MEEKER – The mule in a pasture east of Meeker along the White River seemed happy to see Erin Light, a state division engineer, and Shanna Lewis, a water commissioner, when they went to take a look at the amount of water flowing through the Meeker Ditch on July 11.
Lewis, who grew up on a Colorado ranch, praised the mule’s beautiful, deer-like coloring and said they’d become friends on her frequent visits to check the ditch.
But the warm equine reception the two enforcers of Colorado water law received differed from the response they sometimes get from ranchers in Division 6, which encompasses the Yampa, White and N. Platte river basins, especially when they are visiting a ditch because they think its operator is diverting more water than they need through their headgate.
“I would say I’m more telling than I am curtailing,” said Light, who has been the division engineer based in Steamboat Springs since 2006. “There have only been a few situations where I’ve actually said, ‘That’s it. We’re curtailing you.’ And they’re very obvious situations where they’ve got a lot of water going down the tail end of their ditch, where you can’t argue that this isn’t waste.
“Where the problem becomes in determining waste is that I can go out to a piece of land and say, ‘Oh my gosh, you’ve got 6 inches of water on this land. There’s ducks swimming around. This is wasteful,’” she continued. “You can go to the landowner or the irrigator and say, ‘This is waste,’ and they’ll stare you right in the face and say, ‘The hell it is.’”
Division and state engineers working for Colorado’s Division of Water Resources, as Light does, are the only officials who have the authority to determine if waste is occurring on an irrigation system. And their primary response is to curtail wasteful flows at the head gate.
But determining if there is waste in a ditch is a case-by-case exercise. It’s site-specific and time sensitive, and it can take time to understand how someone manages their ditch.
There’s no state definition of waste or written guidelines, but in the end it’s a fact-based analysis focused on how much water is needed to irrigate so many acres.
An allowance is also made for customary inefficiencies on a ditch system. Water leaking out of an old ditch, for example, is not considered waste. But beyond inefficiency, which is often a physical issue, there is waste, which is usually a water-management issue.
And waste is a much bigger issue on the Western Slope than on the state’s drier eastern plains, where irrigators have long watched for anyone wasting water.
Free river, or not
In 2014, Light served the Meeker Ditch with a written curtailment order, and she also told the big Maybell Canal on the Yampa River that they had to stop wasting water.
And she did so even though neither river was “under administration,” the term for the body of water being called out by senior downstream diverters, so both were considered in a “free river” condition.
Nor was there another water right that was being injured by either ditch’s diversions.
Just in the past 10 days, Light’s office has informed rancher Doug Monger that water is being wasted in the irrigation system he manages on his Yampa River Ranch three miles east of Hayden.
Monger is a Routt County commissioner, a member of the Yampa-White Roundtable, and a director on the Colorado River Water Conservancy District’s board.
When asked Tuesday, during a break in a day-long strategic retreat at the River District, about Light’s belief that he was wasting water, he responded in a way that she has heard before.
“I don’t know what the hell difference it makes if I’m wasting water or not, it’s going back in the river,” Monger said. “Who the hell cares, if it’s a free river.”
“I know he is wasting water,” Light said Monday of Monger. “And he should be the poster child of what should be done, not what shouldn’t be done.
“About 10 days or so ago, our water commissioner approached a bunch of water users in the ditch system,” she explained. “There are several ditches that combine and co-mingle there.
“They were immediately going, ‘That’s Doug Monger’s responsibility, Doug’s the one controlling that,’ which I take as Doug is the one controlling the headgates,” Light said. “One of our water commissioners, Brian Romig, went to Doug and said, ‘We’ve got a problem here. You’re diverting too much water.’ From what Brian told me, Doug somewhat recognized it. He concurred that he needed to reduce his diversions.”
But Tuesday, Monger was not willing to go that far, saying he understood from the water commissioner only that he was still figuring out how Monger’s ditch works.
“I won’t acknowledge it,” Monger said of the allegation that he was diverting more water than he needs. “And if they start coming up with some scenario on it, we can always get our attorney. “
That was the same initial response that David Smith, the primary shareholder on the Meeker Ditch, had when Light curtailed his ditch in 2014.
