A wooden windmill looms out of the October fog along rural Weld County Road 39, thirty miles east of the Rocky Mountains. Standing guard over a rickety tub, the old windmill pumps water for a dozen head of cattle chewing mouthfuls torn from the rangeland of yucca, sagebrush and prairie grass as they stare at cars and trucks whirring past.
The scene looks just as it might have before the farmers came with their plows and irrigation ditches that made possible the uniform rows of corn standing in a field just beyond the cattle. Just as it might have, except for the traffic and the gigantic subdivision next door in various stages of construction -- from finished houses to scraped-off dirt ready for the cement mixer. When the project is finished, 800 houses will stand here, ranging in price from $250,000 to $400,000, a chunk of which represents the cost of water the developer had to purchase to win approval for his plans.
Five miles from the nearest town, LaSalle, and ten more from the nearest city, Greeley, the houses are perched on dry, treeless ground just begging for someone to cart in truckloads of bluegrass sod and evergreens to transform the prairie into another all-American neighborhood. Country homes without the farm chores: big house on the prairie.
Beyond the windmill, the cattle, the corn and the construction, a low-lying cover of gray clouds stretches in all directions. A Canadian high-pressure system has shoved cold air down the eastern side of the Rockies from Canada to Mexico, and the condition is expected to linger for a few more unseasonably chilly days. The front is a sign that nature and man should begin shutting down for the winter. The giant aluminum irrigation sprinklers rest off to the sides of the field, their work for the year finished. A week remains in the growing season, when those who own the oldest rights to Colorado water can still take it, but few still need it for crops.
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Southwest of here, over by Platteville, the St. Vrain River completes its run from the Continental Divide; the flow is stronger than it has been since the spring runoff as it merges into the South Platte River. The South Platte is full to its banks, covering all but the tallest sandbars as it glides past LaSalle and on toward Greeley and points east. The reasons for the rivers' apparent abundance are interconnected: After harvest, the farmers no longer need the water, and late-summer rains and early snow in the mountains have finally brought some relief to earlier drought conditions. But more significantly, much of the water -- as much as half -- given to crops during the summer is returning to its source through a subsurface flow.
Still, the South Platte will be called on many more times before it reaches the Nebraska border. There is never enough water to fill all the demands, especially in a time of drought. So on days like today, eyes turn west, hoping for snowfall in the mountains and precipitation on the plains.
The current conditions, however, are little more than a tease. The Canadian system has brought cold and fog but not much moisture. "Hardly got a drizzle 'round here today," says Ted Oster, a 65-year-old farmer.
These days Oster farms only hay, which grew well in the exceptionally warm spring and summer. But without his shares of supplemental water from the Colorado-Big Thompson Project, he would have been out of water -- and subsequently out of half of his crop -- in mid-July. With the CBT shares, though, he got through the season just fine. His hay, along with most of the corn grown in the area, is bound for the feedlots and dairy farms that keep moving farther east to escape the encroaching industrial and residential developments.
Now it's time for winter projects -- like completing the garage, the latest addition to the simple brick farmhouse where he and his wife, Elaine, raised three daughters. The original house was built in the 1880s. Oster bought it in 1963, adding a room and screened porch during the winter of 1972. He'd planned to do more, "but I ran outta money," he explains, and he isn't the sort to run up a lot of debt. Last winter, he and his two brothers finally got around to adding a spacious kitchen and dining area, as well as bricking in the porch for the sunroom his wife wanted. Today he's putting up shelves in the garage with the help of his friend, Walter Schlagel, and daughter, Susan, who, he proudly announces, recently graduated from Colorado College.
In the "18-somethin'-or-others," he says, his paternal grandparents left their farm in Odessa, Russia, when his father, John Oster, was eight years old. The family got off the train in Hudson, about twenty miles due south of here, with very little money and even fewer words of English. "A real estate agent met them at the station, took 'em out and showed 'em a place," Oster says, "and they bought it on the spot, they did. That's how easy they were to get along with."
Taking a break from his chores at the kitchen table, Oster says this with a bushy eyebrow cocked and a gleam in his eye as though he expects to be challenged -- that as a descendent of those simple farmers, he could be any less easy to get along with. Schlagel nods in agreement.
Oster's a little testy because he's in the middle of an increasingly bitter battle with some of his neighbors and many of the 102 shareholders in the Platte Valley Irrigation Company, of whose board he is president. And, as has so often been the case in the West, water is the source of the acrimony.
The irrigation company was founded in 1871, with each member owning shares in the Evans Number Two Ditch. But under Colorado's "first in time, first in right" doctrine, the ditch's 1871 priority number was not a very senior water right. Even during an average water year, the river commissioner would usually cut off the ditch from the South Platte by mid-July, only halfway through the season. Farmers had to scramble to find more water or risk poor crops and financial disaster.
That changed after the drought of the mid-'50s, the state's last major multi-year drought, when the company bought 10,340 units at $1.50 each as the Colorado-Big Thompson Project came on line in 1957. Each unit represents approximately three-fourths of an acre-foot of water, and shareholders got thirty shares of CBT water for every acre-foot they owned in the ditch.
Colorado-Big Thompson waters are brought over from high mountain lakes on the west side of the Continental Divide via a system of gravity-fed tunnels, pipes and ditches, then stored in reservoirs on the east side. When shareholders need the water, they have their ditch manager call the Northern Colorado Water Conservancy District office -- which, along with the U.S. Bureau of Reclamation, built and administers the project -- and the requested water is dumped into the South Platte. The CBT project was always intended to be a supplemental water supply so that shareholders in the Platte Valley Irrigation Company, along with other water-users, have a recourse when the ditch's shares are cut off.
