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.
This is part two of a two-part series by General Manager, Ralph "Terry" Scanga. To read part one, click here.
Threats to Water Use
In terms of water supply the greatest threat for the future would be a loss or erosion through legislative or administrative action of the time-tested Colorado Doctrine of prior appropriation. Actions are underway to use the water plan as a framework to advocate instead for the use of policy to appropriate water. Using policy for water appropriation would give the administration and legislature a pathway or initiative to utilize legislation in lieu of the more deliberate Appropriation system that is designed to protect existing water rights from injury. This strongly suggests that the legislature and administration may attempt to act upon perceived crises to garner support to move future appropriations or changes of current water use through legislation instead of the water court system.
Already underway is a Demand Management Plan that will allow administrative policies to transfer water rights from agriculture through Deficit Irrigation or by utilizing an undefined process termed “Conserved Consumptive Use” to Lake Powell or to municipal use. In the Arkansas Basin most irrigation is already in a deficit so there is no water to be saved. Under Colorado’s pure form of prior appropriation, in low flow periods, water rights are curtailed automatically to force reductions in use. There is no need to use state policy to create conservation. The frightening part of these actions is that if successful the only way for water right owners to protect themselves from injury will be expensive court action. If legislation is successful in adopting the concept of “Conserved Consumptive Use” it is possible we will see lower flows in the Arkansas River due to a reduction in trans-mountain diversions. These diversions support all uses in the river such as the voluntary flow management program. Instead of water flowing to the Arkansas River some may flow down the Colorado River to Lake Powell for storage and eventual evaporation there under a plan called Demand Management.
In the Upper Arkansas Basin water quality has been addressed is various ways. The Arkansas River was polluted by mining runoff and is normally by natural geologic formations. Most of this pollution has been cleaned-up and today there are large sections of gold medal fishing. Studies conducted by the US Geological Survey have concluded that most of our ground water is of good quality. These are good things. But the threat to water quality from sediment runoff from burn areas in our forests are real. Due to the beetle infestations and decimation of the forest stands in the US Forest lands fire is more likely and has occurred. The after effects of fire is larger than normal storm runoff. This will and has already caused heavy sediment loading on our streams and the Arkansas River. The Upper Arkansas Water Conservancy District (UAWCD) and the Arkansas Basin Roundtable is working with the US Forest Service and local entities to address some of these areas. Locally, the UAWCD is working with the Forest Service on a pilot project to remove beetle killed forest stands and make it a commercially viable resource. If successful, this may be be part of the solution. In the lower part of the Upper Arkansas River Basin, in Eastern Fremont County, there is a geologic formation that contains selenium that contributes to contamination in this part of the Arkansas River. At this time simply identifying these areas is a challenge but is being worked on by the US Geological Survey. Most of this type contamination mostly affects the Lower Arkansas Basin. Delivery of good municipal drinking water supplies is being undertaken by the South Eastern Colorado Water Conservancy District with the construction of a pipeline from Pueblo Reservoir to the Lower Basin communities.
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.
A veteran of the Civil War, John Wesley Powell, began the exploration of the arid west in 1869 to analyze its unique characteristics. At the time the Western United States was comprised of a group of territories in a landscape much of which was devoid of the lush vegetation characteristic of the Eastern part of the North American continent. This land—the Great American Desert—created developmental challenges for the US Government. Unlike the East and Mid-West water was scarce and an intricate system of water diversions and distribution canals was necessary to develop these territories into productive regions. Yet in 1890 a report from Powell to the Senate Select Committee on Irrigation and Reclamation of Arid Lands fell on deaf ears. Based upon Powell’s accumulation of data and findings from earlier western lands explorations he recommended the development of political jurisdictions based on hydrologic divides or watersheds. He was ignored, and states were created along arbitrary boundaries devoid of any natural physical land characteristic. It would take nearly 50 years before Powell’s recommendations would be instituted, but not from the Federal Government.
Powell’s map on the left depicted with jurisdictions bounded by natural hydrologic features. Water drainages would have political jurisdictions distinctly divided by natural water courses and their corresponding water sources.
Colorado, a headwaters state which sends water to all the arid regions of the west, was the first to develop legislation authorizing the creation of political subdivisions designed to have jurisdiction over watershed regions. Powell’s recommendation would take root within a state under the legislative authority of the Water Conservancy Act. The Upper Arkansas Water Conservancy District is one of these entities.
