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Colorado Water 2012 Part I – The pitfalls of Colorado’s water rules

by Carol Dunn
WALSENBURG — Whether unintentional or not, Colorado’s water laws have pitfalls that originated when the miners caught up in the heyday of gold and silver prospecting needed a set of rules to govern the use of waterways for hydraulic mining. On April 10, Water Commissioner Doug Brgoch gave attendees of the Colorado Water 2012 workshop a glimpse into that water law history. “Our water law is ‘first in use, first in right’,” he said. He explained that water is so intrinsically linked to Colorado’s history that the first three necessities specified in the State Constitution were law enforcement, a governor, and water commissioners.
Our water law allows a person to apply for a water right and go to court to get it adjudicated (affirmed). Once the use is affirmed, the judge has created a property right. This right can be separated from the land and handled individually, opening the way for buying and selling those property rights. Municipalities, most with very junior rights, were some of the first buyers to come calling with pockets bulging to purchase the best water they could afford.
Not only is there municipal pressure on local water resources, neighboring states have gone to court to demand that they get their fair share of Colorado’s water, and one of these rulings affects the amount of water we can keep and/or use in Huerfano County. Brgoch explained that all rivers flow out of Colorado; none flow in. The first water compact was on the Colorado River with Utah, Arizona, Nevada and California. The Kansas compact involves the Arkansas River watershed, including waters of Huerfano County. The last of the four lawsuits filed by Kansas over Colorado water was in 1985. The resulting 1997 ruling resulted in a $35-million settlement payment to Kansas that the State of Colorado does not wish to repeat. So the State Engineer’s Office has gotten serious about maintaining certain flows in the Arkansas as it crosses the state line. “All we can do is live with the rules and regs that have been promulgated,” Brgoch said.
In spite of hundreds of water rights on both Huerfano rivers, there’s only so much water. It is well known that the rivers are over-appropriated. Additionally, the “Regimen of the River” (established by original decrees in 1862) must be maintained. In other words, the way water is used and returned to a river must maintain an established flow rate for all the downstream water rights holders in priority. Some years only the first few, most senior water rights holders get to use the water in a stream. Even so, there are rogue uses by severely junior rights, and these will affect the flow of the Arkansas River. One example is water pumped from wells. Waters are connected above and below ground level, so drawing water from a well eventually will affect a nearby stream, meaning it is “tributary” to that stream. The State Engineer’s Office considers well use, for example high volume/municipal wells, to be harmful to downstream water rights.
Out-of-priority water use must be mitigated in order to continue to meet compact requirements. Thus the State came up with a system of replacing the water by means of augmentation. As Brgoch described it, augmentation is like having a water “savings account.” The entity using the water out of priority must find water, demonstrate that the Regimen of the River will not be changed, and make a legal water substitution sanctioned by the State Engineer’s Office and ultimately the water court.