You don’t have to look any further than a Colorado Supreme Court oral argument schedule to get an idea of how complex water law is in the West. With terms such as the “prior appropriation doctrine” and “beneficial use” central to water law’s framework, it may seem about as niche as a practice area can get. Even Supreme Court Justice Elena Kagan described her understanding of disputes in Western water law as “big square states that have water problems.”
But in reality, water law isn’t just relevant to water referees, judges and lawyers who specifically practice it.
Water law experts say the area is really a type of property law, rather than environmental law. That framing brings in issues such as access, real estate and constitutional law. So it matters for real estate attorneys just as much as water judges, and for private attorneys just as much as those in the public sector.
Western water law is rooted in the need for a system to distribute scarce water resources among the region’s arid states, and Colorado is part of several interstate water compacts. The state has a distinctive system for allocating water use rights known as prior appropriation: rights claimed longer ago take priority over those claimed more recently, known as senior and junior water rights. The system also allows rights to be sold and usage changed with approval from regional water courts. Appeals in water law cases go directly from the water court to the state Supreme Court.
“It’s so unlike the traditional way we think of property rights, where it’s like, ‘This is mine, and I own it outright,’” said Derek Turner, an assistant city attorney for Loveland. “It’s this communal public property that is not like a traditional Western European property right … and I think that’s one of the reasons why especially developers from out of state have a hard time when they start to get into the intricacies of Colorado water law.”
Before Loveland, Turner worked in the Colorado Attorney General’s Office and clerked for then-Justice Greg Hobbs on the state Supreme Court. He said the framework for water rights is designed to keep water supplies reasonably consistent between years of similar climate conditions and precipitation, so “that economics are consistent and we have some predictability.”