Irrigation Ditches and their Operation

Fact Sheet No. 6.701 Natural Resources Series|Water by R. Waskom, E. Marx, D. Wolfe, and G. Wallace* Water Laws and until its completion. Otherwise, the water Quick Facts Regulations right is forfeited. In addition to a priority date, a water right is recorded based on the • Water rights in Colorado are Current western water law originated location where the water will be diverted or considered a private property during the California gold rush in 1848. Back withdrawn, the amount to be withdrawn, and right. Water rights can be sold then miners would divert water from streams the beneficial use to which it will be put. or inherited, and prices may while mining for gold. Just like the claim on In Colorado, water rights are considered a mining stake, a rule was established stating vary according to supply and a private property right. Water rights can that the first miner to use the water had the demand. be sold or inherited and prices may vary first right to it. After the first miner’s right according to supply and demand. The • Ditch companies coordinate was established, the second miner’s right was consumptively used portion of a water the use, ensure proper recognized, and so on. Claims left abandoned right may be transferred to another area or maintenance and efficient were available to others. Miners brought this use with approval of the water court, with operation of surface water system to Colorado during the gold rush the stipulation that other water rights are of 1859. This system became known as the irrigation systems and not injured. Doctrine of Prior Appropriation (also called conveyances. The value of a water right is based on the Colorado Doctrine because it first became its amount and availability. It is important • Ditch companies have the law in Colorado with the writing of the state to understand that the priority of water use right to enter your property constitution in 1876). is based on seniority. “Senior” water rights to maintain the ditch and Water in Colorado is still administered are the oldest and hence have first priority ditch banks and perform according to the Doctrine of Prior in times of shortage. Senior rights holders Appropriation. The basis of this doctrine is “reasonably necessary” are entitled to receive all available water in the concept of first-in-time, first-in- right. operations. their ditch or diversion before any junior Water rights are established when water is put water rights holders. During times of water to beneficial use. The person or organization shortage, a senior water right holder may that is beneficially using the water may place a “call on the river.” When a call is request the water court to officially recognize established, any upstream junior right holder the right by decree. This judicial process is must stop diverting water until the senior called adjudication. In Colorado, water courts user receives their full decreed entitlement. have jurisdiction over all applications for This call system is applicable to waters that decree of absolute water rights, conditional are a natural part of the stream system. water rights, changes of use, exchanges, and augmentation plans. A new water user can no longer Ditch Operations appropriate water by simply going out to Ditch companies and associations exist the stream and digging a diversion ditch. to acquire water rights, develop storage, Water projects now involve a complex and deliver surface water to their members process of planning, permitting, and for irrigation and other purposes. Early on, engineering to prove that unappropriated farmers and landowners realized that the water is available for use. If the water court value of their property was directly related approves a conditional decree, the project to a common system bringing water to their must be carried on with due diligence land. Even today, it’s the water that makes © Colorado State University land productive, stable, and aesthetically Extension. 4/06. Revised 12/14. *R. Waskom, Colorado State University Extension water resources specialist and director, Colorado Water pleasing. www.ext.colostate.edu Institute; E. Marx, former agricultural specialist, Larimer Ditch companies generally own and County; D. Wolfe, Office of the State Engineer; and maintain ditches from their headgates to G. Wallace, Colorado State University professor, natural an established point where the individual resource recreation and tourism. 12/2014 landowners or lateral ditch associations Questions and Answers Deeded Water Rights manage the smaller ditch systems. Lateral Water law and irrigation ditch ditch associations generally have by-laws management in Colorado is complex and rules of cooperation in order to keep If you do not hold deeded water Resolving site-specific water issues often rights on a ditch that runs through the lateral system functioning and to avoid require consultation with an attorney or your property, you cannot take water conflicts. Ditch associations are often the engineer. This fact sheet provides general from the ditch in any fashion. You basis for a sense of community among guidelines on the rules and practices that neighbors in rural areas. govern ditch operations in Colorado. If you also must not obstruct the ditch nor Generally, if you hold shares to water have an irrigation ditch on your property deny access to the ditch owner or rights from a ditch that runs through your or if you are in the process of purchasing their representatives when they need property, you will have a deeded water a property with an irrigation ditch or to enter the property to perform right that entitles you to water during the creek on it, the following questions may be maintenance operations. Livestock or irrigation season. There are also certain helpful. vehicles must not cause damage to a responsibilities associated with these ditch or its right-of-way. rights. Water users are often expected to Q: An irrigation ditch runs through attend work days, annual meetings, and my property but I don’t use it. Am I even serve as the ditch captain in smaller responsible for ditch maintenance? ditch associations that cannot afford a paid reasonably necessary for ditch maintenance A: No. The ditch company and water