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Drought-Stricken Colorado Mulls Water Measuring for Agriculture

Aug. 4, 2021, 10:00 AM

Colorado is proposing to ramp up requirements that agricultural water users, ranging from big companies to small mom-and-pop farms, measure the amount of water they divert from streams, rivers and waterways.

The state engineer says a statewide rule is necessary to prepare Colorado for a water-scarce future. Some water users, however, accuse the state of taking a heavy-handed and overly expensive approach that will force landowners to install devices in areas that don’t need them.

The move comes as Western states struggle to manage water resources amid an historic drought, climate change, and a growing supply-and-demand imbalance. In some watersheds, government officials don’t know how much agricultural users—thought to be responsible for upwards of 90% of water consumption—are using.

“You can’t administer water rights if you don’t know how much water people are taking,” said Kevin Rein, Colorado state engineer and director of the state Division of Water Resources.

Measurement mandates let states know how much agricultural users are diverting and whether some are taking more than their fair share. States have requirements that those users install flow-measuring devices such as flumes, weirs, and meters on diversion ditches.

Gone are the days of “free river,” when farmers and irrigators could just take as much as they wanted out of streams and waterways, he said.

‘Excessive’ Regulation?

Colorado’s pending rulemaking would draft formal rules for a regulatory power that administrators in each of the state’s water divisions already have, Rein said. The rulemaking also will provide consistency and allow for stakeholder input, which will increase buy-in, he said.

Flow-measuring devices ensure the proper and equitable distribution of water among users. They measure how much water is flowing by in cubic feet per second and include sharp-crested weirs, which are relatively cheap and easy to install, and Parshall flumes, which are self-cleaning but more expensive.

A weir is an overflow structure that allows water quantity measurements to be taken, while a flume is an open channel flow-metering device.

Some landowners say the state is taking a heavy-handed approach to impose requirements on ranches and farms that don’t need them.

Mike Camblin, a rancher and Maybell Irrigation District board vice chair, said a statewide rule will be “an undue expense in areas that don’t need it.” Camblin said he’s not against the use of measuring devices, but he believes the requirement should be imposed on a “case-by-case basis.”

Threats to cut off water and exact fines of $500 a day for noncompliance are “excessive,” he said.

Other States’ Efforts

At present, New Mexico and Utah have statewide flow measuring requirements, although water officials concede compliance is low in some watersheds in those states. The state engineer can impose fines and refuse to deliver water to ditch owners failing to install such a device.

Arizona has measuring device requirements for certain withdrawals of groundwater, and in California, water agencies are in the process of putting rules in place to require flow meters on agricultural wells—with a reporting requirement—to constrain free and unlimited groundwater pumping.

In Wyoming—which, like Colorado, lacks a statewide device requirement—water division superintendents can order a ditch owner to install a measuring device on a waterway that’s being regulated, which happens when a senior water rights-holder puts in an administrative “call” for more water, usually when there’s a shortage.

Superintendents, like water administrators in other Western states, determine the allocation of water according to the doctrine of prior appropriation—also known as “first in time, first in right"—that gives whichever lien is recorded first in land records higher priority over later-recorded liens, said Loren Smith, superintendent for Water Division 3 in Riverton, Wyo.

Smith said if he’s not “called to regulate” a waterway, he doesn’t care whether those users are measuring their water use or not.

Better Compliance Sought

A primary goal of the Colorado rulemaking is better compliance in the Yampa River Basin in northwestern Colorado, where less than half of agricultural users have flow-measuring devices in ditches diverting water away from the river, Rein said. Across the state’s other basins, the compliance rate is about 95%, he said.

In the past, “ditch riders"—administrators on horseback or four-wheelers who check streamflows and headgates—had some flexibility in deciding when to enforce water-measuring requirements, said James Eklund of Eklund Hanlon in Denver, former director of the Colorado Water Conservation Board.

With a statewide requirement, that would change.

“It signals that the role of the state engineer could be shifting from saying what you can do, to telling you what you aren’t allowed to do,” he said. “Is it more of an administrator, or more of an enforcer?”

Measuring water use will be critical should the states of the Lower Basin — Arizona, California and Nevada — make a call on the river, requiring water from the Upper Basin states of Colorado, New Mexico, Utah and Wyoming.

“We hope we’re going to start getting some good winters and good snowpack, but hope is not a very good strategy,” said Ken Hamilton, executive vice president of the Wyoming Farm Bureau. “At some point, we’ve got to come up with a plan other than hope.”

To contact the reporter on this story: Tripp Baltz in Denver at abaltz@bloomberglaw.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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