Montezuma Valley Irrigation Company

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The nuts and bolts of water law  - written by Bob Bragg


In much of the United States, water is not a limiting factor for agriculture or municipal users.  Adjacent to and east of the Mississippi River, 30 inches or more of precipitation is received in a normal year.  The closer we are to the Intermountain West, the drier it gets.  In Montezuma County, the average annual precipitation is about 13.5 inches.


Since the beginning of settlement of the West during the mid 1800s, water has been of concern to miners, farmers, ranchers and developing cities.  In 19 western states, the concept of prior appropriation has been the basis of water law from the time territories became states.  Prior appropriation is first in time, first in right, meaning that the first person to put water to a beneficial use had a claim on the use of it from the date of the appropriation to present.  The second person to use water from the same stream had a junior right to the first appropriator, and so on down the line.  In times of shortage, junior water rights holders may not get all of the water they would normally be entitled to because the senior water rights have precedence.


Under the Colorado constitution, all of the water in a natural stream is the property of the people.  This includes the underground waters that are tributary to the natural streams.  However, the constitution does guarantee the right of an individual to appropriate water, therefore having a right to apply water to a beneficial use.


Beneficial uses include domestic, agricultural and industrial applications.  Domestic uses include drinking, household uses, irrigating lawns and gardens, maintaining parks, fighting fires, and recreational uses.  Farming and ranching uses include water for crop and livestock production, and industrial water is used in mining, processing natural resources, production of power and manufacturing products.  In times of shortages of water, the priority goes first to domestic uses then to agriculture, and finally, to industrial applications.


A water right allows a holder to use water from a stream or aquifer.  It is a real property right as is real estate.  It can be used, sold, or given away, and is protected as is other real property rights by the Colorado and U.S. Constitution.  Water rights may be severed from the land and sold, with the stipulation that selling those rights will not harm other appropriators on the stream or underground aquifers.


A water appropriator is one who takes water from a natural stream and applies it to beneficial use.  To validate the claim to the right, an appropriator must have their claim adjudicated in a water court.  During the adjudication process, the appropriator must prove that their use of the quantity claim will not harm the holders of senior water rights.


A mutual ditch company, such as Montezuma Valley Irrigation Company, owns consolidated water rights as a nonprofit corporation.  Ditch company members own shares in the company, which provides them with a specified amount of water from the pool of water controlled by the company.  These shares can be sold and often can be moved to different outlet locations in the company's irrigation area.  However, there may be stipulations that prevent the shares from being transferred from out of the company's jurisdiction.


References:

Joseph Grantham, Synopsis of Colorado Water Law, Colorado Division of Water Resources, Denver, CO 2011


Colorado Water Rights, The Water Information Program, Durango, CO  www.waterinfo.org/rights.html



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Meeting:  October 18, 2017  Discussion Outline