In Elbert County groundwater aquifers, there is no such thing as “our” water.\u00a0 “Our” water is a political myth built on a fantasy.\u00a0 Obviously, this absence-of-foundation gives no pause to politicians who use “our” water to justify all sorts of self aggrandizement to gain office, and all sorts of regulation once in office.\u00a0 Let’s explore the fantasy.<\/p>\n
Groundwater rights in Colorado are gifts to landholders from the government that come with restrictions.\u00a0 They are government grants that can take the form of well permits, water court decisions, and various decrees from the Colorado State Engineer.<\/p>\n
With them, the State of Colorado conveys limited rights to parties to (a) use defined amounts of water each year for 100 years, from (b) in the case of groundwater, defined depths in the ground known as aquifers, that are (c) in the case of groundwater, underneath specific areas of land, for (d) specific types of uses, on (e) specific surfaces of land. Those elements combine to make a water right, a grant given by the state to a grantee, usually a landowner.<\/p>\n
A water right gives the holder a license to put some of Colorado’s water to a beneficial use.\u00a0 Moreover, unless that water is actually put to that beneficial use, the right cannot be defended or protected.<\/p>\n
A grant from a state regulatory authority is not a permanent or absolute form of property.\u00a0 For example to contrast, after an owner of a house pays off the mortgage, they own a perfected title to that house.\u00a0 No one can take it away or dispossess the owner of it, unless it’s done through a court action in satisfaction of some other debt or obligation.<\/p>\n
Water rights, however may be revoked or modified if the conditions of their usage are violated.\u00a0 Title to them is never “perfected.”\u00a0\u00a0 It’s always contingent and subject to change.\u00a0 Considering their source — a political authority — this should come as no surprise.\u00a0 But not only are water rights contingent, there’s no guarantee that the water permitted to be extracted will even exist for the life of the water right.\u00a0 This makes them contingent and speculative.<\/p>\n
Water rights are given through transactions between surface landholders in Colorado and the State of Colorado.\u00a0 Whether the grant comes directly from the Colorado State Engineer, or through a water court consulting the Colorado State Engineer on how much water to adjudicate, they all come from the same place.<\/p>\n
There are no other governing parties such as local and county governments who define a water right, however, Elbert County uses zoning authority to modify and reduce state-granted water rights for property owners through their county subdivision regulations<\/a>.\u00a0 Subdivision owners have their water rights reduced to a third of the state grant.<\/p>\n The Colorado Legislature has determined that the Colorado State Engineer will use a 100-year aquifer life when it delegates water rights.\u00a0 Elbert County divides those water rights by 3 to translate them into 300 year conveyances, though a recent court decision found that zoning time-frames beyond 50 years were subject to strict scrutiny.\u00a0 I suppose this was the courts way of admitting our inability to see the future.<\/p>\n It is common knowledge to most people in Elbert County that the water produced here comes out of non-renewable aquifers.\u00a0 Once it comes out of the ground, it doesn’t go back in.\u00a0 We consume it, and unless we recycle it in some way, that consumption is a one-way trip to evaporation.<\/p>\n