From The Valley Courier (Ruth Heide):
Division of Water Resources State Engineer Dick Wolfe tackled the “use it or lose it” concern during the Rio Grande Basin Ag Producers’ Water Future Workshop in Alamosa on Tuesday.
“People think they have got to divert everything under their water right or they will lose it,” Wolfe said.
He said the important thing to remember is historical consumptive use.
Most water in Colorado is diverted for irrigation, “for beneficial crop use,” he explained. Wolfe was involved in compiling a special report issued in February 2016 by the Colorado Water Institute in an effort to educate people on the “use it or lose it” concept.
The report addresses five main concerns: 1) maintaining conditional water right; 2) administering absolute water right; 3) abandoned water right; 4) changing use of a water right from agriculture to municipal use; and 5) implications of conservation program participation.
Wolfe specifically dealt with the fourth concern, changing the use of a water right, during Tuesday’s conference. He explained that water right changes come under dual administration, both from the state engineer’s office and the water court, which adjudicates the water right.
“Any change of water right can be time consuming and costly,” he said.
A change of water rights case has to consider whether the change will injure existing users or use more water than historically used.
Water rights come with restrictions such as the maximum that can be diverted, flow rate and area of land, Wolfe explained. The historic consumptive use is critical in water use change cases, he added, with the historical consumptive use of a water right often being less than the maximum that was allowed to be diverted under the original decree. Wolfe used a hypothetical example of a water right decreed for 150 cfs (cubic feet per second), but only 100 cfs had historically been used to irrigate the farmland, with only 60 cfs actually consumed by the crop and 40 cfs returning to the river. If the owner of the property wanted to dry up the farmland and sell the water right to a factory, for example, the owner could not transfer the full 150 cfs that was decreed in the water right, Wolfe explained. The owner could only transfer the 60 cfs that was historically consumed on that property. The water that has historically gone down the river must continue to do so.
Wolfe said someone might argue that they should divert their entire decreed right, then, but the crop can only consume so much water, and that consumptive use is what can be transferred.
“The measure of that is still historical consumptive use,” Wolfe said. “It’s limited by the amount the crop can consume.”
The duty of water is also something to consider, Wolfe added. If folks are diverting more water than they need, they could be depriving others and causing unintended impacts to the stream system, he explained.
Colorado water law does not permit wasteful water use, and Wolfe said he would be issuing an order in the next few months giving clear guidance on what wasting water means.