Now, however, more than half of the Platte Valley shareholders want to sell their shares -- and they expect to be paid handsomely for what is an increasingly precious commodity. Colorado-Big Thompson water is clean water without a lot of pollutants and is also free of any senior water rights claims, so it's in great demand from developers as a water source. As development booms along the Front Range and spills east, the price of good water also booms. CBT water, the standard by which other sources are measured, had climbed from $7,000 a share a year ago to as high as $15,500 this past spring; prices have since leveled off at about $12,000 a share, still an extraordinary jump.
But developers who need to find an adequate water supply before their plans can be approved appear willing to pay almost any price. And the Platte Valley Irrigation Company's 10,340 units of Colorado-Big Thompson water is a large supply. An acre-foot is the standard measurement for water in the West, enough to cover an acre of ground twelve inches deep. It takes about thirty acre-feet to grow a crop of corn, but a single acre-foot will support a family of four during an average year -- which means the CBT water owned by the company is enough to cover about 7,700 new houses.
"They got dollar signs in their eyes, they do," Oster says of his fellow shareholders. "Their eyes are rolling back into their heads like they were cash registers."
The "let's sell" contingent is led by David Hunt, who moved to the area from Kansas and started a cattle feedlot operation. In a June letter to other shareholders, Hunt announced that he'd begun looking into the possibility of selling the water and claimed that the numbers generated by his research showed that if the company took the money it would get from selling the CBT shares to a developer and invested that money at a 7 percent return, it would be equivalent to making about $700 an acre on their land every year.
"If a farmer cleared $200 an acre, that would be good money," Oster notes. But he and those who side with him, mostly other farmers, don't want to sell. The CBT water is their insurance policy, and like an insurance policy, it pays off only when disaster strikes. In a drought year, the supplemental CBT water represents the difference between full yields and partial yields from the fields -- and, for some, the difference between making a living as a farmer or going broke.
Although snowpack, which normally provides a consistent water supply for the South Platte into July, wasn't much below average in the northern mountains this winter, spring was unusually dry and warm, precipitating an early and heavy runoff that couldn't be captured in already-full reservoirs. The weather remained uncooperative in the area where Oster farms well into summer, releasing only about a half-inch of moisture compared to an annual average of ten to twelve inches.
By mid-July, the river commissioners were cutting off ditches with senior water rights dating back to the 1860s, the deepest cuts ever in some drainages. Nearly two dozen counties were declared agricultural disaster areas and sought federal relief. But those farmers with CBT water weathered the crisis.
Oster has seen droughts before. His family clung to its farm during the 1930s, "when there was nothing but dust around here." And the family held on again during the drought of 1953-'55, when those who counted on the Evans Number Two Ditch were able to irrigate for barely seven days total before they were shut off. "It wasn't as bad as the '30s, but it was tough times for everybody, it was," says Oster. "Especially on those who had to quit. Got outta farming, they did."
The third year of that drought, shareholders were told they'd probably run water in the ditch five, maybe six days, tops. They'd about used that water up when "it rained, and the drought broke," Oster remembers. The Colorado-Big Thompson Project came on line a couple of years later, and those who were wise enough to purchase shares never had to worry about water again.
Now, though, Oster worries that shareholders eager to sell don't realize what the CBT water means. Many of them are newcomers, he says, or "suitcase farmers" who moved to the country because they liked the idea of raising their kids in the wide-open spaces. If they farm, it's a hobby; their money comes from "their jobs in the city," he complains.
These newcomers have never seen an extended drought when the reservoirs go dry and there's not enough snowfall or rain to refill them...and no Colorado-Big Thompson water to replace it. "That," Oster says, "and they don't give a shit about farmers."
In July, Hunt forced a special vote on the question of whether to sell the CBT water shares. Although the majority of the shareholders were in favor, it wasn't the two-thirds super majority needed to win; those opposed held on by only a handful of votes.
Some of those who voted to sell were farmers in "financial difficulties," says Oster. When he speaks of these farmers, his tone softens; he knows that for even the most diligent farmer, "some years you make money, some years you don't." But he still can't abide those who, because of "poor planning," are counting on their water rights as a retirement fund.
Oster reserves his real vitriol for the suitcase farmers, of whom Hunt, "the backstabber," is the worst. "He told me two years ago that he wanted to be a good neighbor and that he would never sell the water," he says. "A year later he's turned around 180 degrees and is writing me 'love letters' telling me I got to sell. Now what kind of man would do that?"
Oster says he's had his own accountants and lawyers look at Hunt's claims, and they think a more accurate figure for selling the water and investing the money would be closer to $300 an acre. And that's only if the company doesn't get hit with corporation taxes, he adds.
If the company sells its CBT water, shareholders won't be the only ones affected. Superior, a blossoming bedroom community southeast of Boulder, has too little local water to support its needs; although it has a supplemental source from the Windy Gap project, there are difficulties getting it delivered. Like CBT, Windy Gap is a mountain reservoir designed to capture Western Slope water for transport to the eastern side of the Continental Divide. Unlike CBT, Windy Gap has little infrastructure of its own and has a deal with the Northern Colorado Water Conservancy District to pump its water into the district's Lake Granby, and from there through that system to Front Range users. But if Lake Granby is full, as it has been for several years, the district doesn't accept Windy Gap water; its users, including those in Superior, are left high and dry, scrambling to find other water sources.
Superior has been leasing 1,500 to 1,800 acre-feet of CBT water from the Platte Valley Irrigation Company for the past three years. The money goes into the company's operating budget, removing some of that burden from its shareholders. "And there's a contract in our office right now to double what they've been paying," Oster says. If the CBT water is sold to a developer, it will be "very difficult" for Superior to find another large source of good water, he adds.