users ditch rider. Responsibilities also include and operation. This is often determined are responsible for ditch maintenance, but coordinating with neighbors when you by historic practices and is not always you must not damage or obstruct the ditch. wish to run water in addition to keeping the described in a deed. ditches that run through your property free Q: Does my neighbor have the right of obstacles. Annual maintenance costs are Q: My neighbor wants to replace to enter my property to access the typically shared by association members in the earthen ditch that crosses my irrigation ditch that runs through my proportion to the number of shares held. property with a concrete lined ditch property? or a pipe. Can my neighbor make A: Yes, if your neighbor uses the ditch the change even if I disapprove? to deliver water to his/her property, he/ Reservoirs and A: Yes. Changes that increase the efficiency she has a right-of-access to enter with the of water delivery, such as installing concrete Water Conveyances equipment needed to maintain or repair the ditches or pipes, are considered reasonably ditch. Irrigators frequently check ditches An extensive network of reservoirs necessary. The ditch owner can make these upstream to see how they are flowing, and water conveyances has been changes even if you disapprove. If they wish clear debris from the ditch, or adjust flows to move or realign the ditch, however, they developed in Colorado since the at measuring structures that may be on th must negotiate with you and receive your middle 19 century. In many cases, your land. a system of reservoirs, pipes, and/or permission. ditches had to be built to store and Q: Does the ditch company have Q: Can I build a fence across divert the water to where it could be an easement through my property? an irrigation ditch to contain my used by farmers. The construction of How can I identify the width of the animals? water delivery systems was in many easement? Do I have to let them cases handled by a water district or enter and tear up my property? A: As a general rule, the ditch company and water users have the right to prohibit or a water company. The water users A: Ditch rights-of-way can be owned fee set conditions for fences that enter the ditch hold shares in the company that simple or by easement. When owned by right of way or cross the ditch. Fences can may be bought and sold. Depending fee, the ditch owner holds title to the land hinder maintenance operations and collect on the company, shares may vary where the ditch runs and has absolute trash thus clogging the ditch. You might be control. The width of a ditch owned by fee in amount of water and price. The able to work with the ditch company for is usually described in the deed. amount of water stored and delivered permission to build a moveable fence that If the ditch runs through an easement, to shareholders each year depends can be removed during ditch maintenance. largely on the snowpack in the then the ditch owner does not own the land containing the ditch, but they do have mountains and the amount of runoff in Q: Can I use the water in the ditch access and use rights. The ditch owner has the spring. Annual fees are assessed that runs through my property? the right to enter your property to maintain to pay for the use of the facilities, their the ditch and ditch banks and perform A: Only if you own water rights or have maintenance, and for the services of “reasonably necessary” operations, even leased a right to the water. The fact that the the ditch rider. if that means disturbing land within the water flows through your property does not easement. The easement is as wide as is entitle you to use the water. Q: Can I take water out of a creek ditch captain. Your neighbors are entitled that runs through my property? to their water first, but you might be able Water Divisions A: Only if you have a decreed right to to irrigate between their irrigation times in Colorado use the water and it is in priority or there if that does not impact other users more South Platte River Basin is unappropriated water in your creek. senior to you. If you are still in conflict Water Division 1 The fact that the water runs through your with your neighbors, contact your local property does not give you the blanket right water commissioner to verify the call 810 9th Street, Suite 200 to divert or use it. In most of Colorado, it is and to determine when your water might Greeley, CO 80631 difficult to find unappropriated water. be available. Phone: (970) 352-8712 Fax: (970) 392-1816 Q: A ditch crosses my property. I Q: What is a “call for water”? don’t own rights to the water, but I A: In areas where water supplies do not Arkansas River Basin want to dig out an area so I will have meet all of the demands, some water rights Water Division 2 a pond. Can I do this if the water can holders in the river system may not receive 310 East Abriendo, Suite B flow through my pond and back into enough water to fulfill their court-decreed Pueblo, CO 81004 the ditch? diversion amount. Water users then may Phone: (719) 542-3368 A: No. Digging a pond constitutes an start to “call” for their water, based on the Fax: (719) 544-0800 impoundment. Forcing water to flow priority system of “first in time, first in right.” This is done with a phone call to the through a pond alters the natural flow Rio Grande Basin local water commissioner. Water delivery and will increase losses to seepage and Water Division 3 to junior users may be curtailed until the evaporation, potentially injuring other 301 Murphy Drive water rights holders on the ditch. senior water rights holder receives all the water he/she is entitled to receive. P.O. Box 269 Alamosa, CO 81101 Q: I bought water rights when I Phone: (719) 589-6683 purchased my property but my Q: What are diversion records? Fax: (719) 589-6685 neighbors downstream are forcing A: A diversion record is a record of me to shut my headgate and won’t the daily flow in cubic feet per second let me irrigate my hay. What can for a ditch or other diversion structure. Gunnison River Basin I do? Diversion records are maintained by water Water Division 4 commissioners and kept on fileat the State Mailing address: A: Most likely your neighbors’ water rights