First in use, first in right

Filed under: Daily News,News | Tags:

In Colorado Springs, the water that flows from the faucets might have originated from melted snow on the slopes of Pikes Peak, from a well field east of the city, from the Arkansas River or from distant tributaries of the Colorado River.

The city can claim, divert, transport and consume water from such distant sources thanks to an 1882 Colorado Supreme Court decision establishing “prior appropriation” as Colorado law. The decision, rendered in the case of Coffin v. Left Hand Ditch made possible the growth and development of Colorado Springs, Denver and the 13 western states.

In America west of the Mississippi, water rights are allocated according to riparian principles. Landowners whose property is adjacent to a body of water have the right to make reasonable use of it. Water rights run with the land and cannot be severed from it, nor can water be diverted out of the watershed.

Riparian principles governed water use in America until the development of the West.

In the 13 conterminous Western states, water law and water rights are directly derived from the lawless mining camps of 19th century California. The miners merely extended the uncodified common law of mining to water use.

Those laws, as clear to an unlettered miner as they might have been to a graduate of Harvard Law, were based on a simple principle: first in use, first in right.

Developing deposits of placer gold on California streams required water. Miners would erect sluices and sluice boxes, divert streamwater and separate the tiny flecks of gold from the sandy mud of the streambed.

However, it was soon clear that there wasn’t enough water in the streams to support every eager miner, so miners joined together and applied the principles of “first in use, first in right” to water.

This principal came to be known as “prior appropriation,” or the Colorado Doctrine. It became settled law in Colorado during 1882. Since it was first adopted, a vast legal superstructure has defined prior appropriation, water rights and water use.

Water lawyer Ann Castle, who has been nominated by President Barack Obama to serve as assistant Secretary of the Interior for water and science, is a partner at Holland & Hart in Denver.

“To create a water right, one must make an appropriation,” Castle wrote in “Water Rights Law-Prior Appropriation.” “The essential elements of an appropriation are the diversion of water and its application to a beneficial use. ”

But the right of the city, or of any owner of water rights, to use water depends upon the seniority of each particular right. The first appropriator has precedence over all subsequent users, who hold “junior rights.”

Holders of senior rights are entitled to take 100 percent of their appropriation, even if doing so deprives the holders of junior rights of their entire appropriation.

Water rights, Castle said, are similar to real property rights. “(They) can be conveyed, mortgaged and encumbered in the same manner, all independently of the land on which the water originates, or on which it is used.”

The city has senior rights to the groundwater that underlies the municipality, much of the water that originates on the slopes of Pikes Peak and much of the flow of Fountain and Monument creeks. But its rights to the water that it imports from the Western Slope are in some cases junior to other users, and all depend upon the complex nexus of water laws that govern the Colorado River.

The city’s rights are subject to the Colorado River compact of 1922, which allocated the river’s water between seven Western states. It established two river basins, the upper (Colorado, Wyoming, New Mexico and Utah) and the lower (Arizona, California and Nevada).

Under the compact, each basin is entitled to 7.5 million acre-feet of consumptive use annually, not including an additional 1 million acre-feet conditionally allocated to the lower basin. Subsequent agreements allocated 1 million acre-feet annually to Mexico.

Colorado Spring presently imports 60,000 acre-feet of water, or about 60 percent of the city’s water, from tributaries of the Colorado River. The dangers of this dependency, said Colorado Springs Utilities’ Bruce McCormick two years ago, are one of many reasons that the city has pursued the Southern Delivery System, which uses rights on the Arkansas River.

“We don’t want to increase our reliance on the Colorado,” McCormick said. “If the river declines to those (extreme drought) levels, not only is there no more water to develop in the Colorado, but cutbacks will be necessary.”