A meeting on pond and dam registration sponsored by Southeast Colorado Private Property Rights Council and Rep. Kimmi Lewis, House District 64, was held at the Cow Palace in Lamar, Colorado on September 27, 2017. Ranchers and farmers worried about the regulatory status their livestock water storage ponds prompted this meeting to address those concerns.
Bill Tyner, Assistant Division II Water Engineer, addressed issues pertaining to registration and enforcement of livestock storage dams or ponds. A previous presentation by Tyner at the annual meeting of the Prowers Soil Conservation District on March 29, 2017, identified the pertinent water storage structures.
Structures with permits include erosion control dams, livestock water storage tanks (stock ponds), and gravel pit ponds. Erosion control dams fall under Colorado Revised Statutes 37-87-122 and are constructed on normally dry (dry 80% of the time) drainages as determined by the State Engineer, with a vertical height of 15 or less and a volume of 10 acre feet or less at the emergency spillway with an outlet pipe above the 2 acre-foot level capable of draining excess water within 36 hours. There are a total of 1797 erosion control dams in the Arkansas Basin.
Livestock storage tanks are covered under Colorado Revised Statutes 35-49 and are constructed on normally dry (dry 80% of the time) drainages as determined by the State Engineer, with a vertical height of 15 or less and a volume of 10 acre feet or less at the emergency spillway. They are given a chronological priority as against other livestock ponds on the same drainage. There are a total of 5461 livestock ponds in the basin.
Storm water detention ponds fall under Colorado Revised Statutes 37-92-602(8). These are owned or operated by a government entity or subject to oversight by a government entity. They operate passively with no active treatment of storm water. Storm water structures can continuously release or infiltrate 97% of all water from a five-year storm event or less within 72 hours or 99% of water from a storm event greater than a five-year event within 120 hours.
These structures operate exclusively for storm water management. Senate Bill 212 exempted Fountain Creek from the storm water statute unless the facility is required by or operated pursuant to a Municipal Separate Storm Sewer System (MS4) permit. Water detained may not be used for any other purpose and must not expose ground water. If not maintained properly these detention ponds may detain water longer than allowed by statute thereby becoming an enforcement issue.
The total number of known storage structures in the Arkansas Basin is estimated at 9685. Those structures that are not known or documented is estimated at roughly the number that are known. The Division of Water Resources Division Engineer issued 79 enforcement orders from 2006 to 2016 involving ponds, the remedies included: a substitute water supply plan, an augmentation plan, operational controls to avoid out-of-priority use and, finally, breaching of the dam on the pond.
A jurisdictional dam is one that has a statutory height of greater than ten feet in height to the spillway crest from the lowest point in the natural stream channel or natural ground surface or creates a reservoir with more than a hundred acre feet of water, or covers a surface area of more than twenty acres at the high water line. Plans and specifications for jurisdictional dams must be approved by the State Engineer before construction.
Non-jurisdictional size dams are smaller in size than jurisdictional size dams. Plans and specifications are not required for construction. A filing of a Notice of Intent to Construct a Non-jurisdictional Water Impoundment Structure is required and no fee is required to file a notice of intent form.
The legislative declaration to the Livestock Water Tank Act of Colorado, 35-49-101, states: “It is the policy of the state of Colorado to encourage and improve range conditions for livestock within its borders through the construction of watering tanks, to provide a system of priorities of right of use thereof, and to protect adjudicated water rights and the public interest by providing an official record and reasonable public supervision of such watering tanks.”
The issue that prompted the interest in “illegal” or undocumented or unregistered ponds was the construction of storm water detention ponds along Fountain Creek which if not properly administered to release storm water within the statutory time limit could impact downstream junior or flood water rights along the lower Arkansas River. The major concern of farmers and ranchers was that if “illegal” ponds along Fountain Creek were investigated, then all other “illegal” ponds within the lower Arkansas drainage would be subject to investigation and mandatory registration.
The meeting in Lamar was to help clarify the position of the Colorado Division of Water Resources as to enforcement and registration. Enforcement primarily affects structures on live flowing streams and conflicts between land owners over permitted and non-permitted ponds or dams.
Tyner stated that the Colorado Division of Water Resources has no interest in remote area enforcement absent land owner conflict between permitted and unpermitted livestock water storage tanks. Remote areas where drainages have no or little possibility of reaching a downstream water right are not at issue. The Division has other priorities that concern live stream flow that actually impact senior or junior water rights downstream.
In other words, it is not mandatory for farmers and ranchers to register or permit their existing ponds nor is imminent enforcement forthcoming. It is, however, in their own interest to recognize the issue of priority in permitting that does not establish a water right, but only a priority between permitted and unpermitted ponds. The construction of a livestock water tank does not require a water right for its use but may be subject to curtailment from downstream senior users depending on specific circumstances.
Barb Leininger of La Junta asked about dams on the Leininger Ranch some of which are higher than the vertical height of 15 feet for livestock storage tanks described above. She wanted to know how these dams were classified. Tyner responded that they could be classified as jurisdictional dams. However, inspection would be based upon the impact below if the dam failed. If there was a possibility that property damage would ensue from the failure of one of those dams then inspection would be necessary to ensure structural safety. Tyner declined to advise whether Leininger should register these dams. Each property owner must decide for themselves the necessity of registration.
Rep. Lewis asked Tyner what was the cutoff year for ponds to be considered old enough to be grandfathered in without permit. Tyner responded the cutoff date was 1941. The concern also aired was about enforcement in remote areas. Again Tyner stated that enforcement was primarily driven when there is a dispute between landowners and priority or live stream water rights. The Colorado Division of Water Resources has no interest in forcefully administering livestock or water erosion ponds in remote areas that do not impact downstream water rights.
For those interested in researching livestock water tanks that have been permitted, those can be researched on the Colorado Division of Water Resources website. Another source for research is General Administration Guidelines for Reservoirs, Colorado Division Water Resources, October 2011, amended, February 2016. See also a video of the Cow Palace meeting on the Baca County Soil Conservation District Facebook page, also shared on Kimmi Lewis House District 64 and Southeast Colorado Private Property Rights Council Facebook pages.
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