With the celebration of Colorado’s 150th anniversary, we old water buffalos couldn’t remember – even though we were there – which water rights were diverting water in Southwest Colorado before statehood.
Southwest Colorado is designated as Colorado Division of Water Resources Division 7. There are seven designated basins in the state. CDWR Division 7 Engineer Rob Genualdi reviewed the records and found only 15 decreed water rights using water before Aug. 1, 1876.
The following list shows those water rights. Most are in the Animas River basin. The earliest two rights are springs, one in the Animas basin and one in the La Plata basin. All of these water rights are for irrigation, are still in use and will have the highest priority in their respective drainages in this very low-runoff year.
The decreed diversion in cubic feet per second is shown for each water right; some of the ditches also have post-statehood decrees with additional diversion rights that are not shown.
You might wonder about the mines that used water before statehood, such as in the Rico and Silverton areas. For reasons unknown, the mines and the two towns did not file for water rights during the first adjudications. Even though they could have claimed pre-statehood water rights, they did not apply for them. Water rights are not automatically decreed; each entity must apply to the water court.
Southwest Colorado was fairly late in water development compared with other basins, as shown by the few pre-statehood water rights. Other basins in the state developed earlier, especially the Rio Grande, which has Colorado’s earliest water right, the People’s Ditch in Costilla County, with a priority date of April 10, 1852.
Colorado’s water rights are based on the principle of “first in time, first in right,” which is common throughout the Western Unite States. Colorado is the only state that uses a water court system to obtain water rights. Other states use a permit system with rights issued by the state engineer, such as New Mexico.
Even though both methods are based on the priority system, the process for obtaining a water right is very different. In Colorado, an application for a water right or a change to a right is filed with the water court in the appropriate water division – Division 7 for Southwest Colorado. Notice is given to all potentially interested parties, and the applicant then negotiates with parties who oppose the filing until a resolution is reached. If the parties can’t agree, the case goes to trial before the water court judge.
In Division 7, trials seldom happen because those of us in the water business are very good at negotiating agreements. In that respect, Colorado is very democratic.
On the other hand, states such as New Mexico use a system in which an application for a water right is submitted to the state engineer, who evaluates the various interests and then makes a decision. A judge is not involved unless a party disagrees with the state engineer’s decision.
More of a benevolent dictator process.
Steve Harris is president of Harris Water Engineering Inc. and has been involved in water issues in Southwest Colorado for more than 50 years, including approximately 250 water court cases.
