Walter and Lucille Ireland created the Acres of Ireland subdivision in Howard, Colorado in the 1970's. They re-platted their ranch and allocated parcels, totaling 129 lots, into lots for development, lots for common areas, and lots for ponds and open space. The Irelands, along with their sons Gene and Darrell, also formed the Ireland Domestic Water Development Corporation, a separate entity from the land development company, to manage and administer water for the new development. The water historically used to irrigate the Ireland's ranch needed to be changed through order of the Water Court to use for domestic well pumping.
Water use in Colorado is subject to administration under the priority system, which recognizes that users who are 'first in time, are first in right' to use water. Irrigation and domestic water wells are both beneficial uses of water, and are administered under the priority system. A junior in time water right is not permitted to injure or diminish a senior in time appropriator's right. Water Courts in Colorado issue decrees regarding appropriation dates, uses of water, changes in uses of water, and changes in points of water diversion, as well as setting terms and conditions for plans for augmentation to prevent injury to senior water users. The Colorado State Engineer, through his Division Engineers, administers the allocation of water, delivery of water pursuant to water rights, and regulates uses throughout Colorado.
It is possible to change the use of a water right. The Irelands sought to change a portion of their historical ranch irrigation water to domestic in house well use for the subdivision. Water previously appropriated to one use may be changed to a new use via an application to the Water Court. The Water Court may approve the change in use as long as there is no injury to senior water users. One common method of insuring that senior water rights are not injured is the use of an augmentation plan.
Augmentation water is used to off-set out of priority diversions, to insure no senior water right holders are injured by a junior use. Via an augmentation plan, the Water Court makes sure that any new water use is no more consumptive than the historical use, or that any short falls are made up for or any depletions replaced to ensure senior water appropriators suffer no injury.
Before Fremont County approves a subdivision, the developer must show available water for the development either in phases or at full build out. The Irelands, through the Ireland Domestic Water Development Corporation, filed their application with the Division 2 Water Court in Pueblo, Colorado seeking the Court's approval for their plan for augmentation. The case was identified by Water Court, Division No. 2, as water case No. W-4447. The Irelands plan for augmentation application was drafted to address domestic water use at full build out of the subdivision.
To secure sufficient water supplies for the subdivision, the Irelands agreed to dry up some historically irrigated ranch acreage, and to divert augmentation water from Cherry Creek into storage in a pond at the top of Shamrock Lane. This stored water was to be used according to the Water Court's decree to ensure the delivery of water (stored under priority during the irrigation season) to off-set winter depletions due to domestic well pumping.
Notably, the irrigation water that the Irelands sought to change to domestic use was historically used during the April to October irrigation season. This meant that the additional use of water via the domestic in house wells during the months of November to March, when compared to the historical water use, needed to be made up (augmented) to insure no senior water users in Cherry Creek or the Arkansas River basin were injured. In other words, the stored water would augment Cherry Creek flows during the winter months, to insure no senior appropriators were injured by the out of priority (or out of historic chronological order) pumping of our domestic wells.
The Water Court approved the Ireland's plan for augmentation, issuing its decree in 1977. That decree required the Ireland Domestic Water Development Corporation to build and maintain the necessary water works infrastructure to ensure the operation of the augmentation plan according to the decree's terms and conditions. The State Engineer's Office was then responsible for oversight to ensure all well pumping depletions were off-set pursuant to the terms and conditions of the same augmentation plan decree. The plan for augmentation decree, as originally decreed, remains in force. Since 1977, no action was taken by the Irelands, nor by the State Engineer's Office, to implement the decreed plan for augmentation.
As a result, during the 2002 drought, senior calls for water on the Arkansas River triggered a search for out of priority junior depletions that could be curtailed until the senior rights were satisfied. Throughout the Arkansas River basin the State Engineer's personnel recognized that there were many plans for augmentation that were not functioning as decreed, and sought to enforce the terms and conditions imposed. Sometime in 2008, Division Engineer Steve Witte turned his attention to Acres of Ireland, and sought the assistance of the Ireland Domestic Water Development Corporation to implement the augmentation plan as decreed. Mr. Witte soon discovered that the Ireland Domestic Water Development Corporation was administratively dissolved by the Colorado Secretary of State in 2001, and that the last identified Trustee, Darrell Ireland, was reluctant to work with the State Engineer's Office to implement the decreed plan. Despite their attempts to negotiate a resolution to the problem, Darrell Ireland refused to cooperate with the State Engineer.
Without a developer or an alternative water management entity to rectify the winter depletion off-set problem, the State Engineer's Office turned its attention to the individual Acres of Ireland lot owners for institution of this 33 year old augmentation plan decree. The State Engineer's Office admitted its own fault and responsibility for failing to administer the plan all along, but also pointed out that this problem will no longer be ignored. Division Engineer Witte and his staff mailed yellow post cards to identified lot owners in 2009 seeking self-reporting on domestic water use, via totalizing flow meter well readings, from each lot and well owner in Acres of Ireland. This effort met with mixed results. In December 2009, Mr. Witte met with various owners at the Howard Fire Station to discuss the problem, and ask for assistance from the same owners to resolve the problem and bring to life the augmentation plan as decreed. Mr. Witte concluded the meeting by reiterating the dilemma and providing notice that continued omission would result in well curtailment.
II. The Problem
Acres of Ireland domestic wells were decreed for in house uses only, and each is required to have a totalizing flow meter installed to accurately measure water use by each home and well owner. Additionally, such in home domestic use is permissible only if it is augmented, via the methods and procedures set forth by the Water Court's augmentation decree in W-4447, to prevent injury to senior water users in the Arkansas River basin. At present, there are 92 in house domestic use only wells in Acres of Ireland. Without an operating augmentation plan, it is our in home domestic use of water that is out of priority, and thus in jeopardy.
Outdoor uses of water have been made available to subdivision residence through the purchase of "augmentation certificates" from the Upper Arkansas Water Conservancy District. Well owners with these augmentation certificates are permitted to use well water for outside irrigation use, and may have heard the term "augmented well" used in reference to their well. Property and well owners without such augmentation certificates are not permitted to use well water for outside use. Recently Colorado's Legislature passed a statute allowing captured rain water, for those without augmentation certificates, to be gathered and used outside, however this must be independent of the water pumped from a domestic well. Outdoor use of water via an approved augmentation certificate, or through rain water capture, is not the subject of the State Engineer's current scrutiny.
The State Engineer's Office is not allowed to permit out of priority junior well diversions to injure senior water rights. It is empowered by law to curtail such injurious junior appropriations to insure the doctrine of 'first in time, first in right' is maintained. Division Engineer Witte's position is that any use subject to an augmentation plan decree, which is being used in absence of an active augmentation plan, is de facto injurious and may thus be curtailed. At this juncture, that is the status of the Acres of Ireland domestic water well pumping. Until the augmentation plan is operational, or an alternative plan meeting the same depletion off-sets is in place, Acres of Ireland wells are subject to a curtailment order, and the cessation of well permit issuance.
While neither of these actions has been taken by the State Engineer, Mr. Witte has been clear that it is incumbent upon the Acres of Ireland well owners to resolve this issue. The Division Engineer's Office has been cooperative and tolerant of efforts thus far to make progress toward solving the problem, and Mr. Witte indicates that as long as such progress is being made the State Engineer will not issue a curtailment order. In an effort to facilitate the information gathering, negotiation and solution seeking process the Acres of Ireland Well Owners, LLC was formed in early March 2010. The current Board was elected to seek and obtain options, to forge consensus regarding a solution, and to move forward in a concerted effort to resolve this 33 year old dilemma.