From Aspen Journalism (Heather Sackett):
For the second time, the state’s top water cop has directed the Western Slope’s oldest and most valuable water rights to be left off the once-a-decade abandonment list. That means hundreds of these mostly irrigation water rights have been granted immunity — even though they are no longer being used — from the threat of “use it or lose it,” further enshrining them in the state’s system of water administration and dealing a blow to the validity of the well-known adage.
Every 10 years, engineers and water commissioners from the Colorado Division of Water Resources review every water right — through diversion records and site visits — to see whether it has been used at some point in the previous decade. If it hasn’t, it could end up on the decennial abandonment list, which is scheduled to come out in July.
But a November 2018 email from state engineer Kevin Rein to all four Western Slope division engineers instructs them to not include pre-compact rights on the abandonment list. That includes all the water rights in the Yampa/White/Green, Colorado, Gunnison and San Juan/Dolores river basins.
“Since the nature of the pre-compact water rights is unique in Colorado when it comes to administration of the Colorado River Compact, and in recognition of the fact that the value of the rights could benefit all water users in Colorado, as opposed to only the owner of the water right, I will ask that you direct your staff to do no further investigation of pre-compact water rights and to not include them in the Division Engineers Proposed Abandonment list for 2020,” the email reads.
A primary job of the state and division engineers is to administer Colorado’s system of prior appropriation, in which the older the water right, the more powerful it is.
Rein said he talked with major water providers and managers along the Front Range and on the Western Slope before making the decision, but he would not say which ones or anything about the nature of those conversations.
Former state engineer Dick Wolfe issued a similar directive regarding the 2010 abandonment list, meaning Colorado’s water rights that date to before June 25, 1929 — when Congress ratified the Colorado River Compact — have enjoyed an extra level of protection from state-led abandonment for two decades.
“We need to allow for the fact that if those water rights are abandoned and taken off the tabulation, then that amount of water is no longer available to Colorado,” Rein said.
But what exactly the value of unused, pre-compact water rights could have to all Colorado water users remains unclear. Post-compact water rights, meaning those after June 25, 1929, are still eligible for the abandonment list.
According to Rein, the decision to include water rights on an abandonment list is administrative one and he has statutory authority to revise the list.
Colorado River Compact
A major fear of Colorado water managers is what’s known as a “compact call.” If the upper basin states — Colorado, Utah, Wyoming and New Mexico — don’t deliver the required 75 million acre-feet of water over 10 years as specified in the Colorado River Compact to the lower basin states — California, Nevada and Arizona — it could lead to a compact call. This scenario, which looms larger each year with the increasing effects of drought and climate change on an over-allocated river, could trigger involuntary cutbacks for Colorado water users.
But water rights that had been perfected before the compact was ratified are exempt from these cutbacks. And now the state is adding unused, pre-compact water rights to this exempt category. In Colorado, many of these oldest water rights belong to Western Slope agriculture.
Like moving a pawn early in a chess match, it is unclear exactly how this directive from Rein could help Colorado in the future. Nobody really knows whether or how a compact call (or negotiations among states to avoid one) might play out. Therefore, no one can say exactly what value these pre-compact water rights have to Colorado.
Water experts and managers throughout the upper and lower basin were reluctant to talk about the issue and gave diplomatic responses to questions about the sensitive political issue of interstate compact compliance.
“I don’t know the answer,” Rein said. “I think there’s general agreement that these water rights may have value in a compact-call scenario. I don’t know because of the complexities of it.”
Some water experts say preserving these pre-compact water rights, even though they aren’t being used, could give Colorado stronger footing in potential negotiations with lower basin states by propping up Colorado’s consumptive-use tally on paper.
“I would say it’s a conservative approach and it might help in your negotiations with other states,” said Doug Kemper, executive director of the Colorado Water Congress. “You would be making the argument that we have this portfolio of water rights, these are still on the books. But again, you’re trying to forecast how a negotiation might proceed, and I think to meaningfully comment on that would be almost impossible right now.”
Preserving these irrigation water rights also means they would be available to transfer to other users in the future, such as Front Range water providers — whose water rights are mostly post-1929 and therefore vulnerable to cutbacks under a compact call — as the state continues to urbanize.
