From The Mountain Mail (Maisie Ramsay):
Ice Lake’s calm waters have been a Buena Vista fixture for generations. Records of the man-made lake go back almost as far as Buena Vista itself. Farmers used its ice to chill lettuce and other crops before the invention of refrigerated transportation. Migratory birds flock to the lake, whose waters provide much-needed riparian habitat in times of drought. An entire community has been built around Ice Lake to appreciate its beauty.
Now, Ice Lake’s very existence is being threatened. Two nearby lakes, Yale Lake and Harvard Lake, face a similar dilemma.
The problem is water rights. The lakes are using water in a quantity and manner not covered by legal decrees. As a result, Yale Lake and Harvard Lake will begin to dry up this spring. It is unclear when, or if, they will be refilled. Ice Lake will also begin to shrink, state officials say.
Legal issue arises between decreed and actual water use
The problems with Yale Lakes Estates’ water usage went unnoticed until water commissioner Brian Sutton began investigating issues with the Upper Arkansas Water Conservancy District’s water rights on the Thompson Ditch.
UAWCD can’t use the water rights for augmentation without drying up land once watered by the Thompson Ditch, a problem since the land still appears to be irrigated.
Sutton’s search for the land’s water source prompted him to look into the decrees related to the Thompson Ditch, including those for Yale Lake and Harvard Lake, where he found inconsistencies between the decreed water use and actual water use.
Once Sutton noticed problems at Yale Lake and Harvard Lake, he checked on decrees for nearby ponds and Ice Lake as well. Sure enough, there were discrepancies between the water rights and the water usage.
Ice Lake was especially problematic. Though the man-made lake has been there since the late 1800s, the water rights weren’t adjudicated until 1942. Water rights in the Upper Arkansas River Valley date back to the mid-1800s, so Ice Lake’s late decree date meant its rights were rarely “in priority.”
As a result, it was seldom within its rights to retain water from its source, the Franklin Spring.
Just how seldom?
According to a July 30 Division of Water Resources letter to homeowners, “The last time the Franklin rights were in priority was in 1999 and then only for about 6 weeks.”
The 30-acre pond wasn’t just retaining water it didn’t have the rights to, it was evaporating that water into the air. A lake of that size evaporates about 30 million gallons into the air each year, according to Sutton’s estimates.
“It’s very significant,” Sutton said.
Together, Ice Lake, Harvard Lake, Yale Lake and nearby ponds lose roughly 140 acre-feet per year through evaporation, Sutton said. That amounts to 46 million gallons vanished into thin air.
“It belongs in the creek to satisfy downstream water rights, and there’s an injury to those downstream water rights,” Sutton said.
Lakeside Estates must come up with a plan to offset those depletions. Like Yale Lake and Harvard Lake, Ice Lake must stop diverting water beginning in April, a move that will shrink the lake as it loses water through seepage and evaporation.
Division 2 engineer Steve Witte says possible options for Ice Lake include draining it, shrinking it or acquiring augmentation rights to keep the lake at its current size. Some water rights may be available for augmentation, but “it’s doubtful that would be enough to enable Ice Lake to maintain its current size,” Witte said.
Lisa Riegel, whose father developed Lakeside Estates, says the subdivision is looking for ways to keep Ice Lake intact. The homeowners’ association has hired a water attorney and is seeking help from environmental groups that may be interested in preserving the lake’s ecological value, Riegel said.
“We’re all very concerned about it, but I think we have some people that will be helping us that have come up with some ideas that will possibly work,” Riegel said.
Decree worked on paper, not in reality
The problems with Yale and Harvard lakes started with a water court decree issued 38 years ago.
