Colorado rancher grapples with water rights abandonment listing
10-year state process asks: What is the value of water that is not being used?
CLARK — Northwest Colorado rancher Jay Fetcher looked out over the snowy fields of his family’s sprawling ranch 20 miles north of Steamboat Springs.
Cows grazed on hay on a bright, frigid February morning in the tiny settlement of Clark. Fetcher has been ranching the 1,400 acres of hay meadows and pastures in view of the Mountain Zirkel Wilderness for most of his life.
Fetcher’s late father, John, was a legend in the Steamboat area, who moved there to ranch in 1949. A founder of the Steamboat Ski Resort, he was also on the board of the Upper Yampa Water Conservancy District and a director of the Colorado Water Conservation Board.
“He was crazy passionate about water,” Fetcher said.
One of his legacies was putting the family ranch under a conservation easement, meaning the land would never be developed.
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“If we chose to develop it, we could put 70 homesites, but now, it will stay open space forever,” Fetcher said. “It feels good knowing there won’t be golf courses out here.”
The land also has ample water rights. The ranch is flood-irrigated by a system of ditches that pull water from Sand Creek, McPhee Creek, Cottonwood Creek and the Elk River. But Fetcher is facing a complicated situation regarding one of the smaller, more junior rights in the portfolio that state officials believe has been “abandoned.”
Abandonment is the official term for one of Colorado’s best-known water adages and concepts: “use it or lose it.” Every 10 years, engineers and water commissioners from the Colorado Division of Water Resources review every water right — through diversion records and site visits — to see whether it has been used at some point in the previous decade. If they don’t see evidence of use, they could place the water right on the abandonment list and a water court could make it official.
Abandonment means the right to use the water is essentially canceled and ceases to exist. The water right goes back to the stream where another user can file an application to claim it and put it to beneficial use.
Fetcher’s water right that is in jeopardy is 2.5 cubic feet per second from the Hoover Jacques Ditch that dates to 1972. This ditch pulls water from the Elk River and flood-irrigates a pasture. In a letter to Fetcher, officials from the Colorado Division of Water Resources say that aerial imagery and their data suggest that the land has not been irrigated in quite some time.
Fetcher admits that it has been challenging to get water from the diversion point to the pasture five miles away through an unlined ditch, and the 40-acre pasture that it irrigates doesn’t produce much hay anyway. Fetcher often couldn’t take his full amount because the water just wasn’t available, but he hesitated to place a call because it didn’t seem worth it, he said.
Water users who aren’t receiving their total share can place what’s known as a call, which forces upstream junior users to cut back so the senior water right can get its full amount. Older water rights get first use of the river.
“It was really hard to get water through all our neighbors to actually use it,” he said. “By the time water gets there, it’s a trickle. And we just didn’t have time to run up there and irrigate a little bit of pasture.”
The Fetcher property has eight different ditches, and a huge amount of work is necessary to maintain them, he said.
“We want to make sure we don’t fall on the abandonment list with these other ditches,” he said. “We try to limit the labor on the ranch to make it profitable, so how does someone taking care of 800 cows have time to run around and make all of them work?”
Still, Fetcher isn’t sure walking away from the water right and letting it become abandoned is in his best interest. He filed an objection in April 2021 to the initial abandonment listing. His situation is complicated by the fact that the easement on the property, with the Colorado Cattlemen’s Agricultural Land Trust, has a provision that says the landowner shall not abandon or otherwise separate the water from the property.
According to attorney David Kueter, Cattlemen’s has filed objections to the abandonment listings of almost 50 water rights statewide that are on properties with conservation easements, including the Fetcher Ranch.
“It goes back to the idea of preservation of working agriculture lands and in cases where land has been hayed through the years, the water rights are going to be crucial to that and if you take the water off the property, some of those historic uses can’t be accomplished anymore,” Kueter said.
Under Colorado’s abandonment process, once a water right ends up on the abandonment list, the water-rights holder can object. They have up to one year to file an objection with the division engineer.
In Division 6, which encompasses the Yampa, White, Green and North Platte river basins in the northwest corner of the state, there were initially more than 700 water rights on the most recent initial abandonment list, which came out in July 2020, according to Division 6 Water Resources Engineer Erin Light.
