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<br />Discussion <br /> <br />In a sense, water rights can be divided into two groups B rights that have been through a <br />water change case and those that have not. Tributary rights that have been through the court <br />proceedings to change the point of use, point of diversion and decreed uses are readily available <br />for sale or lease to a municipality. Rights that are operating under the original decree, no matter <br />how senior, are not available for use other than on the acreage described in the decree. In the <br />case of mutual ditch companies the use may include all the lands under the ditch, which only <br />expands the market incrementally. Absent a water court change case, where conditions precedent <br />to a finding of non-injury are negotiated, the water has a limited market potential. <br /> <br />Although often creative, efforts to side-step the judicial process have met with little long <br />term success. The Arkansas River Water Bank applies to stored water only, with abundant <br />administrative procedures to assure non-injury. Recent court cases have placed the authority of <br />the State Engineer to administratively allow a substitute water supply under greater scrutiny. Yet <br />the cost and time to prosecute a water court case can be daunting. <br /> <br />Rather than pursue this effort piecemeal, what if a regional approach were taken? All the <br />water along a reach might be taken through the water court simultaneously. The purpose would <br />be to adjudicate a change of use, point of use, point of diversion and resultant impacts from a <br />basin wide perspective. At the same time, land that was no longer productive could be culled <br />and dried up without necessarily diminishing the total agricultural productivity of the region. <br />Land that is not currently in production, under a decreed augmentation plan, could lease or <br />purchase the newly available water. <br /> <br />Modem technology would help to offset the physical challenges caused by dry up or <br />reduced flow in the canals. Liners, drip inigation, off channel storage and timed releases from <br />reservoirs could all contribute to keeping the river Awhole.@ At the same time, owners of water <br />rights that wanted to take them out of agriculture could have that option, either by lease or sale. <br />If done properly, junior water rights might even begin to have more frequent diversions. <br /> <br />In October, 1996 the Colorado Water Resources Research Institute published a report on <br />Irrigation Water Conservation. The Report states that 440,200 acres of land are under inigation <br />in the Arkansas River Basin. At 1.5 acre-feet of consumptive use per acre, if ten percent (10%) <br />of least productive land was fallowed, nearly 66,000 af of water would become available. If that <br />water were then drought leased to municipal providers, and used for inigation of new land in <br />most years, one could imagine that economic productivity would actually increase. In exchange <br />for a drought supply, the municipalities might very well fund the cost of technology to mitigate <br />the operational impacts to the ditches. <br /> <br />Conclusion <br /> <br />The rigor of a water court case, while daunting, offers the clearest path to certainty for <br />inigation water rights seeking the market. The cost and complexity could be significantly <br />reduced if approached on a ditch wide or better still, a basin wide basis. The overall impact to <br />