‘As the Poudre Flows — Forest to Plains’ theme of Poudre River Forum

Scott Hummer, general manager of North Poudre Irrigation Company, talks about how his agency worked with Fort Collins Natural Areas and Colorado Parks and Wildlife to include a fish passage when the irrigation company replaced a diversion structure on the Poudre River that was destroyed by the 2013 floods. Work was completed [in February 2016]. (Pamela Johnson / Loveland Reporter-Herald)
Scott Hummer, general manager of North Poudre Irrigation Company, talks about how his agency worked with Fort Collins Natural Areas and Colorado Parks and Wildlife to include a fish passage when the irrigation company replaced a diversion structure on the Poudre River that was destroyed by the 2013 floods. Work was completed [in February 2016]. (Pamela Johnson / Loveland Reporter-Herald)

Here’s the release from Colorado State University (Jim Beers):

The Cache la Poudre River, which flows from the mountains through Fort Collins, Timnath and Windsor to the plains east of Greeley, is at the heart of countless activities: from irrigating crops and lawns to providing drinking water for more than 365,000 people and hosting numerous recreational activities.

Those with connections to and concerns for the Poudre River will gather on Friday, Feb. 3 for the fourth annual Poudre River Forum. After its first three years at Larimer County Fairgrounds, the forum is moving down the river to Greeley as a reminder that the Poudre River is important to all who benefit from it — from its headwaters to its confluence with the South Platte. This year’s forum — the theme is “As the Poudre Flows — Forest to Plains” — will be held from 8:30 a.m.-4:30 p.m. at the Island Grove Events Center, 501 N. 14th Ave., Greeley. Pre-registration is required for all participants.

Understanding the river, each other

Sponsored by the Poudre Runs Through It Study/Action Work Group, the forum serves as a community-wide gathering of people from agricultural, municipal, business, recreational and environmental backgrounds to learn about and discuss issues related to the Poudre River.

“The Poudre River Forum brings together those who use the river for agricultural and urban diversions and those who work to improve its ecological health. In the past those groups have not necessarily seen eye to eye,” said MaryLou Smith, PRTI facilitator. “Increasingly our participants are open to the idea that it takes collective vision and action to make the Poudre the world’s best example of a healthy, working river.”

Once again, this year’s event will be facilitated by the Colorado Water Institute at Colorado State University. “The Forum is a great opportunity for the communities connected by the Poudre River to come together to better understand the entire watershed, and each other,” said Reagan Waskom, director of CWI.

Forests and water quality/quantity

Laurie Huckaby with the U.S. Forest Service, will present “The last 1,000 years in the Poudre according to the trees,” to kick off the topic of how important the upper watershed is to water quantity and quality.

“Water quality and forests are inextricably linked,” said Joe Duda of the Colorado State Forest Service, who will join Huckaby as one of the presenters. “Forest conditions and insects, disease and fire all can have profound impacts on water flow and quality. Only healthy, resilient forests can continuously supply clean water.”

Global lessons for local success

“Finding the Balance: Managing Water for People and Nature” is the message of keynote speaker Brian Richter. Richter has been a global leader in water science and conservation for more than 25 years, and currently serves as chief scientist for the Global Water Program of The Nature Conservancy in Washington D.C. Richter’s ideas about the importance of recognizing the balance of working river/healthy river are the basis for which PRTI was initially formed. He has consulted on more than 120 water projects worldwide, and has served as a water advisor to some of the world’s largest corporations, investment banks, the United Nations, and has testified before Congress on multiple occasions. Richter co-authored,with Sandra Postel, the 2003 book Rivers for Life: Managing Water for People and Nature and in 2014 wrote Chasing Water: A Guide for Moving from Scarcity to Sustainability.

Change affects all sectors

An afternoon panel session will probe the impacts of change — positive and negative — along the Poudre River and how they have been similarly and differently addressed by agriculture, urban, and environmental sectors. They will discuss what anticipated future changes might these three sectors see as opportunities or incentives for mutually beneficial collaboration that could result in a healthier, working river?

“It has been said that the only thing that is constant is change,” said John Bartholow, retired ecologist from U.S. Geological Survey, and panel coordinator/moderator. “The question is, can we learn to adapt to those changes sure to come on the Poudre in ways that benefit agriculture, municipalities, and the environment?”

The panel will include Eric Reckentine, deputy director, City of Greeley Water and Sewer; John Sanderson, director of science, Nature Conservancy of Colorado; and Dale Trowbridge, general manager, New Cache la Poudre Irrigating Company.