The Water Conservancy Act was adopted by Colorado in 1935. It charges these water districts with the responsibility to do “Works” as defined in the statute. These Works are the development of water and power resources both physical and intangible. Some of the physical structures are reservoirs and water diversions to supply water for irrigation, municipal, industrial and other uses within its jurisdiction. Intangible assets may be accumulated data on weather and stream flows, acquisition of decrees for water rights, or the creation of augmentation plans that cover large portions of a watershed.
Other political subdivisions, such as counties do not have the jurisdictional authority to conduct water activities, and because their boundaries are arbitrary and do not necessarily follow hydrologic divides, which are essential to the accomplishment of major water works. Since revenues obtained by political subdivisions must be utilized for the benefit of the citizens within that division, these revenues cannot be used to benefit a part of a watershed outside the political subdivision. Likewise, the authority to direct the use of these revenues outside a political subdivision is lacking. For example, funds spent on a project inside a county generated from a levy upon the citizens of that county cannot be utilized to benefit the watershed outside of that county. Powell recognized this reality although on a larger scale.
Water Conservancy Districts undertake watershed-wide projects authorized through the Water Conservancy Act. One of the present conundrums being discussed by some entities is how to undertake basin-wide projects—such as forest health and stream management projects. The clear answer lies in the Water Conservancy Act. It is through Water Conservancy Districts with basin-wide jurisdiction that these projects can be undertaken. Some recent articles have been written about large scale projects of the Upper Arkansas Water Conservancy District that create benefits for large portions of the Upper Arkansas watershed. The District has the jurisdictional authority to utilize revenue from various sources including its own revenue sources and match the revenue source commensurate with a localized benefit. On a smaller scale the District has undertaken integrated water management projects with municipalities on tributary drainages such as the South Arkansas River. On a larger scale the District’s Umbrella Augmentation Plan crosses several counties, all within the same watershed. The District can combine cost share funds from several political subdivisions with state and federal grants. Other entities lack these abilities either because they lack specific legal authority or are unable to expend funds for benefits outside their jurisdictions.
As the population of the Arkansas Basin increases the challenges of providing adequate clean water supplies will increase. It is comforting to know and understand that these challenges can be met by good planning and actions of our Water Conservancy Districts. In the Upper Arkansas watershed that entity is the Upper Arkansas Water Conservancy District. You can learn more about our projects at www.uawcd.com or by contacting the District and finding out about our Water Talks education program.
Upper Arkansas Water Conservancy District Responds to Hayden Fire & Flood Recovery
Home damaged during the July 2018 flood. Picture courtesy of Kate Spinelli Photography
In July 2016, a lightning strike ignited a fire that would burn over 16,000 acres of forest above the community of Coaldale in western Fremont County. Homes, businesses, critical transportation infrastructure, habitats to threatened species, and recreational areas were all located in and around the burned areas. Following the fire, monsoon rains arrived in early August, bringing the first of many flash floods and debris flows. The extreme weather events and flash floods continued in 2017 and 2018, with the worst damage to date occurring on July 24, 2018. That day due to the intensity of the rainfall, the Big Cottonwood Creek experienced an estimated flow rate of approximately 4,000 cubic feet per second (cfs) which caused the loss of homes, outbuildings, vehicles, and bridges, and required a helicopter rescue. Flooding continued throughout the summer and early fall as well.
Picture courtesy of Kate Spinelli Photography
Since that time, the Upper Arkansas Water Conservancy District has responded and began assisting with flood recovery efforts. Our focus has been to secure critical funding to complement the work of Fremont County and the Emergency Watershed Protection grant they have received from the Natural Resource Conservation Services (NRCS) which is earmarked at protecting private property along the Big Cottonwood. Working in partnership with the Arkansas River Watershed Collaborative (ARWC), we received a grant from the Colorado Water Conservation Board that will fund a fire recovery coordinator, hydrologist, and engineer whose primary function is to coordinate fire and flood recovery efforts in the area. This team will work with stakeholders, landowners, and various residents to develop a comprehensive and inclusive drainage recovery plan along the Big Cottonwood for the long-term sustainability and safety of the area.