Oster claims he's not entirely opposed to selling the CBT water, but he insists that his opponents must first find a replacement in "dirty" water -- water loaded with nitrates and other substances from both farms and municipalities upstream -- for those shareholders who want to continue farming. Such water is out there, he says; the problem is that it could take half a dozen years to get through Colorado's specialized water courts, whose judges must approve transfers of historic water rights (although not for trans-mountain diversion waters, such as those from the CBT project). Hunt's group, however, wants to sell the CBT shares by January. "Don't ask me why they're in such a hurry," Oster says. "It's all about greed, it is."
Oster knows that his side could soon be out-voted. "They say they'll have me out next year," he says, "and they're gonna get rid of the board. But they won't get rid of me completely. I'm still a shareholder, and I'll show up at every one of the meetings and make sure they do it legal."
He has a couple of tricks up his sleeve. For starters, he says, the suitcase farmers who want to sell are being misled about Colorado water law. Some, including Hunt, seem to believe that they can meet their water needs with irrigation wells; that's because they've been allowed to get away with it so far, Oster explains, and don't understand that those wells fall under Colorado's water priority rights -- and that almost all wells are far junior to the rights owned by the ditch companies and the reservoirs. According to a law passed in 1969, the owners of wells are legally bound to replace water they take from the ground, he points out. If they can't or don't, they're supposed to be shut down by the state engineer's office, which has jurisdiction over water rights. Although so far the office has been reluctant to shut down wells, Oster predicts that the state could take action soon, especially if the drought continues.
But Oster figures his best chance is in water court. Colorado water law protects those who use a ditch from "injury" -- injury having been determined by the Colorado Supreme Court a century ago to mean so much as a drop of water. Selling off his share of CBT water without replacing it would certainly injure him, Oster says. "So they'd better get a good lawyer," he adds. "I don't understand why these people moved here, if all they want to do is change things. We didn't invite them."
Moving Oster will be tougher than trying to uproot one of the cottonwoods that line the South Platte. His grandparents and his parents are buried in the local cemetery. And he intends to remain a farmer, passing the land and the legacy on to his daughters if they so desire. He doesn't take government subsidies like many of his fellow farmers, nor does he whine about the price of crops.
"I don't need a welfare check," he says. "I need my water."
David Hunt says he's no suitcase farmer. His family homesteaded in western Kansas and owns the Number Two well permit in that state. "I've been in farming all my life," he adds.
Hunt might still be in Kansas if his wife, who's from the Greeley area, hadn't "got tired of all the dust." So they moved, first to a farm near Windsor, then ten years ago to the feedlot operation where he has 10,000 head of cattle and farms another 1,000 acres.
Selling the CBT water is "the most prudent use of the resource at this time," Hunt says. "It's all about economics." Some years the ditch shareholders never even use the CBT water, he adds: "Surveys show that only two out of every ten years are we very dependent on it." Hunt admits that he doesn't ever need the CBT water; the ditch's river water is enough for the 1,000 acres he farms, and the rest of his needs are met by irrigation wells that belong to associations formed to meet the water-replacement requirements.
"You have to ask yourself: Why do I farm? Well, the reason I farm is I grew up farming and know how," he says. "It provides a living for my family and a way for me to be my own boss. But the simple fact of agriculture economics is that in the last three or four years, crop agriculture is not very feasible."
Three years ago, when the issue of selling the CBT water was first raised, the economics weren't right. "It was going for $3,000 a share, and it didn't make sense," Hunt says. But today it does.
He isn't saying everyone has to sell, Hunt points out. Some people believe the price of the water may shoot up over $20,000 a share if they wait a few more years; others, like Oster, want to keep the water as an insurance policy for farming. But there's some question as to whether individuals have the right to break away from the company and sell their shares. Hunt's lawyers think they can.
But that interpretation is in dispute. And Hunt concedes that there's another point of contention: whether the ditch would be able to operate without the CBT water. Ditches lose a portion of the water as it soaks into the ground, so it takes more water than is actually needed to water the crops to ensure that enough gets to the headgates of a shareholder. The amount that's lost is the same no matter if the ditch is running full or partly full, so removing the CBT water could result in the ditch not working in the late summer months, when CBT shares normally keep it running full.
Right now, though, most of the debate focuses on personalities, not numbers. "I told the others when we first started researching this that I shouldn't be the spokesman, because the issue of me being a newcomer would come up," Hunt explains. "But there was no one else to do it." And something had to be done, he says, because the Platte River Valley is feeling new pressures every year.
The land the Hunts had farmed near Windsor recently sold again -- for $12,000 an acre to a developer, six times what it's worth to a farmer. "The common belief out here is that in twenty or thirty years, there'll be nothing but houses," Hunt says. He isn't sure that will be the case -- "this area still depends on agriculture," he notes -- but change is definitely coming, and it's going to be harder, not easier, to keep farms going.
"They worry that they might not be able to do what they've been doing with the land," Hunt says of Oster and other old-timers. "And I understand that." Oster is "a fine man with the best interests of the ditch at heart," he adds. But the current board, including Oster, is on its way out.
Hunt must sell his CBT water if he's to protect his way of life, he explains. The cost of the well replacement water is going to be "horrendous" in coming years. "You look at those who survive in farming these days, and it's because they are businessmen, period. That's what this is -- a business decision. I'm not trying to tell another farmer what to do...I just want to be able to sell what's mine."
For Platte Valley Irrigation Company shareholders, the biggest challenge will be to keep any sale out of the courts. "The only ones who win in that deal are lawyers, who see the money involved and think there's a big payday for them if they can get it into court," Hunt says. Lawyers and others who salivate over the water are "sharks, and they've been circling around us for some time."
When water fights can't be resolved peaceably, the opposing sides often duke it out in one of the most specialized justice systems in the country: a Colorado water court.