Videos, displays and music too

The day-long forum also includes “River Snapshots” highlighting more than 15 projects undertaken by a variety of groups on the Poudre last year; “My How the Poudre Has Changed,” featuring historical 1970’s footage of the Poudre; updates from both the cities of Greeley and Fort Collins on current water programs; and over two dozen river-focused displays from community organizations and agencies. The day concludes with a social hour including food, beer and other beverages, and river-themed door prizes.

Registration is $50 and includes lunch. Scholarships for students and reduced rates are available. The deadline to register is Friday, Jan. 27 at http://prti.colostate.edu/forum_2017.shtml.

For more information, contact event coordinator Gailmarie Kimmel at PoudreRiverForum@gmail.com or 970-692-1443.

West Slope water interests prevail at supreme court — Aspen Journalism

Flow in the Fryingpan. Photo credit Brent Gardner-Smith (@AspenJournalism).
Flow in the Fryingpan. Photo credit Brent Gardner-Smith (@AspenJournalism).

From Aspen Journalism (Brent Gardner-Smith):

A long-awaited ruling issued Monday by the Colorado Supreme Court sends Aurora back to court to discern exactly how much water the municipality can divert from the headwaters of the Fryingpan River through the Busk-Ivanhoe Tunnel under Hagerman Pass.

And the ruling clarifies that transmountain water rights under the Continental Divide in Colorado do not automatically come with a right to store water in a reservoir, anymore than other water rights do.

Aurora had argued there had always been an implied right in its decree to store water from the Fryingpan headwaters in Turquoise Reservoir. But the court didn’t agree.

“The supreme court concludes that the right to store water in the basin of import prior to use is not an automatic incident of transmountain water rights, but rather, must be reflected, or at least implied, in the decree,” the court’s majority opinion stated. “In this case, the decree is silent with respect to storage of the water on the eastern slope prior to use for supplemental irrigation and, on the facts of this case, the record does not support the water court’s finding of an implied right in the decree for such storage. To the extent that unlawful storage of the water on the eastern slope expanded the decreed rights, such amounts cannot be included in the quantification of those rights.”

The Colorado River District, which represents 15 Western Slope counties, said Tuesday in a statement it is “very pleased with the supreme court’s well-reasoned opinion in which it reversed the Division 2 water court. In particular, we are pleased with the court’s recognition that transmountain water rights are subject to the same legal principles as all other water rights in the state.”

As might be expected, Aurora officials were less pleased.

“The city is disappointed with [Monday’s] supreme court opinion reversing the trial court’s earlier decision,” said an Aurora representative in a statement. “The city regrets the departure from what it believed to be settled law regarding use of transbasin waters.

“Additionally, it appears due consideration was not given to aspects of the trial court’s determinations regarding the state of the law when the water rights were originally requested,” the statement said. “Aurora is currently evaluating its possible next steps.”

One possible next step is for Aurora to file a petition within 14 days for the supreme court to rehear the case.

If Aurora does not petition for a rehearing, the case will be sent back to water court in Pueblo for a recalculation of how much water Aurora is allowed to divert via the Busk-Ivanhoe Tunnel for municipal purposes, instead of for irrigation purposes.

The supreme court said the new calculation should include the 22 years from 1987 to 2009 when Aurora used the water for municipal purposes without a decreed right to do so.

And by factoring in those 22 years of “zero use,” the new calculation is expected to lower the amount of water the Front Range city can divert from the Fryingpan in the future.

Another aspect of the ruling could also reduce the size of Aurora’s water right, as the court found that much of the water diverted through the Busk-Ivanhoe Tunnel since 1928 had been stored without a decreed right to do so.

“Because undecreed storage of a direct flow water right may amount to an expansion of that right, any expansion of the Busk-Ivanhoe water rights resulting from the unlawful storage of those rights on the eastern slope cannot be included in an historic consumptive use analysis,” the ruling stated.

The court also suggested that harm may have been caused to junior water rights owners on the Western Slope by undecreed diversion and storage of the Busk-Ivanhoe water.

“Storage of a decreed direct flow right can potentially expand that right by permitting the diversion of available water not immediately needed for beneficial use — water that would otherwise be left in the stream for junior water users,” the ruling said. “This impact on junior users does not cease to exist just because the water is diverted for export to another basin. Junior users in the basin of export have a right to divert and use water not lawfully diverted in the first place under a senior water right, regardless of whether that water is diverted for transmountain use.”

