A Public Resource With a Private Right to Use

Frank A. Eckhardt Jr. planted onions and sugar beets last spring with confidence. Studying the fast-receding snows along the Continental Divide, he was more leery about corn and pinto beans.

Soft-spoken and gentle in demeanor, Eckhardt farms 3,500 acres along the South Platte River near Peckham, a wink of a place 10 miles south of Greeley. The land’s water is supplied primarily by two mutual irrigation companies, Farmers Independent and Western Mutual.

Snowmelt from the mountains delivers the water to both. By July, the lower South Platte River consists primarily of treated wastewater effluent from metropolitan Denver and return flows from irrigated fields upstream. Occasional rainstorms spike the flows.

Relatively senior water rights benefit Eckhardt and his two sons plus their neighbors, who together are the primary stakeholders in the two companies. Their most senior rights date to Nov. 20, 1865, when the first ditch of Farmers Independent was completed. That date makes it 10th in priority on the South Platte River below Denver. Two miles farther down, the slightly newer Western Mutual Ditch is 13th.

Holding more senior rights gives the Eckhardts high confidence of obtaining sufficient water to irrigate their land. Seniors such as the Eckhardts can “call” for their water and get it, assuming they do not impair the ability of an even more senior water right holder to draw water from the river. Those who claimed later rights, whether upstream or downstream, have lower or junior priorities. They can draw only after the rights of the seniors have been satisfied, making their water security a bit more tenuous.

Planting in 2011, a record year for runoff, was an act of common sense. But 2012 was the complete opposite. The little snow that fell last winter had mostly melted by April. To reduce their risk, the Eckhardts left 700 acres of their rented land fallow. But they went ahead and planted corn, to be used as feed for livestock, and after Memorial Day, pinto beans. It was a decision they would come to rue.

The Roots of Prior Appropriation

Farming has occurred in Colorado for at least a millennium, probably longer. The Ancestral Pueblo people, sometimes called the Anasazi, held back rainwater for drinking water use in at least four reservoirs in what is now Mesa Verde National Park. Much later, irrigation occurred in conjunction with posts operated by the Bent brothers and other merchants of fur.

In 1852, Mexican-American settlers put into service the San Luis People’s Ditch, the oldest continuously operated ditch in Colorado.

Frank Eckhardt farms land that has been in the family since 1860. He holds senior water rights that give him an advantage in dry years; still, in a year like 2012, all bets are off. Photo By: Matthew Staver.

Discovery of gold along the Front Range spawned the rush of 1859 and the rapid expansion of irrigated agriculture. While most newcomers sifted riverbeds with pans, a few hundred saw a surer path by taking up the plow. Among these new farmers was Frank Eckhardt’s grandfather, Robert A. Eckhardt. After two years in Black Hawk, he and other settlers in 1861 furrowed the sandy loam along the South Platte into ditches, using horses, mules and no small amount of their own labor. In later decades, the Farmers and Western ditches were enlarged and expanded. With each expansion came applications for new, and more junior, water rights as necessary to irrigate additional lands.

Colorado’s body of law governing water use, called the doctrine of prior appropriation, differs altogether from riparian law, which was adopted in western Europe and then the eastern United States. Riparian law recognizes owners of land across which streams and rivers flow as those who can make use of that water, within reason. Prior appropriation, on the other hand, assumes public ownership of the water independent of the property it crosses. An appropriation from a state water court grants the right to use a portion of the public’s resource for a beneficial use in a specific amount and location as specified in a legal decree. While greater rainfall creates a thicket of rivers, creeks and streams in the East, aridity more broadly prevails in the American West, shaping new attitudes about allocation of a scarce resource.