But since then, and after spending $40,000 in legal and engineering fees, Smith has come around to see Light’s point.
“I would tell you that Erin and I started out on opposite ends on this thing, but both of us have kind of tried to work our way towards middle ground that we can both agree on,” he said.
Smith was busy this week bringing in hay on his well-tended fields along the White River just west of Meeker — the same fields his grandfather irrigated.
“I’ve had some disagreements with her, but Erin is an intelligent gal,” he said of Light, who has a master’s degree in civil engineering from Colorado State University with an emphasis in hydraulics and hydrology. “We’ve worked with her, and we’ve worked with the people that she has here, and at the end of the day it’s helped all of us, and I think we’re all better educated because of it.”
Laying down the law
The Meeker Ditch has a water right dating back to 1883 to divert 20 cubic feet per second (cfs) of water and two other later and smaller rights that allow it to divert 25.95 cfs in all.
The ditch diverts water from the White River just east of Meeker, runs it through Meeker proper, and then to fields west of town. (See map).
In her August 2014 curtailment order, Light said the historic water rights held by the Meeker Ditch represent enough water to irrigate about 1,000 acres, but today only 153 acres are actively being irrigated. And engineers at Resource Engineering Inc. calculated that the Meeker Ditch only needed 6 cfs to irrigate the fields still served by the ditch.
Attorney Kevin Patrick of Patrick, Miller and Noto, a water law firm with offices in Aspen and Basalt, had hired a Resource Engineering to analyze the irrigation ditch on behalf of a client who owned commercial property under the ditch.
Since 2004, the property had been intermittently subject to flooding by water leaking from the ditch.
Patrick sent the engineering report and a letter to Light. “The ditch is diverting unnecessary water which is merely being spilled” and “the excessive running of water, over that reasonably required for the reasonable application of water to beneficial use for the decreed purposes and lands, is forbidden” under state law, the letter says.
After investigating the matter, Light found the ditch had been consistently diverting about 20 cfs at its headgate, but was then sending much of the water out of the ditch and down Curtis Creek, Sulphur Creek or Fairfield Gulch, back toward the White River.
Light then curtailed diversions at the Meeker Ditch head gate, which she has the authority to do. And when asked to do so by Smith, she put the curtailment order in writing.
“Colorado statute clearly prohibits the running of water not needed for beneficial use,” Light wrote in her order, dated Aug. 15, 2014.
Light cited a Colorado statute that reads “it shall not be lawful for any person to run through an irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his land, it being the intent and meaning of this section to prevent the wasting and useless discharge and running away of water.”
And she addressed the issue of water being released from the ditch and back to the river.
“Generally when water is being wasted off the end of the irrigated acreage, through waste gates, or at the tail end of the ditch, the head gate should be turned down to eliminate that waste of water,” Light wrote. “In this case it appears that water is being diverted at too great a rate for the lands that are being irrigated, and the rate of diversion is not being reduced to eliminate waste.”
Light’s stance on enforcing waste has the backing of her boss, State Engineer Dick Wolfe.
Use it or lose it?
Both Wolfe and Light served recently on a committee, convened by the Colorado Water Institute at Colorado Springs University, that issued a report in February on the widely brandished piece of advice to irrigators to “use it or lose it.”
The report is called “How diversion and beneficial use of water affect the value and measure of a water right” and is subtitled “Is ‘use it or lose it’ an absolute?”
The 11-page report ends with several declarative statements about waste that give further backing to Light’s approach, and that she might well wish to see chained to every headgate on the Western Slope.
“Water that is diverted above the amount necessary for application to a beneficial use (including necessary for transit loss) is considered waste,” states the report.
“Increased diversions for the sole purpose of maintaining a record of a larger diversion are considered waste,” it says, referring to the practice of diverting toward the full amount of a decree in order to bolster the future potential value of a water right.
And, “Wasteful diversions will either be curtailed, or will not be considered as part of the water right’s beneficial use.”
Wolfe, who recently gave a presentation to the Colorado Ag Water Alliance on the “use it or lose it” report, said that Light is not being overzealous in her enforcement of waste.