A map of the Busk-Ivanhoe system, with Ivanhoe Reservoir on the left side of the map and Turquoise Reservoir on the right.
A map of the Busk-Ivanhoe system, with Ivanhoe Reservoir on the left side of the map and Turquoise Reservoir on the right.

Worth the fight

Pitkin County has been opposing Aurora in the case since 2009 and has now spent $353,000 in the process.

“It was worth it,” said John Ely, Pitkin County attorney. “It was important for Pitkin County to assert that transmountain diverters are subject to the same legal consideration as any other water diverter or water user, because Pitkin County hosts two of the larger water diversions in the state.”

In addition to the relatively small level of diversions through the Busk-Ivanhoe Tunnel by Aurora and Pueblo, significant amounts of water are diverted off the top of the Fryingpan and Roaring Fork rivers to the Front Range as part of the larger Fry-Ark and Twin Lakes projects.

Aurora still has a valid water right from 1928 to divert 2,416 acre-feet of water through the tunnel for irrigation uses in the Arkansas River basin.

But officials now want to use the same water for municipal purposes in Aurora, which is in the South Platte River basin.

And when the growing Front Range city came into the court in 2009 seeking a change to its water right, it admitted it was already using the Fryingpan water for municipal purposes without a decreed right to do so, and had been doing so since 1987.

However, Aurora told the court that that fact should not count against it in its change case. It also said it shouldn’t matter to the Western Slope how it used its water once it was sent under the Continental Divide, including if the water was stored in an East Slope reservoir or not.

A judge in Division 2 water court in Pueblo agreed with Aurora and ruled in its favor in August 2014. That decision was appealed by a list of Western Slope interests directly to the supreme court, which issued its opinion on Dec. 6, 2016.

Both the broad ruling, that storage is not an inherent right for transmountain diversions, and the narrow ruling, that Aurora needs to recalculate its historic consumptive use, were welcome news for Western Slope water interests.

“The reason our clients stayed involved is [that] from the get-go, Aurora was asserting some untenable legal positions that seemed to rely in large part on the concept that, ‘Well, we’re a transmountain diverter, so we look at things differently,’” said Kirsten Kurath, an attorney in Grand Junction.

She represented the Grand Valley Water Users Association, the Orchard Mesa Irrigation District, and the Ute Water Conservancy Districts in the case.

The other Western Slope parties in the supreme court case were Eagle and Grand counties and the Basalt Water Conservancy District.

The Colorado state engineer, and engineers in Divisions 1 and 5, were also in the case, and had sided with the arguments made by the Western Slope.

On the Front Range side of the arguments were Aurora, Colorado Springs, Denver Water, Pueblo Board of Water Works, Greeley, Northern Water, Southeastern Water Conservancy District, Twin Lakes Reservoir and Canal Co., Lower Arkansas Valley Water Conservancy District, Busk-Ivanhoe Inc., Cache La Poudre Water Users Association, and the city of Northglenn.

This graphic shows the transmountain diversions in Colorado. The Bousted Tunnel, at 53,871 AF, the Twin Lakes Tunnel, at 46,930 AF, and the Busk-Ivanhoe Tunnel, at 4,123 AF, have taken (in this data set) a combined average of 105,024 AF a year from the top of the Roaring Fork and Fryingpan rivers headwaters.
This graphic shows the transmountain diversions in Colorado. The Bousted Tunnel, at 53,871 AF, the Twin Lakes Tunnel, at 46,930 AF, and the Busk-Ivanhoe Tunnel, at 4,123 AF, have taken (in this data set) a combined average of 105,024 AF a year from the top of the Roaring Fork and Fryingpan rivers headwaters.

Previous stories on the case:

Justice scolds Aurora over diverted Fryingpan River water use, June 10, 2015

Water entities line up on either side of the Divide in state supreme court case, March 2, 2015

Fryingpan water case appealed to Colorado Supreme Court Nov. 14, 2014

Aurora trumps Western Slope in water rights case, Aug. 3, 2014

Pitkin County fighting city of Aurora over Fryingpan water, Jan. 25, 2013

Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on the coverage of rivers and water. The Aspen Daily News published this story on Wednesday, Dec. 7, 2016.

