Written by: Ralph "Terry" Scanga, General Manager UAWCD
As the General Manager of the Upper Arkansas Water Conservancy District perhaps the most asked water question involves irrigation ditches and the appurtenant water rights. There are important concepts to understand before one can benefit from a dialogue of the potential impacts from changes of use of these water rights.
To establish an irrigation water right, the claimant must demonstrate the act of appropriation. He must show a diversion of a specific amount of water from a natural water course and place this water to an irrigation use. The use is the basis, the measure, and the limit of the water right. Typically, one cubic foot per second or 450 gallons per minute is sufficient to irrigate 50 acres of ground, however there are other ratios in some decrees. The annual amount of use can be quantified and is called the historic consumptive use. The amount not consumed by plant growth is referred to as the return flow. Return flows either runoff the surface of the ground and immediately return to a natural water course or percolate below the root zone and over time return to a natural water course. Except during rare periods of time there are water right claims on all waters of the Arkansas Basin. Because of this scarcity, decrees for ownership of water rights all have a priority date. Simply, first in time is first in right.
When an owner of a water right seeks a change of use, for example a new location or type, or manner of use, he is obligated to adjudicate this change through a water court process, first giving notice so other owners of water rights can ascertain the potential impact to their water rights from this change. The party changing their water right must demonstrate lack of injury to other water rights. Historic practice becomes important at this juncture. Some of the questions that arise involve the amount, location, and timing of return flows. Return flows may accrue through the conveyance canal seepage, runoff from the irrigated fields, and underground percolation. There is no lack of rules, regulations, statutes, and water court cases on this subject. There are however some basic concepts.
Return flows are appropriated by downstream water rights. A change of one’s water right can impact other’s rights. The owner of a water right must demonstrate dominion and control over his water right to maintain a claim. Simply, if a water right owner is unable to demonstrate dominion and control over a portion of his water another appropriator can claim this water subject to the priority system. Affecting the availability of water through a change may be injury.
Changing a water right is a tricky procedure and fraught with potential pitfalls. A change of a water right may be as simple as moving the point of diversion on a natural stream, lining or piping a conveyance canal, irrigating an adjacent parcel of land, changing the method of irrigation from flood and furrow to sprinkler or drip. Each of these have the potential to impact return flows and thus someone else’s water right. Before embarking on these seemingly innocuous ventures one needs to fully evaluate the potential impacts from a change of use. Perhaps undertaking one of these changes may mean a trip to water court to adjudicate the change.
A recent ruling by the Colorado Supreme Court involves a San Luis Valley water rights case. The ruling highlights a significant difference between "native" water and water imported from a different watershed (photo by Joe Stone).
Late last year we launched a new project at the Water District aimed at capturing the stories of local legends in the water community. We began by interviewing Ken Baker, the District’s Legislative Consultant. It was an honor to be entrusted with Ken’s story, which we shared in our January E-Newsletter and on our website.
In February we had the opportunity to sit down with Joe Cogan and hear more about his life and work in the Arkansas Valley. Joe was born on August 20, 1934 and is now 85 years old. He and his family are woven tightly into the fabric of the local ranching community, having lived and worked the land around Nathrop, CO that was purchased by Joe’s grandfather, Jeremiah Cogan, in 1889.
Arriving at the Cogan property you can’t help but notice the old barns and ranching equipment that are clearly still in use. There’s also a wooden sign by the front door that reads “Cogan Ranch Est. 1889.” Our interview took place in Joe’s kitchen, and though you’d never guess it now, that same room served as the blacksmith’s shop back in 1889. Joe offered to build his wife Arlene a new house, but she was happy to stay put. Joe and Arlene were married around 1960 and have spent their entire married life in the same home. Like many ranching families, their children Brian, Bruce, and Laurie live close by.
The Cogan family has been in Nathrop since 1883, when Joe’s father Jack immigrated with his family from Cork County, Ireland. Jack was 5 years old at the time. The Cogan’s spent their first winter on top of Fremont Pass, snowbound for 85 days, where Joe’s grandfather Jeremiah worked for the railroad. It was a rough winter and, seeking a warmer spot and easier living, Jeremiah moved his family down to Frisco. But Frisco proved to be just as harsh and, eventually, Joe’s grandfather returned to Nathrop with his family and started working for the Rio Grande railroad.
