By Ralph "Terry" Scanga, General Manager
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:
“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. Although water rights are property rights and are considered realty, they can be abandoned, thus they are a possessory right.
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. The number of acre feet owned is what can be transferred for use in different locations or transferred 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.
Check out this recent article published in the Ark Valley Voice with comments by Manager Scanga. Special thanks to Henry John DeKam for reaching out to the Upper Ark and for providing important and relevant information to the community.
This is part one of a two-part series by General Manager, Ralph "Terry" Scanga
Most discussions involving water supply or quality require a good examination of historical perspective of water development. For this reason, understanding the system by which water is and has been allocated in Colorado since statehood is a good starting point.
Water in Colorado is allocated as a private property right through a system referred to as the Appropriation Doctrine. It is the only arid Western state that utilizes a pure form of this doctrine called the “Colorado Doctrine”. This doctrine is enshrined in the State’s constitution. It is a constitutional right for the citizens of Colorado to an appropriation of water based on its beneficial use. Although many legislative statutes deal with water appropriation and use these all rely upon and must comport with the basic constitutional right granted the citizens of the state. This article is not intended to delve into the Doctrine except to point out that water rights and decrees are granted as a private property right. In fact, this system is automatically designed to apportion available water supply without undue interference from government except for the administration of the existing water decrees or through the water court.
In 2005 legislation was passed creating the inter-basin compact committee and the nine basin roundtables. The basins utilized the Statewide Water Supply Initiative (A project to calculate the available water supply compared to demand --a needs assessment) to identify the projects and processes needed to address any water supply gap out to the year 2050 for all uses- municipal, industrial, irrigation (agricultural), environmental and recreational. Water entities and individuals were involved in each basin throughout the state to develop these plans. Projects were identified and some were funded in part with grants from the state’s Colorado Water Conservation Board. The Colorado Water Plan was developed from these plans and processes. These projects have gone a long way to make available the necessary water supplies for the future. Many of the projects are ongoing and more will be needed to meet future needs.
Colorado is an arid state with future shortages forecast in the higher growth regions. In the Arkansas Basin many junior water rights were established during high precipitation periods. Due to this the Arkansas Basin today is considered an over-appropriated basin; meaning that on average there are more decreed water rights than water available. Most of these junior water rights are decreed for irrigation use in agriculture. In the Arkansas Basin shortages are forecast for all water uses.
The Colorado Water Plan is a collection of the ideas and projects on how we can meet future water demands. Meeting the future need revolves around developing new Colorado River Supplies and Alternative Agricultural Transfers coupled with storage. The Colorado River normally has water that is unused and could be utilized to fill the gaps in the higher growth regions. Presently Colorado is well ahead in meeting its Compact obligations on the Colorado River despite unsubstantiated claims from some state politicians and the administration that Colorado may be unable to meet its obligations. Agricultural irrigation uses 80 percent or more of the available supply statewide. Some of these uses could be temporarily interrupted through court approved Lease-Fallowing agreements, and the water owner compensated, to meet shortages in drier years. In wet years existing storage and new storage could be utilized to save the excess for drier times. Storage projects including alluvial storage need to be built to meet the future needs. Through the existing Appropriation System, the above plans and others are underway to meet this future need. Water storage operations could be adapted to meet multiple uses for stream management to meet increased demands for the environment and recreation. All this can and should be completed through the Colorado Doctrine of Appropriation, a strong legal framework to guarantee the security, reliability and flexibility in the development and protection of water resources.
In our next “Water Talks” article we will explore the various threats to our water supply.
By Ken Baker - Board Consultant
The Colorado General Assembly is in session and the Upper Arkansas Water Conservancy District is closely monitoring water-related legislation. In our March legislative update I have highlighted some of the issues we are closely following.
Change in Republican River District Boundaries
HB19-1029 will require a larger number of water users to pay for well pumping in the newly enlarged district.
Water Loans for Stream Use
HB19-1218 will amend the existing statute that grants authority to the Colorado Water Conservation Board for loaning water for in-stream purposes. Provisions state that the loaned water is to be used for preserving the natural environment of a stream reach that is subject to a decreed in-stream flow right and preserving or improving the natural environment to a reasonable degree for a stream reach for which the Colorado Water Conservation Board does not hold a decreed in-stream right. The bill would increase the number of years of the loan from three years to five years of a ten-year period.
Study of Blockchain Technology in Water Uses
This bill, SB19-184, is in response to the rapidly emerging technology of blockchain. Governor Polis has announced a major long-term commitment by his administration to make Colorado a hub for the technology of blockchain. Blockchain technology most often associates with crypto-currency, but it has a vast array of uses with respect to asset management, inventory control, product safety, and other applications where security of interchanges is a high priority. SB19-184 authorizes the Colorado Water Institute to study potential uses of blockchain technology in various water applications such as recording and monitoring water rights, developing market exchanges of water, the creation and operation of water banks, aquifer storage retrieval and other applications. When the Institute has completed the study, it will report back to the General Assembly.
Restructuring of State Regulations of Oil and Gas Exploration and Extraction
HB19-181 proposes major restructuring of the regulatory treatment of the oil and natural gas exploration and extraction industry.
Concerning the Expansion of Agricultural Chemical Management Plans to Protect Surface Water
SB19-186 is a plan that CSU has worked on with the Department of Agriculture. The word groundwater has been replaced with the term “state waters”.
