A pond farewell: State cracks down on water rights violations

In 1979, Jacques Adnet bought a lot and built a home in the foothills north of the Air Force Academy on rural Diamondback Drive. He cleared a swamp along Beaver Creek, which runs through his 5-acre lot, and created a small pond that he’s enjoyed for 30 years.

So Adnet was surprised when a state water commissioner showed up a couple weeks ago and said he was illegally storing creek water and would have to go to water court in Pueblo, apply for water rights and file an “augmentation plan” to show how he intends to replace the pond water. Or he can just drain it.

Adnet soon discovered he was not alone. Several of his neighbors who have ponds also were put on notice by the state last month as Colorado water commissioners step up enforcement of water rights belonging to farms and communities, most of them far downstream from Colorado Springs.

Already this year, Brian Sutton, water commissioner for the area that includes El Paso County, has opened cases against 15 or so ponds created either by the diversion of creek or river water, or well water. He said there may be 1,000 similar ponds in the area and he intends to bring every one of them into compliance.

Sutton said he’s not trying to ruin anyone’s business or home landscaping. He’s just enforcing the law.

“We’re talking about channel reservoirs that have a direct impact on stream flows,” Sutton said. “This is a big issue. I don’t want to see these ponds go. But there are people downstream who have senior water rights and they get priority. The water is for farmers downstream.”

Adnet had no idea there was a problem when he created his pond.

“I was told then by a water commissioner that I didn’t have to go to a lot of trouble to get the water rights,” Adnet said.

But that was before Kansas and Colorado went to war over water. In 1985, Kansas sued, alleging that Colorado was illegally diverting water from the Arkansas River, violating a decades-old compact written to protect senior water rights in Kansas.

A decade later, the U.S. Supreme Court ruled unanimously that groundwater pumping in Colorado had diverted millions of gallons of water from the Arkansas watershed that rightfully belonged to Kansas. Colorado paid Kansas more than $34 million in damages. Wells were capped or metered and a crackdown began.

As one of the people charged with enforcing that court order, Sutton looks for ponds like Adnet’s, as well as those in subdivisions that might have used more than the legal limit of well water.

Sometimes Sutton hears about violations by word-of-mouth. Often, he finds illegal ponds using high-tech devices like Google Earth, a computer program that allows users to get a bird’s eye view of property.

When he finds what he suspects is an illegal pond, he checks to see if water rights exist. If not, he informs the property owner of the violation, describing how to apply for water rights and just what an “augmentation plan” (Usually, it’s an expensive proposition that involves buying water from a water company to replace the amount held in the pond and lost to evaporation.)

Taking legal action is no idle threat. The state filed a complaint in District Water Court in Pueblo in August against Michael and Melynda Bullock, who built two ponds on their property in the Wissler Ranch area in Black Forest. The lawsuit claims the Bullocks’ use of well water to fill and maintain their ponds and irrigate their lawns far exceeded the amount they are allowed to use under terms of the subdivision’s water rights.

The Bullocks have moved to Utah and, a few days ago, reportedly drained their main pond. The status of the smaller pond is unclear. It’s also unknown if that action will be enough to avoid fines or further prosecution. The Bullocks could not be reached for comment.

Also named in the complaint is the Wissler Ranch Homeowners Association, which came as a shock to Charlie Gage, the HOA’s water committee chairman. After being warned by the state in the last year, the HOA began aggressively enforcing water usage limits with threats and hefty fines, Gage said.

Wissler residents are allowed to irrigate no more than 1,500 square feet from their individually metered wells. The lawsuit said the Bullocks irrigated 19,000 square feet.

The state is seeking an injunction against the Bullocks and the HOA and possible fines of $500 a day.

Besides the neighborhood landscape ponds, Sutton is going after larger, commercial ponds, including a trout pond in Cascade where folks have paid to fish for decades. Owner Steve Beisel said he likely will breech the dam of the one-acre pond he bought a year ago with plans to develop a campground on an adjacent acre. But he’s scrapped those plans.

Rather than hire a water attorney, petition for water rights and pay to replace the water that evaporates from his pond, Beisel said it would be cheaper to fill the pond and rent the property out as a heavy machinery storage yard.

“This is wrong,” Beisel said. “This water is coming into this pond and going out. It’s been here 80 years. But I can’t afford to fight it. The state is going to make me drain the pond. It would have been a fabulous place for a campground.”

Adnet is unsure what he’ll do about his pond, but he and his neighbors are planning a get-together to discuss their options.

“We’d like to retain our ponds,” Adnet said. “We’ll have to see how much it would cost.”