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Water Kaw 101

by Carol Dunn

HUERFANO– James G. Felt, retired water attorney with Felt Monson & Culichia, educated and entertained on October 9 as he presented a course on Colorado water law to an audience of 70 at the Community Center in Walsenburg.  About water law, Felt said, “There’s always this kind of mystique about it.  Water law is a system for allocating a natural resource. In Colorado that is a scarce natural resource.”  East of the Mississippi, the title to land includes the water.  West of the Mississippi an allocation doctrine is used – the available water is divided among the people who have made a claim to it, on a priority basis.

    Colorado’s water allocation system was in force before the State Constitution was enacted in 1876.  “One of the great things is that it was created by the custom of the homesteaders” in response to water wars, Felt said.  Under the priority system, “The first guy who used the water has priority over the next guy.  First in time is first in right,” he said.

    Originally, all the water in Colorado was in the public domain.  The Colorado Constitution gave people the right to “take” water from the public domain, put it to beneficial use (for the good of the economy); then get a judgement, or an adjudication, of a private property right to the water.  Speculation is not a beneficial use, Felt explained, because it ties up a natural resource and keeps it from being used.  There must be an end user and a use for the water right being filed.  A speculator cannot simply buy water rights and sit on them until they can be sold at a profit.  Water rights also have what Felt referred to as “zoning.” They are appropriated according to their use, ie. domestic, irrigation, etc.  Owners of water can only use their water within its zoning, and they must use it when it’s their turn – in priority.  A water right owner will forfeit that right if s/he fails to use the allocated water “for the good of the whole” for 10 consecutive years.  

    Felt referred to water rights as being “real estate,” separate from any parcel of land and transferred by deed with a legal description.  Water rights are private property rights, and they are protected by the State Division of Water Resources.  Felt said the local water “police” are Doug Brgoch for the Cucharas River and Ray Garcia for the Huerfano.  “They are enforcing the law and the priority system,” he said.

    In Huerfano County ground water is treated just like surface water, since most underground water affects the level of water in a stream and is referred to as tributary water.  As soon as a well is drilled and the owner takes a drink, the water has been put to beneficial use.  But Felt explained that well water rights are relatively new, or junior.  Since Colorado water has been over appropriated since the early 1900s, wells are rarely if ever in priority.  So water pulled from a well is out of priority and must be replaced by augmentation of quality, unpolluted water.  [The 35-acre wells permitted for domestic use are an exception.]  Augmentation is replacement water obtained from a senior water right and attached to the well; the old use ceases, for instance a hayfield is dried up.  If the old use was 100 days a year and the new use is year-round, the water must be stored and released incrementally throughout the year, including enough water to make up for evaporation off the pond.

    Felt strongly recommends that water rights owners, particularly municipalities, store water.  “I’ve been preaching reservoirs for 30 years.  Without storage the limited pot isn’t going to go very far,” he said.

    Division 2 Water Engineer Steve Witte gave a history of the 24-year Kansas/Colorado water lawsuit.  In the 2009 settlement, Colorado paid Kansas $34.6 million for damages (including 11 years of interest) because the amount of water required under the Arkansas River Compact of 1948 did not flow to Kansas.  “We are out from under the lawsuit,” Witte said, “but we still have an obligation to operate under the Compact.”  The well augmentation rules and new irrigation efficiency rules are attempts to avoid another lawsuit in the future.  Witte also bemoaned illegal ponds.  See “Rural Living: Ponds” in the World Journal for more information on private ponds.

    Felt stressed that rural governments must be prepared to protect area water rights, using Crowley County as an example of how a rural economy can be devastated when it loses area water rights.  He cited the use of SB1041 regulations by counties to ensure that potentially injurious projects will be regulated by the County, and the tax base for the local economy will be protected.

    Felt said a water right owner should have the right to sell his/her private property, but keeping the water local benefits the local economy.  He related pro-active measures being taken in Dolores County, Park County, Chaffee County, and the Upper Arkansas Water Conservancy District to pay fair market value for water rights in order to keep them local.  Felt said counties, possibly through water conservancy districts, have the option of competing with those who want to buy water rights, like big municipalities which will move the rights away.  Citizens in some counties have voluntarily enacted a special mill levy for the money to buy up local water rights when an owner decides to sell.  “There are lots of creative ways to do this,” Felt said.  “There are going to be continued demands for additional water supplies for beneficial uses other than irrigation,” he said, adding, “Water flows uphill to money.  There are a lot of competing values here.”   

    Commenting about water pulled from deep wells drilled for methane gas production, referred to as “produced” water, Felt said produced water rules are now in place.  Although they are under appeal, the rules would require augmentation of the produced water if it is proven through aquifer modeling to be tributary water.  Felt’s opinion was that it would be “very difficult and very expensive” to augment the volume of produced water produced by methane gas wells.

    The basic tenet of Colorado’s water law is that water is a private property right.  When someone deprives a water right owner of getting the water to which s/he is entitled, for instance using water out of priority, then they are depriving that person of his/her property.