When the taxpayer-supported Pagosa Area Water and Sanitation District (PAWSD) was organized in the early 1970s to serve the “recreational community” newly under construction in the Pagosa Lakes area, most of the oldest — and thus, most ‘senior’ — water rights in Archuleta County had been acquired back in the late 1800s and early 1900s by the community’s farmers and ranchers.
Agricultural operations in Colorado had historically been challenging. Rainfall here is about half the amount a farmer could expect in, say, Iowa — and about one-third what a farmer on the East Coast would receive. The snowfall in the surrounding mountains, however, was generous, so pioneer families in Archuleta County built and maintained irrigation ditches to draw spring and summer snowmelt to their ranches. From what I can tell, hundreds of irrigation ditches, large and small, had been constructed by the time Ralph Eaton and his partners from Arizona began organizing a municipal water district to serve thousands of new suburban parcels scattered over 21 square miles, in 27 new Pagosa Lakes subdivisions.
Most of the water rights to serve the planned community were purchased from surrounding farmers and ranchers, and the names of the ditches that still contribute water into the PAWSD system bear the names of pioneer Archuleta County families.
Martinez. Linn. Clark. Hatcher. Hersch. Dutton. Perkins. Keith. Archuleta.
Had PAWSD not been able, under Colorado law, to purchase these senior agricultural water rights and convert them into municipal water rights, the Pagosa Lakes subdivisions might never have been platted.
Disclosure: I currently serve on the San Juan Water Conservancy District board, but this essay does not necessarily reflect the opinions of the SJWCD board as a whole or of any other SJWCD board members.
I mentioned yesterday that the Colorado Constitution and statutes allow various types of uses for the state’s water, but it also defines the water in our our natural streams as a “public” resource. We can “use” the water, but we cannot “own” the water. A water right states the allowed “point of diversion”, the allowed uses, the allowed amount, and the priority date of the right. From the Constitution:
The right to divert the unappropriated waters of any natural stream to beneficial use shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have the preference over those using the water for manufacturing purposes.
Already in 1891, however, the Colorado courts had declared that a water right was “property” that farmers could “sell” to another user, to be used in a totally different location for a totally different use, using the original priority date. From a 1952 Colorado Supreme Court ruling:
In this semiarid region, a water right has long been recognized as a property right, often more valuable than the land upon which the water is applied. As our court said long ago in Strickler v. City of Colorado Springs [1891]… “If the priority to the use of water for agricultural purposes is a right of property, then the right to sell it is as essential and sacred as the right to possess and use.”
Equally inherent is the right to change the point of diversion and the place of use, provided only that the vested rights of others are not substantially affected thereby. “This right to use, in times of scarcity, a definite volume of water in a fixed order of priority from the natural streams is one of the most valuable property rights known to the law of this state, which in no way depends on the place of its application, and is not confined to the land upon which the right came into existence, but may be sold separate from the land, and changed from one place to another.” Ironstone Ditch Co. v. Ashenfelter [1914].
If I understand these comments correctly, the Colorado Supreme Court long ago designated a “water right” as a “sacred” property right, able to be sold, moved, leased, or otherwise converted into a financial profit center, 100 years ago.
So we can see the difficulty facing the newly-formed Anti-Speculation Law Work Group. During their initial meeting on Wednesday this week, group member Joe Frank, general manager of the Lower South Platte Water Conservancy District, posed the central ‘property rights question.’
“You know, we do see — within the South Platte Basin — a lot of entities buying up water rights with the intention of drying them up in the future… definitely something we’re working on, to come up with different options…”
This is a common problem in historically agricultural communities. In Colorado, a municipal government, a developer group, or a corporation can buy senior water rights from a traditional farmer or rancher, and move the rights to a totally different location, leaving behind a “dried up” ranch or farm, with no water.
Joe Frank:
“But in addition to that, we do have… you know, those who want to sell. A water right is a property right… and that is a dilemma, but we don’t want to impact people’s property rights. So I’m really interested in looking a [what laws] exist, and how these potential changes would, or could, impact existing property rights.”
We hate for things to change.
We love for things to change.
The folks who moved into Colorado in the 1850s and 1860s were happy to drive the existing indigenous residents off the land — the Ute, Apache, Arapaho, Navajo, Comanche, Cheyenne — and onto reservations. The newcomers then commenced to extract resources and divert the Territory’s water ‘this way and that’… planting water-thirsty crops that had never before been cultivated in the American West… grazing sheep and cattle…
Now the hedge fund investors… and high tech corporations… and suburban retirees.. are moving in, happy to drive out the farmers and ranchers. Or should I say, “happy to buy them out”.
Time to change the laws?