Water Hole # 3
We started the literature research on projects which involve water in the Sierra Mojada valley. The title of this article comes from an old Western movie starring James Coburn that you might enjoy watching.....This section of Thinking Allowed begins with the recent construction of a water hole for cattle:
Walking along the bank of his newly constructed half-acre water hole, Sierra Mojada Valley rancher Jonathan Brandenburg admires the cool water lapping the shoreline back-dropped by the Sangre de Cristo Wilderness.
The water hole is about 16 foot deep in the middle and will be used as a stock pond for cattle; there is also a small island that will be a sanctuary for wild birds. Wildlife is always a consideration for the Brandenburg's and they may stock the water hole with fish someday.
However, Brandenburg's pond is more than a stock pond and wildlife attraction. According to District 13 deputy water commissioner Steve Trexell, Brandenburg's new pond also is what most of the "thousands of ponds in the Valley" are not: his pond is legal.
"With Colorado's priority system for water, all water requires a decree or permit. Most water holes are built illegally, and in the majority of cases people know they are illegal." Trexell explained.
"Water holes that may date back to the 1800s are potentially as illegal as new ponds." Trexell continued.
"Grandfathered in is not true in Colorado as it relates to water. Just because the pond exists does not mean it is legal." Trexell further explained.
In addition people who buy land with a pond on it are not exempt from the water laws. The laws affect the landowner. To use the water you have to have the right to use it. If you do not have the right you may be breaking one of the water laws.
Consequences of having an illegal pond on your land run the gamut from lawsuits filed by property owners downstream who have senior water rights to the state ordering the pond be removed.
"It has happened in the Valley as recently as last year." Trexell says. "Four ponds were put in by a developer at the upper end of Lapin Creek and the parcels with ponds were sold for more per acre, then the state had the ponds filled in."
Citing another recent occurrence, Trexell says "There was a pond built on Spruce Creek in Hillside and Trails End Ranch sued, it was their water, and they won a substantial settlement" from the property owners who built the pond.
Trexell says people don't investigate the legality of an existing pond without going through the necessary legal process because "it's a nightmare to deal with the bureaucracy to get it done, but it can get done. We do everything to help people to do it correctly if they want a pond."
Brandenburg, a descendant of one of the Valley's original families who still runs a cattle ranch at the site homesteaded by his grandfather, chose to deal with the bureaucracy and take the legal route.
Describing the steps he followed, which began in 1996, Brandenburg says, "The first thing you should do is check the water source, you can't just go out with a backhoe and start digging. To make sure we had a legal water source we consulted with a water attorney."
Trexell notes that who owns the water is such an issue in Colorado that "this state has more water lawyers than all the other western states combined."
After assuring he had legal water and considering his options, Brandenburg decided his water source would be a well. "It made more sense, even though I had to dedicate 40 acres for it," he says.
Well permit in hand, which took about eight months to receive, Brandenburg hired a contractor and discovered that the planned pond would have to be engineered.
"The location where we put it we could not do a pit pond - just dig it out. We had to have an embankment."
Once the Natural Resources Conservation Service completed the engineering, Brandenburg had to apply for a second permit.
"The terrain was so that the embankment was nine-and-one-half feet high so the Water District had to review the structure in case of a blowout on the dam which could cause problems for downhill residents. For that I had to pull another permit," Brandenburg says. "Once that was approved we began construction. We went to the extreme trying to ensure this pond was legal."
With his pond now complete, Brandenburg offers advice to others considering adding a pond to their property. "I hope people Understand they have to do certain things. They can not just pull in a bulldozer. It will not be legal." And he adds, "I can not reiterate enough: a water source is prime, just because you have water you can't divert it to a pond."
Trexell adds to Brandenburg's advise. "If you are considering a pond or if there is one existing on your property you feel may be illegal call the water district. "Don't do anything when it relates to water without calling first." he says.
For additional information or help with a water hole, call the Division of Water Resources at 719.783.3368.
To be continued.....