By Ralph "Terry" Scanga, General Manager
The misreading of Section 5, Article 16 of the Colorado Constitution has led many citizens to mistakenly assume that all the water of the state belongs exclusively to the public. This section states:
“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.”
Essentially the waters are the property of the public for appropriation to beneficial use. The ownership of the water by the public is conditioned upon it not being appropriated. Further the water is dedicated to the people for appropriation for beneficial use. In the Arkansas Basin every drop of water in the natural streams is appropriated and thereby owned by individual entities, private and public.
Due to the above misreading and misunderstanding of ownership a tension between private rights and public rights to water has existed. Importantly, Colorado is not a public trust state. Thus, the waters of the state are not “held in trust” for the public, rather, they are dedicated to the people of the state for appropriation and use. The statute therein creates the ability for individuals to acquire a private ownership of water—a water right confirmed by court decree through a priority of use date.
Some incorrectly argue that a water right is a usufructuary right, which is technically correct. A usufructuary right refers to one individual’s right to use the property of another provided that the right is not altered or impaired. A Colorado water right is different, it is alienable. That is, it may be changed and transferred to another type of use, place of use, or manner of use. The priority of use has historically been viewed as a private property right that can be separated from the land upon which it is used. The water right itself can be separated and transferred from the land upon which it was historically used and may be purchased separately from the land. Although water rights are property rights and are considered realty, they can be abandoned, thus they are a possessory right.
For nearly 150 years water in Colorado has been allocated by prior appropriation. Especially in the arid Western half of the USA this system that establishes these property rights is called the “Colorado Doctrine”. When the interior of the Western United States was developed Colorado was the trailblazer on water appropriation. The West needed miners, ranchers, and farmers to develop its resources and build a viable economy through hard work. During this early development period the average citizen mistrusted government and large monopolistic enterprises and feared the creation of a system that would facilitate collusion between government and these corporations. To best use the water resources of Colorado the prior appropriation doctrine was adopted to create the incentive for resourceful individuals to divert waters of the state and place them to uses that would develop vibrant economies. The system that was adopted prevented wealth speculators from hoarding water and creating a windfall profit. The language in the Colorado Constitution does just that. Public refers to the people individually given the right to appropriate water and place it to beneficial use and thereby creating a private property right.
By law the amount of water so appropriated must be beneficially used without waste. Irrigation water rights are allocated by a ratio of a volume or rate of water to a specific amount of acreage. This is termed the “duty of the water right”. From this ratio and historic practice is derived the specific amount of water that an individual water right owner owns, stated in acre feet. The number of acre feet owned is what can be transferred for use in different locations or transferred to a different type or manner of use. In order to protect other vested water rights a transfer must be confirmed by the water court and a new or a change decree issued. Through the water allocation and use mechanisms developed in the Colorado Doctrine, Colorado citizens have been able to optimize the use of incalculable value in an arid region of the United States.