In a prepared statement, Denver Water CEO Jim Lochhead said the water provider, which supplies water to 1.4 million people, “is supportive of the state’s efforts to protect Colorado’s pre-compact rights. This approach will benefit and help provide additional security for Colorado River water users on the West Slope and Front Range.”
Reagan Waskom, director of the Colorado Water Center at Colorado State University, agreed that hanging onto those pre-compact water rights could be in the state’s best interest.
“The idea of holding as many of those pre-compact rights in place makes sense from a purely Colorado-centric point of view,” said Waskom. “We still don’t know what a compact call or curtailment would look like, so we are going to stay as conservative and protective as we can.”
The Colorado River Water Conservation District is in favor of Rein’s directive, according to general counsel Peter Fleming. The Glenwood Springs-based River District works to protect water rights on the Western Slope, which often means advocating for agriculture interests.
But Fleming brings up an interesting point: The value of water rights in Colorado is based on them being used. If these water rights still exist on paper but haven’t been used in a decade — in some cases, two decades — what is their value?
“There’s this notion that pre-compact water rights are sacrosanct and very important, and that’s true if they have continued to be used and historically consumed,” Fleming said. “But you don’t just make water available by saying these rights that haven’t been used for X number of years still exist. So, I guess I would say it’s a risk-avoidance strategy, but it’s an unproven strategy.”
Rein’s directive also helps debunk the adage “use it or lose it.” While the pre-compact rights are not being used, they also are no longer in danger of being lost. The threat of the state taking away a water right has now disappeared for Western Slope pre-compact irrigation rights.
The often-misunderstood tenet “use it or lose it” is embodied by the abandonment process.
Some water users believe that if they don’t divert the full amount they are entitled to — even if they don’t always need that much — the state will take it away and it will be available to another water user. But the concept is much more nuanced than that.
Colorado water law says abandonment is “the termination of a water right in whole or in part as a result of the intent of the owner thereof to discontinue permanently the use of all or a part of the water available.”
Just not using the water will not lead to abandonment; there must be an intent to abandon the right.
For a water user to keep their water right, they must put the water to “beneficial use,” which in the case of irrigation water means growing crops. If the water has not been used for 10 years — meaning there are no diversion records and the local water commissioner does not see evidence of water use on their site visits — division engineers could presume that the water right has been abandoned. They put it on the state’s initial abandonment list, which is updated every 10 years and published in local newspapers.
Water-right holders then have one year to file an objection to their listing in writing with the division engineer.
“We don’t like close calls, so if they diverted the water 11 years ago, we are going think, ‘Eh, I don’t know,’ because we are talking about somebody’s property right,” said Alan Martellaro, Division Engineer for Water Division 5.
After working through the objections with water-right holders, the division engineer publishes the revised abandonment list. If a water-right holder still protests their placement on the list, they can go to water court to argue that they did not intend to abandon the water right.
For the 2010 Division 5 abandonment list, Martellaro said the pre-compact rights comprised easily half the list before Wolfe instructed division engineers to take them off. The 2011 revised Division 5 abandonment list included about 75 water rights, one-third of which were related to the now-defunct Mid-Continent mine on Coal Creek near Redstone where a 1981 explosion killed 15 miners.
The 2020 abandonment list is expected to come out in July.
Aspen Journalism is a local, nonprofit and investigative news organization that covers water and river issues in collaboration with The Aspen Times and other Swift Communications newspapers. This story appeared in the June 22 edition of The Aspen Times.
From KUNC (Luke Runyon):
Use it or lose it.
That saying is at the heart of how access to water is managed in the western U.S. Laws that govern water in more arid states, like Colorado, incentivize users to always take their full share from rivers and streams, or risk the state rescinding it. The threat comes in the form of a once-a-decade document that lists those users on the brink of losing their access to one of the region’s most precious resources.
It’s called the Decennial Abandonment List — and being included on it strikes fear and paranoia into rural pockets of the state, where farmers and ranchers depend on water for their livelihoods. Farmers trade tales of neighbors who’ve been mistakenly listed, with a notice sent to a wrong address, and who eventually see their water rights effectively canceled. Abandonment horror stories are akin to urban — or in this case, rural — legend.
Western Colorado water lawyer Rob Pierce says there’s one thing his clients, mostly farmers and ranchers, are always asking him about.
“The whole concept of abandonment,” Pierce said. “It gets mentioned all the time.”