Attempts to control the area's limited water supplies have been a part of the landscape since man's first days here as a farmer. The pre-Colombian Anasazi, who lived in the dry region that's now the southwestern corner of Colorado, terraced their hillsides so that water running off the mesas above would pool up behind stone dams before spilling over onto the next terrace, leaving soaked ground as well as fresh, mineral-rich silt in which to plant maize. They also constructed irrigation systems, digging trenches around fields in order to direct what little rainfall there was toward their crops; archaeologists suspect that ditches leading to depressions on top of the mesas may have been man-made reservoir systems.
In the 1500s, the Spanish brought irrigation ditches to the San Luis Valley. Taking a lead from their success, three centuries later American fur trappers settling around Bent's Fort also adopted irrigation as the only way to make the desert blossom.
After the Civil War, agricultural "colonies" flourished, with entrepreneurs and visionaries alike enticing people from the crowded East to move to sparsely populated Colorado. They sold them on the idea of working together to build agricultural ditches, with some people living in a central location and operating businesses while others farmed the outlying area in a symbiotic relationship.
The colonies varied widely. The Quaker Oats Company established one that was based on an early form of socialism. Workers were brought in to farm a large area for the company, and in return they received their own small parcel on which to grow crops. But the colony failed because its land was poor, requiring intensive maintenance of ditch systems that had been constructed in very erosive soils.
The Salvation Army got into the act with its Amity Canal, located west of Lamar, and built a colony for poor, former urban dwellers alongside it. The idea was to give people a better life by teaching them how to irrigate and farm. But although the Amity Canal is still in use today, that colony also failed -- this time because the immigrants lacked farming experience.
Other colonies were far more successful, including a couple that became leaders in the state's agricultural industry and evolved into the modern cities of Longmont and Greeley. The Union Colony was the brainchild of newspaperman Horace Greeley, who'd come to Colorado from New York and then returned to urge young men to go west. He made that possible by building an irrigation ditch before the colony's first settler -- who would later give Greeley's name to the town -- stepped foot on the land. (Even so, some of the first would-be colonists, who'd paid $155 for a city lot and parcel of farmland, took one look at the arid, cactus-studded land and got right back on the train.)
The Union Colony's ditch was so successful that colony residents become irrigation-ditch ambassadors across the state and established other settlements, such as Fruita, on the Western Slope. One resident, Nathan Meeker, was sent into the mountains by Colorado's governor to convince the Utes to give up the nomadic life of hunters in favor of a settled existence as farmers. Meeker, who'd been the agricultural editor of Greeley's New York Tribune, had immigrated to Colorado, where he was named president of the colony (and also founded the Greeley Tribune). He was successful at teaching the Indians irrigation skills, but made the mistake of tearing up their horse-racing track -- and they killed him for it at the start of what became known as the "Meeker Massacre."
Although that time water wasn't the cause of the conflict, it usually was. Back when the West was still mostly open range, large tracts could be controlled by whomever was tough enough to guard the water for his own use. A Frederick Remington painting called "The Watering Hole" captures this era: It depicts two cowboys aiming their rifles at a distant group of horsemen as the cowboys prepare to defend a spot of water in the bottom of a gully hardly large enough to bathe in.
Following the colony era came what is known in water circles as the "corporate era," when large companies, such as Travelers Insurance, built big irrigation ditches in almost every major river drainage and encouraged people to move to Colorado. The companies sold immigrants the lands serviced by the ditches, providing water for a fee. Eventually, all of the ditch systems were turned over to their water users.
Even as these irrigation systems were being built, it quickly became apparent that a system of water rights would be necessary to protect those who'd constructed the ditches. Back East, where water was plentiful, rights were based on a "riparian" system -- that is, if a farmer owned the land bordering a body of water, then he owned the water and access to it. In arid Colorado, however, such a system would have left huge sections of land without enough precipitation to farm. So the system of "first in time, first in right" was adopted, establishing a priority list based on who first diverted the water to "beneficial use" -- even if the land he worked didn't touch the river or stream.
The doctrines establishing Colorado water rights were considered so important that they were incorporated into the State Constitution in 1876. In 1879, the legislature established the office of water commissioner and required that each county hire a commissioner to administer the system -- determining who got water and when, cutting off those with junior rights when the water got scarce. The lawmakers also assigned these commissioners the task of determining who had priority to the water.
The commissioners didn't know how to measure water efficiently, however. So in 1881, the legislature established the office of the "state hydraulic engineer" to support the water commissioners, who still worked for their own counties, by installing and monitoring river gauges and other measuring devices. The job of state engineer grew in size and scope, especially when the chore of building roads and bridges was added. Eventually a highway department was created, removing those obligations from the state engineer's duties so he could again concentrate on water.
It was still a tough job, particularly difficult in regard to the South Platte. Every spring, the snows that piled up in the mountains west of South Park on the east side of the Continental Divide melted, and slowly at first, then gaining momentum, tiny trickles joined rivulets that merged into larger streams to become the South Platte River. Pouring from the mountains south of Denver and then heading north, the river was bolstered by the contributions of the St. Vrain, Big Thompson and Poudre rivers, as well as dozens of smaller streams, until it swelled from its banks, a roiling torrent that spread out across the wide, flat plains of northeast Colorado.
The spring-thaw flood would last only a few weeks. Then the river would recede, leaving fresh soil and millions of acres of new grass that supported the vast buffalo herds, as well as wetlands for migrating waterfowl and other animals. Still, by mid-summer that torrent was little more than a memory as the river dried up east of Greeley.
An early settler, Charlie Stobie, in 1865 described the river as "too thick to drink, too thin to plow, too shallow to sail on and too broad to shoot a rifle across." But others saw its potential, particularly if the runoff from the snowmelt could be captured and then parceled out over the summer months. That view led to the era of reservoir and dam building. The reservoirs generally were junior in the priority system, and therefore only able to take water from the river during the non-irrigation season or periods of high runoff in the spring or following intense summer rainstorms.