Before Yale Lakes Estates was built, it was agricultural land irrigated by water diverted from Cottonwood Creek into the Thompson Ditch. When the 50-lot subdivision was created, the water rights had to be adjusted to reflect that water would now be pumped into homes through wells, not spread over fields from the ditch. The decree allowed the subdivision to operate wells during the summer by reducing the amount of water diverted into the ditch, essentially leaving water in Cottonwood Creek to offset water pumped out of the aquifer by the residential wells. A small amount of water, just 0.2 cubic feet per second, was supposed to be diverted into the ditch to fill Yale Lake and Harvard Lake. The water was also allowed for a third lake that was never filled. Those lakes were supposed to serve a practical purpose: offsetting winter well water consumption by emptying water into Cottonwood Creek during the non-irrigation season. The problem with the decree, signed in 1976, was that it worked better on paper than it did in reality.
“We’re frustrated because this decree should have never gone through. It’s ridiculous to say you can run 0.2 cfs for a half-mile in a ditch and then fill up three lakes. It’s impossible,” said Reed Dils, who owns a home on Yale Lake. “The state engineer at the time should have known that, and the judge that decreed the case should have understood that.”
When Dils says it’s “impossible” to fill Yale Lake on the 0.2 cfs allocated under the decree, he’s not exaggerating. When the ditch was recently cut down to the allotted amount, the weak flow couldn’t reach the lake.
“The water didn’t make it more than a couple hundred yards before it soaked right into the ditch,” Dils said.
It’s physically impossible for the ditch to fill up Yale and Harvard lakes without exceeding the water allocated by the decree. While the amount of water allowed into the ditch to fill Yale and Harvard lakes was a scant 0.2 cfs, Sutton found the amount of water actually being used to fill Yale Lake was 1.2 cfs, several times the decreed amount.
The water source for Harvard Lake isn’t clear, as it’s not being directly fed by Yale Lake. It may be filling from seepage from Yale Lake, but it also may be filling up with groundwater.
In addition, the lakes weren’t releasing water during the winter to offset well usage, putting them further outside the parameters of the decree. Broadly speaking, the subdivision was using far more water than it was allowed to fill up Yale Lake and not properly compensating for winter water consumption. The problems extend to Harvard Lake. Now, decades after the decree was issued and an entire neighborhood has been built around Yale Lake and Harvard Lake, the glaring errors in the decree have come to light, and solving them could be painful.
Concerns over wells, wildlife and greenery
While Lakeside Estates is figuring out a way to salvage its property values, Yale Lakes Estates is focused on keeping water flowing from residential taps. The augmentation plan that allows homes to operate wells has failed. Yale Lake Estates must reach a permanent agreement with the UAWCD to allow residential wells to continue operating.
A temporary agreement was recently approved by the UAWCD allowing wells to operate, but the terms require the subdivision’s namesake lake to go dry for at least 2 years, Dils said. In the long term, the subdivision may be able to restore the lake by installing a pipe in the ditch and lining the lake to prevent water losses.
Harvard Lake is also set to go dry this spring.
The dry-up’s ramifications could extend beyond the lake. Because Yale Lake leaks so badly, it has likely been functioning as a sub-ground irrigation system, providing moisture to willows, cottonwood trees and a meadow. With the lake set to go dry next spring, Yale Lakes Estates’ greenery may die off for lack of water.
“We’re going to have the same problem with that meadow as we did with the Hill Ranch dry-up, where you’re going to go from a lush meadow to a weed-infested desert over time,” Dils said.
There is a chance the vegetation is being fed by other sources, such as a shallow aquifer, so the dry-up isn’t certain. The UAWCD will monitor groundwater in the area to help identify the source of water that is irrigating land that is supposed to be dried up.
The dry-up also has ramifications for wildlife, as the lakes have provided habitat to bald eagles, pelicans, avocets and the white-faced ibis.
“I’m very concerned about the wildlife out there,” said Bill Lockett, who owns some property near Harvard Lake.
The loss of the lakes means loss of habitat for migratory birds, including species that are already being threatened by habitat destruction.
Lockett hopes Harvard Lake, like Yale Lake, can eventually be restored as a reservoir, possibly for Buena Vista. “The town is in desperate need of water storage,” Lockett said. “We have a vessel that’s already there, and it would benefit the town … I am hopeful we can come to some solution that’s beneficial for everyone.”
More water law coverage here.