LAVWCD has a plan to increase and reallocate storage in John Martin Reservoir

Arkansas River Basin via The Encyclopedia of Earth
Arkansas River Basin via The Encyclopedia of Earth

From The La Junta Tribune-Democrat:

A new proposal for storage in John Martin Reservoir will benefit both Kansas and Colorado, said Lower Arkansas Valley Water Conservancy District Manager Jay Winner on Wednesday

A new proposal for storage in John Martin Reservoir will benefit both Kansas and Colorado, said Lower Arkansas Valley Water Conservancy District Manager Jay Winner on Wednesday. This proposal is in line with the Colorado Water Plan. The plan was presented by LAVWCD Engineer Mike Weber. Phase I is paid for by a Water Supply Reserve Account grant supplied by the Colorado Water Conservation Board. Research by LAVWCD has determined water users which could potentially use the John Martin Reservoir Account. LAVWCD has also determined the types of water available to those entities that would be suitable for storage at JMR. Those entities include Kansas and Colorado District 67 Ditches (Fort Bent, Keesee, Amity, Lamar, Hyde, Manvel, X-Y Graham, Buffalo and Sisson-Stubbs). Amity is largest user at 49.5 percent of Colorado’s share. This would be in Phase II, if the plan is accepted at the meeting of the 2016 Colorado Kansas Arkansas River Compact. Down the line and several years in the future, other potential users of the storage in JMR might include Catlin Augmentation Association, City of La Junta, City of Lamar, Colorado Water Protection and Development Association, and water conservancy districts such as LAVWCD.

John Martin Reservoir back in the day
John Martin Reservoir back in the day

A permanent pool of 10,000 acre-feet is to be maintained at JMR and is to remain there as authorized by the 1976 resolution, for the purposes of recreation and not subject to a tax.

Several other projects were presented by Winner and commented upon by the Board of Directors, all of whom were present except Legal Director Melissa Esquibel. The North La Junta Water Conservancy District Project, Phase 2, will go before the Otero County Commissioners on Oct. 24, having passed the Otero County Planning Commission. A request has been made to negotiate the contract with the Pueblo Reservoir for 25 years rather than year by year. A commercial building in McClave has been purchased by the LAVWCD to locate some of its offices, notably the engineering having to do with Rule 10, nearer the location of the sites. Agreement with Water Quality through the Department of Agriculture is being sought. Another project had to do with sealing the irrigation ponds and testing for selenium in the ground.

The City of Fountain is contributing $24,000 more than their original $50,000 to the fund for cleaning up Fountain Creek. The other $200,000 is divided equally between the City of Pueblo and the LAVWCD. The money for the project is coming from the Aurora refund, said Winter.

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

“Use it or lose it” primer — Kevin Rein

Hay meadows near Gunnison
Hay meadows near Gunnison

From The Craig Daily Press (Kevin Rein):

You may have heard some discussion about the phrase Use It or Lose It lately. First, about how it is a guiding principle when using water under Colorado’s prior appropriation system. Then, more recently, about how it can be a misleading cliché.

It’s true that in certain straightforward situations, failure to use a water right for its decreed use will result in the loss of some or all of the water right. However, from there, it gets more complicated.

In 2015, a group of Colorado water professionals representing interests from around the state collaborated to explore Use It or Lose It’s application to water use. The discussion was initiated by the Colorado Water Institute. The Water Institute approached the concept by first identifying five areas where water users have concerns about losing their water rights.

The first three areas of concern are Maintaining a Conditional Water Right, the Continued Use of an Absolute Water Right and Abandonment of a Water Right. In Colorado a water user may obtain a conditional water right based on a non-speculative plan to use the water. If that person does not apply the water to its decreed use within a period of time, or at least maintain a diligent effort to develop the water right, it may be terminated by the water court. The water right is lost due to lack of use.

When the owner of a water right considers the risk of abandonment of some portion of a water right or the possibility of changing a water right to a different beneficial use (the fourth area of concern), the owner of the water right may consider it advantageous to divert as much water as possible — more than is needed for the applied use. The unintended consequences of doing that can range from unnecessarily taking water that could be used by water rights immediately downstream, to impacting sensitive fish and wildlife habitat, to increasing the water right owner’s own return flow obligation if the use is changed. Further, the water court doesn’t consider water diverted but not consumed as water that may be applied to a new use. So the practice of diverting more water than is needed, which is called “waste” in water administration, can actually be detrimental.

A fifth area of concern is the effect that Conservation and Sustainability Efforts can have on the value of a water right. To understand more about that area of concern and the rest of this issue, read Special Report No. 25: “Is ‘Use It or Lose It’ an absolute?” available on the Colorado Water Institute home page.

Kevin G. Rein is the deputy state engineer for Colorado Division of Water Resources.

