To prevent waste and avoid sparking an interstate legal battle, Colorado has started cracking down on what may seem like a drop in the proverbial bucket — illegal ponds.
Martin Mendine recently found himself in the state’s crosshairs. His family ranch is a wide, grassy expanse near southern Colorado’s Spanish Peaks. A fork of the Purgatory River meanders through the land which supports about a hundred cattle, and herds of elk. Migratory sandhill cranes pass through each year…
It’s wet enough to support all this life in part because of a cascade of five small ponds, held in place by dams made of dirt. The ponds are more than 80 years old, Mendine said. They were built when his grandfather tended the ranch.
“So we’ve been running this water now for, you know, damn near (a) century and they’re telling me I can’t use it,” Mendine said…
He got a notice in the mail recently telling him the ponds have been identified as potentially illegal. It said the storage rights needed to create and sustain the ponds don’t exist. To be compliant, he either needs to drain them or come up with a state-approved plan to fill them from a different water source or replace any losses from evaporation…
“Our basin has been over-appropriated for a long period of time,” said Bill Tyner, Colorado’s division engineer for the Arkansas River basin, where Mendine’s ranch is located. The Purgatory River is a tributary to the Arkansas, and runs across an arid stretch of southeastern Colorado…
Using satellite imagery to build an inventory of human-made ponds in the basin, and then cross-referencing with water rights on the books, the state has identified about 10,000 illegal ponds just in the Arkansas basin, Tyner said. He likens it to a string of pearls. Each individual pearl isn’t that costly or consequential on its own. But when pulled together in a line, it’s highly valuable…
His office is now in the midst of a systematic review of all ponds in the Arkansas basin. Using the satellite data, water commissioners, the people who enforce water law on the ground, have been following up with pond owners, letting them know they’ve ended up on a list of potentially illegal ponds, and laying out their options to make them legal…
The ponds in question encompass everything from pools for livestock watering to decorative fountains in business parks to duck ponds scattered across the grounds of a mountainous mansion.
It’s not just the Arkansas basin that’s seeing increased enforcement. State officials have pursued illegal ponds in the upper reaches of the Colorado River basin as well.
The problem with ponds, Tyner said, is evaporation. Water in a shallow pond evaporates more than when it’s flowing through a narrow stream. The state views evaporated water as wasted water…
Without money or access to new water supplies, a landowner’s options to make their ponds legal are limited. There are some exceptions for ponds used for erosion control or livestock watering, but they’re limited in scope. And because the Arkansas basin is one of the most over-appropriated in the state, there’s very little excess water to tap into…
A recent dispute over ponds went to the Colorado Supreme Court last year, where the state prevailed. The ponds in question aren’t allowed to be filled, and the owner was ordered to pay $92,000 in civil penalties, plus attorney’s fees. Machado’s takeaway from that ruling?
“Once the state finds an illegal pond and says you need to drain it, you better do it,” he said.
Arkansas River headwaters. Photo: Brent Gardner-Smith/Aspen Journalism
