In Colorado, Farmers and Cities Battle Over Water Rights

Originally published on May 29, 2016 1:37 am

The City of Thornton is one of many growing suburbs of Denver, Colo. On a day without much traffic, it's only a 20-minute commute into the state capitol, and its new homes with big yards make it an attractive bedroom community. Nearly 130,000 people live there, and the population is expected to keep booming.

All that big growth comes with a big need for water. In the 1980s, Thornton placed its hopes in the Two Forks Dam project, which would have provided the city with enough water well into the future. But when that project started to seem uncertain, Thornton started looking for another source.

"We essentially embarked on a plan to purchase a large quantity of water rights associated with irrigated agriculture in Larimer and Weld Counties," Water Resources Manager for the City of Thornton, Emily Hunt says.

They'd buy a bunch of property with senior water rights, then build a pipeline to get that water to their city.

They sent a buyer out, who approached farmers with what seemed like a great deal: sell their land and water rights for above market value now, and continue to lease the same land back and continue to farm.

Thornton's buyer ended up acquiring almost all of the farmland that surrounds the small rural town of Ault. And, he purchased on behalf of an anonymous client, so nobody in Ault knew the identity of their new landlord.

That town's mayor, Butch White, says the town was outraged when they found out that Thornton, an urban city, was behind the purchases. Some of that anger was because of property taxes — since Thornton is a municipality, it is exempt from paying taxes on all that land surrounding the community — taxes that used to support the local school and fire districts.

There was also a deeper reason for Ault's hard feelings: According to Colorado water law, once a water right is converted from agricultural to municipal use, that land is permanently dried out. Irrigation, and therefore agriculture, can never return to that property. And agriculture had supported the town of Ault for a century.

This process called "Buy and Dry" is the result of the West's Gold-Rush era water laws that follow a simple rule: first in right, first in use. That means people with longer links to a property, for example, a farmer whose family has been on a piece of land since pioneer days gets water priority over someone who hasn't been there as long.

Because all of Colorado's water comes from the Rocky Mountain snowpack, the water flowing in a river is already allocated to its downstream users, and there isn't enough to give to all the area's newcomers. With the population expected to double in the next 40 to 50 years, there is a lot of pressure on the state to find solutions that bring water to growing urban areas without drying up rural communities like Ault.

Ault still isn't feeling the full effects of a buy and dry. There was such opposition to the Thornton purchases that the whole deal was in water court for 12 years. Thornton got approval to divert its water shares from Ault, but that came with a lot of stipulations which make the conversion a slow process. And for its part, Thornton believes it has done a fair job of managing the situation. It pays Ault a voluntary payment in lieu of property taxes, and plants native grasses on the dried up farms to prevent dust storms.

Eventually, Thornton will build a pipeline to divert water from Ault to their city 60 miles away. Meantime, the farms around Ault will undergo a slow, and sometimes emotional change, as the community comes to terms with a new identity.

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We're going to spend some time now digging into an issue that touches us all, water. And we're going to focus on the West, where water can be scarce and is strictly allocated. For the growing metropolitan areas around Denver, that can mean not enough water for their residents unless cities buy it from farmers, sometimes many miles away. NPR's Liz Baker brings us that story from two towns in Colorado.

LIZ BAKER, BYLINE: The city of Thornton is just 20 minutes north of Denver, with a view of the Rockies, lots of new homes with big yards and wide roads for an easy commute. The population is booming - nearly 130,000 people - and it's expected to keep growing. But with all that growth comes a big problem, the need for water.

EMILY HUNT: There was a point in about the early to mid-80's that Thornton took a look at it and kind of thought, you know, this isn't looking too good.

BAKER: Emily Hunt is the water resources manager for the city of Thornton. Like many cities in the area, Thornton was hanging its future on a new reservoir project. But when that fell through, Hunt says, the city looked for water elsewhere.

HUNT: We essentially embarked on a plan to purchase a large quantity of the water rights associated with irrigated agriculture in Larimer and Weld counties.

BAKER: In the western United States, the rule is first in time, first in right. Basically, if you've been on the land since pioneer days, your right to water gets priority over someone who hasn't been around as long. So senior water rights are more reliable during times of scarcity, and that's what Thornton wanted. So it sent a buyer to rural Weld County near a town called Ault.

BUTCH WHITE: Buyer comes in, offers them more than fair market value for the land and also offers to let them continue farming it as long as they want, as long as they will pay a lease back.

BAKER: Butch White is the mayor of Ault. That's A-U-L-T.

WHITE: A unique little town. Get it?

BAKER: White's family has been here for five generations. He was a kid when the buyer came through the area purchasing farms on behalf of an anonymous client. At the time, White says, many farmers in the area were struggling with debt, so it seemed like a great deal.

WHITE: Little did they know that it was the city of Thornton with the intentions of drying up the farms.

BAKER: Why does that matter? Because Thornton is a municipality, so the city does not pay property taxes to Ault on all that land. It does make voluntary payments to Ault, but White thinks Thornton should be paying more. If another farmer had bought the land, for instance, the property taxes would help the school district. And there's another reason, says Mayor White.

WHITE: Well, the problem is, is once the water is sold, it's gone.

BAKER: And with it goes the agricultural industry that has supported Ault for a century. Ault actually isn't unique in that regard. In fact, municipalities have been purchasing water rights for so long that the process has a catchy name, buy and dry.

WHITE: Buy and dry implies that you're basically selling out, and it's being changed for future use. And it'll never come back to agriculture.

BAKER: That's John Stulp, who advises Colorado's governor on water issues.

JOHN STULP: This is a nice spot.

BAKER: We went down to the bank of the South Platte River, which flows through downtown Denver.

STULP: This is what we call an over-appropriated river, the South Platte. That means that we typically have more demand for the water than there is water available.

BAKER: And that demand will only increase.

STULP: In the next 40 to 50 years, we expect Colorado's population to go from about 5.3 today to around 10 million people.

BAKER: Stulp hopes that new policies like water leasing will give rural communities more options. But with as much as 80 percent of Colorado water tied up in agriculture, buy and dry is an obvious place to get it.

WHITE: This is where everything gets dry that Thorton owns.

BAKER: Back in Ault, Mayor White drives me around in his pickup and points out the changes to the area.

WHITE: I mean, there's corn coming up here, and that's weeds there, a big waste.

BAKER: Right now a third of all farms have been dried up in anticipation of that water eventually going on to Thornton.

You're a mayor of this town. On some level, can you understand what Thornton is going through, right? Like, they're in charge of a town and they need water.

WHITE: I do. I see their point. There's other places to get water.

BAKER: Ault still isn't a feeling the full effects of the buy and dry. Eventually, Thornton will build a 60-mile pipeline that will divert all this agricultural water away from Ault. For its part, Thornton believes it's doing a fair job managing the situation. That city's water manager, Emily Hunt, recognizes some of the tension is over more than just water.

HUNT: Change is hard. It's hard to see. You know, let's continue to just kind of be open and allow things to evolve kind of naturally, and it might actually end up being a better solution than we're trying to force.

BAKER: For now, that means the slow conversion of farms into empty fields and a dry outlook for the future. Liz Baker, NPR News on the Colorado Front Range. Transcript provided by NPR, Copyright NPR.