Influenced by Spanish miners, the new attitudes and laws first took root in the mining camps of California. A decade later, they were transplanted to Gregory Gulch, between what later became Central City and Black Hawk, and other early camps in Colorado. Rules for water use paralleled those of mining claims. Mining claims had to be worked, and water had to be used. No hoarding, no speculating was allowed. In cases where the use of water by one miner might affect another miner’s use, the older or prior use had priority. And finally, water could be conveyed away from the riparian area. Indeed, other landowners had to accommodate these conveyances, whether they be wooden flumes or—as became the case with agriculture—wide ditches. These principles from the mining camps were adopted by the territorial legislature in 1861 and then put into the Constitution at statehood in 1876.

Studying the mining camp and agricultural laws, David B. Schorr detects a deep-seated egalitarianism rooted in Jacksonian democracy and Jefferson’s concept of the yeoman farmer. Rules were all aimed at stifling monopoly control and speculation. Water was reserved for those who put it to actual use. This was not socialism, says Schorr, a law professor whose academic research has focused on Colorado water law. Rather, the reformers saw private property, widely distributed, “as a bulwark of liberty and human dignity.”

“We have to protect our senior rights.” – Frank Eckhardt

Mutual ditch companies, a clear articulation of this yeoman and egalitarian impulse, differ little from the acequias—community-operated waterways used in Spain and its colonies—including those in the American Southwest. They are rooted in communal effort and reward.

Members of the Farmers Independent Ditch, for example, must pay $150 annually per share owned, where a share is about 22 acre feet of water. The money is used primarily to pay a ditch rider, somebody who tracks and administers water allocation during irrigation season and burns weeds and in other ways maintains the infrastructure. Sometimes that infrastructure must be replaced. Two years ago, owners were assessed $24 per share to replace a diversion on the South Platte River that had stood since the 1930s.

Monthly meetings last four to five hours, much of the discussion focused on water filings located upstream in metropolitan Denver. Attorney bills are rising. “Anymore, we have so many court cases,” says Eckhardt, who is president of both the Farmers Independent and the Western Mutual ditch companies. “We have to protect our senior rights.”

Some of the shares are now owned by individuals or entities who will want to move the water right to a diversion point elsewhere, probably near Denver. Agricultural water rights constitute most of the longest-held water rights in Colorado. As such, cities want to buy or lease those rights, because they have the highest priorities, an important consideration in lowwater years. Already, a few farms along the Farmers Independent and Western Mutual ditches have been dried up, and Eckhardt expects that trend to accelerate, creating challenges for continued operations by remaining farmers.

Frank Eckhardt and sons, David (left) and Steven (right), harvested 450 acres of sugar beets this year, with an estimated 15 percent drop in production due to irrigation water shortages. Photo By: Matthew Staver.

Changes in use of water rights can be made permanently through a state water court process or sometimes temporarily through an administrative process overseen by the state water engineer. Because a change in the use of a water right can affect other water users along a river, such changes can be blocked if other senior or junior users can show injury. But it takes time to sort out the implications of these changes. That’s one reason Colorado has so many water attorneys.

Expansion of Infrastructure

Early on, Colorado lawmakers authorized legislation leading to the establishment of irrigation districts to undertake the more ambitious jobs of creating reservoirs and constructing elaborate canals to deliver water to benches above river valleys. Later yet came the Northern Colorado Water Conservancy District and the Colorado River Water Conservation District, followed by other water conservancy and conservation districts, all with the power to finance the construction and operation of reservoirs to further agricultural production.

During the 20th century, the federal government played a major role in the significant expansion of agriculture in Colorado. Among the first projects resulting from the Reclamation Act of 1902 was a tunnel to allow delivery of water from the Gunnison River to the flowering orchards and fertile fields around Montrose and Delta. The Colorado-Big Thompson and Fryingpan-Arkansas projects were even larger in scope, yielding Colorado River Basin water to farms of the South Platte and Arkansas valleys respectively.

