Click the link to read the article on the Aspen Journalism website (Heather Sackett):
October 2, 2024
The old water law adage doesn’t capture just how difficult it is to lose a water right. And state policy limits the pool of possibly abandoned water even further.
In December 2020, the Summit County Open Space and Trails Department bought a 15-acre property with a small pond, three ditches and a well.
Known as the Shane Gulch property, it was the only remaining private property north of Heeney Road between Green Mountain Reservoir and the Williams Fork Range. The land, just east of Colorado 9 and the Blue River, has stunning views of the snow-capped peaks that form the Continental Divide. Summit County purchased the property, which consists of three parcels of rolling hills and meadows, to preserve the unique scenic, wildlife and agricultural heritage values of the area.
The water on the property had historically been used for irrigation. But according to the state Division of Water Resources, the former owners of the property had not used the water rights on one of those ditches, the Culbreath Ditch, in the previous 10 years. The water rights were placed on the initial 2020 abandonment list, leaving them at risk of being lost.Abandonment is the official term for one of Colorado’s best-known water adages: Use it or lose it. As the saying goes, a user must do something of value with their water (use it) or the state could take it away (lose it). Once abandoned, the right to use the water is canceled and goes back to the stream where someone else can claim it and put it to use.
Every 10 years, officials from the Colorado Division of Water Resources review every water right — through diversion records submitted by water users and site visits — to see whether it has been used at some point in the previous decade. If it has been dormant, it’s added to the preliminary abandonment list. But there’s a safety net. Not using the water is just one part of abandonment; a water user must also intend to abandon it.
The goal of abandonment is to preserve the water law system that the West relies upon. That legal framework, known as prior appropriation, is the bedrock of Colorado water law in which the oldest rights get first use of the river. If an upstream user with a senior water right resumes using it again after decades of letting it sit dormant, that’s not fair to downstream junior water users because it leaves less water for them. The abandonment process prevents people from locking up a resource they aren’t using.
Abandonment-process protections
Although the concept of abandonment may loom large in the minds of water users, only a tiny percentage of water rights ends up on the abandonment list every 10 years, and it’s rare for the state to formally abandon a water right.
In the last round of cancellations, in 2021, 3,439 water rights ended up on the final abandonment list out of 171,578 total water rights in the state, or 2%. On the Western Slope, 658 water rights out of about 75,000, or less than 1%, ended up on the final revised abandonment list.
Water users have two opportunities to fight an abandonment listing, and state policies have given an extra layer of protection from abandonment to the oldest water rights for the past 20 years. In most, if not all, cases, the water rights that were abandoned truly were not used in the previous decade.In an example near Glenwood Springs, a ditch had been filled in and turned into a trail, and the land it had once irrigated was now home to a hotel and recreation center. And those who aren’t using their water because they are participating in state-approved conservation programs, such as the System Conservation Program currently happening in the Colorado River’s Upper Basin (Colorado, New Mexico, Utah, and Wyoming), are protected from abandonment.
“It’s a lot harder than people think to actually abandon water rights,” said Jason Ullmann, the top water engineer at the Colorado Division of Water Resources. “I think people feel like there’s this constant potential for their water right to be abandoned, but because it’s a personal property right to use the public’s resource, you don’t want it to be easy to come in and abandon that right.”