These water storages, constructed for irrigation systems, were not intended as flood control -- although if less than full, they could absorb some of the torrent -- and were situated away from the river to which they were connected by ditches. They ranged along the river from Barr Lake northeast of Denver to the cluster of reservoirs in the central Platte area -- Jackson, Riverside, Empire and the Bijou -- then, farther east, the Prewitt and the Sterling, until the last one near the Nebraska border and the town of Julesburg, for which the storage spot was named. The water in the reservoirs is owned mostly by those who already have junior water rights; without this supply, they couldn't irrigate their farms directly from the river for long before they'd be usurped by senior rights holders.
The Colorado-Big Thompson added 200,000 acre-feet to the river in an average year. But no shareholders much farther east than Greeley could call for the water; users farther downstream had to help pay the cost of building and maintaining the project but reaped only what water got back to the river from return flows.
By the 1960s, it was evident that the era of reservoir and dam building was nearing an end when the Army Corps of Engineers would not recommend construction of a massive reservoir on the South Platte at a place east of Brush called The Narrows. In 1964, concerned farmers banded together into the Lower South Platte Conservancy District to push for the project, which would have been the third-largest reservoir in the state next to the CBT's Lake Granby. But the reservoir plan was defeated by a vote of the taxpayers.
Despite the moratorium on reservoirs and increasing demands, the South Platte seemed to be growing. As far back as the turn of the century, the state engineer, as well as hydrologists at what was then Colorado A&M (and now Colorado State University) had noted that the South Platte was flowing longer than it had in the past. In fact, the river could be drained dry at one ditch's headgate and yet have water in it again a few miles downstream. Under "one-time use" Colorado water law, farmers do not have the right to recapture and reuse water that isn't consumed by crops after they've irrigated a field. They're required to return the unused portion, usually by ditches created for that purpose, back to the main ditch or river so that it can be used by the next farmer downstream.
These return ditches alone, however, couldn't account for all the water flowing in the river. The experts finally realized that some of the water had to be seeping from the ditches or soaking into the ground, then making its way to the river. And if that was the case, the water still belonged to whomever had a senior right.
Even with the added flow, the reservoirs couldn't meet the needs of all the water users on the South Platte. So the '50s marked the start of extensive reliance on irrigation wells. These were not small, household wells, but wells capable of pumping thousands of acre-feet from below the surface in a day. At first, no one gave much thought to where all that well water was coming from or the effect it might have on the river itself -- but that time was coming.
Water law was becoming more complex, and keeping up with who owned what priority right was increasingly difficult. River drainages obviously cross county lines, and decisions weren't always communicated from one district court to the next. So in its 1969 act, the legislature decided to divide the state up into seven divisions -- one for each of the major river drainages, and each with its own centralized, and specialized, water court with a single judge. The South Platte was the focus of Division One, with its court in Greeley.
But the act did more than create the divisions and courts. The legislature also established a "division engineer" position to oversee and police Colorado water law in each division, as well as consult with and make recommendations to the water court judges; the division engineer would report to the state engineer. The water commissioners, each responsible for a piece of the drainage -- such as Boulder Creek or the St. Vrain River or a stretch of the South Platte -- now worked for the division engineers.
The act attempted to bring well owners into compliance with the rest of the state's water users, too. Farmers with senior water rights had looked at their dry ditches and thirsty crops, and then at their neighbors upstream, who had junior rights on the river but were pumping thousands of gallons of water onto their fields, and complained: That had to be their water going to the underground flow. Few issues in Colorado carry the weight of water, and the lawmakers listened.
Well users were now required to register their wells and fall in line under the "first in time, first in use" doctrine - putting them at the back of the line. They would have to find a means to augment, or replace, the water they used and put it back in the river, or they would have to stop pumping.
Replacing water isn't as easy as simply buying some from an owner upstream and shipping it down the river to the injured party. The replacement water would never make it unless it was shepherded by the water commissioners past senior water rights holders, which the act authorized them to do.
This replacement process could cost more than it was worth. For every mile of river it travels, about 1 percent of the water is lost to seepage and evaporation. So about half of the 100 acre-feet of water released fifty miles upstream would be lost before the rest reached its destination. Well users preferred to find a source of replacement water near the point of impact on the river.
One of the first hurdles was determining how quickly underground water flowed to the river. Water pumped by a well a number of miles from the river might have taken years to reach the river; thus the "injury" and need to rectify it wouldn't occur until that point. This rate could vary depending on such factors as type of soil underground or steepness of the ground. So studies were conducted to map Stream Depletion Factors, or SDF, so that division engineers could calculate when water from a certain area could have been expected to reach the river.
Household wells were also affected by the 1969 act. The legislature recognized that there often was no other source of water for some homeowners who couldn't get water from a central source and had to rely on small household wells; now each of these homes was allowed a single well so long as the water was used only for indoor purposes. These wells were made exempt from administration and presumed to not cause injury to the stream systems. Subdivision developers, however, were not allowed this well-per-household exemption without also agreeing to the replacement requirement.
Meanwhile, well users were coming together to study alternatives for replacing water -- and to pool their money so they could buy water to cover what they owed. The primary well-user associations on the South Platte were the Central Colorado Conservancy District and the Goundwater Users of the South Platte, or GASP, which represented more than 3,000 well users from Denver to the state border.
Because determining how much water might need to be replaced each year was incredibly complex, the state engineer allowed the well users to come up with interim replacement plans for their division engineers' okay on a yearly basis, until such time as they could take their augmentation plans to water court for final approval.