In 1889 Jeremiah Cogan bought 120 acres from William Huey. The blacksmith’s shop, now Joe and Arlene’s kitchen, sat on this acreage. Jeremiah added on to the original homestead building, a space that now includes Joe and Arlene’s living room, and was able to claim a full 160 acres. In 1916 the government passed the national Stock-Raising Homestead Act, granting 640 acres for ranching purposes. Joe told us that people were starving to death on 160 acres and his grandfather added on another 640 acres to beef up their operations. Then, in 1929, Henry Feeling offered to sell his place to the Cogan’s and they purchased it for more hay ground. Unfortunately, this is right when the depression hit and everyone struggled. Folks had to lean on one another and, because there was little money, it was common to trade what you had for groceries.
Joe comes from a large family, not uncommon for the time and place and way of life in which he was born. He is one of 7 children and the baby of the family. His mom Elizabeth was about 41 when he was born and his dad Jack was about 56. Apparently, after having Joe, his father declared, “This is the end!” Joe’s oldest sister has since passed away, along with one of his brothers. He has 4 siblings still alive, all between the ages of 98 and 85.
Over the years the Cogan’s have continued to increase the size of their ranching operations, acquiring property throughout the valley and on the other side of Trout Creek Pass in Chubb Park. In 2009, having recognized the potential impact of property taxes on their operations, the Cogan’s worked with local non-profits and government agencies to permanently protect 507 acres in Chubb Park. These efforts not only support the Cogan family ranch lands, but also ensure that high mountain meadows will remain unspoiled for at least 100 years.
During our conversation with Joe he repeatedly referenced his families 1872 water right, 2.4 cfs, as being key to the success of the ranch. The water rises in a spring and rarely freezes and Joe said his grandfather couldn’t have picked a better place in Colorado.
One unique aspect of the Cogan property is the hydropower system that was installed by Joe’s father. Joe said his dad started thinking about hydropower around 1920 but he couldn’t make it work. He bought a broken bronze Pelton wheel and pipe from a source on Lake Creek and in time added a generator that had been used at 13,000 feet on Mt. Princeton. Eventually, Joe’s dad was able to generate 3 kwh of electricity at 220 volts and it was used for many years to power the property. Joe told us they had a wire in the house that could be pulled to drop a head gate and shut down the power when needed. The only problem with the set up was the dangerous nature of 220 volt direct current. Joe told us that sometime between 1970 and 1980 the pipeline was extended and the system switched to AC, which was much safer. With 68 feet of fall the Cogan’s were able to generate 9.9 kwh of electricity during irrigation season, which now services two houses, part of a third house, and provides hot water.
When Joe talks about life on the ranch he does so with a mixture of pride, joy and pain. His body has been badly bumped and bruised after years of hard labor and he has trouble with both his back and his hip. He’s been milking cows since he was 7 years old and has done so when the temperature dipped to -52 degrees F. As a kid, Joe sold cream to help support his family. He also remembers his mom raising 300 chickens a year and said that one year the chickens brought in more money than 300 cows. He remembers his dad going to Denver to sell some cattle and the money he made was just enough to cover the cost of getting the cows to the sale barn. Times could be tight and life could be rough, but Joe said there’s no better place to live and no better way to make a living. He and his family have lived on the ranch a long time and have always done so in a conservative manner. He said that they haven’t spent a penny that they didn’t have and he was proud to report that at age 70 he paid off the last cow and the last piece of land. But wealth, says Joe, is more about loving where you live, how you live, appreciating your quality of life, and being close to people.
When we asked Joe about the greatest threats to agriculture he said that was easy, it’s the impossible burger. That, and the inheritance tax. He said that ranches should be appraised on what they produce and, even though Joe and Arlene have already made decisions with their family on how things will be when they’re gone, they worry about things like the inheritance tax.
Another thing that bothers Joe is what is happening to the mountains with the influx of so many people. He said that increased access has led to increased ruin. Back in the day Joe said people climbed mountains just to look around. Now, people try to conquer the mountains. After nearly 50 years on Search and Rescue Joe has hauled off both the living and the dead and has seen people get in way over their heads. He remembered one person saying they wanted to attack the mountain from the backside. Joe laments that the climbing of mountains has turned into a muscle contest with a lack of respect for the land.
When we asked Joe about his closest friends he remembered his lifelong friend, Jack Acree. Jack was a USDA veterinarian and had a special knack with animals. He passed away last year and Joe said that life is pretty empty without him. Other good friends include and Nachtrieb’s and the McMurry’s. These families have toiled tightly over the years, sharing ditches and fences and working together to keep things in order on their ranches.
