State officials set sights on ponds without water rights

A canoe floats in the Milvich family pond in Old Snowmass. The Colorado Division of Water Resources issued a cease-and-desist letter because the pond, which does not have a legal water right, was taking water out of priority.
A canoe floats in the Milvich family pond in Old Snowmass. The Colorado Division of Water Resources issued a cease-and-desist letter because the pond, which does not have a legal water right, was taking water out of priority. (Heather Sackett/Aspen Journalism)

By Heather Sackett

OLD SNOWMASS — Rebecca Milvich has many fond childhood memories of playing in the pond on her family’s Old Snowmass property, which they purchased in 1985.

Every summer, the pond off Little Elk Creek Avenue in Old Snowmass, became the neighborhood hangout as Milvich and her siblings and friends swam and paddled a canoe. Still today, the pond, which is filled by a ditch branching off Little Elk Creek, brings the family joy as they admire the ducks, fish and muskrats that live there.

“Those are the passions that are wrapped around it,” Milvich said. “It’s very personal. It’s something that has enhanced our quality of life a thousandfold. Our ability to have a water feature has changed our lives for the better, for sure.”

But on Sept. 22, the Milvich family received a cease-and-desist order from the Colorado Division of Water Resources that said they had to stop filling their pond because of a downstream call on the Colorado River, in which water users junior to the Grand Valley irrigators’ water rights had to be shut off. 

It turned out the Milvich family did not have a legal water right for their pond, making them one of the most junior water users on the Colorado River system and one of the first to be curtailed.

“We were from Southern California and we missed having the beach,” Milvich said. “And my dad was excited to purchase an actual piece of property that had water on it, totally not knowing that we were in some ways for these last 35 years breaking some rules and regulations. We had absolutely no idea.”

The Milvich family’s pond is not the only one in the area lacking a water right. DWR officials say undecreed ponds throughout the region are depleting the Colorado River system in a time when a climate change-fueled drought makes it more important than ever to account for every last drop of water.

The Glenwood Springs-based Division 5 engineer’s office issued five cease-and-desist orders for ponds without water rights this season in the upper Roaring Fork Valley. And officials say there are many more ponds like these out there. Some of them are recently built for fire protection.

The main concern with these ponds is water loss to the Colorado River system through evaporation. The bigger the surface area, the more water that is lost.

“A lot of the depletions are pretty small, but it’s death by a thousand cuts,” Division 5 Engineer Alan Martellaro said. “When you have these all over the place, they add up at some point.”

According to Colorado water law, anyone is allowed to divert water from a stream simply by putting it to beneficial use as long as it does not harm senior water-rights holders. To protect their ability to keep using the water and save their place in line, most users make their water right official by getting a decree through water court. This enshrines the water right in Colorado’s system of prior appropriation in which the older the water right, the more powerful it is.

“It’s a good idea because it protects your standing,” Martellaro said. “It protects your priority. That’s the whole point of a water right.”

That means ponds without a decree are last in line and are the first to be shut off when there’s a downstream call from irrigators in the Grand Valley, which have much older water rights — one from 1912 and one from 1934. Known as the “Cameo Call,” these irrigators can control all junior water rights upstream of their diversion at the roller dam in DeBeque Canyon. 

Most summers, Grand Valley irrigators “call” for their water when streamflows begin to drop. In general, the drier the year, the earlier the call comes on. This year, the Cameo Call first came July 30 and went off at the end of irrigation season Oct. 26.

As long as the call is on, junior upstream water rights must be shut off or “curtailed” so that the downstream irrigators can get the full amount of water to which they are legally entitled. It is up to the division engineer’s office to decide exactly how to administer the call and which junior water rights to curtail, but undecreed water use is generally the first to go. 

“When the call is on, they are stealing somebody else’s water if they don’t have a water right,” said Bill Blakeslee, water commissioner for District 38, which encompasses the Roaring Fork River watershed. 

Blakeslee said he doesn’t like to issue cease-and-desist orders, and his goal is to educate people about the Colorado River system. 

“We don’t like to do our business this way, but this is one of the tools we use to help people understand we don’t have as much water as we used to and we all need to take steps to preserve as much as we can,” he said. “It makes a statement to the general public that we are in a drought situation, so let’s not do things that continue to contribute to further loss of water.”

Even though the ponds are causing water loss to the river system at all times, Blakeslee said he can apply the pressure of the law only when there is a call.

“I can’t enforce the rules until the call goes on the system,” he said.

Rebecca Milvich has many fond childhood memories of playing in this pond on her family’s property in Old Snowmass. Officials from the Colorado Division of Water Resources say ponds without a water right, such as this one, are depleting the Colorado River system.
Rebecca Milvich has many fond childhood memories of playing in this pond on her family’s property in Old Snowmass. Officials from the Colorado Division of Water Resources say ponds without a water right, such as this one, are depleting the Colorado River system. (Heather Sackett/Aspen Journalism)

Compact call

The Milviches were supposed to have stopped diverting water out of priority within 10 days of receiving the order or else face enforcement actions such as having to pay the state’s costs and legal fees. But Martellaro said his office so far has not fined the owners of any of the five ponds and won’t as long as they are working toward a solution. And since the Grand Valley call is now off the river, the issue is less urgent — for the moment.

Colorado is entering a period of tighter accountability for some water users as Lake Powell’s levels continue to drop and the threat of a compact call looms larger in a warming West. 

A compact call could occur if the upper-basin states (Colorado, Wyoming, Utah and New Mexico) can’t deliver the 7.5 million acre-feet of water per year to the lower-basin states (Arizona, California and Nevada), as required by the Colorado River Compact, a nearly century-old binding agreement. Upper-basin water managers desperately want to avoid this scenario.

“I guess you could say one of the elephants in the room is the interstate compact situation,” Blakeslee said. 

So what are the Milviches’ options to remedy the situation? In order to be allowed to keep using water for the pond when a call is on, they must replace that water to the system. One possibility is getting a contract for an augmentation plan with a local water-conservancy district to release water from Ruedi Reservoir to make up for depletions from the pond. The Milviches have met with an engineer to assess their options.

Whatever they decide, securing a water right through water court can be a lengthy, expensive process. 

“We are definitely terrified about that reality,” Milvich said. 

Aspen Journalism is a local, nonprofit, investigative journalism organization covering water and rivers in collaboration with The Aspen Times and other Swift Communications newspapers. This story ran in the Nov. 2 edition of The Aspen Times.

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