In the decades since, the issue of well augmentation has inspired sporadic, but heated, debate. During wet years, when senior water rights holders have enough water for their crops and couldn't use the excess even if it were available, no one cares whether the well users are following their augmentation plans. During a drought like this past year, however, surface water users suspect that the associations aren't compensating them fully for the injury done to their shares of the river. Increasing their suspicions is the fact that interim augmentation plans are kept confidential between the well users and the division engineers. Tempers flare, accusations fly, lawsuits are threatened.
Caught in the middle along the South Platte drainage is division engineer Dick Stenzel. Of the seven division engineers, he may have the toughest job. Nowhere has the need for water courts been more evident than on his river, the most over-appropriated waterway in the most populated -- and fastest-growing -- part of the state. Since the 1870s, more water has been claimed than is available in this drainage.
Water runs downhill in Colorado, users joke, but uphill to money. Still, water law is no joke: It's the biggest area of civil practice in the state, and it's booming. Gone are the days when a couple of country lawyers could sit down over a cup of coffee and work out the differences between a pair of feuding farmers. As development explodes, those country lawyers are having to learn fast how to protect their clients from the big-money interests with high-priced, high-powered Denver attorneys.
Like all chapters in Colorado's water history, the current situation fascinates Stenzel, who plans to write a book about it all someday. He came to Colorado in 1976 from Nebraska, where he'd worked for the Corps of Engineers on flood-protection plans. There the problem was too much water all at once. This past growing season, he's had to deal with too little over a long period of time.
"It's been a hectic year," he says, with classic understatment. Like a firefighter putting out stubborn brush fires, he's been running up and down the river, meeting with water users, listening to complaints, rendering decisions -- some of them not at all popular -- and generally trying to keep the peace while supporting the river commissioners who work for him.
With the end of the growing season, the pace has slowed somewhat -- but even that is deceiving. Normally at this time of year, there are few demands on the river's water until November, when reservoirs would begin making their calls on the water needed to replace what was used at the end of the summer. This year, however, the reservoirs were called on early because of the drought, and most are now drained almost dry. So they're demanding their "refill" rights according to their status on the priority lists. Some are so far down on the list, however, that they won't get much, if anything. Then they will also demand their usual "first fill" in November.
Anything that happens to the water at one point along the South Platte will have a trickle-down effect somewhere further along the line. In this case, slaking the thirst of the reservoirs could hurt efforts by some well users to meet their augmentation plans.
These well users have been taking water from the river after the growing season and before the "first fill" calls in November, or during periods when excess river flows exist, and directing it away from the river so that it can soak into the ground. Using SDF lines, well users can determine where best to "recharge" the groundwater so that it gets back to the river at the time when the senior rights owners will want it, thus fulfilling their replacement obligations. But if they can't take the water now because reservoirs are asserting their rights, their plan falls apart.
If the drought continues next year, the ripple effect will get worse. The reservoirs may not be able to fill at all, meaning the junior surface water rights owners will be damaged. The well users may find it impossible to buy scarce water and, unable to implement recharge programs, could face the very real possibility of being shut down. In GASP alone, that translates to the owners of as many as 3,000 wells unable to irrigate if they are farmers, or supply water to households if those owners are developers or municipalities.
The impact could be devastating, and Stenzel doesn't even want to think about what could happen if the drought continues into a third year. But in his position, he must think about it. This year has been hard enough as his water commissioners play South Platte "water police," telling those who are cut off that they can't put water on their crops, pay their bills, support their families.
Some of the commissioners even came to Stenzel with concerns about their safety. Earlier in the summer, there'd been trouble at a town meeting in Ward, when representatives of the state engineer's office told illegal water diverters that they couldn't put small pumps in the river to irrigate their lawns. The commissioners worried what desperate acts farmers -- hurt much worse in a drought -- might be driven to.
Stenzel can only hope that farmers will somehow weather the drought with their usual stoicism. He offers this example:
A water commissioner had gone out to visit a farmer who hadn't submitted a plan for replacing his well depletions. The commissioner told the farmer he would have to shut off the well if a replacement plan was not submitted to Stenzel immediately. The farmer started shouting that without water he was ruined. He grew angrier by the second, even as the commissioner kept talking, explaining that this was how the system worked...how it had worked for a hundred years and more...that it worked for everyone or it would work for no one.
After the commissioner finally turned to leave, the farmer fired one last shot. "The sweet corn's gonna be ready in a week," he yelled. "Make sure you come back and get some."
East of Greeley, Highway 34 shadows the thick cottonwood trees that line the banks of the South Platte River. Farther from the mountains, the stretches of rangeland -- short, scrubby, gray and tough -- between the cultivated fields grow larger. By late October, except for a few last stands of dry corn stalks, most of the fields have been shorn to stubble. Large round wheels of hay, or hay bales stacked in cargo-container-sized walls, are destined for nearby dairy farms, or more distant feedlots.
Out here, the swells of the prairie roll on more gently, with greater distance between their crests, than where they crash up against the mountains in the west. This is a drier land than the fertile triangle where the St. Vrain, Big Thompson and Poudre rivers rush out of the hills. On its own, the region would never support this intensity of farming and ranching, not without the irrigation ditches that run out of the river and the wells sunk into the underground flow of water. And without the nearby farms, many of the small towns on the plains would dry up and blow away.
Brush, located where the South Platte ends its southeast run from Greeley and curves northeast to Sterling, Julesburg and the Nebraska border, is an exception -- in part because of its fortuitous and historic positioning on the river, in part because it's taken the lead in innovative approaches to water problems. Years before the farmers arrived, cowboys driving cattle from Texas to Montana would come up Beaver Creek and cross the South Platte a few miles north of the present town, always following water. Then the Burlington Northern railroad discovered an underground source of extraordinarily pure water in the area, water it needed for its steam engines, the only such source between Denver and Lincoln, Nebraska.