In 2017, the Upper Arkansas Water Conservancy District developed a comprehensive education plan to help us expand our outreach and education efforts. We, as your local water district, want to better engage the public through well-informed discourse regarding local water management and to offer educational programming and resources in the Upper Arkansas Basin. The Upper Arkansas Water Conservancy District has served your communities for over 40 years andwe would like the opportunity to share with you what we have learned. We believe that education is the key to building successful projects for the future to effectively and efficiently manage our most precious resource - water.
In the last year, following the development of our education plan, the Upper Arkansas Water Conservancy District has built various education programs to assist in the education on water-relatedtopics in the community. We now offer a monthly educational column in regional newspapers. It is there that we talk about new projects, essentialfunding sources, and potential solutions to our water challenges. We’ve also created educational literature available at our office for pick-up and hosted water education events throughout the area including documentaries and our annual Water Fest, a family-friendly water education event in Buena Vista and Salida.
Most recently, we have launched a new educational website full of information. We provide many resources on the site including a water resource data section where visitors may view information related to stream discharge, reservoir contents, water temperature, and weather conditions. We also have a comprehensive listing of links and resources, a blog where we will continue to feature news related to local water issues, and information regarding water administration and storage projects.
You may view our new website at www.uawcd.com
In 2019, the Upper Arkansas Water Conservancy District will continue to build upon our water education programs and opportunities. An understanding of water history, law, and administration are essential to developing solutions to our future water challenges. We strive to provide the groundwork for this type of water education, in turn, building a more informed community. If you have any questions or if there is something, you’d like to learn more about, please contact Chelsey at 719.539.5425 and let us know.
We’d enjoy hearing from you.
Join the Upper Arkansas Water Conservancy District for a two-day water festival.
This great family-friendly (and fun!) water education event is sponsored by the Upper Arkansas Water Conservancy District, in partnership with the Foodshed Alliance and are held in conjunction with the Salida Farmers Market and the Buena Vista Farmers Market. Enjoy water education for children and adults as well as demonstration and exhibits.
Free and open to the public.
--Saturday, August 25th - Salida @ the Farmers Market, Alpine Park
--Sunday, August 26th - Buena Vista @ the Farmers Market, South Main Square
No doubt fire is on everyone's minds this summer. It is clear that being proactive with the health of our local forests is imminent. Not only does it protect people, wildlife, the surrounding communities and infrastructure, but it also protects important water resources.
The flash flooding and resultant runoff full of sediment, rocks, and debris that occurs with every big rain event following a wildfire, impacts the tributary streams, creeks and ultimately the Arkansas River. Forest fires also threaten storage vessels which provide critical water supply to all water uses; agricultural, municipal, environmental and recreational. Here at the Upper Arkansas Water Conservancy District we're working on an innovative forest and watershed health project on Monarch Pass to address wildfire before it happens.
A proactive approach to watershed health
The spruce beetle activity across the Monarch Pass area has increased to endemic levels, deteriorating the forest at an alarming rate. The US Forest Service (USFS) is moving forward with a fuels mitigation project that will treat approximately 3,000-acres of beetle-kill on Monarch Pass by harvesting the dead trees. The UAWCD has joined these efforts to help secure funding and partners for approximately 600-acres that is on steep slope terrain. Generally, steep slopes are excluded from forest mitigation projects due to safety concerns and the high costs associated with using traditional methods to remove down and dead trees. Yet, treating steep slopes is imperative. Often our most critical water supplies such as reservoirs and important drainages that feed into the Arkansas River are surrounded by steep slopes. Initial research has identified over 20,000 acres of this type terrain in the mountainous areas of the Arkansas drainage. Fortunately, the USFS has identified a new technology that can treat the steep slopes on Monarch Pass while at the same time saving money, reducing the impact to the environment and improving safety. This cutting-edge technology has never been used in Colorado, and when successful, this project will very likely become a statewide model for treating steep slopes across Colorado and hopefully encourage investment from private industry.
The UAWCD is taking the lead and a very active role with outreach for the project to bring more partners and money to the table to protect our local water supply, as well as to introduce this new technology to others in the state. We recognize the urgency of protecting our forest and water resources and non-federal matching dollars help expedite the process significantly. We’re excited that to date, the UAWCD in partnership with Chaffee County, City of Salida, Town of Poncha Springs, Colorado Springs Utilities, and the Arkansas River Watershed Collaborative, have secured the needed matching funds to apply for a Colorado Water Conservation Board grant that could provide over a half million dollars for the project. The UAWCD is continuing to look for additional funding partners throughout the State and water community to move this project toward implementation and before a catastrophic forest fire.
We encourage the water community, local municipalities, and other entities to support this project and to make it a priority. Although matching dollars are the best resource to move this project forward, Letters of Support are also vital and demonstrate that our community is committed to a hands-on approach to addressing forest and watershed health concerns. A special thank you to Central Colorado Conservancy for being the first local non-profit to provide a Letter of Support and volunteer hours for this project. It is not a matter of ifour local forests and water supply will be impacted by wildfire, but rather a matter of when. Let’s be proactive, today.
Naturally what is emerging out of this project is a grassroots local watershed entity - a group of local and statewide partners working together on an important forest and watershed project. We hope to continue to build upon the momentum and strength of this effort for future projects. For more information, please contact Chelsey Nutter at UAWCD.
About Water Talks
Water Talks is a monthly column published in area newspapers by the Upper Arkansas Water Conservancy District.