Outbuilding damage from July 2018 flood. Picture courtesy of Kate Spinelli Photography
We have recently applied for a second grant for the Hayden Pass fire and flood recovery efforts to develop a Watershed Recovery Coalition that will include not only the Big Cottonwood drainage, but will expand to include all areas affected by the Hayden Pass fire. The work will expand the engineering analysis and risk assessment of all of the drainages affected by the fire and will ultimately result in the development of a master drainage recovery plan. We are hopeful that the grant will be awarded and we can continue supporting the Coaldale community.
Fremont County Commissioner Dwayne McFall and County Manager Sunny Bryant speak to Coaldale residents about the EWP grant the County received from NRCS for recovery efforts during a community meeting in November 2018.
Being proactive with the health of our local forests is essential. Not only does it protect people, wildlife, the surrounding communities and infrastructure, but it also protects important water resources. The Upper Arkansas Water Conservancy District is also working on other initiatives, including the Monarch Pass Forest & Watershed Health project helping to bring the necessary funding to this important project.
To learn more about the UAWCD and our other forest and watershed health projects, please contact Projects Manager, Chelsey Nutter.
About Water Talks
Water Talks is a monthly column published in area newspapers by the Upper Arkansas Water Conservancy District.
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.
Recently, the Colorado Water Conservation Board awarded the Arkansas River Watershed Collaborative and the Upper Arkansas Water Conservancy District $403,739 to move the Monarch Pass Watershed and Forest health project along.
The US Forest Service is working on a fuels mitigation project to treat approximately 3,000-acres of beetle-kill by harvesting the dead trees. The UAWCD has joined these efforts to help secure funding and partners for approximately 600-acres of the project. This phase of the project will utilize new and innovative technology that will allow access on the steep slope terrain east of Hwy 50. You can read more about the project here.
The Colorado Water Conservation Board stated that this is the first watershed and forest health project of its kind in the state of Colorado and sees it as a leader which will demonstrate future funding requirements for these types of projects.
Current Monarch Pass project financial partners and contributions to date:
Collectively, these financial contributions bring the local and state match to just over $660,000. An outstanding showing of how diverse interests can work together for watershed and forest health.
Thank you to everyone who has provided support to date. If you're interested in learning more, please contact Chelsey Nutter, Projects Manager.
A statewide funding source for local needs
Are you aware that Colorado has a Water Plan?
Issued by Governor Hickenlooper in 2014, the Colorado Water Plan was created as a roadmap to address Colorado’s current and future water needs, including those in our community. The Water Plan was led by the Colorado Water Conservation Board and was a multi-year collaborative process rooted in extensive engineering analysis, local and statewide stakeholder input, and identified what our water needs are and how to overcome those challenges.
Now that this inclusive plan has been created and put into action, the question remains:
How does Colorado continue to fund its implementation and close the $100 million gap created by the reduced severance tax funding on an annual basis?
Currently, the Inter-basin Compact Committee, a committee arising out of the “Colorado Water for the 21st Century Act” legislation to facilitate conversations on the statewide level between the nine Basin Roundtables, is working in partnership with the Colorado Cattleman’s Association and two predominate foundations to develop a new framework geared toward funding Colorado’s water future. This leadership team comprised of local and statewide water managers, officials and experts, including the Upper Arkansas Water Conservancy District, has identified healthy rivers, water quality, conservation and efficiency, sustainable agriculture, infrastructure, and Colorado compacts, as the six primary categories for the fund. There are common themes throughout these water priority areas with one being the need to improve forest health. As you know, by protecting forest health we do many things, including protect rivers and streams from sedimentation - a leading cause to the degradation of our water supply and quality. And with most of our water supply situated within national forest lands, protection and improvement of the forest is paramount to our water future.
The Upper Arkansas Water Conservancy District has utilized and leveraged state funding over the years to actively address water challenges in our community and basin. Our forest and watershed health project on Monarch Pass is a great example of how statewide funds benefit all of us here.
This new source of statewide funding would be under the jurisdiction of the State of Colorado and would provide the necessary financial resources to face our future water challenges, together. It would have a broad and lasting impact on important needs in our own community and would disperse the responsibility of funding across the State. The Upper Arkansas Water Conservancy District supports funding of this effort based upon a statewide approach. It looks forward to continuing its works and being a part of creating a clear path forward to funding important water and forest health projects on the state, basin, and District-wide levels.
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.