A town sprang up, named for a Greeley man who ran a cattle feedlot out here to take advantage of the railroad stop. When Burlington began using diesel trains, the town fathers were wise enough to purchase the land containing the water source, making Brush one of the few municipalities in Colorado that doesn't need to treat its drinking water. As the town grew, immigrants from Denmark who had tuberculosis established a sanatorium here, hoping the dry air of the plains would cure the disease. Many settled permanently, establishing businesses or becoming farmers.
The farming wasn't always easy. During spring, the South Platte would flood, sometimes ruining crops -- but when the water receded, it left behind wetlands that attracted migrating waterfowl and deer. By mid-summer, the river would be so dry that a child could walk across its sandbanks without getting his boots wet. Describing the river in his book Roughing It, Mark Twain wrote, "We came to the shallow, yellow, muddy South Platte, with its low banks and its scattering of flat sandbars and pygmy islands -- a melancholy stream straggling through the center of the enormous flat plain, and only saved from being impossible to find with the naked eye by its sentinel rank of scattering trees standing on either bank. The Platte was 'up,' they said -- which made me wish I could see it when it was down, if it could look any sicker or sorrier."
Today Brush is a town of 5,000 that's learned to adjust with the times -- and the floods. The sanatorium is gone, replaced by one of the state's largest retirement homes. The factory that used to take in all the sugar beets from local growers went under, but now it processes beans. The trains don't stop for water anymore, but they do supply coal for the gigantic Public Service Company Pawnee Power Plant that provides jobs and a good tax base for schools. Two more gas-fired power plants make Brush the electricity-producing center for this region.
Yet the town's managed to retain its ties to agriculture, and the values that go with farming. Brush is a place where folks leave their doors unlocked and their keys in their trucks. You can still get a cup of coffee for a quarter and enjoy it while sitting around shooting the breeze.
Brush may well be the auction capital of the world. It boasts one of the largest dairy-cow auctions in the country, as well as the largest video livestock auction and one of the biggest for farm machinery. And then there's the Livestock Exchange, one of the largest, if not the largest, cattle auctions in the state -- which makes it one of the largest in the country.
In a big dirt parking lot on the east end of Brush, ten miles from Fort Morgan, the pickups outnumber passenger cars nine to one. A sign in the lot announces that this is the Livestock Exchange.
With a whoop and heeyah, cowboys guide reluctant steers in groups of three or four from holding pens through a chute in the side of a warehouse-sized building. The cattle emerge in a muddy arena, where two men flick at them with small whips as an auctioneer rattles on for the audience. Most of the people in that audience are men, sporting cowboy hats and boots worn with use, although a few of the younger men favor a more studied Wild West look.
Back in 1967, Bob Walker and his partner, Sam Wyatt, came out from Greeley and started the exchange, which includes Drover's Restaurant --the unofficial meeting place for this part of the country. Wyatt died a couple of years ago, but Walker's still on hand, welcoming people to his place with a firm handshake and a howdy.
Today he's celebrating the 33rd year of operation with an all-you-can-eat buffet in Drover's featuring roast beef, of course, as well as an auction of 6,000 head of cattle. Most of the beef will go by the truckload, which by law is limited to 5,000 pounds of steak on the hoof per truck. Those steers cut to meet the weight limit or because a buyer didn't like their looks have to parade around the arena, as television monitors report their average weight for buyers.
"This is the center of the agricultural world, at least in northeastern Colorado," says Steve Treadway, sitting in his private office in the exchange building that he admits he probably doesn't need, seeing as how he's "semi-retired" and all. "But it keeps me in the thick of things."
Treadway has more than a dozen baseball-style caps stacked in his office promoting a variety of things, including farm equipment, the Brush rodeo and, of course, the center of the agricultural world, the Livestock Exchange. He wears nearly as many imaginary hats in his roles as a Brush town councilman, a leader of several South Platte water groups -- and a closet environmentalist in farm country.
Treadway was born and raised on a farm in central Illinois where the problem was always too much water rather than too little. Farms there were mostly along river bottoms, and farmers like his dad were always working on ways to drain water from the land and get it back into the river. Treadway also thought he'd seen enough water to last him a lifetime as a crewman aboard a U.S. Navy ship during World War II.
So when his older brother got the family farm after their father died, he didn't rue the accident of birth. He had another idea for how to make his fortune. After the war, the cattle feedlot business started moving out of the Midwest -- Chicago and St. Louis, particularly -- and shifting west. He decided to go with the flow and started feedlots in west Texas, then New Mexico, then western Kansas.
Unfortunately, Treadway always seemed a little ahead of his time. The farmers and ranchers in those parts were used to putting their cattle on trains to ship to feedlots in the Midwest, and they didn't take to his concept. In fact, they called him crazy, "and that was the nice word," Treadway remembers. But five years later he'd hear that someone else had come along with the same idea, which now was going gangbusters.
In 1964 Treadway moved to Brush to take over as manager of a feedlot owned by Denver-based Sigman Meat Company. Colorado's feedlot operations were the most advanced in the country. But now he had a different problem: He was back on a river, only this time, he quickly learned, the river didn't have enough water.
Treadway decided he needed a crash course in Colorado water law and started attending meetings where he learned about such things as "first in time, first in right" water rights. His involvement in water issues grew from there.
Treadway was one of the original founders of the Lower South Platte Conservancy District, which promoted the Narrows reservoir project. "I thought we were making a mistake when we pushed it as a supplemental source of agricultural water," he says. "We should have concentrated on the recreational aspects."
Once again, he was ahead of his time. Now, with the Front Range booming and everyone looking for recreational opportunities, those who wanted the Narrows project sigh as they watch boaters, and their money, whiz by on Interstate 76 on their way to Lake McConaughy, which also supplies agricultural water for farmers, just on the other side of the Nebraska border.
