Colorado’s 19th century water laws sometimes aggravate our 21st century problems. Now, state Rep. Mary Hodge, D-Brighton, and Sen. Dave Owen, R-Greeley, have proposed a modern plan to help farmers and urban water users make better use of our most precious asset.
The linchpins of state water law are the doctrines of “First in time, first in right” and “beneficial use.” The first rule means that if your great-grandfather started irrigating from a stream in 1887 and your downstream neighbors started drawing from the same source in 1901, your rights are “senior” to their rights. In a drought, that may mean you can continue to draw your accustomed amount while your neighbors are forced to dry up their fields.
To discourage hoarding and speculation, however, the law doesn’t allow users to file claims based on potential water uses. You actually have to put the water to a “beneficial use,” by irrigating crops or some other economic purpose.
Water rights can be bought and sold and are now avidly sought by Colorado’s growing cities. But while cities traditionally have been able to buy the rights of farmers and just dry up their fields, such total diversions hurt the economy of the communities that lose the water. As a result, cities such as Aurora and Parker have pioneered partnerships in which farmers sell part of their rights and continue farming – sometimes rotating their fields by irrigating half of them in any one year, much as dryland farmers have traditionally done in semi-arid eastern Colorado.
Unfortunately, it hasn’t always been clear that farmers can sell part of their water rights as easily as they can sell all of them. That’s because it’s unclear whether conserving water is a “beneficial use” under the law, thus raising the specter that a downstream user with junior rights might claim the right to use the water saved by a crop rotation scheme. The Hodge-Owen bill, HB 1124, allows our water courts to approve such conservation plans. The result is that farmers can stay in business while selling part of their rights to cities or other buyers.
“I see it as win-win,” Hodge says. “It keeps the farmer in business, the local John Deere [tractor] dealer in business and the local school open. Without these kinds of partnerships, the growth along the Front Range is going to squeeze out more and more of our agriculture.”
As a bonus, the Hodge-Owen bill will help keep prized open space along the Front Range in its traditional agricultural use. The legislature should pass HB 1124.
