Water rights and earth works.

Greetings all,

I was reading in some of the "Paul's Farm Forums" last night and read a comment Sepp Holzer had apparently said regarding not liking Montana because of the water rights laws. This was the first I have heard of that, and while I'm sure I have misconstrued some part of the comment i think I have the gist of it.

It got me thinking about some of the various earth works and water retention methods of permaculture and wondering which of those would run afoul of water rights. I did a brief forums search and didn't find much dedicated to this, if there is please direct me that way. If not, any thoughts? I live in a happy green place so I have no personal need to know these things, just curious.

I seem to recall from my southwestern days that impoundments are the big thing you cannot build without rights? Would that include swales? Hugelculture would seem fine, but what is you ran them on contour and slowed water flow? What about ephemeral pools or depressions to slow water then let it work into the ground slowly?

Just curious.

Thanks

J

Each of the western states has its own set of laws regulating water rights and use.
The general idea is that all water belongs to the people.
The states control it in such a way that no individual may take/use/hoard water that belongs to others.

The rain that falls on your roof does not 'belong' to you.
Nor does the water in that well you just paid $10,000 to drill.
You can be fined for using too much water from your well.

Some states are quite militant in their regulations (Utah & Colorado for example).
Some are less so. (WA actually encourages rain water catchment, and grey water use.)

Most cases where people are prosecuted or heavily fined are cases where they have blatantly violated the spirit of the law.
If your reasonable use of water is not depriving those who live down hill/stream of you, you are unlikely to ever have issues.

Keyline plowing and adding organic matter to your soil are great ways to increase the water in your soils without running afoul of the laws. Large, water storing swales, on the other hand could be interpreted as 'stealing' somebody else's water.

Numerous, smaller swales might be easier to get away with - they don't look like massive earthworks.
"No. Those are furrows where I plan to plant my potatoes next season...gotta dig 'em while the soil is dry."

For the most part, only the greedy get punished. And they are the ones the laws were made for. There was a time when greedy land speculators would dam up creeks/streams in an attempt to drive downstream homesteaders from their lands, so they could take over the rich valley lands.

Geoff Lawton also mentions, in his latest video, that you need to build roads and trails on you property ,to get here and there. If you build them on contour and they happen to catch a little water...

Jay Hayes wrote: . . .

I was reading in some of the "Paul's Farm Forums" last night and read a comment Sepp Holzer had apparently said regarding not liking Montana because of the water rights laws. . . .

I saw that reference too, but there isn't any real detail to it - just a little tease. Would anyone be able or willing to elaborate as to what occurred or what Sepp Holzer's experiences or opinions about Montana's water rights might be?

In my own research as to rainwater harvesting in Montana, I have been told by the fine folks at DNRC (on more than one occasion - once in a public meeting) that Montana, unlike Colorado, does allow rainwater catchment for domestic use - not to exceed 1/10 acre foot of water per year or approximately 32,000 gallons! I was also told that in most other cases (except when it doesn't), Montana water rights law tracks Colorado law.

At least for the Montana folks, this topic of discussion is important and instructive. It seems like Colorado does allow for some infiltration on property to occur - leaky check dams perhaps. Maybe some Colorado folks could provide some guidance here.

I would like to know what I can and can't do! Most times it's easier to ask for forgiveness than permission, but I am also not interested in serious civil or criminal penalties.

Last thoughts are that if Holzerian earthworks are indeed prohibited, then perhaps some of us need to approach, educate and lobby the DNRC (and ultimately the Legislature) about developing a "Permaculture Exemption" in Montana water rights law.

Thanks for the insights John. It makes sense that each state has its own approach, I'd never thought of that.

I like everyone's points about doing some small scale improvements and not really rocking the boat to much. I know how much Paul likes his Hugelkulture. I wonder if that has any roots in the whole compliance with water rights? It does seem like an awfully clever way to store extra water on sight, but not as surface water. Having seen the pics and books of Sepp's farm I can see why he would be none to pleased about not being able to build ponds.

I would guess a permaculture exemption would pit permies against traditional ag...and I can't imagine that would be much of a fight at this point. I can only imagine the water rights are going to get more and more restrictive with increased population and commodity prices and no increase of resource in sight.

Thanks for all the thoughts.

J

To complicate matters, often a farmer who has water rights decides he wants to plant a more profitable crop. However, the new crop requires much more water than rains provide. He uses every last drop that his rights allow, but still needs more. So, he just takes it. He is trying to raise a crop in a region unsuitable for that crop.

As more and more farmers do this irresponsible farming, those down stream cannot get enough water for plants that are suitable for the region.

Currently, the state of Texas is suing Colorado. The claim is that Colorado's usage of water exceeds their treaty with Texas, thereby reducing the amount of water entering Texas via the Rio Grande.

I have lived through a war fought for water. I believe that in the future, there will be many wars for water.

In practical functional terms, in all but the most arid regions, is not water retention more of a _one time_ water delay than a water loss for all those "downstream"? IOW once the pond fills and the water continues to drain downstream as surface or subsurface water. And this delay would might normally be one year or at most two

If there is break-over point where retention become "permanent" what is that point in terms of yearly rain fall? Maybe yearly rainfall vs. retention capacity vs. evaporation rate?

