by Carol Ekarius, Coordinator, Upper South Platte Watershed Protection Association
How often have you been driving along and spotted cows (or horses, or llamas) standing in the river drinking, lounging in the riparian area, eating the grasses of the steam bank to the nubbins, or breaking down the banks — and thought dam cows; dam farmers? If you are like most folks involved with riparian issues, this is a common scene, and a common thought. But next time you view this scene, think dam water law!
That’s right: dam water law. Most of us have cursed Colorado’s water law at one time or another anyway, but few folks working in the water quality and riparian arenas realize that once again, water law plays a big part in this issue. Those cows might be in the stream even if the farmer or rancher understands the damage they’re doing when they’re camped there, and even if he or she would like nothing better than to get them out of the area, because of a quirk in Colorado water law.
A quick review of water law may help clarify this. Colorado’s water law is based on the idea that water is a personal property right. As such, it can be bought, sold, traded, or transferred. The fact that a stream runs through a piece of land (or that ground water lies under it) doesn’t give that landowner any right to use the water. This differs dramatically from areas in the Eastern United States that follow the riparian doctrine, which assumes that if you have water on or adjacent to land you own, you may put that water to reasonable use.
The back bone of Colorado’s water law is the prior appropriation doctrine. The prior appropriation system controls who uses how much water, the types of uses allowed, and when those waters can be used. Water rights are exercised in order of priority — that is to say, “first in use, first in right”. In other words, an appropriation is made when an individual physically takes water from a stream (or ground water from a tributary aquifer), and puts that water to “beneficial use”. The first person to appropriate water and put it to beneficial use has the first, or senior, right to use that water in the future in a particular watershed. After appropriating the water for beneficial use, the person goes to water court and receives a decree that verifies his or her priority as a water right holder. These court-decreed rights are called adjudicated rights.
Now for the quirk that keeps livestock in the steam. The one use of live water on or adjacent to land you own which doesn’t require you to have an appropriated right is the watering of livestock. If the stream runs through your property, your livestock can drink out of it at will, without you ever having to go to water court. But, you can not pump the water out of the stream for your livestock without a water right.
Hum? If a cow drinks ten gallons of water per day, she drinks the same amount whether it is in the stream, or fifty feet away in a tank. Yet the farmer or rancher can’t fence out the stream and pump the ten gallons over to the tank.
Going to water court to get the right to pump the water to the tank is not only costly, but the farmer or rancher would receive a junior right which, in most areas of Colorado, he or she would not be able to exercise very often. So the farmer or rancher is really stuck letting the cows drink directly from the stream.
The Upper south Platte Watershed Protection Association (USPWPA) is a nonprofit organization dedicated to protecting the water quality and ecological health of the Upper South Platte Watershed through the collaborative effort of stakeholders. This watershed, which covers about 2600 square miles in the mountains southwest of the Denver metro area, still has many working ranches. A number of these ranchers want to protect the watershed, and are willing to fence out riparian areas to limit access, if they can deal with the water issues. Therefore, USPWPA is working on this issue. Over the next year, we are committed to working with ranchers, water providers, and environmentalists to structure a win-win solution that everyone can live with and that will be compatible with Colorado water law. Anyone who is interested in learning more about what we are trying to do or would like to work with us can contact Carol Ekarius by phone at 719 837-2737 or by e-mail at email@example.com.