As our interview with Joe came to a close we had the feeling that his stories could keep on going. Such a big life has been lived and we know that these details are only a scratch on the surface when it comes to the Cogan family and their legacy. It was an honor to be offered a bit of Joe’s time, to be welcomed into his home, and to be trusted with his stories. We hope learning a little more about the Cogan’s and the significant role they’ve played in this valley will serve to increase your appreciation and understanding of our local heritage.
Written by Ralph "Terry" Scanga, General Manager UAWCD
The misreading of Section 5, Article 16 of the Colorado Constitution has led many citizens to mistakenly assume that all the water of the state belongs exclusively to the public. This section states in part:
“The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.”
Essentially the waters are the property of the public for appropriation to beneficial use. The ownership of the water by the public is conditioned upon it not being appropriated. Further the water is dedicated to the people for appropriation for beneficial use. In the Arkansas Basin every drop of water in the natural streams is appropriated and thereby owned by individual entities, private and public.
Due to the above misreading and misunderstanding of ownership a tension between private rights and public rights to water has existed. Importantly, Colorado is not a public trust state. Thus, the waters of the state are not “held in trust” for the public, rather, they are dedicated to the people of the state for appropriation and use. The statute therein creates the ability for individuals to acquire a private ownership of water—a water right confirmed by court decree through a priority of use date.
Some incorrectly argue that a water right is a usufructuary right, which is technically correct. A usufructuary right refers to one individual’s right to use the property of another provided that the right is not altered or impaired. A Colorado water right is different, it is alienable. That is, it may be changed and transferred to another type of use, place of use, or manner of use. The priority of use has historically been viewed as a private property right that can be separated from the land upon which it is used. The water right itself can be separated and transferred from the land upon which it was historically used and may be purchased separately from the land. (1) Although water rights are property rights and are considered realty, they can be abandoned, thus they are a possessory right. (2)
For nearly 150 years water in Colorado has been allocated by prior appropriation. Especially in the arid Western half of the USA this system that establishes these property rights is called the “Colorado Doctrine”. When the interior of the Western United States was developed Colorado was the trailblazer on water appropriation. The West needed miners, ranchers, and farmers to develop its resources and build a viable economy through hard work. During this early development period the average citizen mistrusted government and large monopolistic enterprises and feared the creation of a system that would facilitate collusion between government and these corporations. To best use the water resources of Colorado the prior appropriation doctrine was adopted to create the incentive for resourceful individuals to divert waters of the state and place them to uses that would develop vibrant economies. The system that was adopted prevented wealth speculators from hoarding water and creating a windfall profit. The language in the Colorado Constitution does just that. Public refers to the people individually given the right to appropriate water and place it to beneficial use and thereby creating a private property right.
By law the amount of water so appropriated must be beneficially used without waste. Irrigation water rights are allocated by a ratio of a volume or rate of water to a specific amount of acreage. This is termed the “duty of the water right”. From this ratio and historic practice is derived the specific amount of water that an individual water right owner owns, stated in acre feet. This is commonly called the transferrable or historic consumptive use. The transferrable consumptive use is the measure of the amount owned and the amount that can be transferred for use in different locations or changed to a different type or manner of use. In order to protect other vested water rights a transfer must be confirmed by the water court and a new or a change decree issued. Through the water allocation and use mechanisms developed in the Colorado Doctrine, Colorado citizens have been able to optimize the use of incalculable value in an arid region of the United States.
1Strickler v. City of Colorado Springs, 16 Colo. 61, 26 P. 313 (1891)
2Knapp v. Colorado River Water Conservation District, 131 Colo. 42, 53, 279 P.2d 420, 425 (1955)
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Kenneth Baker, Legislative Consultant for the Upper Arkansas Water Conservancy District, was born in Salida, CO on March 10, 1932, the year Franklin Delano Roosevelt was elected 32nd President of the United States. Mr. Baker has seen, experienced, and accomplished a lot in his 87 years, which we learned when we sat down with him for an interview late last year. Our hopes were to hear a few stories about Ken’s life, his family, and his work, to glean from his experiences and knowledge, and to capture the story and the magic of a man that has meant so much to the water community and to those that know him personally. We hope to share a hint of that magic with you.
It’s a special thing to be entrusted with someone’s story, an even greater honor to be allowed to share it. When we first set our intention to create an archive of stories of individuals that have impacted the local water community we were reminded of the mission of StoryCorps’, which is “to preserve and share humanity’s stories in order to build connections between people and create a more just and compassionate world.” On its website StoryCorps’ states, “We do this to remind one another of our shared humanity, to strengthen and build the connections between people, to teach the value of listening, and to weave into the fabric of our culture the understanding that everyone’s story matters. At the same time, we are creating an invaluable archive for future generations.”