Pierce practices for the Grand Junction-based firm Dufford Waldeck, and he said interest in abandonment reaches its apex right before the state releases the list. Colorado’s initial abandonment list is scheduled for July 1, the first time it’s been updated since 2010. Preparations for this year’s list began in 2018.
By law, state regulators are required to compile the list every 10 years. It details all the water rights no longer being used to irrigate crops, flow through city plumbing systems or cool turbines in factories and power plants. If they’re determined to no longer be in use, they’re scrubbed from the record, and can’t be used again. Because the stakes are so high, Pierce said scuttlebutt about who’s on it and who’s not starts early…
The idea behind the abandonment list is rooted in Western water law. Ever since the 1800s, when the concept of prior appropriation became the dominant methodology to divvy up water in the region, Westerners have been able to petition for rights based on their ability to put it to “beneficial use.” Not using it? Then you can lose it.
But like many old adages in the West’s water lore, Pierce said, it’s more complicated than it sounds…
“It’s not as easy as ‘use it or lose it’ makes it sound I think,” [Kara] Godbehere said. “That terminology is maybe a little inflammatory or misleading because it’s not as though without you realizing it, your water right would just slip out of your hands.”
It’s actually pretty difficult to lose it, Godbehere said. First, a user has to stop diverting the water for a long time. She points out abandonment lists come out once in a decade, and it sometimes takes an even longer period of 15 to 20 years to establish non-use. Users aren’t likely to put their right in jeopardy unless there’s a strong pattern of non-use, she said. And, even more importantly, she said, you have to intend to abandon it. It’s not an accident.
“It’s not as though it just sort of disappears one day and somebody is left wondering, where did my water go?” Godbehere said…
Rights can either be fully or partially abandoned as well. If a farmer switches to a more water-efficient crop, like replacing a field of alfalfa hay with hemp for example, the water consumed over time could be less. And the water right used to irrigate that field could end up being partially, not completely, abandoned.
More than 2,700 individual water rights were initially listed as abandoned on the 2010 list. After going through a court process, where people who think they’ve been erroneously included have time to appeal, the list was whittled down to roughly 2,200 water rights that were officially declared abandoned, according to records from the Colorado Division of Water Resources. The vast majority of those rights were from farms and ranches, used to irrigate crops or pastureland. Agriculture uses about 80% of all available water in Colorado…
The abandonment list allows his department to clean up the books every now and then, and remove old rights from the record. Without abandonment, Rein said, a situation could arise where someone with old water rights, who hadn’t used them in a long time, all of a sudden starts using them again. That new use could upend how a whole water system functions, leaving some users short…
This year’s list also reflects some ongoing uncertainty in the realm of Western water politics. Earlier this year Rein sent a message to his division engineers, the state officials who compile the abandonment lists in their regions, telling them not to abandon rights that pre-date the 1929 Boulder Canyon Project Act, the piece of legislation that authorized the construction of Hoover Dam on the Colorado River.
Colorado is still uncertain what role abandonment might play in the hypothetical legal battle that could result from a violation of the Colorado River compact, which spells out a certain amount of water the states of Colorado, Wyoming, Utah and New Mexico are expected to send downriver to Arizona, Nevada, California and Mexico.
Those pre-1929 rights are called “present-perfected rights,” and likely aren’t subject to any sort of curtailment that would result from a compact call on the river. They’re some of the oldest, and most valuable, water rights in the entire Colorado River watershed.
But how those rights play into it is still unknown. Rein said after consulting with lawyers at the Colorado attorney general’s office, he instructed his division engineers not to include them. The same thing happened in 2010, so for more than 20 years, those pre-1929 rights haven’t been included on the list.
How do those present-perfected rights benefit Colorado’s standing in a protracted legal battle over the management of the Colorado River?
“That’s where I need to just honestly tell you, I don’t know,” Rein said. “And I’m not embarrassed to say I don’t know.”
“The most valuable thing that people have on a farm or ranch, is the water right,” said Jeni Arndt, a Democratic state representative from Fort Collins.
In general, the more water you have rights to, the more money it’s worth. The actual value can vary depending on drought conditions, and whether nearby residential development or other new demands for water are coming online. So if the volume is tied to a dollar amount, and a user can be paid big sums of money to transfer their right to a new use, why would anyone ever want to conserve it?