By Brent Gardner-Smith, Aspen Journalism
MONTROSE — Dick Wolfe, Colorado’s state water engineer, told a group of irrigators here last week that it’s illegal for someone to take more water than they need because they are speculating on the future potential value of their water rights.
Wolfe was one of several guest speakers at the Uncompahgre Valley Water Forum, which was held on Sept. 1 at the Montrose County Fairgrounds.
Ken Lipton, president of the Shavano Conservation District board of supervisors, introduced Wolfe.
“He’s going to talk about probably one of the most misunderstood parts of Colorado water law, and that is ‘use it or lose it,’” Lipton said.
Wolfe, who has been state engineer since 2007, began by saying that some people who own a water right can have a “misunderstanding” of what it means to “own and operate that water right in the context of ‘lose it or use it.’”
“They are really thinking in their minds, ‘I better divert it or I’m going to lose it,’” Wolfe said. “So oftentimes the context of ‘use it or lose it’ is ‘divert it or lose it.’”
But that thinking should actually “be framed as ‘beneficially use it or lose it,’” Wolfe said. “Because really the true measure of your water right is based on the beneficial consumptive use of that water right. Not how much you diverted, but how much you beneficially used it.”
Wolfe also said that when you go to change a water right in water court, “the measure of your water right is not based on how much you divert, but how much you consume of that. That’s how much you can take and transfer into the future. That’s what values that water right.”
He said it was easy for short adages to roll off one’s tongue, but when it comes to water rights in Colorado, the phrase “use it or lose it” should really be a mouthful, as in “establish and maintain a pattern of beneficially using it, for its decreed beneficial use, over a representative period of time, while in priority, without waste, or lose it.”
Or, in short, “beneficially use or lose it.”
“The essence of a water right is the application to a beneficial use without waste,” said Wolfe, the official responsible for enforcing compliance with Colorado water law. “In Colorado there are laws — specific provisions and statutes — that prevent someone from wasting water.”
(Please also see “Don’t take more than you need: wrangling wasted water on the Western Slope,” by Aspen Journalism.)
The ‘use it or lose it’ report
Wolfe said given the misperceptions about “use it lose it,” he began participating two years go with a group of stakeholders to help the Colorado Water Institute at Colorado State University issue a special report on the subject.
The report, released in February, is called “How diversion and beneficial use of water affect the value and measure of a water right,” and is subtitled “Is ‘use it or lose it’ an absolute?”
“It was engineers, attorneys, environmentalists, people from the cattleman’s association, corn growers,” Wolfe said of the group. “We thought we had a very wide range of stakeholders in this.”
He said the resulting 11-page document, which is in a question-and-answer format, is a helpful document that has been “very valuable in our administration efforts.”
“Administration” refers to managing the almost 180,000 decreed water rights in Colorado, which give people the right to use water from the state’s rivers and aquifers, but do so in priority based on the date of their water rights.
“We recognize that even some of our own staff had misunderstandings, misperceptions, of this ‘use it or lose it,’” Wolfe said. “So as water users come into contact with [our staff], we’ve got to make sure we are sending a consistent message on what it means when we talk about ‘use it or lose it.’”
Still applies in some cases
Wolfe described several ways in which some aspects of “use it or lose it” can still shape a water right, which is why the phrase has such staying power.
One is when you have a conditional water right.
Every six years in Colorado “you either have to demonstrate that you are maintaining diligence or that you’ve put it to use to make it absolute,” Wolfe said of such rights. “If you have an inability to put that water to beneficial use, there is a potential to lose that through [the] diligence process.”
Another area where “use it or lose it” can apply is to absolute water rights, where water has been physically put to beneficial use.
But Wolfe said that “as long as you’re operating within the decreed conditions of that decree, you’re not going lose it.” And, he added, it is only in “very rare situations where an issue would come up with an absolute water right.”
Wolfe explained that every 10 years, regional division engineers prepare an “abandonment list” of water rights that have not been used consecutively in the last 10 years.
But once put on such a list, the holders of the water rights can usually explain that they never intended to abandon their water right.
Wolfe said it’s “pretty easy” for a water rights owner to get off the list, and “they can continue to move forward until we go to the next abandonment process 10 years later.”
Another area where “use it or lose it” comes up is in a change case in water court. If someone goes to sell a water right, they can’t sell the portion they’ve never put to beneficial use, Wolfe explained.
He then walked the audience through an example.
Say a farmer has a paper right to divert 150 cubic feet per second from the river, but they only divert 100 cfs.
“This could be because over time, maybe they’ve put in a sprinkler irrigation system, something that made them more efficient, so that they are only needing to divert 100 cfs,” Wolfe said.
The farmer’s corn crop consumes 60 cfs of the 100 cfs that has been diverted, and so 40 cfs returns to the river, either on the surface or underground.
So when the farmer goes to sell their water right to a city, they can sell the 60 cfs that was historically consumed by the crop. But they can’t sell the 40 cfs that returned to the river — in order to make sure that downstream users still get the same amount of water as before the sale.
“That’s the measure of your water right, how much you’ve historically consumed,” Wolfe said.
But if the farmer was overly worried about “use it or lose it,” they might instead divert 150 cfs — the full decreed amount of water in their right, he said.
“When someone is thinking about ‘use it or lose it,’ they oftentimes think about, in this example, ‘I’ve got 150 cfs water right, I’m only diverting 100 cfs, so boy, if I’m concerned about maybe selling that someday, and I might lose some of my water right, I better divert that entire 150 cfs,’” Wolfe said. “This can lead to a practice of diverting more water than someone needs.”
Wolfe said the state of Colorado has the right to reduce the amount of water someone diverts from the river, if they are taking more than they need to get the job done.
“If we determine in that process that there is waste occurring, then we can curtail that water right back to what we think is a representative duty of water,” Wolfe said. “Remember, in the state constitution, the water belongs to the public. It’s the public resource, and there are a lot of laws written trying to protect this precious resource we have.
“We have this duty to only use what you beneficially need without waste, because there is all these other people and other uses that rely on that public resource.”
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on the coverage of rivers and water. The Daily News published this story on Tuesday, Sept. 6, 2016.