After working through all the objections and, for the most part, giving the benefit of the doubt to water rights holders — for example removing those water rights that had new owners who hadn’t been able to use the water yet — Light whittled the revised list down to 302. It was filed with the water court in December.
Water rights holders still have another opportunity to protest their inclusion on the revised abandonment list, and Light expects at least 30 people will do that by the June 30 deadline. It’s common for people to fight to keep their water right, she said.
“I hate to use a word so strongly as ‘fight,’ but they are going to protect their water right,” Light said. “This is their property right, and whether they can use it or need it, they are still going to try.”
Light’s comments point to an interesting and unresolved question for Colorado water users: What is the value of a water right that is not being used?
Value of water
Under Colorado water law, one must put water to “beneficial use,” meaning use the water for what a water court has decreed it. And only the amount of water that is actually used — not the amount granted by the decree — is what matters. Sometimes, those two numbers match up; other times, they don’t.
Some irrigators may divert the entire amount in their decree in an effort to prevent ending up on the abandonment list, whether they can actually use or need the entire amount of water. They “use it” to avoid “losing it.” But a bigger water right isn’t necessarily worth more if all of it can’t be put to beneficial use.
“What actual value do you lose if you never needed that amount in the first place?” said Peter Fleming, general counsel with the Colorado River Water Conservation District. “On paper, it looks just as valuable as the portion of the right you are actually using, but if you went into court to try and capitalize on that value, you might find you get cut back and you never really had the value anyway.”
In Colorado, a water right is a property right that can be bought and sold and generally increases the value of land. So some water rights holders may be reluctant to pare back the amount of their right, even if they can’t use all the water to which their decree entitles them on paper.
“Most water users see there is value in simply having the right,” Light said. “If they go to sell their ranch, they feel their ranch is going to be worth more with a 10 cfs water right, even though seven is all they can divert and beneficially use.”
That leads water users to fight to keep the extra 3 cfs off the abandonment list. But Light said the perception of the value of water may be slowly evolving to match what the law actually says. She said ranchers, real estate agents and attorneys now often call and ask for records of water use on pieces of property for sale.
“That’s a change,” Light said. “We are seeing a swing in the pendulum. It’s not just about the 10 cfs water right — it’s about you only use 7.”
Light said that in many instances, an abandonment listing is a case of over-adjudication. This means that years ago someone filed for a water right without much proof that they actually needed that amount and the court approved it. But the full amount may have never been used. In some cases, more water may have been awarded than the ditch can physically hold.
Light’s office’s placing a partial water right on the abandonment list is an attempt at ground truthing and resolving the difference between the amount in the original water court decree and the amount that is actually needed.
Pre-compact rights protected
This question about the value of unused water rights is one that rises to a statewide level. For the past two decades, Colorado’s top water engineer at the Department of Water Resources has instructed his division engineers and water commissioners to leave the Western Slope’s oldest water rights — most of which are agricultural — off the abandonment list. That means water rights that date to before the Colorado River Compact became effective in 1929 enjoy an extra level of protection from abandonment, whether they are being used or not.
It’s still unclear exactly what political benefit there may be to inflating Colorado’s consumptive-use tally with water rights that only exist on paper.
“It doesn’t add water,” Fleming said. “It’s not like you make molecules by claiming something is precompact when it’s never been used anyway. You still have the current level of use within the state.”
Since pre-compact rights on the Western Slope are exempt from abandonment, Fetcher says perhaps properties with conservation easements should be also, in an effort to keep water rights tied to the land. According to Kueter, there is an existing statute, which protects from abandonment water rights used on land enrolled in federal land conservation programs, which may include conservation easements.
“We are in the process of researching and assessing how to make that argument in this protest period,” Kueter said.
Fetcher is now grappling with questions about the value of his water right and considering the lengths to which he should go to try to preserve it. Getting water from the ditch has sometimes proved more trouble than it’s worth. But a future landowner may be able to put the 2.5 cfs from the Hoover Jacques Ditch to beneficial use.
For now, Fetcher plans on filing a protest with the water court, aiming to stop his water right from being abandoned.
“(Abandonment) is not the end of the world,” he said. “It’s more of a philosophy thing and a real value to the ranch.”
Aspen Journalism covers water and rivers in collaboration with the Vail Daily. For more, go to AspenJournalism.org.