The "use it or lose it" feature of Colorado water law is often blamed for discouraging farmers and ranchers from taking efficiency and conservation measures that could benefit the environment or ease the supply/demand imbalance on the Colorado River. However, a report released in February by the Colorado Water Institute argues that misinterpretations of the law are a bigger disincentive than the law itself.
The report was developed as a result of in-depth discussions by a panel of stakeholders and experts that included Colorado State Engineer Dick Wolfe, who directs the office that administers water rights. Wolfe presented the report at a forum on the future of irrigated agriculture in Delta on May 3, and Colorado River District Counsel Peter Fleming presented the report at the Mesa County State of the River meeting in Grand Junction on May 13.
The report concludes that diverting more water from a stream than crops actually use does not expand a water right. In addition, the report explains that recent laws allow irrigators to cut their water consumption without diminishing their water rights if they are participating in certain water conservation, fallowing and leasing programs.
Maximizing Diversions Doesn't Maximize Value of a Water Right
The report notes that while an agricultural water right may be written in terms of a certain quantity of water that can be diverted from a stream in order to irrigate a particular parcel of land, the actual value of the water right is based on how much water is consumed by crops. A farmer who sells a water right to a city can only sell the right to use the amount that has historically been consumed by crops. Rights to use quantities of water that historically leaked from a ditch or otherwise seeped back into the stream can't be sold, because others downstream may rely on that water. Efficiency improvements, like lining ditches or switching from flood to sprinkler irrigation, which allows the same acreage to be irrigated with a smaller diversion from the stream, therefore should not diminish the transferable value of a water right.
Protecting Water Rights from
The Colorado Division of Water Resources can put water rights on the abandonment list for termination if the rights haven't been used for 10 years, but the water right holders can avoid termination of the rights by showing that they don't intend to abandon them. The report states that using measuring devices and keeping good records of water diversions and use, as well as "special circumstances" such as damaged infrastructure or participation in a conservation program, are more effective ways to protect a water right than maximizing diversions.
Leasing Programs Allow Cuts
Without Diminishing Water Rights
Recent laws protect water right holders from having the value of their water rights diminished as a result of cuts in use through certain leasing, conservation and fallowing programs. These include Senate Bill 13-019, which decrees that for water rights in the Colorado, Gunnison and Yampa/White basins, decreases in use as a result of participating in federal land conservation programs or approved water conservation, land fallowing and water banking programs for up to five years in a 10-year period won't decrease the value of the water right. Rotational crop management programs and loaning or leasing water to the Colorado Water Conservation Board to enhance stream flows also allow for reductions in water use without reductions in the value of a water right.
The report is titled How Diversion and Beneficial Use of Water Affect the Value and Measure of a Water Right: Is "Use it or Lose it" an Absolute? It is Colorado Water Institute Special Report Number 25, and can be accessed at www.cwi.colostate.edu under "Publications and Reports."