. 49 , 57, 27 P. 235, 237-38 (1891). *1138 The 1969 Act's language stating that water rights vested prior to 1969 "shall be protected subject to the provisions of this article," does not alter the fact that the well owners' water rights have always been subject to the prior appropriation doctrine enshrined in article XVI, sections 5 and 6 of the Colorado Constitution.

2009See § 37-90-1021), C.R.8.2009 ("Prior appropriations of ground water should be protected and reasonable ground water pumping levels maintained, but not to include the maintenance of historical water levels."); § 87-90-111(1)(a), C.R.S.2009 (providing that a prior designated groundwater appropriator is not entitled to maintenance of the historic water level, or any other level below which water still can be economically extracted when the total economic pattern of the particular designated groundwater basin is considered); Gallegos v. Colorado Ground Water Comm'n, 147 P.3d 20, 27 (Colo.2006) ("

2006Gallegos v. Colo. Ground Water Comm’n, 147 P.3d 20, 27 (Colo.2006); Goss, 993 P.2d at 1183 .

2002Simpson v. Highland Irrigation Co., 917 P.2d 1242, 1248, 1252-53 (Colo.1996). (a) Augmentation Plan Approval The General Assembly chose to implement a policy of maximum flexibility that also protected the constitutional doctrine of prior appropriation.

2001Simpson v. Highland Irrigation Co., 917 P.2d 1242, 1248, 1252-53 (Colo.1996). (a) Augmentation Plan Approval The General Assembly chose to implement a policy of maximum flexibility that also protected the constitutional doctrine of prior appropriation., Through the 1969 Act, the General Assembly created a new statutory authorization for water uses that, when decreed, are not subject to curtailment by priority administration.

2000See Wyoming v. Colorado, 259 U.S. 419, 470 , 42 S.Ct. 552 , 66 L.Ed. 999 (1922); see generally Kansas v. Colorado, 206 U.S. 46 , 27 S.Ct. 655 , 51 L.Ed. 956 (1907) (establishing the principles from which equitable apportionment evolved).

2000See Wyoming v. Colorado, 259 U.S. 419, 470 , 42 S.Ct. 552 , 66 L.Ed. 999 (1922); see generally Kansas v. Colorado, 206 U.S. 46 , 27 S.Ct. 655 , 51 L.Ed. 956 (1907) (establishing the principles from which equitable apportionment evolved).

1999See Southeastern Colo. Water Conservancy Dist. v. Huston, 197 Colo. 365, 369 , 593 P.2d 1347, 1349 (1979) (Huston I); Brett Heckman, Comment, Principles & Law of Colorado's Nontributary Ground Water, 62 Denver.

1999See Southeastern Colo. Water Conservancy Dist. v. Huston, 197 Colo. 365, 369 , 593 P.2d 1347, 1349 (1979) (Huston I); Brett Heckman, Comment, Principles & Law of Colorado's Nontributary Ground Water, 62 Denver.

2015A water right is a usufructuary right; "one does not 'own' water but owns the right to use water within the limitations of the prior appropriation doctrine." Kobobel v. Colo. Dep't. of Natural Res., 249 P.3d 1127 , 1134 (Colo.2011).

2015Id. at 1565. 22 Further, while the Tenth Cirenit initially mischaracterized released storage water as "no longer public property," later in the opinion it correctly stated that "a water right is a usufructuary right, and is in no sense a right of ownership of the corpus of the water itself." Id. at 1566; see also Kobobel, 249 P.3d at 1134 ("[One does not 'own' water but owns the right to use water within the limitations of the prior appropriation doctrine."); § 87-92-103(12) (defining a "water right" as "a right to use in accordance with its priority a certain portion of the waters of the stat

2002Id. at 1317-18 ; see also Andrus v. Charlestone Stone Prods., 436 U.S. 604, 615 , 98 S.Ct. 2002 , 56 L.Ed.2d 570 (1978) (stating that "[u]nder the appropriation doctrine prevailing in most of the Western States, the mere fact that a person controls land adjacent to a body of water means relatively little").

1990Id. at 1308, 1316 .

1981The priority of claims for the appropriation of designated ground water is to be determined by the doctrine of prior appropriation, see sections 37-90-102, 109, *757 C.R.S.1973; Colorado Ground Water Commission v. Dreiling, 198 Colo. 560 , 606 P.2d 836 (1980), as modified to permit full economic development of the designated ground water resources.

1981The priority of claims for the appropriation of designated ground water is to be determined by the doctrine of prior appropriation, see sections 37-90-102, 109, *757 C.R.S.1973; Colorado Ground Water Commission v. Dreiling, 198 Colo. 560 , 606 P.2d 836 (1980), as modified to permit full economic development of the designated ground water resources.

2025Colo. Water Conservancy Dist. v. Centennial Water &Sanitation Dist. , 2019 CO 12, ¶ 10, 435 P.3d 469, 472 (emphasis added).

2025Colo. Water Conservancy Dist. v. Centennial Water &Sanitation Dist. , 2019 CO 12, ¶ 10, 435 P.3d 469, 472 (emphasis added).

2024Id. ¶9 Nontributary groundwater, on the other hand, is "either not hydrologically connected or is minimally connected to any surface stream." Water Rts. of Park Cnty.

2024Id. at 266-67. ¶10 This appeal specifically concerns nontributary groundwater within the Denver Basin, "a large kidney-shaped region measuring approximately 6,700 square miles in area with approximate boundaries stretching from Greeley on the north, Colorado Springs on the south, the front-range hogback on the west, and Limon on the east." N. Kiowa-Bijou , 77 P.3d at 72.

2020City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 65 (Colo. 1996).

2020Pulaski Irrigating Ditch Co. v. City of Trinidad, 203 P. 681, 682 (Colo. 1922).

2018See Simpson v. Bijou Irrigation Co. , 69 P.3d 50 , 60-61 (Colo. 2003).

2015In particular, “the right to the maintenance of the ‘flow’ of the stream is a riparian right and is completely inconsistent with the doctrine of prior appropriation.” Colo. River Water Conservation Dist. v. Rocky Mountain Power Co., 406 P.2d 798 , 800 (Colo. 1965). ¶13      Notwithstanding its guarantee of prior appropriation and protection of adjudicated rights, the constitution makes no attempt to define “use” and “beneficial use” as those terms appear in sections 5 and 6 of article XVI.

2015I think not. 158 The majority cites Colorado River Water Conservation District v. Rocky Mountain Power Co., 158 Colo. 331 , 406 P.2d 798, 800 (1965), for the proposition that " 'the right to the maintenance of the "flow" of the stream is a riparian right and is completely inconsistent with the doctrine of prior appropriation.'" Maj. op. 112.

2015City & Cnty. of Denver v. Sheriff, 96 P.2d 836, 842 (Colo. 1939).