Engineer’s Office, the division offices, and P.O. Box 456 are senior to your right. If this is the case, online at the Division of Water Resources Montrose, CO 81402 your neighbors can require you to shut Web site, dwr.colorado.gov. your headgate until they receive all the Physical address: water they are entitled to. The likelihood 2730 Commercial Way of this occurring in any given year Q: What is a share of water? Phone: (970) 249-6622 depends on water supply and the number A: A “share” refers to an interest in a ditch Fax: (970) 249-8728 of downstream users with rights senior company. It represents a portion of water to yours. that flows through the ditch. The amount of Colorado River Basin These situations are best worked out water represented by a share varies greatly Water Division 5 with your neighbors, in consultation with among ditch companies and from year Mailing address: members of your ditch association. If you to year, depending on how much water is P.O. Box 396 do not have such an association, you may available in storage and from the current Glenwood Springs, CO 81602 have to talk to the water commissioner year’s snowpack. You must contact the ditch Physical address: to get an official explanation. Your best company to determine how much water 202 Center Drive solution might be to develop an irrigation is typically allocated per share. Most ditch Phone: (970) 945-5665 schedule with your neighbors and the companies inform water users in the spring how much water per share will be delivered Fax: (970) 945-8741 for the coming irrigation season. Water Use Yampa River Basin for Small Acreages Q: Why do different ditch companies (White River drainage also) have different rules? Water Division 6 For more information on water use for A: Ditch companies are owned by the Mailing address: small acreages, see Colorado State water users they serve. Rules of operation PO Box 773450 University Extension fact sheets: vary depending on the type of water rights Steamboat Springs, CO 80477 owned, size of the company, needs, history, • 6.700, Private Wells for Home Use infrastructure, and other factors particular • 4.717, Glossary of Water Terminology to each company. Q: How do you change water from are named and easily recognized by those one beneficial use to another? living in the area. Contact information for Water Divisions A: You must apply for a “change of many ditch companies can be found online in Colorado use” through the water court. A public at www.watercolorado.com or through continued notice is then published, allowing for the division engineer. Your local USDA- a two-month public comment period Natural Resources Conservation Service Yampa River River Basin regarding your request. After the comment (NRCS) office or Colorado State University (White River drainage also) period, the water referee will review your Extension office may also be able to help. Water Division 6 application. The water referee then makes Phyical address: a recommendation to the water court Q: What does the ditch rider do? 505 Anglers Drive, Suite 101 judge. If no protests are filed, the judge of A: A ditch rider is hired by the ditch Phone: (970) 879-0272 the water court signs the decree with the company to maintain the ditch and open Fax: (970) 879-1070 new beneficial use. If a protest is filed, the headgates as appropriate to divert water for matter may go to trial (if the parties cannot water deliveries in the ditch system. The San Juan/Dolores River Basins settle) before the judge makes a ruling. The ditch rider also calculates water volumes Water Division 7 water court’s ruling can be appealed to the and oversees ditch operations. The ditch 160 Rockpoint Drive Colorado Supreme Court. The process for a rider stays in close communication with Durango, CO 81301 change in water right usually takes between the water commissioner (a.k.a. river Phone: (970) 247-1845 four months and two years. commissioner) during the irrigation Fax: (970) 259-0944 season to coordinate diversions and calls Q: How long must a ditch remain on the river. Some of the smaller mutual unused before the associated water ditch companies use a rotating ditch See dwr.colorado.gov for more right is declared abandoned? captain to coordinate ditch operation and information about your water division. A: A water right is considered abandoned maintenance activities. if the water has not been put to beneficial use for an extended period of time, Q: What does the water usually at least ten years. Non-use does commissioner (a.k.a. river not necessarily result in abandonment if commissioner) do? the non-use is due to circumstances such A: The water commissioner operates the as a lack of water availability due to a low headgates where water is diverted from the priority right. river into ditch systems and is responsible The division engineer submits a list of for measuring stream flows and accounting rights that are presumed to be abandoned for diversions from the river. The water to the water court. The owner of the water commissioner reports this information to right is allowed a hearing in water court. the division engineer. The water court then makes a ruling regarding the abandonment. Q: Who is the Division Engineer? If you are unsure about a ditch that What does he/she do? runs through your property, contact the appropriate division engineer or check A: A: The division engineer is responsible records at the county office to determine for administering water records, flows the status of the ditch prior to any activity and diversions within a specific watershed that might be considered trespassing or basin. There are seven water basins and destruction. division engineers in Colorado (See sidebar.). Q: How do I contact the ditch company that controls the ditch through my property? A: First, try asking your neighbors for information regarding the ditch company or lateral association. If that is not possible, contact the water commissioner or your county’s planning department. Most ditches

Colorado State University, U.S. Department of Agriculture and Colorado counties cooperating. CSU Extension programs are available to all without discrimination. No endorsement of products mentioned is intended nor is criticism implied of products not mentioned.