Upstream with a shovel

Column by John Mattingly

Water – December 2007 – Colorado Central Magazine

When the subject of Colorado water rights comes up, one of the first things that comes to mind is, “First in use, first in right,” or the legal principle of Vested Rights. While this principle articulates the First Commandment of the Doctrine of Prior Appropriation, the Second Commandment is, “Better upstream with a shovel than downstream with a water right,” or the case-law principle of Optimum/Maximum Utilization.

In the infamous San Luis Valley case, Alamosa- LaJara Waterusers v Gould (1983), the Colorado Supreme Court opined that as the administration of water in Colorado enters its second century, the “curtain is opening upon the new drama of maximum utilization and how constitutionally that doctrine can be integrated into the law of vested rights.”

The doctrine of maximum utilization is driven by many factors, some of which are inherent in the body of water laws, and some of which are derivative. A short, approximate list of those factors follows.

1. Waste. An appropriator, no matter how senior, cannot divert water in a wasteful manner. Water must be diverted for a beneficial use, without waste. What, exactly, constitutes waste can be a judgment call, as there are two types of waste. Waste water at the end of a field is not wasted water and should not be confused with limitations imposed on a water right diverted wastefully. Waste water is a term of art, describing overflow water that, after serving a beneficial use, moves on to become part of someone else’s water right. Wasted water is water diverted without ever being put to beneficial use and thus, curiously, incapable of ever becoming waste water.

2. Diversion efficiency. A senior water right that is not efficiently diverted may find part of its water right has been legitimately seized by a junior. In an early Colorado case west of Colorado Springs, Empire Water & Power Co. v Cascade Town Co. (1913) Cascade claimed that water falling on rocks and splashing up on the flora clinging to adjacent canyon walls constituted a means of diversion. The court said no.

Ranchers who have merely gone into a stream with a bulldozer and piled up streambed rocks have also come under scrutiny for diversion efficiency. In more subtle cases, efficiency of diversion can be determined by the principle of a “community standard” — that is, reliance on the common, accepted means of effective diversion in a given region.

3. Use. A water right is use-based, the legal term is a usufructuary right, which is a species of property right. To remain valid, a usufructuary right must be used. Even a senior water right, if not used for long periods without any noticeable effort to keep the water right in action, is subject to abandonment claims by the State, or by other appropriators in the same regime. Though rare, abandonment claims have increased as the waters of the State reached an over-appropriated condition, and Colorado changed the law such that the burden is on the owner of a potentially abandoned water right to prove it has not been abandoned, rather than on the State, or other claimant, to prove the water right has been abandoned. As a thumb rule, if a water right has not been used for over 10 years, and the water was fully available during that period, it is presumed abandoned, and may be challenged.

4. Futile Call. A senior appropriator cannot demand delivery of water when the flow of the stream is so low that the water will not reach the senior’s point of diversion, and thus no water can be diverted. In such a circumstance, an upstream junior may receive water out of priority because the junior is positioned on the stream such that water can be put to beneficial use on the junior’s property rather than merely soaking up the ditch. This may be the origin of Commandment Number Two.

The futile call rule can also apply to junior wells tributary to a stream, but a great distance from the stream, such that even if the wells were shut down, the curtailment would not put water into the stream timely to satisfy the call of the senior.

5. Junior Protection Rule. A junior appropriator is entitled to the quantity of water available at the time the appropriation is made, and in the same condition it presented. This is a precursor to the next rule.

6. Expanded Use Rule. An appropriator cannot expand the historic use of a water right, regardless of its priority. This rule and the Junior Protection Rule operate independently, but are also conjunctive, in that expanded use by any appropriator injures both juniors and seniors in the regime.

This isn’t to say there aren’t subtle ways for an appropriator to expand the use of a water right. The most notable loophole comes from a vacancy in Colorado statutes that does not consider a change in the method of distribution of a water right to be a change of water right that must be approved by the court.

For example, if a farmer changes from open flood irrigation to gated pipe or to a center pivot sprinkler, this is not considered a change of water right, even though this change in method of distribution typically results in more acres being irrigated with the same water. There are instances in which changing the method of distributing a water right effectively expands its historic use.

