​Two decades of drought conditions in the Colorado River Basin have prompted dire warnings and alarming headlines about climate change and the Colorado River water crisis. Critically low water levels in lakes Mead and Powell now threaten the ability to generate electricity at Glen Canyon and Hoover dams and spurred Bureau of Reclamation Commissioner Camille Touton to issue an ultimatum: On June 14, Touton announced that Colorado Basin states would have 60 days to come up with a plan to reduce water use by 2-4 million acre-feet per year. (An acre-foot of water is the amount needed to cover an acre of land with one foot of water.)
If Colorado, Wyoming, Utah, New Mexico, Arizona, Nevada and California can’t agree on a plan, the bureau will use its emergency authority to make the cuts, Touton said.
The Arkansas Basin receives about 130,000 acre-feet of water per year from the Colorado Basin – up to 23 percent of Arkansas River flows, according to Colorado Division of Water Resources data. The Bureau of Reclamation operates the Fryingpan-Arkansas Project, which imports an average of 57,000 acre-feet of water per year. Colorado Springs, Pueblo and Pueblo West combine to import the other 73,000 acre-feet. 

 By Ralph "Terry" Scanga, General Manager, Upper Arkansas Water Conservancy District

         
​           It should be obvious to anyone; trying to fill a bathtub with the drain wide open is foolish.  This is precisely what the operators of the Colorado River System (Lake Powell & Mead) have been attempting to do for the past 20 years.  They have disregarded the increased withdrawals to the Lower Basin States (California, Arizona, and Nevada) and the ubiquitous arid nature of the Southwest.
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In 1979 the Upper Arkansas Water Conservancy District was formed.  Since that time innumerable benefits have been provided to the citizens of the District.  The primary goal of the District is the protection of water rights within the Upper Arkansas.  Continuous monitoring and involvement in legislative measures that impact water rights, involvement in water court cases that have the potential to negatively impact Upper Basin water rights, and operating umbrella augmentation plans that prevent injury to water rights by making weekly water replacements to effected rivers and streams by out of priority uses are the major areas of work. Other areas include conducting water studies that include ground water monitoring, water balance studies with the United States Geologic Survey, Identification of and development of alluvial water storage, watershed health activities, such as spearheading the Monarch Pass Steep Slope Timber Harvesting Project, and water education programs. The benefits of these programs are not always recognized by the citizens of the District.

Water resource development is essential to an effective water right protection program.  The most obvious and direct benefit of this is the District’s umbrella augmentation plan program.  Augmentation is a little understood water resource concept that was developed in 1969 when Colorado fully recognized in legislation the connection between tributary ground water and surface water.  With this recognition all ground water production was brought under and regulated by the prior appropriation system.  Basically, this meant that the right to extract ground water for use would be governed by the date of first use.  In an arid country such as Colorado, and in particular Eastern Colorado, there is never enough water to satisfy all legal claims.  Thus, priority of use is controlled by the established date of first use or “First in Time is First in Right”.  This legislation prevented most well use except when a “fully consumable” water source was utilized to replace the amount of water used-up by the well.  In other words, the well use would have to be augmented with a court decreed “Plan of Augmentation”.  The full impact of this was not completely felt until the decision of the Kansas-Colorado Compact lawsuit and the adoption by Colorado in 1995 of the “Amended Rules and Regulation on Tributary Ground Water Use in the Arkansas Basin”.  Fortuitously the District had filed in 1992 and obtain an umbrella augmentation plan in 1994.  The benefits have been enormous for citizens within the District boundaries of its decreed augmentation areas needing augmentation to use their wells, surface diversion, or ponds.

The value of being able to enroll into the District’s augmentation plan and continue to use one’s well is best quantified by cost savings.  Typical residential well augmentation requires a source of fully consumable water, storage, an engineering plan, and a water court decree.  The typical current cost for such a plan range from a low of $80,000 to $150,000 per residence.  The cost per residence with the District’s plan is less than $4500, a savings per residence of $75,000 to over $145,000.  Presently, the District provides augmentation to over 2000 wells.  The vast majority of these are for residential use.  This savings expressed in dollars would represent a cost savings to District citizens of as much as $290 million dollars.  The additional and as important benefit is to the rivers and streams in the District.  Annually, over 700-acre feet of water is released to our streams and available to support water rights and protect them from injury.  Further benefits are the water infrastructure that is maintained and constructed that supports recreation and the environment.  Many of the area lakes and reservoirs are filled with District owned and controlled water rights, such as O’Haver Lake.  The studies and watershed health projects the District has undertaken in its 35 years of existence provides a wealth of knowledge and data for present and future understand of our water resource and a roadmap to future water development. 