“She is not going out and as a division engineer purposely looking and being more assertive or aggressive about trying to find where waste is going on,” Wolfe said. “These are ones that just came to our attention.”
Alan Martellaro, the division engineer for Division 5, has not taken the same approach as Light when it comes to curtailing waste.
“To actually actively go look for waste is not something that’s historically been done unless there’s a call on the stream,” said Martellaro, who is based in Glenwood Springs and whose jurisdiction includes the Colorado, the Roaring Fork and the Crystal river basins. “It just hasn’t been the mode we’ve ever been in.”
Kevin Rein, the deputy state engineer who also served on the “use it or lose it” committee, said issues vary from division to division.
“In Division 6, in the Yampa-White, we’ve had periods of free river without administration for a long time, because it hasn’t been over-appropriated,” Rein said. “That means not being water short. So very often people were just diverting whatever they wanted because, why not? But she’s really directing herself to getting people to measure their diversions and pay attention to duty of water. I think you choose what’s important in your division. That’s important in her division.”
“Duty of water” is essentially how much water someone needs to grow crops on a certain amount of land, without waste. In the Yampa and White river basins, the duty of water is generally held to be that it takes 1 cfs to adequately irrigate 40 acres of land.
After giving a presentation at a water workshop in Gunnison in June about the “use it or lose it” report, Rein was asked why the state doesn’t go around and curtail people who are over-diverting.
“We do, as resources allow,” Rein said. “It’s simply a matter of looking at our water districts where we, maybe, have one water commissioner and maybe a deputy. Maybe if they each had two or three more deputies, then we could do that.”
Light sounds like she could use some help.
“When it comes down to obvious waste,” she said, “I would say we have a tremendous problem with it. I had a long-standing water commissioner — he was with us for 40 years and grew up a rancher — tell me one day, ‘The problem with irrigators today is they don’t go out and move their sets. They just open the headgate wider.’”
“Sets” refers to how irrigators have set various control points, such as check dams and internal headgates, along their ditches.
“That just blew me away,” Light said. “Here’s a longtime rancher living in the community of Meeker his entire life who is more or less telling me that his co-irrigators … just open up their head gate and don’t move sets anymore. To me, that’s where the inefficiency is. Go out, divert less water, and move your damn sets.”
After receiving Light’s written curtailment order in August 2014 on the Meeker Ditch, Smith appealed it to an administrative hearing officer, which was a rare move.
Wolfe said the appeal, which was addressed to him, “is the only curtailment order that I am aware of that has been appealed since I have been state engineer.” He’s been state engineer since since 2007 and has been with the Division of Water Resources since 1993.
An attorney for the Meeker Townsite Ditch Co., which owns the Meeker Ditch, told the state that Light was “attempting to restrict the diversion of water down the Meeker Ditch at a time when the White River is not under an administrative call and at a time when no other water rights owner is affected by the diversion.”
At that point, the state stepped in to defend Light’s curtailment order, and Philip Lopez, an assistant attorney general, prepared an answer to Smith’s appeal.
In his answer, Lopez cited a relatively straightforward statute that reads: “During the summer season it shall not be lawful for any person to run through his irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his land, and for domestic and stock purposes, it being the intent and meaning of this section to prevent the wasting and useless discharge and running away of water.”
And he quoted the Colorado Supreme Court in Fellhauer v. People, where it said, “The right to water does not give the right to waste it.”
As to the matter of Light, or any other division engineer, not being able to curtail waste if there is not a call on the river, Lopez wrote “the division engineer has the authority to curtail [the Meeker Ditch’s] wasteful diversions at any time pursuant to [state law], regardless of whether or not the White River is under administration.”
Lopez did concede, though, that the water rights held by the Meeker Ditch still allowed it to divert water, as long as they did so “without waste.”
That’s an important distinction for Smith, who insists that he wasn’t technically curtailed, only that he can’t waste water when diverting.
“She hasn’t curtailed me to the amount of water that I can use,” Smith said. “All that Erin tells me is that whatever amount of water I have in the ditch, that she doesn’t want us wasting any water.”
Light has a different take.
“We curtailed them,” Light said. “We issued an order to stop wasting. They hired an attorney. They hired an engineer. It went to the hearing officer. They don’t waste anymore.”
