Whiskey is for Drinking, Water is for Fighting Over

Some things never change, and great societies throughout history all seem to inevitably find themselves fiercely disputing over water rights. One theory of property rights described by Executive Director of the Property and Environment Research Center, Terry Anderson, in the report “Institutional Underpinnings of the Water Crisis” observes that, in the event that the value of a natural resource rises or scarcity of that resource increases, property rights will be more strictly defined and enforced.
One example of this phenomenon is seen in the emergence of a complex and fluctuating water rights code in Colorado that is exceedingly difficult to understand. Briefly, Colorado was one of the first states to implement a water rights code based on the “prior appropriation – first in time, first in right doctrine.” In this system, water rights disputes are resolved by determining proof of “beneficial use” of a water resource. The first person to take a quantity of water and put it to beneficial use has a higher priority of right than a subsequent user.

Prior appropriation doctrine, a significantly more complex system of rules for litigation, undermined the riparian doctrine of antiquity which favored the water rights of individuals whose property was located near or along the river source. In this system all landowners whose property is adjoining to a body of water have the right to make reasonable use of it

In the study, “The Development of Water Rights in Colorado: An Empirical Analysis,” Penn and Zeitz link economic incentives with the rise in defining and enforcing Colorado water laws through the historical narrative of the evolution of Colorado water rights. This narrative asserts that early water rights litigation in Colorado can be understood to have developed across three timelines.

First, the 1870s through the early 1890s can be characterized by a strengthening of prior appropriation doctrine. Second, litigation of the late 1890s through the first decade of the 20th century revolved around irrigation and distribution disputes. Finally, beginning around 1905, water storage, reservoir management and water rights transfers grew in salience.

Penn and Zietz further observe, “Many of the developments in water rights in the rest of the Western United States derive in one way or another from the Colorado system.” And since Colorado is the originating point of the South Platte, the Rio Grande, the Colorado and the Arkansas rivers, the evolution of Colorado’s water rights and responsible resource management remain intimately entangled with many individuals’ potential for prosperity in Colorado and in states down river.

The Bessemer Ditch, built during the early days of prior appropriation, is Pueblo County’s largest ditch and also the second largest ditch in Colorado. According to the report “Forged Together in the Bessemer Neighborhood,” Colorado Coal & Iron president A.H. Danforth, along with W.L. Graham and James B. Orman, incorporated the Bessemer Ditch Company on May 31, 1888. The Board opened bids for the construction of the Ditch at a special meeting held June 19, 1889.

Bessemer Ditch has about 20,000 acres under irrigation, most of which lies east of Pueblo. The head-gate is located at the Pueblo Dam and from there the ditch runs through the city of Pueblo, across the St. Charles Mesa and empties into the Huerfano River. According to the Bessemer neighborhood report, “The federal government paid $1.5 million to line half of the Bessemer Ditch with gunite (a concrete mix applied by spraying at high pressure) in 1982, and the same amount to line the remainder of the Ditch in 1989.”

The lining project was undertaken after repeated complaints by citizens of water damage to their homes caused by the ditch after the construction of the new head-gate at the Pueblo Dam during the 1970’s. This new head-gate, engineered as part of the Fryingpan-Arkansas Project, halted the natural flow of sediment that had previously acted as a natural liner for the ditch and protected home owners from water damage and farmers from the loss of water flow.

Along with being a major source of water for irrigation, subdivisions of the Bessemer Ditch water shares are also converted for domestic use, annually. So the human importance of the Bessemer ditch transcends the significance of the ditch as an agricultural necessity or development opportunity and enters into the domain of collective responsibility to conserve and ensure future access to quality water from Colorado’s riparian ecosystems.

Some things never change and the Bessemer Ditch and Pueblo County remain hotspots in the fight for water rights and resource management precedence in not only the state, but also the country. Thus, it is important – even for those of us who are new to the vocabulary and issues of water rights in Colorado – to dive in, get educated and involved in the conversation. Pueblo has a chance to do the right thing with regard to the management of water in the Bessemer Ditch and also the responsibility to serve as a positive model for well-organized resource management.

By Matthew Ramirez

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