Posted By Arthur von Boennighausen on April 11, 2018
“ Piping Natural Streams and Ditches “
This is the continuation of the January 27th, 2018 Sangre de Cristo Newspaper cautionary analysis of the hydrology of Custer County: “ Cool Clear Water “. Last Summer our 1640 acre Sierra Mojada Ranch enjoyed rain every afternoon which brought the water table to the surface, topping off our underground supply of surface water. This will help our sub-irrigated pastures Survive the current drought in 2018. These Summer rains seem to be quite localized. A Ranch less than a mile from our place might not have enjoyed a drop of rain all Summer.
About 16,000 years ago the glaciers that formed our mountain ranges and beautiful high mountain valley melted. Mountain streams started running from the reservoir of water [ snow and rain ] in the Sangre de Cristo Wilderness into the valley supporting the current ecosystem of Plants, Birds, Wildlife and Fish. In the last few years I talked to Dick Wolfe who was the Chief Engineer for the Colorado Division of Water Resources, Scott Miller who is an Attorney at a Aspen, Colorado Water Law firm [ www.waterlaw.com ] specializing in legal rights associated with streams and ditches as well as putting in many hours of coursework and literature research on this subject.
Piping the natural streams and creeks in the Wet Mountain Valley will destroy the current ecosystem established 16,000 years ago in an attempt to achieve a very small increase in agricultural production. The long runs of streams and creeks from the Sangre de Cristo Wilderness into our valley will be eliminated that provide in stream diversions of water to the Wildlife, Birds and Fish. Big and small game will disappear from most of our valley without water to drink near to their food sources. The amount of leakage and evaporation into the surrounding land from a natural stream is small as the stream bed is capped with a deposit of clay if it is left undisturbed.
Owning the water rights to a natural stream or man made diversion ditch does not automatically give you the Ethical or Legal right to pipe the water course especially if it crosses land owned by another. According to Dick Wolfe, the local water commissioner [ currently Jerry Livengood ] has absolutely no say in whether you can pipe a stream or man made ditch and Dick Wolfe has given written clarification to the Custer County Water Commissioner’s role in piping issues. Here is a legal opinion from Attorney Scott Miller that I had Scott verify via email.
Scott Miller, at this time I am mostly concerned with piping natural Mountain Creeks and Streams that originate in the 266,000 acre Sangre de Cristo Wilderness and pass through our 1640 acre Sierra Mojada Ranch that people other than ourselves own the water rights to. This cut n paste from a March 14th, 2014 document from your Aspen, Colorado Law firm clearly tells us to that someone can not just show up on ANY Ranch including ours and pipe Henniquinn and Dry Creeks without our written permission…. Look here:
ii) Upgrades Within the Bounds of the Easement
There is no Colorado binding precedent that the author is aware of that directly addresses whether upgrades or improvements ( above and beyond reasonably necessary maintenance and repairs as discussed above ) are included within the rights of the easement holder. This is likely determined on a case by case basis and hinges on the Court’s determination of whether the upgrade or improvement (e.g. piping an open ditch } expands the scope of the easement when compared to historic manner and character of use.
Even a stream open to the air needs a minimal stream flow to support the ecosystem. Exercising your upstream water rights to the extent that the stream dries up for most of it’s length harms the ecosystem. In other words, in a drought the water in a stream originating in the Sangre de Cristo Wilderness that is two miles long may not reach the party who controls the senior water rights near the end of the stream. A “ Futile Call “ can be approved by the local water commissioner that allows someone to divert most or all of the remaining water close to the source of the stream which dries up most the stream. If the stream dries up for even a brief period of time all the Fish all die.
Since 1970 about 50% of all Wild Animal populations on Earth have been wiped out and 76% of all Fish because of the effects of Human overpopulation. In my opinion, the maximum Human population that Custer County can support without effecting the Wild Animals and Fish is about 12,000. About 20% of these people will live in the Village of Westcliffe/SilverCliffe.
Thinking allowed…..
Arthur Gerard Michael von Boennighausen – BSIE, MSCS, MRE, Independent Broker, *
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