Just seems to me that mostly water keeps moving, even when it's "retained".

Rufus

i am running into this issue now here in Colorado.

i own some irrigation water rights, but that water is not reliable as the snow pack on pikes peak has been low for a few years. (2 irrigations in 2011, 1 irrigation in 2012... we have heard of 4-5 irrigation years.)
I would like to create some earthworks to help capture any rain that does fall, but also catch the irrigation water when it does come. i'm beginning to view irrigation as a freak rain event, instead of scheduled ditch water.
my goal is to figure out some earthworks that will allow irrigation/rain fall to flow all the way through the property. I cant build at ponds because of water rights issues but there has to be a way to slow the water down enough to let it soak in, but still allow it to flow downstream in wet years.

my neighbor mentioned that someone was given him some trouble for putting small berms on the low side of his property, in an attempt to stop water from running off.

i will be making a new topic specifically about earthworks and flood irrigation soon.
i am looking into keyline/subsoil plowing, swales (just not exactly sure how to keep the water flowing past them) and slightly off contour berms as well as french drain type swales (from the rainwater harvesting book)

I'm not familiar w/"irrigation" procedures. It sounds like there are rules and protocols in place about the water being released to you. What happens during an irrigation event and what are the rules about irrigation run-off? Does there have to be any?

Rufus

Rufus Laggren wrote:I'm not familiar w/"irrigation" procedures. It sounds like there are rules and protocols in place about the water being released to you. What happens during an irrigation event and what are the rules about irrigation run-off? Does there have to be any?

Rufus

i can only speak for Colorado.

our irrigation water is delivered via ditch/underground pipe to a waterbox (cinderblock box ~ with various gates) on the uphill portion of our property (gravity fed from the reservoir). it comes to us via an 8in underground pipe.
once in the water box, a valve directing water to our property is opened, and that starts our round of irrigation. the water is sent out our valve for ~36 hours, but is in the box for ~96 hours, as there are others serviced by the box.
our water is flooded out via 8 in gated irrigation pipe (picture for reference) laid on the uppermost portion of the property. the gates are adjustable.
Once the water is flooding onto your property, you can do whatever you want with it as along as it continues to flow downhill (ie you cannot damn up the water). the caveat is, once water starts to flow off your property (tail water), the irrigation company is supposed to shut your water off.

hopefully this helps.
i find i have a hard time explaining irrigation to folks not familiar with the west.

Kelly

Thanks for the info. That sounds like an amazing dance! So the "irrigation company" controls the master volve to your property at the "water box"; it can turn it on partially or fully but usually shuts it off after 36 hours OR (supposedly) when water starts to flow off your property. Presumeably they notify you ahead when you're going to get water.

The pipe to your propety has several "gates" which you can open partially or fully to control and direct flow onto your property. Probably to try to get the most water before it begins to flow off your land in and obvious way and thus triggers shut-off at the box.

It sounds like those rules will control your water usage the same way class rules control the design of racing sailboats. Ie. from a purely common sense point of view the result might look very strange. In the 70's under the IOR rules some class boats were designed to take advantage of loopholes and squeeze by restrictions in the rules rather than to be a boat that just sails the best - they ended up with very stranagely bulging hulls that made no sense at all until you factored in the rules. It sounds like you may be designing your planting to live with the rules rather than just use good common sense elevation and farming principles.

At a guess that would mean leading the water a merry and slowww wander around your place in as deep a set of rows as you might get away with...

Again, thanks for the reply. Most educational.


Rufus

Wyoming the water can be reused as many times as you want crossing the property provided it is doing it all under gravity and that you own water rights for all the acres you are irrigating.  The person/property receiving water is responsible for it back to the nearest natural water course or to the point of delivery for someone who has filed on the waste water.  As for small impoundments I don't know.  True pond anything up to 2 acre feet is legal without a permit.  Over that and they must be permitted.  A pond/reservoir may be filled once per year.  Fill it and drain it and it is supposed to stay empty for the rest of the year.   All water must be used for beneficial agricultural use if that is how it is permitted.   Storing water off a roof is officially blocked by the western states water compact but is not enforced.  Shallow low volume wells don't require a permit but all deep wells require a permit.  The loose restrictions on shallow low volume wells provides a legal path around the compact for water off roofs.  If it goes into the ground and into a drainage pipe it becomes a shallow well.  Water rights are tied to the ground.  You can't have more acres of water right than you have ground to back it.  

Water is handed out by priority date.  If water gets short it shuts off in stair steps by the priority date of when that water was filed on.  So all users in the oldest stair step have to have their full allotment before then next step gets anything.  When water is plentiful it is legal to pull up to twice your allotment.  Under regulation each step must have its full allotment  before the next step gets any.  So the newest rights get shut off first and the territorial rights nearly always have some water.  Priority date matters.  The exceptions is some irrigation districts.  There everyone pools their water as a condition of membership and that water is divided as evenly as possible among the members with no priority dates.  Most areas in WY would run short of water late season except for stored water.  Big water projects; people, irrigation companies and districts, have bought into.  The shares in the stored water are purchased at the time of construction.  These stored waters can be used in any form and can be called for at any point in the year and they are not tied to specific land.  They can't be kept from year to year.  So if you had X acre feet this year and didn't use any then you lose it   Everything resets every year.