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Law Offices of Ronald W. Rutz
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August 10, 2004: Water Law

Q. The word around here is that we need to review your old columns. Otherwise the water law class will be murky at best and probably totally unfathomable. But your file is missing. Can you help?

A. Now I am certain that once the class starts and you get your feet wet, everything will clear up but let me give you the macro view of water law so your micro voyage in class may make more sense. Remember this is a general overview.

The two extremes of competing water law concepts are Riparian and Prior Appropriation. We inherited the Riparian system from England and of course began modifying it. The two initial general classifications of Riparian water law that you will encounter are the strict English Rule (water can be used but such use can not diminish the source) to the traditional American Rule (water can be used as long as the use does not unreasonably affect other users).

When I was a law professor at the University of Alabama Law School, I was asked to teach water law since I grew up on a farm in Colorado. I had no experience with Riparian principles, which made sense in wet, soggy old England but Riparianism was murky to one who experienced only high and dry as a youth. So you may have trouble identifying with the basic concepts of being able to use water only on land that touches a water source and after use the water must return to that source. But if you have any hope of understanding federal water rights, especially how they affect private water use rights in Colorado, a basic grounding in Riparian principles is essential.

The other general water theory besides Riparianism started right here in Colorado and is called Prior Appropriation. To gain a right to use water, one needs to divert water and then apply it to a beneficial use, even if that use is on land miles away and does not touch the water source. In this theory water does not have to return to its source and most or all of the water may be taken. The right to use water is not based upon reasonableness but is determined by when use was first begun.

To understand this theory, do not think of farming but first think of the mining industry in the 1850s that needed water for mining activity, often taking the whole stream and diverting the water to a different valley or even watershed.

The Prior Appropriation system is divided into a traditional "Colorado Doctrine", (strict observance of diversion and application to a beneficial use) and the "California Doctrine" that tries to combine the theories of Riparianism and Prior Appropriation.

Several sister states have moved away from the strict Colorado Doctrine modifying the basic elements so, for example, water is tied to specific land and the amount of water permitted to be used is defined by factors other than historical use and may be limited in amounts of the kinds of crops being grown, even though more water was used in the past and may be needed because of the dryness this year.

Complicating the situation in Colorado the federal law that applies Riparianism, thus causing an ongoing conflict between the "superior" federal water rights on federal property (and also through demands from sister states) and the private system of Prior Appropriation (as defined in the Colorado Constitution and through practice and court decisions).

Unfortunately (in my opinion) through the years in Colorado those in political and legal control of our water rights either were like me before I taught law and did not understand Riparianism or came from Riparian states and did not understand the Colorado Doctrine. Colorado’s "defeats" in the last two decades are a result, when with a little finesse and a touch of panache, water law could be on much stronger and stable ground. Just remember when you read the cases and shake your head wondering what the Colorado attorneys could have been thinking in picking legal positions, this might help to remember.

But enough pontificating. If you truly want to understand Colorado water law insist that Colorado history, along with an examination of the personalities involved, make up big part of the class discussion. Otherwise, even though you can regurgitate the water law rules for your exams, you truly will not understand the law, let alone how it fits into the bigger picture of the rights of other states and the federal government. Yes, often the historical setting of a Colorado case and knowing about the judges and attorneys involved will help much more in understanding what happened then dicta in the case.

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