Colorado’s water users are told ‘use it or lose it.’ But is the threat real?

Editor’s note: This story is part of a series on water myths and misconceptions that is produced by KUNC, The Colorado Sun, Aspen Journalism, Fresh Water News, and The Water Desk at the University of Colorado Boulder. 

In December 2020, the Summit County Open Space and Trails Department bought a 15-acre property with a small pond, three ditches, and a well. 

Known as the Shane Gulch property, it was the only remaining private property north of Heeney Road between Green Mountain Reservoir and the Williams Fork Range. The land, just east of Highway 9 and the Blue River, has stunning views of the snow-capped peaks that form the Continental Divide. Summit County purchased the property, which consists of three parcels of rolling hills and meadows, to preserve the unique scenic, wildlife, and agricultural heritage values of the area.

---

---

The water on the property had historically been used for irrigation. But according to the state Division of Water Resources, the former owners of the property had not used the water rights on one of those ditches, the Culbreath Ditch, in the previous 10 years. The water rights were placed on the initial 2020 abandonment list, leaving them at risk of being lost. 

Abandonment is the official term for one of Colorado’s best-known water adages: Use it or lose it. As the saying goes, a user must do something of value with their water (use it) or the state could take it away (lose it). Once abandoned, the right to use the water is canceled and goes back to the stream where someone else can claim it and put it to use. 

---

---

Every 10 years, officials from the Colorado Division of Water Resources review every water right — through diversion records submitted by water users and site visits — to see whether it has been used at some point in the previous decade. If it has been dormant, it’s added to the preliminary abandonment list.

But there’s a safety net: Not using the water is just one part of abandonment; a water user must also intend to abandon it. 

The goal of abandonment is to preserve the water law system that the West relies upon. That legal framework, known as prior appropriation, is the bedrock of Colorado water law in which the oldest rights get first use of the river. If an upstream user with a senior water right resumes using it again after decades of letting it sit dormant, that’s not fair to downstream junior water users because it leaves less water for them. The abandonment process prevents people from locking up a resource they aren’t using.

Abandonment-process protections

Although the concept of abandonment may loom large in the minds of water users, only a tiny percentage of water rights ends up on the abandonment list every 10 years, and it’s rare for the state to formally abandon a water right. 

In the last round of cancellations, in 2021, 3,439 water rights ended up on the final abandonment list out of 171,578 total water rights in the state, or 2%. On the Western Slope, 658 water rights out of about 75,000, or less than 1%, ended up on the final revised abandonment list.

Water users have two opportunities to fight an abandonment listing, and state policies have given an extra layer of protection from abandonment to the oldest water rights for the past 20 years. In most, if not all, cases, the water rights that were abandoned truly were not used in the previous decade. 

In an example near Glenwood Springs, a ditch had been filled in and turned into a trail, and the land it had once irrigated was now home to a hotel and recreation center. And those who aren’t using their water because they are participating in state-approved conservation programs, such as the System Conservation Program currently happening in the Colorado River’s Upper Basin (Colorado, New Mexico, Utah, and Wyoming), are protected from abandonment.

“It’s a lot harder than people think to actually abandon water rights,” said Jason Ullmann, the top water engineer at the Colorado Division of Water Resources. “I think people feel like there’s this constant potential for their water right to be abandoned, but because it’s a personal property right to use the public’s resource, you don’t want it to be easy to come in and abandon that right.”

If water users find themselves on the abandonment list, they have a year to file an objection with DWR, and many argue that they did not intend to abandon their water right. DWR staff may then remove them from the list. Ullmann said the majority of those who object are taken off the list. The final list is issued 18 months after the initial one, and water users have another six months to file a protest with the Colorado water court system. 

For the past two abandonment cycles, Colorado has made it even tougher to get a water right abandoned by narrowing the pool of which ones are eligible. State officials have decided to leave off water rights that predate the 1929 Boulder Canyon Project Act due to ongoing legal uncertainty about how possible cutbacks would play out across the river’s Upper Basin states. 

 “The more water rights that Colorado abandons against itself, the less water we have to protect for our share of the Colorado River Compact,” said Scott Miller, a Basalt attorney who has represented clients objecting to their abandonment listing. “I’m definitely in favor of protecting pre-compact water rights at all costs because we just never know how that’s going to shake out if there’s a compact call.”

Misconceptions abound

But the simple adage “Use it or lose it” can be misunderstood. Some water users might take more than they need from rivers in a misguided effort to protect their water right. The true value of a water right is tied to its historical consumptive use, which is how much water the crops draw up through their roots. Simply running water through a ditch does not count as use.

However, there is an entrenched, incorrect belief that by maximizing the amount of water taken from a stream, one can increase the future value of a water right or protect it from abandonment. Some water users interpret the “use it or lose it” doctrine as “divert it or lose it,” meaning they take as much from the stream as their water right allows whenever possible, leading to real-world effects drawn from a layperson’s legal interpretation. 

Cary Denison is a water right holder in the Gunnison River basin and a former project manager for environmental group Trout Unlimited. He said that in his experience, some users avoid efforts to make farms more efficient because of this misunderstanding. 

Farmers, he said, weren’t taking just the water needed to farm — they were maximizing the amount they could legally take under their water right in an effort to preserve it.

“There’s this perceived incentive to divert more water than is actually needed,” he said.

Water managers have long recognized this as a widespread misunderstanding that leads to excess water taken from streams. In 2016, Colorado State University released a special report on this long-standing trend. Two of the paper’s authors were Dick Wolfe and Kevin Rein, who each served as Colorado’s state engineer, the state’s top water cop and the position now held by Ullmann. 

Water users are told to divert their whole amount “in order to preserve the water right; that is, protect it from abandonment,” the report reads. “This conclusion is based on a misapplication of the law.” 

Wolfe said these misperceptions have gotten better since the time the report was written. But Denison said they still persist.

“There’s still an incentive in some people’s minds to continue those diversions regardless of crop demand because there’s a fear that their water rights will be examined and somehow they will end up on the abandonment list,” he said.

Miller, who mainly represents water users, concurred that this perceived incentive is based on a misunderstanding.

“There’s a misperception that you can sell your diversion rate when the reality is, the only thing you can sell or transfer or change is your consumptive-use portion of the water,” he said.

Overdiverting has real consequences for the ecological health of streams, which are stressed from decades of drought and warming fueled by climate change. Much of the diverted water percolates back to the river eventually, Dension said. 

The problem with these return flows is that they do not go back into the river at the same spot where they are taken out and have a delayed return, contributing to seasonal dry-ups. And after seeping through the soil, return flows can be warm with lower dissolved oxygen, as well as laden with salt and other contaminants, impacting the river’s overall quality and the fish that depend on cold, clean water.

“In some cases, it just results in dry, dry, dry systems,” Denison said. 

In the case of the Culbreath Ditch, Summit County officials found out just how hard it is to abandon a dormant water right. 

After finding themselves on the abandonment list, they filed an objection to the abandonment listing, saying the previous owners, who were elderly, were physically unable to use their water right and did not intend to abandon it. They argued that the water right should be removed from the abandonment list until Summit County, as the new owners of the property, had a chance to assess and use the water right. 

State officials with the department of water resource agreed and removed the Culbreath Ditch from the abandonment list. The county now has six years left to use it before they lose it.

Aspen Journalism is a nonprofit, investigative news organization covering water, environment, social justice, and more.

Heather Sackett is the managing editor at Aspen Journalism and the editor and reporter on the Water Desk.