There are a few parties out there that are going after “illegal” expansions of use under ditch systems as they come up in change cases. But what’s the actual effect of doing so?
The answer is a little less obvious than it might seem at first. By reducing future use of a water right back to what was originally intended at the time of the appropriation – in the case of senior ditch rights – additional water does not, contrary to popular belief, end up going to the next downstream senior right. Instead, as a general rule, it gets allocated upstream. Here’s why…
Contrary to popular belief, the river is not administered strictly on a senior call basis – i.e., the senior right places its call on the river based on its senior priority date. Rather, the senior places a call, but the State Engineer administers the call with a date junior to the senior’s priority date. The effect is to allow upstream junior water rights to divert, but not completely under their own rights, and in essence bypassing water downstream to the senior right. Hence the use of the “bypass call“.
So what happens when the downstream senior right is restricted based on a determination of an impermissible expansion? The amount of water from upstream water rights that must be bypassed to the downstream senior right is reduced. Thus, the water moves upstream, not downstream.
Take the Jones Ditchcase for instance. The result was to reduce diversions by the Jones Ditch because of its “illegal” expansion, putting more water in the reach of the Poudre River between New Cache and the Greeley No. 3 Canal. However, New Cache’s most senior rights are senior to all but the #3’s first about 50 cfs. So New Cache bypasses just enough water in the reach to satisfy the #3’s first priority (about 50 cfs). The rest New Cache diverts (at most times of the year). By reducing diversions by the Jones Ditch, New Cache must bypass less water to satisfy the #3, thus, New Cache – the upstream right – is the direct beneficiary of the Jones Ditch decision under most river conditions.
This may not be the case in every scenario or set of circumstances, but we think it’s worth keeping in mind when evaluating these “illegal” expansions.
[...] Timothy Archibald wrote an interesting post today onHere’s a quick excerpt [...]
After being on the family farm for over 50 yrs and my father before me sense 1920 I am finding out that water no longer runs down hill but runs to money. They fact that farmers can no long afford to keep fighting for their water no matter if they are right. The way the lawyers have worked Judges to almost pick and choose, first the wells where shut down but yet have closed their eyes to illegal expansion of water being used. I think what is right for one should be right for all, meaning if there is illegal expansion of water why are they still doing it and well users where given orders to stop or face fines and jail. I know of a lot of change of use of not only surface water but of so called cofman wells that are being pumped on ground that was once GASP wells. I think you have a great web site and I hope that something gets changged to where everyone is playing on an equal field.
I understand that in change of use cases, expanded use is considered to be illegal for calculating consumptive use.
What I don’t understand is if it is illegal in determining consumptive use, isn’t it just plain illegal use and needs to be shut off, even if the water shares or right are not going through a change case?
In other words, developers have bought up shares on some ditches and are taking those shares to water court to get them changed. Most shareholders think that they can continue with their expanded use as long as they stay farming while on the same ditch those shares being changed cannot take credit for the expanded use.
But how can they have it both ways? Or it’s okay to use the water illegally as long as it’s being used for farming, but not for export to the cities.
Seems like these courtroom deals that permit having it both ways are more like the Mafia trying to figure out how they are going to divide their territory than something which is supposed to protect water users.
We’re not aware of any attempts to curtail expanded use outside the context of a change case, but that’s not to say expanded use couldn’t be subject to injunctive relief.
Also, think about this: say you’re a shareholder in a mutual ditch company who plans to continue farming for the foreseeable future. And say a developer comes in and attempts to change some shares in the company, the result of which is that it comes to light that 50% of the system is expanded. All of a sudden you may not have any water to continue farming…
I have several questions concerning expanded and illegal use on senior ditches. I would like any knowledgeable person to respond. It now appears to me that these will be our next battles.
1: If I’m on a ditch that has expanded use and there is a change case involving a group of shares will the entire ditch come under scrutiny? Or will the court limit its rulings to only the shares involved in the case?
2: If the court rules against the illegal or expanded use shares what will happen to the water those shares represent? Will the water be considered abandoned and lost to the ditch company to be returned to the river? If those shares are lost can other shares in similar circumstance be lost even though they were not involved in any change of any kind?
3: Can shares currently being used illegally are moved back to lands where originally decreed, will they be safe from being considered abandoned? What about their relative worth? Even though now legal, they would have no historical use at all, or could they claim that fraction that was consumed from the head of the ditch and their respective headgates?
4: If for example a case is brought against the Bijou Irrigation District and it’s determined that the augmentation water they are bypassing is an expansion of use and therefore illegal is it simply disallowed for augmentation or is it returned to the river?
5: Is there a difference between illegal and unlawful, in terms of water use?
6: Knowingly taking water you have no right to is a felony in Colorado. If FRICO loses its 1885 right in the change case as expanded use, is the Henrylyn system then guilty of a felony if they persist in using the same right in the same manner?
7: It has been reported that a huge amount of Fort Morgan Reservoir and Irrigation Company is illegal use. If this is common knowledge and known to the Division 1 Engineer is the State of Colorado aiding a felon in the commission of a crime? Can a criminal enterprise use the Water Court system to further its criminality? An example would be the FMRIC against GASP, how can an outlaw organization gain such assistance from the court? FMRIC’s illegal use has no decree, Al Capone didn’t break every law, and breaking one law was enough to brand him, as a criminal.
I will forward more questions as they come up. I would like to implore any water professionals to please answer these questions. As a stockholder it’s hard to get an honest answer from some ditch company attorneys.