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Litigation and Augmentation: The UAWCD in Operation

Sidebar by Ed Quillen

Water Conservancy Districts – April 2001 – Colorado Central Magazine

THE POINT OF HOLDING AN ELECTION for a director of a water conservancy district is presumably to have a public voice in how the district operates.

And it may be that the public is pleased with its traditional operations and policies — both incumbents were easily re-elected in 2000 in the Upper Gunnison River Water Conservancy District (where there won’t be an election this year, because no terms expire).

But for the public to make such decisions, there has to be some examination of the water district.

According to its organizational papers filed in 1979, Upper Arkansas was designed to engage in the “Construction of ‘Works’ … for conserving, developing, and stabilizing the supplies of water for domestic, irrigation, power, manufacturing, and other beneficial uses,” and,

“To acquire and appropriate waters of the Colorado and Arkansas Rivers and their tributaries by means of ‘Works’ … and to divert, store, transport, conserve, develop, and stabilize all of said supplies of water for domestic, irrigation, power, manufacturing, and other beneficial uses within and for the territory to be included in the said proposed District.”

By those criteria, Upper Arkansas is a failure — in 22 years, it hasn’t constructed a single “Work” to put water to beneficial use.

(In Colorado water matters, “beneficial use” means removing water from its natural course and applying it to some economic activity, like irrigating crops or refining ore. Leaving water in the river might provide economic benefit to the tourism industry — attracting fishermen and rafters, for instance — but those weren’t beneficial uses in the 19th century when the state formed its water doctrines.)

So if it isn’t building “works” in the form of dams and canals, what does the Upper Arkansas Water Conservancy do for the residents of Chaffee, Frémont, and Custer counties?

Going to Court

Upper Arkansas does engage in litigation, by filing as a party in water court, to protect local water users. That will likely happen later this year, when the water court hears an application from the Pueblo West Metropolitan District.

The water in question, 17,000 acre-feet in a good year, comes from the Gas Creek and Pioneer ditches, and irrigates the Hill Ranch near Nathrop. The Hill family sold the water rights in 1986 to the Western Water Rights Limited Liability Partnership, which leased them back to the family for ranch irrigation.

Western Water has now agreed to sell the rights to Pueblo West, which will have to get permission from the court to change the usage from agricultural to municipal.

If that goes through, then someday water won’t irrigate the Chaffee County land any more — those fields will dry up. But not all water that goes onto a field turns into a crop. Some makes its way back to the ditch or river, and other water seeps down into the aquifer, where it feeds neighboring wells and springs.

Take away the irrigation — as Pueblo West would do — and some wells and springs might dry up. There are people who rely on those wells and springs.

“There is going to be some damage,” according to Terry Scanga, assistant manager for Upper Arkansas, but the district will try to minimize it by going to court. “That’s why we have the money — to hire the lawyers.”


Even if Upper Arkansas has never built any reservoirs, it does contract for storage rights in some existing area reservoirs: Twin Lakes, Pueblo, O’Haver, North Fork, Cottonwood, and Rainbow. Scanga also said the district has been saving money to buy more storage in Pueblo Reservoir when it is expanded.

And it’s storage that is most needed, according to Clint Driscoll, former mayor of Buena Vista.

“Our problem isn’t water rights. We have rights to water that just flows by during runoff in May and June because we don’t have a place to store it,” he said, and Salida has a similar situation, according to Scott Hahn, city administrator.

Driscoll said that when he was mayor, “We started talking with Upper Arkansas about leasing some storage in Cottonwood Reservoir, and they were pretty agreeable and easy to work with.”

That deal hasn’t been consummated, and Hahn has a very different view of Upper Arkansas. “Their idea of coöperation is that you do it their way, or it doesn’t happen.”

Hahn cited the city’s dealings with Upper Arkansas on about 250 acre-feet of storage in North Fork Reservoir. It was early 1999, when he had just started as city administrator, “and Upper Arkansas wanted to break the city’s lease on those storage rights. I wrote to them, trying to find out what the problem was, and they never responded. In past years, they had sent a bill, and the city paid it, and this time, they didn’t send a bill. Obviously, they wanted the city to miss its payment, so they could evict us.”

The city sent a check anyway, “and they didn’t cash it until we hired a water lawyer to ask about it.”

Why would the district want to evict the city from North Fork?

“In Colorado, water represents power. If the district controls the water, then it has the power to control what happens, rather than the city government. The district wants to be the central authority and make all the decisions about water in this area.”

Hahn observed that the district’s directors are all agriculturally oriented — none is from a municipal water system, even if the law says those interests should be represented on a conservancy district board.

“To be fair, maybe the Salida city government should come up with a candidate, and propose that person to the district judge,” Hahn said. Working within the current system “is something we haven’t tried, and something we probably should try.”

But as it is, “the relationship between Upper Arkansas and the City of Salida is competitive, not coöperative. Their interests are different from ours, and I don’t see that they’re doing anything for the people of Salida.”

If Hahn had his way, “those boards would be elected by the public. That’s the only way to make sure they serve the public, rather than special interest groups.”

