Jim Flynn

Jim Flynn, Money & the Law

If you’ve lived in Colorado for any length of time, you know water is referred to as liquid gold. The reason, of course, is that there isn’t enough of it. This is not new. People have been fighting (literally) over the use of water since long before Colorado became a territory in 1861.

And the value of water continues to increase (dramatically in recent years) because of a fixed supply and growing demand. Although there is still gold to be found in Colorado by prospecting, rights to use water have all been taken. If you want such a right, you have to buy it.

Trying to explain Colorado water law is like trying to explain the origin of the universe. But here, at least, is a snippet of how some parts of this body of law developed.

To make arid land productive, the practice among early settlers was to divert water out of a stream or river and deliver it elsewhere through a ditch. In an effort to bring modest order to chaos, cut down on bloodshed and use a scarce resource efficiently, it came to be that a legal right to use water out of a stream or river was in fact obtained by diverting the water and putting it to a beneficial use — domestic, agriculture, mining, manufacturing.

Because multiple users were trying to divert the same water at the same time, a system of priority was needed. That system evolved into a doctrine of first-in-time, first-in-right, resulting in some water rights being more senior than other water rights. In lean water years, the holders of senior rights got their water and the holders of junior rights did not. Diversion ditches were equipped with gates that allowed water to be distributed based on priority. This system remains in place today and, as you would expect, senior water rights, with priority dates going far back into the 1800s, are more valuable than water rights with a newer priority date (going less far back, but still mostly in the 1800s).

By the time Colorado became a state in 1876, this water use priority system was well established and was incorporated into the Colorado Constitution (Article XVI, Section 6 for purists). “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 the water for the same purpose. … ”

And courts in Colorado have been busy resolving disputes over water for more than 150 years.

In addition to rules dealing with surface water, other rules applicable to ground water (water pumped out of aquifers) have developed. Since removing water from an aquifer can affect water in streams and rivers, ground water rules must be compatible with surface water rules.

These days, conservation issues, safety issues, interstate compact issues, water quality issues, Preble’s meadow jumping mouse issues and many other issues have become part of what we call water law.

Early on (1881), Colorado established a government agency, the Office of the State Engineer (now known as the Division of Water Resources), to deal with water matters. In 1969, the Colorado Legislature adopted the Water Rights Determination and Administration Act in a further effort to organize the way rights to use water, and priority of use, are established. This act created a separate court system to decide water rights issues.

As you might expect, water law has become a highly technical and narrow specialty in the legal profession. Water lawyers are a quiet bunch and they tend to hang out together. That, I think, is because no one else really understands what they say or do.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at moneylaw@jtflynn.com.

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