Colorado Water Court for the Arkansas River Basin (Division 2) has issued a decree expanding the area within which the Upper Arkansas Water Conservancy District can provide augmentation water. The expansion includes parts of Custer and Fremont counties.
Attorney Kendall Burgemeister reported the news at the June meeting of the Upper Ark District board of directors. The decree is the culmination of a 3-year legal process that required the District to demonstrate its ability to provide replacement water and protect local water rights within the expanded boundary.
District General Manager Terry Scanga said the decree has already spurred several requests for water to replace evaporation from ponds within the new augmentation boundary, or “blue line.”
The Division 2 Engineer’s Office, Colorado Division of Water Resources, recently began evaluating ponds in the Arkansas River Basin for evaporative losses, identifying more than 10,000 ponds with no legal right to divert or store water.
An agency fact sheet describing the new pond management effort states, “For every acre of pond surface area, up to 1 million gallons of water is lost to evaporation each year.”
Under Colorado water law, water lost to evaporation from the ponds in question is injuring water rights owners by depriving them of water to which they are legally entitled.
The significance of these cumulative water losses prompted Division 2 Engineer Bill Tyner to implement the pond management initiative.
Tyner told Aspen Journalism, “Once we put the data together and we could look at the images of ponds and get a count of the number and relative sizes on average of those ponds, it did make us just very sure that this was a problem that could have some very negative consequences for the basin if we didn’t get more aggressive about the way that we took it on.”
Property owners within the new blue line are now seeking augmentation water from the Upper Ark District to avoid having to drain their ponds.
Scanga said the District’s agreements for pond augmentation are “curtailable.” During drought years, the district will stop augmenting ponds, and the pond owners will have to release water, which essentially provides a backup water supply.
Scanga said almost 50 parties filed statements of opposition in the case but that most opposers did not remain active in the case, including Custer County, prompting the judge to dismiss those filings “for lack of participation.”
Once stipulations were agreed upon with the handful of opposers who did participate, the blue line decree was issued without the need for a trial.
Scanga said he expects the Upper Ark District decree will keep District staff busy with augmentation applications for new construction and for local businesses seeking to expand their operations. “People have been waiting on this (decree),” he said, and given this “pent-up demand,” if the BlueTriton 1041 permit were denied, “that water would go to Custer County.”
