Use it or lose it.
This saying is central to managing access to water in the western United States. Laws that govern water in more arid states, such as Colorado, make users always take their full share of rivers and streams, or risk the state overturning it. The threat comes in the form of a 10-year document that lists users on the verge of losing their access to one of the region’s most valuable resources.
It’s called the Ten-Year Abandonment List – and its inclusion sparks fear and paranoia in rural areas of the state, where farmers and ranchers depend on water for their livelihoods. Farmers swap stories of neighbors who have been listed in error, with a notice sent to the wrong address, and who end up having their water rights effectively canceled. Horror stories of abandonment are akin to an urban – or in this case, rural – legend.
Western Colorado water attorney Rob Pierce says there’s one thing his clients, mostly farmers and ranchers, always ask him about.
“The whole concept of giving up,” Pierce said. “It’s mentioned all the time.”
Pierce practices for Grand Junction-based company Dufford Waldeck, and he said interest in quitting peaked just before the state released the list. Colorado’s initial drop-out list is slated for July 1, the first time it has been updated since 2010. Preparations for this year’s list began in 2018.
By law, state regulators are required to compile the list every 10 years. It details any rights to water that are no longer used to irrigate crops, flow through city plumbing systems, or cool turbines in factories and power stations. If they are determined to no longer be used, they are removed from the record and can no longer be used. Because the stakes are so high, Pierce said you need to know who will be in and who won’t start early.
“It looks a bit like the old west,” he said. “I mean, there’s not a lot of stuff these days where you can have a property right in something and lose it like that.”
The idea behind the abandonment list is rooted in Western water law. Since the 1800s, when the concept of prior appropriation became the dominant methodology for sharing water in the region, Westerners have been able to claim rights based on their ability to make “beneficial use” of it. You don’t use it? Then you can lose it.
But like a lot of old adages in the water lore in the West, Pierce said, it’s more complicated than it looks.
“I don’t want to call him the boogie man because that suggests there’s no real threat,” Pierce said. “But it’s something that I think the threat may be greater than it actually is on a lot of people’s minds.”
“It’s not like, without you realizing it, your right to water is slipping out of your hands.”
Water lawyer Kara Godbehere of Longmont, Colorado-based company Lyons Gaddis agrees.
“It’s not as easy as ‘use it or lose it’ I think,” Godbehere said. “This terminology may be a little inflammatory or misleading because it’s not as if, without you realizing it, your right to water is slipping out of your hands.”
It’s actually pretty hard to lose him, Godbehere said. First of all, a user should stop diverting water for a long time. She points out that abandonment lists are published once a decade and that it sometimes takes an even longer period of 15 to 20 years to establish non-use. Users are not likely to put their right at risk unless there is a strong pattern of non-use, she said. And, more importantly, she said, you must be intending to give it up. It is not an accident.
“It’s not like it just disappears one day and someone wonders where my water has gone?” said Godbehere.
The rights can also be totally or partially waived. If a farmer switches to a more water-efficient crop, like replacing an alfalfa hay field with hemp for example, the water consumed over time might be less. And the water right used to irrigate this field could end up being partially, not completely, abandoned.
Over 2,700 individual water rights were initially listed as abandoned on the 2010 list. After going through legal proceedings, where people who believe they were wrongly included have time to appeal, the list has been narrowed down about 2,200 water rights that have been officially declared abandoned, according to Colorado Water Resources Division records. The vast majority of these rights came from farms and ranches, used to irrigate crops or pastures. Agriculture uses about 80% of all the water available in Colorado.
“The idea of abandonment is really for the general benefit of the water users in the particular basin,” said Kevin Rein, the Colorado state engineer. He oversees the list creation process at the head of the Water Resources Division.
The abandonment list allows his department to clean up the books from time to time and remove old rights from the folder. Without giving up, Rein said, a situation could arise where someone with old water rights, who hadn’t used them for a long time, suddenly started using them again. This new use could disrupt the functioning of an entire water system, leaving some users short.
“So if you don’t use it you shouldn’t be able to keep it, save it for another day if you don’t intend to use it,” Rein said. The beneficial use requirement also makes it difficult to speculate on water rights and forces those who have access to the water to use it, rather than sitting on it and waiting for it to acquire success. the value.
This year’s list also reflects some uncertainty in the realm of Western water policy. Earlier this year, Rein sent a message to engineers in his division, state officials who compile abandonment lists in their areas, telling them not to give up rights prior to the 1929 Act on the project. of Boulder Canyon, the legislative act that authorized the construction of the Hoover Dam on the Colorado River.
Colorado still does not know what role the abandonment could play in the hypothetical legal battle that could result from a violation of the Colorado River Pact, which spells out a certain amount of water that the states of Colorado, Wyoming, and ‘Utah and New Mexico are expected to send downstream. in Arizona, Nevada, California and Mexico.
These pre-1929 rights are called “perfect rights” and are probably not subject to any sort of restriction that would result from a compact appeal on the river. They are among the oldest and most valuable water rights in the entire Colorado River watershed.
But how these rights play out is still unknown. Rein said after consulting with attorneys from the Colorado attorney general’s office, he asked his division engineers not to include them. The same thing happened in 2010, so for over 20 years those pre-1929 rights were not included on the list.
How do these perfected rights benefit Colorado’s position in a protracted legal battle over the management of the Colorado River?
“This is where I have to tell you honestly, I don’t know,” Rein said. “And I’m not embarrassed to say that I don’t know.”
But beyond the obscure legal thought experiments on the Colorado River, the concept of “use it or lose it” and the threat of abandonment also gives individual water users perverse incentives.
“The most precious thing people have on a farm or ranch is the right to water,” said Jeni Arndt, a representative for the Democratic state of Fort Collins.
In general, the more rights you have in water, the more money it is worth. Actual value may vary depending on drought conditions and the coming online of a nearby residential development or other new water demands. So if the volume is tied to a dollar amount and a user can receive large sums of money to transfer their entitlement to a new use, why would anyone ever want to keep it?
Arndt this year introduced a bill that would have allowed farmers, ranchers and other large water users to use their water more efficiently, thanks to a state-approved conservation program, and avoid their rights. on the water are listed as abandoned for some time.
“But this is to help farmers and ranchers realize the value of their right to water, without necessarily having to sell,” she said.
Arndt initially set the limit at 20 years, then revised it to five, eventually withdrawing the bill altogether. Farmer groups and other members of the Colorado water community have raised concerns about this. She hopes to work on the idea this summer and bring it back in the 2021 legislative session.
“We have to design our laws and policies so that we can meet our water-strapped future. And that’s a real deal,” Arndt said.
As Colorado and the West continue to dry out, she said something will have to give way. And communities across the region may simply have to question some of these core ideas of Western water law – like the abandonment list.
This story is part of the continuing coverage of the Colorado River, produced in partnership with KUNC in northern Colorado, with support from the Walton Family Foundation.