Reservoir storage better allows farmers to ride out droughts. As such, reservoir water is very valuable, as has been evident in drought years of this decade. The value can be seen in the desert-like environment of the North Fork of the Gunnison Valley. The first farmers and fruit growers to the Paonia and Hotchkiss area tapped directly from Leroux and other creeks. But after the burst of spring runoff, little water remains. To remedy their needs, water is detained atop Grand Mesa in the Overland Reservoir and other impoundments. A winding, 33-mile-long ditch that drops 4,000 feet in elevation delivers water for roughly 60 days each summer to apple growers and other shareholders. This year, the water ran short—with a probable 20 percent reduction in the apple harvest on Rogers Mesa.

Irrigators in the North Fork Valley also benefit from the ability of Blue Mesa, Paonia and other federal reservoirs to release water to fulfill calls from senior users downstream.

“It costs a little more up front, but long term, we like to think it pays for itself,” – Hugh Sanburg

Efficiency and reasonable use, taking no more water than what is required to achieve a task, are at the core of Colorado water law. Irrigators continue to innovate to wring out efficiencies. Those efficiencies matter even more in drought years.

In northern Colorado, the Cache La Poudre Management Company delivers water to 35,000 acres that grow corn, carrots, onions, barley, and other vegetables and grains. The ditch, located near Windsor, has a senior right of 1870—very good, but not quite good enough for everybody this year. Installation of remotely controlled headgates has helped improve efficiencies, stretching water supplies up to a day or two during irrigation, says Dale Trowbridge, general manager.

In the North Fork Valley, Hugh Sanburg has also been able to achieve greater efficiency on the Cedar Park Ranch. With other family members, he has 2,400 acres 15 miles northeast of Delta, of which 500 are irrigated to grow alfalfa, grasses and small grains. They have an 1883 decree, which in August was still delivering water, although an 1896 degree had been called out to fulfill the rights of more senior, downstream users. Since Sanburg’s father was born in 1928, that had occurred only twice before.

To improve efficiency and save labor, Sanburg has deployed a terraced irrigation system, with gates every 30 inches that allow better moderation of water with less direct manipulation of siphon pipes. He believes his is the only such system outside Arizona. “It costs a little more up front, but long term, we like to think it pays for itself,” he says.

No Guarantees, Even For Seniors

In the South Platte Valley, no short-term solution was available to Eckhardt and his neighbors this year. Many rely upon wells installed beginning in the 1930s that can draw water from aquifers. In the late 1960s, recognizing that wells could also draw down the adjoining river, depriving downstream users with senior rights, Colorado lawmakers instituted change. Subsequent court decisions further clarified the responsibility of state water administrators to curb well pumping by junior users unless they supply sufficient replacement, or augmentation, water to avoid harming seniors.

As corn plants emerged on the Eckhardt farm, temperatures soared above 100 degrees and winds of 30 miles per hour made the plants thirstier. The Eckhardts had 13 wells, but were legally entitled to use just nine, and then on a limited basis—they have too little augmentation water to run the wells in a water-short year. In June, they and other farmers from Brighton to Greeley and beyond appealed to Gov. John Hickenlooper to allow them to briefly draw a limited amount of water from the aquifers, despite being out of priority. If granted, the action may have also provided relief from flooding basements and crop damage resulting from localized high water tables. Hickenlooper refused, stating he lacked authority to override the prior appropriation system. Unless it rained, the farmers would get no relief.

“We were just hoping for the skies to open up,” says Eckhardt. A storm delivered threequarters of an inch of rain in early July, but it wasn’t enough. Finally, on July 15, the Eckhardts stopped trying. They quit delivering too little water to 700 acres. The corn, by then waist-high, stayed green another week to 10 days, then began drying up, turning October brown. “It hurt me, and them [his sons], to let something go,” says Eckhardt.

Most hope 2012 was an anomaly that won’t soon be repeated. Still, only in the rarest of years is there enough water here for everything and everybody. The prior appropriation doctrine cannot assure every user of a water supply, but it provides a mechanism to fairly distribute a limited resource, with as much certainty as possible in an arid climate, to those who have established, maintained and used their water rights—which farmers like Frank Eckhardt Jr. and his family have been doing for nearly 150 years.

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