Of course, it would be impossible to communicate the depth and breadth of Ken Baker in one short article- 87 years is a lot of life to have lived! We hope that our video and audio archive, the compilation of articles that Ken has written over the years, and this little glimpse into his story will serve to facilitate connection and appreciation for a life well lived.
If you take a peek at Ken’s bio on the District’s website you’ll find these words. “Ken Baker graduated from the University of Colorado with BA, MA and JD degrees. He was admitted to the Colorado Bar Association in 1964 and practiced law in Salida from 1974 until 2001, specializing in water, real estate and administrative law. Mr. Baker was the Chaffee County Attorney for 25 years and former Poncha Springs Town Attorney. Mr. Baker was one of the founding members of the Upper Arkansas Water Conservancy District and served as the manager and attorney for the District from 1979 until 2001. He was instrumental in developing the District’s blanket well augmentation plan and today is the District’s Legislative Consultant.” That’s a lot! And at the same time, it’s only a tiny piece of Ken’s story.
Here are a few other things we learned when we took the time to listen and dig deeper. Ken grew up in Salida, next to an Italian grocery store, one block from the railroad tracks. He was one of seven children, six of whom were boys. Salida was an immigrant community at that time, the railroad having brought people from all over the world, and it was not uncommon to hear Italian, Spanish, and Croatian spoken on Salida’s streets. Ken grew up fishing and playing along the Arkansas River and remembers Tenderfoot (S Mountain) as his playground. He knew the gulches by name and would regularly get water out of a spring across the river. For those that don’t know; that spring is called Pasquale Springs and is now part of the City of Salida’s water supply.
Both Ken and his father were students at Longfellow. Living so close to the tracks Ken remembers hitching a ride home on the back of the train, though he was always careful to jump off a block early and walk the rest of the way so his mom wouldn’t ask too many questions. The railroad was central to the community as Ken grew up. Ken’s dad was a railroader and Ken’s first job was as a railroad brakeman.
Ken planned to go to college right after high school but President Truman had a different plan for fellows his age. The Korean war had started and Ken joined the United States Navy. He remembers travelling from Denver to San Diego by train and a few things stood out to him about that trip. He saw his very first television in the window of a shop in Salt Lake City. He also remembers stopping in a quaint little gambling town in the middle of nowhere in Nevada. You may have heard of it- it’s called Las Vegas. Things sure have changed since Ken took that trip out West!
Following his service with the Navy, Ken returned to Colorado and was invited to play football at the University of Colorado, where he majored in history and Latin American studies. Ken then went on to study law, was admitted to the Colorado Bar Association in 1964, and started his first job as a lawyer in Alamosa specializing in land and water.
But this wasn’t Ken’s first experience with water. Ken grew up around water and knew about irrigation from an early age. His work in Alamosa with the agricultural community only served to deepen that knowledge and experience, which he then brought back to Chaffee County. Over the course of many decades Ken worked as a private attorney, Chaffee County attorney, and attorney for the Town of Poncha Springs. He was one of the founding members of the Upper Arkansas Water Conservancy District, serving as manager and attorney for more than 20 years, and remains the Legislative Consultant for the District to this day.
One thing you notice when Ken starts talking about this period of his life is his humility. Despite decades of work and life experience, Ken credits others for the many significant water related accomplishments that have been achieved throughout the years. His list of mentors is long, each name bringing forth a story and a deep sense of respect and gratitude. People like George Everett, Wendell Hutchinson, Tom Young, Denzel Goodwin, Jim McCormick, Glenn Everett, Eddie Holman, and Terry Scanga, just to name a few. A lot of these folks are no longer with us, but their legacies live on. It was a privilege to hear Ken share their stories with us, just as it honors us to share his story with you.
When we asked Ken about his role in founding the District and developing the District’s blanket augmentation plan he said, “I didn’t know what we were meant to do when we started but I’m proud of what we’ve done.” He says the District started as the little engine that could and turned into the little engine that did. And because Ken writes about the history and accomplishments of the District better than we ever could, we encourage you to read his article, “A Footnote in History as the Arkansas River Flows through the Upper Valley” .
Of course, Ken’s life is a vessel that is filled with more than water. It is filled with family, including his wife Linda whom he met square dancing and married in 1990, and his children whose accomplishments, like Ken’s, are too many to list. It is also filled with the many friends, mentors, and colleagues whose own cups are a little fuller because of Ken’s part in their lives.