​​In Colorado, transfer of water from one type of use to another is a historical necessity and will continue throughout Colorado and the semi-arid West.   As economic and social needs change water moves to new areas to satisfy changing needs.  Historically, mining utilized the majority of water in Colorado.  As population increased the mining water rights moved to agricultural use.  Due to improved transportation and the economies of scale in agricultural operations much of our agricultural commodities are produced in areas with climates more conducive to large year-round production.  Many small agricultural operations that are no longer profitable have left the market and sold their operations and, in some cases, sold their water rights separately from the land to meet the changing demands.  Some increase in the demand for water is now being driven by small specialty and organic farming operations.  Still in the larger farming areas of the State there continues to be a demand for water and here these rights are not changing.
 
In recent years, the term “buy and dry” has become popularized by individuals intent on characterizing the purchase and transfer of an irrigation water right to other uses as an economic and environmental catastrophe.  Doing so obfuscates the reason why drying up of formerly irrigated lands is necessary.  In fact, the need in water right transfers to dry up the land is to protect adjacent water rights from injury.  This ensures that only the exact amount of water historically owned (used) by the irrigator is transferred to the new use.  Without an exact proof of use the amount of water moved may be much larger than was historically used and the environmental and economic damage would be large.
 
Of course, for many, the tedium of factual analyses does not lend itself to telling a “juicy” conspiracy story.  To some others, who really know the facts, there are ulterior motives.  One of the motives deals with the promotion of an alternative method of moving water and not using the time-tested court process.  These promoters of the alternative wish to avoid the legal scrutiny and work of accurate analysis and quantification of historic use.  They claim many reasons for advocating for alternative methods.  Among these reasons are, “it takes too much time”, “it costs too much” or “it’s too hard.”  The best but totally dishonest reason given is, “It means the land will be dried up forever” all the while knowing their alternative would require dry-up too.  From this has come another popularized term, “Alternative Transfer Method” or “ATM”.
 
Alternatives to the traditional water right transfer still require dry up of former irrigated lands.  There are actual alternatives, but these are marginally different from the traditional purchase and transfer of the water rights.  These are temporary transfers such as leasing of the water right and temporary fallowing of the former irrigated lands.  These temporary transfers or leasing of the historically consumed water from the irrigated land is a complex transaction.  To reduce the transactional costs in the engineering analysis required to accurately calculate the amount of water that could be transferred under a temporary lease without causing injury to adjacent water rights, the Upper Arkansas Water Conservancy District sponsored a study and development of a common technical platform called a “Lease Fallowing Tool”.  It is now available free of charge and is widely accepted by the water community.  Except for pilot projects of limited duration, the water right still needs to undergo a legal decree change through the water court.  In these temporary transfers or “ATMs” the land is still dried up.  The legal requirement to prevent injury to remaining adjacent water rights becomes more difficult to ascertain and the ongoing monitoring and development of water infrastructure to maintain historic stream conditions is more daunting.  One thing is clear about ATMs, to be effective in meeting future long-term needs construction of more water storage facilities—reservoirs and recharge basins will be required.
 
This really gets one to the crux of the matter.  Recently, articles have been written about Wall Street investors scooping up water rights in Colorado to market to out of state interests.  This concern and others have triggered our legislators to promote legislation to prevent speculation.  The problem is the Colorado Water Doctrine already has anti-speculation inherently built into its water allocation system.  In order to own a water right one must demonstrate beneficial use.  As described above, it is this quantification of use that determines the amount of water owned that can be bought and sold.  So, unless a prospective buyer has a use in mind, in Colorado, buying a water right to simply hold without use gets him no water.