Water rules: ‘Don’t divert more than you need’
August 16, 2017
CRESTED BUTTE — If there was a commemorative coin minted in honor of Colorado water law, the shiny side could be inscribed with the phrase "use it or lose it."
But the flipside of the coin might read "don't divert more than you need."
The second phrase may yet gain currency in Colorado as a new set of internal guidelines about over-diverting, or wasting, water were recently approved and made public by the Colorado Division of Water Resources.
The guidelines, signed by outgoing state engineer Dick Wolfe on June 30 and embraced by the new state engineer Kevin Rein, state "the people of the state have a right to divert water and apply it to beneficial use but do not have a right to divert water and waste it."
The 11-page guiding document also says, "the goal in any diversion of water should be to divert and convey that amount of water, and only that amount of water, needed to accomplish the intended beneficial use."
There are many "beneficial uses" of water under state law, but the one most relevant to the waste discussion is using it to irrigate a crop, such as alfalfa.
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And the guidelines say "water that is diverted in excess of what is required to accomplish the intended beneficial use is considered wasted and may be curtailed by Division of Water Resources."
Rein has been with Division of Water Resources for 19 years and was promoted from his position as deputy state engineer to state engineer by Gov. John Hickenlooper in July. Rein said the guidelines have been in the works for some time, were written in a collaborative manner by staff and were in response to a growing number of questions about the issue.
The new guidelines give water commissioners and division engineers direction on what to do when encountering waste.
Asked if he was comfortable with the phrase "don't take more than you need" as shorthand to describe the concept of "waste" in Colorado, Rein said he preferred "don't divert more than you need."
"'Divert,' that's clear to me," he said. "That means taking water out of the river, or taking water off the main ditch. And what we mean by 'what you need' is to satisfy that beneficial use that your water right is based on."
The new internal guidelines are officially titled "Internal guide to understanding 'waste' and the determination of 'waste' associated with irrigation, as that term is used in the definition of beneficial use."
There are some stern statements in the new internal guidelines, including that it is against Colorado law to divert more water from a river into an irrigation system than is "absolutely necessary."
"Statutes provide that a person shall not run through his or her ditch any greater quantity of water than is absolutely necessary for irrigation, domestic, and stock purposes to prevent the wasting and useless discharge and running away of water," the guidelines say.
Rein said the internal guidelines should provide statewide enforcement consistency and serve as a public clarification of the agency's policy on identifying and enforcing waste.
"It really helps us to have that go-to document to explain it," he said. "This gives us the best way to communicate to water users, 'Here are the important considerations when it comes to waste.'"
The guidelines define waste as "diverting water when not needed for beneficial use, or running more water than is reasonably needed for application to beneficial use." And the guidelines seek to distinguish between "efficiency" and "waste," Rein said.
"Efficiency is an objective measure," he said. "It's an equation. It's the amount of water consumed divided by the amount of water diverted for that purpose."
However, he said a higher-efficiency irrigation system can still waste water by over-diverting, while a lower-efficiency system might be diverting and irrigating in a manner that is not wasting water.
And when it comes to determining if someone is wasting water, there is no equation, no formula.
"There is no number," he said. "There is no amount of tail water. There is no amount of runoff or ponding or deep percolation that you can identity. It is a subjective call.
But the water commissioner can look at the irrigation practice and look at the diversion. And if that same … crop can be satisfied with a reduced diversion, then that satisfies the definition, or identification, of waste."
The guidelines also discuss seepage in irrigation ditches, overtopping of ditches, or tailwater spilling out of an irrigation system, and say there is a point where too much of each is "unreasonable."
And the guidelines say it does not matter if a call from downstream senior rights is in effect or not; there can still be waste.
And, of importance to water rights owners, that wasted water should not count in a historical use analysis, which ultimately determines how much of a water right can be transferred or sold for another use.
The guidelines cite several reasons why people over-divert water, including trying to protect a water right from a claim of abandonment, trying to maximize the future potential value of a water right in a sale or transfer and failing to apply adequate labor to an irrigation system.
It can even occur "when a water user diverts more water than is needed based on the mere fact that they can."
Rein acknowledges that when it comes to determining waste, a lot depends on the layout, construction and management of a given irrigation system. The guidelines also recognize that it can take more work to use less water, due to factors such as the need to frequently adjust distant headgates.
"Diverting more water than can be beneficially used because of the labor involved in diverting less water but requiring more time and labor to do so may or may not be considered an acceptable practice," the guidelines state. "Regardless, an irrigator has the responsibility and duty to divert only that amount needed and is responsible for being a good steward of the resource."
The guidelines also address the practice of over-diverting in an effort to increase the future potential value of a water right.
"There is a misperception by some that by maximizing the amount of water diverted, regardless of the need, one can enhance or preserve the magnitude and value of a water right in a future transfer or protect it from some other reduction such as through an abandonment proceeding," the guidelines say. "Diverting more water than can be beneficially used to avoid abandonment is not considered an acceptable practice and will generally be considered a wasteful practice."
Aspen Journalism is an independent nonprofit news organization covering water in collaboration with The Aspen Times. More at http://www.aspenjournalism.org.