Michael A. Cox

It is a cliché to say, “use it or lose it.” But it is often a truism. For example, muscle and brain power are two of those things that, when abandoned, become lost to the user over time. In Colorado, the biggest use it or lose it asset I can imagine is a water right.

If you think you are being tracked on the internet, the water you use, particularly for agriculture, is scrutinized like a bank teller’s cash drawer. In the Southwestern United States, including and especially Colorado, virtually every trickle of water is monitored, measured, and accounted for. Even that hen-scratch of a ditch, going to a little alfalfa field at a rate of two cubic feet per second, is measured.

That’s one way the state water engineers know when someone may have abandoned their precious right to the most precious commodity we have in the state.

If you are one of those folks who actually looks at, and even reads those endless columns of small type in the legal ads section of this newspaper, you know that apparently some folks appear to have given up their water rights. Or at least the state engineers perceive that they have.

Since 1991, the Colorado Division of Water Resources (CDWR) has been charged with identifying any rights to water resources that have not been used, or are abandoned, by the original rights owner over a decade. According to the CDWR, “abandonment” is defined as the termination of an absolute water right in whole or in part as a result of the intent of the owner to permanently discontinue the use of the water under that water right.”

That’s legal talk for use it or lose it.

The news release from the CDWR earlier this month identified 96 cases of alleged water right abandonment in the Gunnison Basin, which includes the Uncompahgre River Valley. The list is being published in Montrose County through July (four times). Each rights owner also received a registered letter this month from the CDWR, notifying them that their rights appear to have been abandoned.

The owners were told that there is a right to appeal and they have one year, or until July 1, 2021, to do so. The mechanics are outlined and a form by which to appeal is provided. It will take until as late as July 1, 2022, before any contested abandonment is decided. Once proven abandoned, according to the CDWR, the water is then available to other users, according to the priority water system.

The unanswered question is, what other users will get the water? That is where the arguments begin, because the line, a long line, has already been formed by all manner of folks, who want control of the orphaned wetness.

Call me a doomsayer, but given the obvious fact that plenty of people from Omaha, Nebraska, to Seely, California, want Colorado water, isn’t this whole process really about more water not being used here but used elsewhere, e.g. in Phoenix, Las Vegas, Los Angeles, or even Denver.

Finding and repurposing abandoned rights should help the engineers leave more water in the system so that we can satisfy required delivery downstream that is dictated by the 1929 Water Compact between Colorado, Nevada, Arizona and California as it regards the Colorado River. Colorado produces the greatest majority of the water supplied by the Upper Colorado River Basin. Colorado has been delivering, for the most part, on its promises, but based on the long range needs of those states and cities sucking at the Lake Powell teat, the pool is historically shallow and will get more shallow sooner than later. In short, the other states have overdrafted the account.

Colorado’s agriculture community can only stand so much pressure to cut use in favor of the folks elsewhere. To that end, in 2018, as the third decade of the abandonment identification progressed, Kevin Reins, the state’s top water engineer, told the four regional engineers to not include pre-compact water rights in their assessment.

In a plainly written email, he said: “Since the nature of the pre-compact water rights are unique to Colorado when it comes to administration of the Colorado River Compact, and in recognition of the fact that the value of the rights could benefit all water users in Colorado, as opposed to only the owner of the water right, I will ask that you direct your staff to do no further investigation of pre-compact water rights and to not include them in the Division Engineers’ Proposed Abandonment lists for 2020.”

There is a broad range of reactions to this edict. They range from “you can’t do that” to “it gives us some leverage in water negotiations down the road.”

To be sure, there will be negotiations down the road that will take dead aim at those rights, especially since most are tied to agriculture.

Abandonment would have been one of the justifications, had Reins not stepped in. The push to cut Colorado ag water has already begun by people who think cutting ag water is how we can solve the river’s problems.

Compact member water managers live under the weighty threat of something known as a “compact call,” which is a demand by the compact states to require the delivery of all of the water as owed by the 1929 compact. The acquisition of properly determined abandoned rights and preservation of those senior rights could ease the strain and improve our position in the ensuing discussion, should such a call come to fruition.

Given the extended drought conditions in the southwest and the increasing demands from population centers like Phoenix and Las Vegas, it may well be that the states involved in the use of the Colorado River must revisit the governing compact and make some serious changes that will protect Colorado agriculture.

Going to the fair

Thanks to Emily Sanchez, Montrose Fairgrounds and Event director, I will be able to see and photograph at least part of the Montrose County Virtual fair. I will be at the horse show and at the sheep and fat steer judging. Maybe I’ll see you there.

Sweet corn coming

This is the week for the sweet corn break out. In talking to several producers, the harvest gets underway this week in earnest and continues through August. Of course, there will be no Sweet Sweet Corn Festival this year. But we could grab a few ears and roast them at home, with the country music channel on TV, for some added atmosphere. A beer and some barbecue wouldn’t hurt.

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