Here’s the synopsis from Special Report No. 25 (Reagan Waskom, Kevin Rein, Dick Wolfe, MaryLou Smith):

Colorado water law is complicated and can easily be misunderstood. In particular, the component of a water right that requires it be put to a beneficial use without waste can create confusion.

It is a fact that wasteful water diversions and practices are not permissible under the state’s water law. Unfortunately, this has led to the adoption of the misleading adage “Use It or Lose It.”

This document clarifies how the use or nonuse of a water right affects its value.

@CWCB_DNR: Reservoir levels OK despite dry September

Colorado Drought Monitor September 20, 2016.
Colorado Drought Monitor September 20, 2016.

From 9News.com (Maya Rodriguez):

…things look pretty good, according to the state’s Water Availability Task Force.

It’s all thanks to more rainfall than normal in August in most of Colorado, which left reservoirs across the state with an average of seven percent more water than they would normally have at this time of year.

“Our reservoirs are at pretty high levels for this time of year,” said Tracy Kosloff of the Colorado Division of Water Resources and co-chair of the task force. “That’s giving our water providers a lot of confidence going into the coming months.”

But rainfall in September has been below average and water providers on the Front Range are reporting low stream flows…

That is why state officials are waiting to see what snow might eventually come.

“We’re more looking forward to the winter season and what type of snowpack we’re going to accumulate in our mountains,” Kosloff said. “That’s really going to be the driver of our water supply going into the 2017 water year.”

The report from the task force notes the long-term forecast is still uncertain. El Nino is over and it’s not clear if a La Nina might develop. La Nina can mean drier conditions for Colorado.

@CWCB_DNR: September 2016 #Drought update — September dry so far across all basins

Colorado Drought Monitor September 13, 2016.
Colorado Drought Monitor September 13, 2016.

From the Colorado Water Conservation Board/Colorado Division of Water Resources (Taryn Finnessey/Tracy Kosloff):

Following above average temperatures in June and July across the entire state, August was cooler with slightly below average temperatures. Precipitation has varied over the last two months with some basins seeing half of normal moisture while others have had upwards of 150 percent of normal rainfall. The Front Range corridor remains dry and warm and drought conditions have also been expanded into Elbert and Lincoln counties. The forecast for the next two weeks shows mostly dry conditions coupled with moderate temperatures.

The months of June, July and August were collectively the 13th warmest summer period on record. Temperatures in September have been above normal in the southern half of the state and near normal to the north.

With the exception of the Yampa & White River basins, the state received near to well above average precipitation in August. However, September precipitation is tracking well below average in all basins. Statewide water year- to-date mountain precipitation, as reported from NRCS, is at 96 percent of normal as of September 16th. The 2016 water year ends September 30th.

Reservoir storage statewide is 107 percent of normal. The South Platte and Yampa& White basins have the highest storage levels in the state at 112 and 110 percent of average, respectively. The Upper Rio Grande has the lowest storage levels at 91 percent. All other basins are above normal at 104 to 109 percent of average.

Front Range water providers all reported storage levels ranging from 80 to 126 percent of average, however they did express some concern regarding low stream flows, which this task force will continue to monitor.

The long term forecast is highly uncertain at this point. El Nino has concluded and ENSO neutral conditions exist. It remains unclear if La Nina conditions will develop. However, should La Nina materialize it does not necessarily mean Colorado will experience drought conditions.

Colorado’s water engineer discusses wasting of state’s ‘precious resource’

Water from the Meeker Ditch being turned out into Sulphur Creek on July 11, 2016.
Water from the Meeker Ditch being turned out into Sulphur Creek on July 11, 2016.

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.)

Well-tended fields along the White River west of Meeker irrigated by the Meeker Ditch. The ditch has been directed to divert less water at its headgate than it used to.
Well-tended fields along the White River west of Meeker irrigated by the Meeker Ditch. The ditch has been directed to divert less water at its headgate than it used to.

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.’”

A photo from the Resource Engineering report documenting waste on the Meeker Ditch in 2014. Water from the ditch is being turned out into Sulphur Creek, while the main flow in the ditch continues through the pipe above the outfall.
A photo from the Resource Engineering report documenting waste on the Meeker Ditch in 2014. Water from the ditch is being turned out into Sulphur Creek, while the main flow in the ditch continues through the pipe above the outfall.

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.

A field flooded with water from the Yampa RIver this year. The division engineer for Div. 6 said this is an example of diverting more water than is necessary.
A field flooded with water from the Yampa RIver this year. The division engineer for Division 6 said this is an example of diverting more water than is necessary.

Farmer X

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.