Water works: Untangling water well rights in upper Yampa Basin near Steamboat
Optimistic options for small water well users:
Colorado statutes provide an exemption for certain residential wells (typically pumping 15 gallons per minute or less), where the wells are exempted from administration in the water right priority system. Such a well is referred to as an exempt well.
For purposes of comparison, Division 6 state water engineer Erin Light told Steamboat Today she has a property on the Elk River and a water well that produces less than two gallons per minute, which is satisfactory to meet her domestic needs.
STEAMBOAT SPRINGS – When the Stagecoach Property Owners Association was informed by the Colorado Division of Water Resources in summer 2017 that it was temporarily suspending the issuance of well permits in unincorporated Stagecoach, 18 miles south of Steamboat Springs, it caused a significant amount of distress.
Some homeowners in Stagecoach get their domestic water from the Morrison Creek Water and Sanitation District, but many others, with lots of 1 to 2 acres, rely on water wells.
With 2,300 platted building lots and only 400 of them developed, people were concerned that the moratorium might become permanent and de-value their properties. With the arrival of spring, most of those worries have been resolved, Stagecoach Property Owners Association President John Troka said.
Since last summer, the Colorado Division of Water Resources has studied the circumstances that led to the moratorium. Decades ago, neither property owners in some rural subdivisions here nor the Routt County Planning Department had been submitting water supply plans to the Colorado Division of Water Resources for its review and approval.
In the interim, the Yampa River above Steamboat Springs, as well as the entire length of the Elk River, have become over-appropriated, placing homeowners in rural subdivisions where they depend on wells for domestic water temporarily in limbo.
However, the Division of Water Resources studied the situation through autumn 2017, and State Engineer and Director of the Division Kevin G. Rein reached a solution intended to honor the rights of senior water rights holders and do as little harm as possible to people living in rural subdivisions. He sent his findings to Routt County Planning Director Chad Phillips in a lengthy memo dated Feb. 1.
Troka thinks the Division’s findings worked out as well as they could have for Stagecoach property owners.
“We put our lawyers on notice,” Troka said. “(The Division) could have drawn a hard line. This was a positive outcome for us. People in originally platted subdivisions out there can relax. Owners will be allowed to drill a well.”
What they won’t be able to do is irrigate their yards or gardens, nor will they be able to provide water to livestock. These restrictions will protect the rights of those senior water rights holders.
That’s not a big deal in Stagecoach where the large majority of people have natural yards, and as Troka pointed out, the property owners association rules forbid horses.
However, the story varies around the upper Yampa Valley. But for the present, there are far less concerns, because the Yampa in that stretch is not yet over-appropriated.
Say goodby to Green Acres?
Stagecoach wasn’t the only neighborhood in Routt County where rural subdivisions were confronted last summer with the suspension of well permitting. The same process was being applied to long-standing subdivisions in the upper Yampa Valley above Steamboat Springs and in the Elk River Valley.
The rub has to do with the fact that the waters in the Yampa River above the kayak feature in downtown Steamboat Springs, known as Charlie’s Hole, and the Elk River basin have been deemed over-appropriated. There’s no more water in the streams and rivers that isn’t spoken for.
The second issue is the Division’s recognition last year that there are rural subdivisions in Routt County in those watersheds where the Division has discovered that it never had the opportunity to review “water supply plans” required of many new subdivisions, depending on when they were approved. That means the potential to harm senior water holders was never adequately considered.
Routt County Planning Director Chad Phillips described the situation in a memo to the Board of County Commissioners.
“The regulations required an applicant wanting to subdivide land to provide proof of a dependable and potable water supply,” Phillips wrote. “The regulations laid out several ways an applicant could prove this. During the ’70s, ’80s and ’90s, staff did not send a referral to the Division for their covenants … because it was not required by the regulations.”
Kevin G. Rein, state engineer and director of the Division of Water Resources, wrote in his agency’s finding that in spite of the lack of the required water supply plans, the division will continue to issue well permits in the affected subdivisions “under limited conditions.”
The good news is that the division will resume issuing well permits in over-appropriated areas. The concerning news, for some, is that in certain cases the new permits will be limited to providing water for use within the home only. Using the water outside the home to water gardens or horses won’t be permitted, unless the property owners are able to arrange a contract leading to an “augmentation plan,” which would offset an outdoor use with stored water, for example, from another basin.
Division 6 water engineer Erin Light said the application of the Division’s findings varies from subdivision to subdivision.
And Rein’s memo to Phillips contains eight different scenarios about how Rein’s findings will be applied in different rural subdivisions, varying with circumstances like the layout of the subdivision and the configuration of the lots.
Rural property owners can read Rein’s findings for various categories of rural subdivisions in the appendixes at the bottom of his letter to Routt County, which is embedded in the online version of this news story.
So, what do water wells have to do with rivers?
In making his findings, Rein had to balance his goal not to harm property owners if possible but also to consider the rights of senior water holders in the Elk and Yampa river basins.
In Colorado, as it is across the American West, water rights are based on the “prior appropriation system,” which rewards seniority among water rights holders — priority to use water is assigned based upon the date a water right was decreed and the water was first put to “beneficial use.”
A common way to express the same thing is with the saying: “First in time, first in line.”
In his finding, Rein acknowledged his obligation to avoid harming senior water water rights holders.
In that regard, he considered that, “In Colorado, all ground water is considered to be tributary to the stream system unless proven otherwise.” The assumption is that pumping well water inevitably reduces the availability of that water to a stream.
Rein wrote, “When a well is operated, the groundwater that is pumped from the well is water that would otherwise contribute to the flow in a surface stream and be used at times, to fulfill the needs of senior right.”
By extension, that means the operation of a well could lead to insufficient water to satisfy all pre-existing decreed water rights, including those that are first in line, along a stream system that is over-appropriated.
Such a depletion would injure a senior rights holder, Rein concluded.
What seems certain in an era of climate change and increasing demand for limited water in the Yampa Valley is that residents of the Yampa Valley will need to find new ways to share.
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