Ironically, and some would say unfortunately, if the farmer in this example doesn’t expand the historic use of the water right by irrigating more acres with the same water, he may lose that portion of the water right he has “conserved,” if , at some future time, he seeks to change the water right and the conserved (which, in this case means reduced) historic use is calculated. This feature of Colorado water law has had a distinctly negative influence on conservation, and inadvertently encouraged creative efforts to expand one’s water right.

7. Two dimensions. A water right (other than a storage right) entitles an appropriator to water at a point in only two dimensions: the intersection of a north-south, east-west coordinate. For example, a senior cannot compromise a junior in order to achieve a convenient height of water in the third dimension of a streambed or aquifer.

One of the interesting cases, Colorado Springs v Bender (1961) involved a rancher, Bender, whose shallow well went dry when Colorado Springs drilled and pumped two large, deep wells on the adjacent property. Bender took Springs to court, the case went to the Colorado Supreme Court, and the ruling was that Bender didn’t have the right to shut down the city.

The reasoning: first, Bender’s groundwater right didn’t entitle him to an elevation in the aquifer, and second, to curtail the city from pumping available water would not make optimum use of the supply. Therefore, Bender had to deepen his well, and the city had to pay the cost of doing so.

8. No Attributes. A water right does not entitle an appropriator to any attributes of the water such as geothermal heat, silt load, artesian pressure, hydrostatic head, or rate of flow. It has been tried many times in Colorado to use the strategy of claiming the right to an attribute of the water to effectively expand the use of the water right.

A curious case along these lines, A-B Cattle Co. v United States (1978), entailed silty water in the Bessemer Ditch near Pueblo. When Pueblo Reservoir was built on the Arkansas, the ditch company that ran the Bessemer had its point of diversion moved upstream because its former point now lay under many feet of reservoir water. The Bessemer diverted its decrees, only to find the water wasn’t as wet as it had been. Not only did farmers under the ditch complain, but the ditch leaked into basements on its way through town.

The problem of the water’s reduced “wetness” obtained from the fact that the new point of diversion was in a fast reach of the Arkansas and thus no silt was entrained in the water. The prior point of diversion had been in a slow reach of the Arkansas and thus entrained a lot of silt which had sealed the main ditch in the past, and also sealed the farmer’s furrows, in effect stretching the water. The case went to the Colorado Supreme Court, and the ruling concurred with others of a similar fact pattern: a water right is for water only. It cannot include silt or any other attribute of the water.

9. Interstate, Federal, and Public Interest Limits. All water rights are subordinate to the intrastate consequences resulting from Interstate Compacts and federal laws, such as the Clean Water Act and Endangered Species Act, and from Federal Reserve Rights for Indian Reservations and National Parks and Monuments.

Many individuals with senior vested rights have seen the feds step to the front of the appropriation line in cases where a prior federal interest trumps state water rights. With endangered species, it is common for a wateruser (or a lower basin appropriator) to find a species in danger confined to a reach of the river just upstream from their point of diversion. In that case, the water which saves the endangered species becomes available to the cunning species advocate.

I’ll never forget a Rio Grande River Compact meeting in Santa Fe, during which the suited State Engineers from Colorado, New Mexico, and Texas, together with their attorneys and managers, listened in amazement and disgust for two solid hours to a blue-jeaned biologist as he described the miniature, electronically-monitored exercise machines he’d built (at a cost of a mere $6 million) to keep silvery minnows “in shape” as this endangered species was moved between River pools on the Rio Grande. The real beneficiary of this exercise, of course, was the city of Albuquerque, as it was positioned downstream from all the water put in the Rio Grande to save the minnow.

10. System Optimization. Senior rights can be subordinate to junior rights in many considerations related to optimizing and/or maximizing the use of water in a given system. A river commissioner will always try to keep as much water as high in the system as possible, as this is usually to the long term benefit of all appropriators in a regime, regardless of their relative standing in priority. This is why many ditch companies refrain from running certain laterals early in the season until they have maximized upstream storage opportunities, or until there are enough calls on the ditch that it can be run with minimal waste water.

While it’s true most arguments over priority in Colorado water rights start with the mantra, “First in right, First in use,” few finish there. A tug-of-war between the competing doctrines of Vested Rights and Maximum Utilization has actually been going on since water was first diverted.

John Mattingly of greater Moffat is a recovering farmer who also fights with the feds over water rights.