The hearing officer in the case denied the ditch’s appeal, indicating it was a matter for water court. But Smith declined to go there.
“We kind of came to a working agreement that we were going to try to work with it, but as far as the laws, there was never a test case,” Smith said.
That may be, but on July 11, when Light and Lewis measured the flow in the Meeker Ditch, it was running at 6 cfs, not 20 cfs as it often used to.
The Maybell Canal
Light has also curtailed another irrigation ditch in Division 6, the Maybell Canal on the Yampa River near Maybell, which she found was similarly diverting more water than it needed.
The canal diverts water from the Yampa into a headgate located in a canyon on the edge of Little Juniper Mountain, about 30 miles west of Craig. (See map).
The Maybell Canal has a senior water right for 42.2 cfs that was adjudicated in 1923 and appropriated in 1899. It also has a junior right for 86.8 cfs that was adjudicated in 1972 and was appropriated in 1946.
The waste on the Maybell Canal was brought to Light’s attention by one of her water commissioners who’d visited the ditch. Light then verbally instructed the canal’s manager to stop wasting water. Mike Camblin, manager of the Maybell Irrigation District, wasn’t happy when he got the curtailment order from Light, but he’s now working to secure funding to make $197,000 worth of improvements to the irrigation system.
On July 13, the Yampa-White-Green basin roundtable approved a $108,000 grant of state funds to help fix several issues on the ditch system. One of those improvements is a modern, automated “waste gate” a mile below the headgate.
Camblin said such a remote-controlled system won’t work at the headgate, which is higher up in the canyon without cell phone service and prone to being washed out by high water.
But he is willing to use the automated gate to reduce sending more water than necessary out the bottom of the ditch, where the water returns to the Yampa River.
The arrangement for the new gate does not entirely please Light, however. She insisted that Camblin agree to send someone up to the headgate within three days after receiving information from the new automated gate that they are over-diverting.
An agreement to that end has been worked out and is poised for adoption, both Light and Camblin said.
“The whole goal is to not only help Erin out but to make us better at what we do,” Camblin told his fellow roundtable members on July 13.
In an interview this week, Camblin said, “At times we were probably taking more water than we need, but that’s what this whole process is about, to cut that down.” He said he is forging a productive working relationship with Light.
“I think it all comes down to communication, especially with Erin and the water commissioners,” he said. “If they get to know us and how our ditch can run better, and we allow them to do that, and we communicate, we can solve a lot of problems.”
Watch that stick
Dan Birch, the deputy general manager at the Colorado River Conservation District and a member of the Yampa-White basin roundtable, is supportive of the improvements that Camblin is trying make on the Maybell Canal.
“I think Mike’s really trying to do the right thing, and I think he wants to take a look at ways he can manage his diversions better,” Birch said. “I certainly don’t think he’s diverting just for the sake of diverting.”
Birch also cautioned against using a stick to beat back waste.
“You can’t go into a situation and say, ‘Hey, you guys are wasting water, I want you to reduce your diversions,’” Birch said. “You really have to be prepared to go into that situation and say, ‘Hey, look, here’s something that we’re seeing here. Let’s have a conversation. I’m interested in exploring what we might do to improve flow in the river.’”
But Light feels the Maybell Canal needed to be prodded into action.
“What has partially pushed the Maybell Canal to go the direction they have is us really putting our foot down that we’re not going to allow this waste to continue,” she said. “Again, the waste is so blatant. They were diverting about 54 cfs at the head gate, and we estimated about 18 cfs going out the tail end. It’s like, ‘No, you can’t do that.’”
Birch was asked directly if he thought the Maybell Canal would be making its proposed improvements without Light’s enforcement actions.
“That’s a fair question, and my immediate response is probably not,” he said.
While Light has been able to work with both Smith and Camblin, she knows she’s raising the hackles of ranchers in the Yampa and White river basins.
“I don’t think the irrigation community wants to be told they’re wasting,” she said. “I’d love to do more as far as waste, but I do have to tread lightly.”
Editor’s note: Aspen Journalism, the Aspen Daily News and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published this story on Sunday, July 24, 2016