Scanga agreed the district board doesn’t have enough representation outside the agricultural sector. “But to get broader representation, there have to be more applicants for the judge to select from.”

He also noted that although Hahn attends most meetings, “I can’t remember him ever saying anything. He just sits there.” As for other critics of the district, “our meetings are open to the public, and I’ve never seen them at a meeting. If they don’t like the way we do things, they ought to give us a chance to change before they start complaining to the press and public.”


Perhaps the most prominent activity of the Upper Arkansas Water Conservancy District is the sale of augmentation permits. It’s a complicated process, but try to bear with an example.

Suppose you buy a two-acre parcel in Chaffee County, and you want to build a house. You’ll need water, so you drill a well — and, since this is hypothetical, you hit water before you’ve paid to send all the driller’s children to Ivy League colleges.

But when you pump water out of that well, you’re removing water from the aquifer — water that might otherwise enter the Arkansas River and be used by people with established senior water rights.

Under Colorado law, you can’t take water if it hurts the supply of people with senior water rights. Their interests have to be protected before you can start pumping from your new well.

How can you make sure that your well won’t hurt their downriver water rights?

You could go find a rancher with good water rights, and pay him to quit irrigating part of a field. That water would go to the river, thereby protecting the senior downstream users, and it would make up for your well. This process is called “augmentation,” and it would involve hiring a water lawyer.

That sounds like a lot of work for one household well, and it would be. But on a wholesale basis, it could make economic sense, and that’s what the Upper Arkansas Water Conservancy District does.

The district has an enterprise fund that purchases agricultural water rights, then arranges to dry up the irrigated fields as it sells “augmentation permits” sufficient for a household well — $2,000 for 1/10 of an acre foot, with the district handling all the water court paperwork.

Chaffee County Commissioner Jim Thompson estimated that if Upper Arkansas didn’t do this, and people had to arrange for augmentation on their own, it would cost $25,000 to $50,000 for each permit, rather than $2,000.

So it’s definitely a factor in sprawl-type growth, Thompson said. “If we didn’t have the water district selling those augmentation permits, there wouldn’t be nearly as much rural construction.”

But augmentation proponents argue that such cost-savings make housing more affordable. And there’s also a point made by Terry Scanga: “Anyone could buy a ranch with its water rights, and start selling augmentation permits. It doesn’t have to be done by a water district — a person or a corporation could be doing the same thing. If people want to build in rural areas, they will, and they’ll buy the water rights they need from somebody. As long as there’s a demand, this would be happening, whether we were here or not.”


The Upper Arkansas Water Conservancy District board is dominated by agricultural users. But the economy in the district is no longer dominated by agriculture — tourism and real estate are bigger factors.

Even if agriculture is no longer all that important in our region in an economic sense, it is certainly important for æsthetic and cultural reasons. An irrigated green pasture is a much more pleasant vista than a jumble of rocks, sand, weeds, and cactus, and the presence of such hayfields certainly enhances both tourism and real-estate sales. Besides that, what’s the West without working landscapes with cows and horses and ranchers?

Does the Upper Arkansas Water Conservancy District preserve that aspect of life?

In a guest opinion published in the Feb. 12 edition of Salida’s Mountain Mail, Judy Everett contended that it does. She’s a Realtor, married into a long-time ranching family.

Her argument is that the augmentation plan makes it possible for ranchers to sell off small parcels, and thereby continue ranching and irrigating on the rest of their land. If they couldn’t, they might have to sell off everything, and the water rights might be purchased by distant downstream users — like with the Hill Ranch water.

And if that water wasn’t circulating in Chaffee County ditches, the aquifers might drop, thereby hurting other local water users.

All that is true, but it appears to miss a couple of points with the augmentation plan.

When an augmentation permit is sold, water is removed from a ditch, and flows down the river. The more augmentation permits, the less water in the ditches to seep into the aquifer. The process might be slower than selling the water rights for a big ranch, but it has much the same long-term effect in making for a browner Chaffee County.

And development always seems to beget development. The more residential development in the countryside, the less agriculture. It’s hard to see how encouraging house construction on rustic two-acre lots will result in more of the green open space that irrigated fields provide.

One seat

So there are some real controversies about how Upper Arkansas operates — just ask Scott Hahn or Jim Thompson — and good reasons to ask whether it serves a broad public interest.

But the election, if the petitions succeed, will be for only one seat out of nine, and it’s more than possible that the incumbent, Gary Merrifield, would keep his seat.

“That’s one of the hazards of democracy,” George Sibley joked after losing to an incumbent in the Upper Gunnison Water Conservancy District. “Sometimes the wrong candidate wins.”

And even if only one seat in nine might change hands, “elections are just as much about issues and policies as they are about candidates,” Mark Emmer said. “People are talking about the Upper Arkansas Water Conservancy District, and they’re paying attention to what it does. That’s why elections are important.”

Ed Quillen has been writing about water ever since he moved to Kremmling in 1974 and started following the Western Slope’s battles with the Front Range. He tries to stay on speaking terms with people on all sides of the conservancy controversies. It can be difficult, since as the saying goes, “Whiskey is for drinkin’, and water is for fightin’.”