We know that this article has only scratched the surface of Ken’s story, but hopefully this connection with history through his story has provided a reminder of our shared humanity. Ken has given his heart and soul, his mind, his resources, and his energy to protecting water rights, to holding up the doctrine of prior appropriation, and to his family, friends and community whom he loves dearly. If this little scratch on the surface of Ken’s life leaves you with a sense of anything at all, we hope it’s that Ken Baker’s story, like all of our stories, is one worth sharing.
From The Chaffee County Times (Max R. Smith) via The Leadville Herald:
In the mid-1960s, a partnership between the cities of Colorado Springs and Aurora installed a diversion dam in the Arkansas River south of Granite near Clear Creek Reservoir as part of a pipeline system bringing water from the western slope of the Continental Divide to the Front Range.
The presence of the diversion dam caused that portion of the river to be non-navigable, requiring portaging of one’s raft or kayak.
By the end of this year, however, Colorado Springs Utilities is on schedule to complete a three-year project to build a new river diversion that will allow boaters to float right through, meaning that the 2020 rafting season will be the first in over 50 years in which the entirety of the Arkansas can be traveled without portage.
“We’ll see how the snow treats us over the next couple weeks, but we’re really down to some final boulder work in the river and general site cleanup at this point,” said CSU project manager Brian McCormick.
The intake that pumped water out of the Arkansas (which, legally speaking, comes from the Eagle River Basin as part of the Homestake Project), destined for Aurora and Colorado Springs, “as with anything in the river for 50-plus years, it took some wear and tear,” McCormick said. “By about the mid-2000s, the cities recognized we needed to rehabilitate this structure to keep it as a reliable facility and ensure safety of the river users.”
Construction on the new $9.1 million diversion project began in 2016 after a number of years of planning, budgeting, and engineering. Support for the project included $1.2 million in grant funding from the Arkansas Headwaters Recreation Area, Colorado Parks and Wildlife and the Colorado Water Conservation Board…
Significant to water consumers in Colorado Springs and Aurora, the project utilizes a new intake and piping structure to send water to the Otero pump station, he said.
Significant to boaters is a chute constructed of boulders and mortar with six two-foot drops that will allow them to pass the intake facility without exiting the river. McCormick said that CSU put the call out to members of Colorado’s river recreation community to participate in a trial run down the chute in November, testing the Arkansas’s newest whitewater feature…
Significant to the scaled, Omega-3 rich denizens of the Arkansas who swim upstream to spawn every year, the new diversion also features a fish ladder: a sequence of weirs and pools that give brown and rainbow trout a route to move up the river to their spawning grounds.
Canon City Daily Record Highlights Flood Mitigation Work Completed in Fremont County
As water legends and water battles flowed through the historic Arkansas River into folklore and judicial precedent, the legacy of the Ranching family, the Everett's of Chaffee County, Colorado, left its brand on the colorful doctrine of “Colorado Water Law”.
Like his father, George E. Everett carried on the tradition of protecting water rights on the river. Among his many public service contributions, he was a member of the Board of Directors of the Southeastern Colorado Water Conservancy District until September 23, 1977 when, along with his brother Dan, he was killed in an airplane crash en route to Cortez, Colorado. His son Glenn succeeded to the vacancy on the Southeastern board and continued the legacy of water leadership left by his father and grandfather.
Prior to his death, George E. Everett was working to create a water conservancy district in the upper reaches of the Arkansas River to directly represent water users and the water community in the upper basin. The inspiration of citizen Everett survived the airplane crash. Fueled by a crushing drought and irrigation wells pumping out of priority, the inspiration became a rallying call to fellow ranchers, water users, political friends, and everyday citizens to petition the Court for the new district. The tireless efforts of community leaders led to a court declaration forming the Upper Arkansas Water Conservancy District in the Spring of 1979.
The UAWCD, under the directorship of fellow ranchers, friends, and devotees of George E. Everett ranks among the significant leaders in water law and the water user community in Colorado. It is also one of the principal water managers of the water flows in the Arkansas River and its tributaries. In 2004 the UAWCD purchased water rights and land irrigated by George E. Everett and his wife Wilmoth for more than half a century. This chapter of his legacy will be continued.
The George E. Everett Memorial Award was created to preserve the legacy of George E. Everett, to serve as a guide for the preservation of water and its use in the historic traditions of the Arkansas River, and to dedicate, in his memory, an annual award to a person or persons who have made a significant contribution to the principals which guided George E. Everett and his family in pursuit of these goals.
Local water news by the Upper Arkansas Water Conservancy District