Treadway ran the Sigman feedlot for fifteen years, while also farming 160 acres of river bottom he purchased and several other parcels of land he rented. After that he ran three small feedlots of his own, while continuing to farm. It was hard work. There was always something to contend with -- bugs, market forces and the weather, particularly winter days when he and his crew might be out in temperatures 20 degrees below, trying to figure out how to get 50,000 head of cattle fed and watered. But they got it done, and that gave him a great deal of satisfaction.
Still, it was tough listening to the accusations of environmentalists, who always seemed to be attacking farmers and feedlot owners for polluting the land and river with chemicals and waste. While some of that criticism might have been fair, farmers certainly weren't any worse than the towns and cities where the environmentalists lived, fertilized their lawns and flushed their toilets. The farmers Treadway knew considered themselves stewards of the land. After all, it was their livelihood, the place they raised their children, the legacy they'd leave their children.
Not all environmental and legal issues involving Colorado's water come from in-state. Other states have rights to some of the water coming out of the South Platte, and a compact was created between Colorado, Wyoming, Nebraska and the U.S. Department of Wildlife regarding the amount of water each state will have to provide for endangered species in the Central Platte area of middle Nebraska.
While details of that compact are still under discussion, a coalition comprising the Lower South Platte Conservancy District, GASP, the Platte River Group (representing Front Range cities, including Denver) and the Northern Colorado Water Conservancy District came together as the South Platte Lower River Group, with Treadway as its president, to deal with the compact and also a new Department of Wildlife river-augmentation concept.
The DOW owns 10,000 acres known as the Tamarack Ranch, east of Brush and past the last ditch on the river that supplies the Sterling reservoir. After this point, there are no calls on the South Platte, and water can be taken freely. DOW's idea was to take water as it flowed past the ranch and move it through a series of ditches to areas away from the river, where the water would soak into the ground and, according to the Stream Depletion Factor lines, flow back to the South Platte.
The theory is essentially the same as recharging groundwater for well augmentation and, in fact, the DOW project could satisfy some of those augmentation requirements, in the process showing how augmentation some day might work up and down the entire river corridor. Ideally, the project would also help Colorado meet future responsibilities under the three-state compact for endangered species.
There are two more potential rewards. Under Colorado law, water can't be sent to another state without having first been used for some beneficial purpose here. When the project takes water from the river, it places it in depressions, creating wetlands for wildlife; as the water flows back to the river, it also raises the water table, creating more wetlands and wildlife habitat. The state engineer's office, through division engineer Dick Stenzel, has taken the position that these wetlands satisfy the beneficial-purpose requirement.
But like almost anything dealing with water in Colorado, the DOW project is controversial. The technology involved in recharging groundwater is new, and not everyone believes it will work long-term. And if it does, critics point out that raising the groundwater level can ruin farmland near the river by making it too wet to work and increasing salinity. Still other water users, reluctant to let Nebraska have precious South Platte water for endangered species, of all things, may contend that creating wetlands is not a beneficial use. Somewhere down the line, all of these issues will no doubt wind up in water court.
In the meantime, Treadway is once again ahead of his time -- only in this instance, it's worked out to his benefit. About four years ago he was approached by Partners in Wildlife, a joint effort of the federal and state wildlife departments and the federal Natural Resources Conservation Service to create wetlands. The agencies wanted Treadway to take his river-bottom land out of agricultural production and turn it into wildlife habitat; they'd even pay him for the experiment and allow him to rent the area out to hunters and fishermen.
The river-bottom land was never much good, but Treadway was hesitant to take the deal. He said he might consider taking 40 percent of it out of production - but then the river flooded and wiped out his corn crop. "I said, 'Okay, how about 100 percent?'" he remembers, laughing, as he drives his truck north of Brush to his land.
Out here, where cattle herds were once pushed across the river, the land has been turned over to wild grasses. Steadway now uses his irrigation wells to flood small depressions he calls scrapes, which become weed-filled ponds for migratory waterfowl.
When a flood washed out the bridge east of his property, he offered to let the highway department dig a hole on his land for the gravel it needed to rebuild the bridge. Treadway filled that hole with water and five species of game fish. Treadway rents the land and the pond to a group from Denver, which comes out to hunt ducks, pheasants, turkeys and deer, and to fish for cutthroat trout and bass where he formerly grew corn and hay.
Treadway's agreement with Partners in Wildlife, since joined by Ducks Unlimited, runs for thirty years, and it's been more profitable than farming this land ever was. He could have signed up in perpetuity, but didn't want to stick his eighteen-year-old son with the responsibility of maintaining this land. "He's more interested in girls, beer and football right now," Treadway says, exiting his truck.
Eagles circle over the fields. Treadway points out the furrows his plow had made, now mostly overgrown or underwater. He laughs when a dozen ducks bolt out of a scrape.
On a clear day, Treadway can see the tip of Long's Peak far to the west, where some of the water that runs through the South Platte begins its trip. Today the river is strong and wide where it crosses his land. In another three-fourths of a mile, it will be drained dry again at the headgates of the Sterling ditch. "But three miles down, there'll be some water in it, a little more five miles down, and running real good in ten," he says. "That's the water coming back to the river."
When Treadway accepted the Partners in Wildlife proposal, some of his neighbors called him a "traitor to agriculture," he remembers. "I guess I kinda got converted into an environmentalist," he admits, as though it's a dirty secret. But then he laughs again. "Others tell me it's the smartest damn thing they ever heard of."
Treadway expects that many other farmers along the river will soon join in the project. "The conservationists tell me that a long time ago, the river used to flood and create wetlands as it receded," he says. "So in a way, except this is more managed, it's like I'm helping give the river back to the way it was.
"And you know, I feel kinda good about that."
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