Colorado's Water Scarcity May Finally Be Coming For Your Local Duck Pond

Jun 11, 2021
Originally published on June 14, 2021 8:59 am

Water supplies are so tight in the West that most states keep close watch over every creek, river, ditch and reservoir. A complex web of laws and rules is meant to ensure that all the water that falls within a state’s boundaries is put to use or sent downstream to meet the needs of others.

To prevent waste and avoid sparking an interstate legal battle, Colorado has started cracking down on what may seem like a drop in the proverbial bucket -- illegal ponds.

Martin Mendine recently found himself in the state’s crosshairs. His family ranch is a wide, grassy expanse near southern Colorado’s Spanish Peaks. A fork of the Purgatory River meanders through the land which supports about a hundred cattle, and herds of elk. Migratory sandhill cranes pass through each year.

“And in the summer you'll get lightning bugs right in here,” Mendine said, gesturing to a small pond near the property’s historic homestead.

It’s wet enough to support all this life in part because of a cascade of five small ponds, held in place by dams made of dirt. The ponds are more than 80 years old, Mendine said. They were built when his grandfather tended the ranch.

“So we've been running this water now for, you know, damn near (a) century and they're telling me I can't use it,” Mendine said.

He got a notice in the mail recently telling him the ponds have been identified as potentially illegal. It said the storage rights needed to create and sustain the ponds don’t exist. To be compliant, he either needs to drain them or come up with a state-approved plan to fill them from a different water source or replace any losses from evaporation.

“It came to about $10,000 to $15,000 a year per pond to keep them,” Mendine said. “I don't have that kind of scratch. I'm just trying to water some cattle up here.”

He doesn’t want people to think he’s telling a “woe is me” sort of story. But to him, it seems like a lot of noise over a few tiny ponds.

“It just doesn't seem like it would be even worth their time when there's, I'm sure, bigger fish to fry,” he said.

But this is exactly the fish the state has decided to fry, and according to some in the Colorado water community, it’s been a long time coming.

“Our basin has been over-appropriated for a long period of time,” said Bill Tyner, Colorado’s division engineer for the Arkansas River basin, where Mendine’s ranch is located. The Purgatory River is a tributary to the Arkansas, and runs across an arid stretch of southeastern Colorado.

“Our natural water supplies are, generally speaking, always less than the demand for water in the Arkansas basin,” Tyner said.

Using satellite imagery to build an inventory of human-made ponds in the basin, and then cross-referencing with water rights on the books, the state has identified about 10,000 illegal ponds just in the Arkansas basin, Tyner said. He likens it to a string of pearls. Each individual pearl isn’t that costly or consequential on its own. But when pulled together in a line, it’s highly valuable.

“The number of ponds was overwhelming to the point that we could not afford to not address the situation. We just had to take action,” Tyner said.

His office is now in the midst of a systematic review of all ponds in the Arkansas basin. Using the satellite data, water commissioners, the people who enforce water law on the ground, have been following up with pond owners, letting them know they’ve ended up on a list of potentially illegal ponds, and laying out their options to make them legal.

The ponds in question encompass everything from pools for livestock watering to decorative fountains in business parks to duck ponds scattered across the grounds of a mountainous mansion.

It’s not just the Arkansas basin that’s seeing increased enforcement. State officials have pursued illegal ponds in the upper reaches of the Colorado River basin as well.

The problem with ponds, Tyner said, is evaporation. Water in a shallow pond evaporates more than when it’s flowing through a narrow stream. The state views evaporated water as wasted water.

“Some of these bigger ponds can create some awfully big depletions and the cumulative effect of thousands of them produces a problem,” Tyner said.

The problem has only become more acute recently, as drought conditions have plagued much of the basin for the last couple decades, putting pressure on existing reservoirs and straining the state’s ability to meet downstream obligations to Kansas. The two states have a long history of contentious litigation over use of the river, something Tyner said is a motivating factor to rein in the illegal ponds. Interstate lawsuits over the Arkansas River have proven long and costly, he said.

“Everybody had to share in the pain of paying back problems with the (Arkansas River Compact),” Tyner said. “And that's a burden that we don't want to put on Colorado citizens and taxpayers if it can be prevented.”

When the state starts scrutinizing a pond, if the owner wants to try and keep it, their first call is likely to a water lawyer, like attorney Matt Machado of the Longmont, Colorado-based firm Lyons Gaddis.

“Some of the landowners that have ponds down there, they're in a tough spot,” Machado said.

Without money or access to new water supplies, a landowner’s options to make their ponds legal are limited. There are some exceptions for ponds used for erosion control or livestock watering, but they’re limited in scope. And because the Arkansas basin is one of the most over-appropriated in the state, there’s very little excess water to tap into.

“If you have a pond that doesn't have a decree in the Arkansas basin, in order to be able to keep the water in the pond and fill the pond, you need to find a source of water,” Machado said. That will require a costly augmentation plan, which might make sense financially for a large-scale agricultural operation, but be out of reach for most small- or medium-sized farms or ranches, he said.

A recent dispute over ponds went to the Colorado Supreme Court last year, where the state prevailed. The ponds in question aren’t allowed to be filled, and the owner was ordered to pay $92,000 in civil penalties, plus attorney’s fees. Machado’s takeaway from that ruling?

“Once the state finds an illegal pond and says you need to drain it, you better do it,” he said.

Martin Mendine understands that the little ponds on his ranch are part of a much bigger watershed.

“If you've got 100 ranchers up here and each one of them has four little ponds. Yeah. You have some evaporation. I get that,” he said.

But, he said, drying up the ponds will deprive his cattle of water. That will hurt the bottom line of the tenant rancher who looks after them. Without the ponds, the ranch’s viability is uncertain, Mendine said.

“I am more than willing to work. I'm malleable. I'll work with them and do whatever I can,” Mendine said. “But if you're going to take my lifeblood, I've got a problem with you.”

This story is part of ongoing coverage of water in the West, produced by KUNC in Colorado and supported by the Walton Family Foundation. KUNC is solely responsible for its editorial coverage.

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