Questions and Answers about Ditch Maintenance
Q: What is the goal of ditch maintenance?
A: The goal of ditch maintenance is to sustain the flowline and structures of a ditch to adequately deliver water to company shareholders as safely and efficiently as possible. This includes maintaining the capacity of the ditch, structural integrity of the ditch and access to the ditch for operations and on-going maintenance activities.
Q: Does the ditch company have legal access to the ditch in my backyard to perform work?
A: Yes, by state law, the ditch company can access the ditch through private property to complete maintenance and water delivery activities.
Q: What should I expect to see happen during maintenance activities?
A: Typical maintenance activities include but are not limited to debris removal, mowing, vegetation and tree removal, burning and equipment work. Often, ditch companies leave vegetation and debris on the ditch easements. Property owners and neighbors to the ditch can often work with the ditch representatives, and pay to remove the material, or deposit it in a specific way or location.
Q: Does the ditch maintain its conveyance channels, structures, and easement for aesthetics or fuel mitigation purposes?
A: No, the ditch company only maintains the ditch and structures for the sole purpose of conveying water, however if a landowner has concerns about aesthetics and fuels mitigation, they may be able to work with the ditch company to make such improvements but at their own expense.
Q: Can I help maintain the ditch on my property or remove trees from the ditch easement?
A: If a private property owner wants to complete maintenance of their property that impacts the ditch easement and includes removal of vegetation and improves access to the ditch, this is typically well supported by the ditch company, but the landowner should talk with ditch company representatives before working on the easement. The reason for this is to make sure the work done does not compromise the structural integrity of the ditch.
Q: What are some of the major challenges to performing ditch maintenance?
A: The biggest challenge to performing work for most ditch companies is encroachment on the easement. Fences and structures on the ditch easement make it challenging or impossible to access and maintain the ditch.
Also, Ditch Companies operations are all supported from user assessments. There are numerous linear miles to maintain and ditches include many structures, so due to the sheer footprint, a ditch is expensive and challenging to maintain.
Q: Do ditch companies ever need permission to perform work?
A: Ditch companies do not require permission for normal maintenance but if they are performing a major reconstruction project that requires new staging areas or access beyond the typical easement, especially in public areas, a temporary access agreement is often required to protect the ditch company and the public.
This note summarizes the ditch easement rights of a Ditch Company (the "Ditch Company"). The Ditch Company has the right to access the ditch and perform all such operations, maintenance, and repairs that it reasonably believes are appropriate or necessary for the efficient use of its ditch. The following is a very abbreviated summary of the applicable law.
In Colorado, the owner of a ditch owns an easement across the entire length of the ditch. Ditch easement rights are set forth both under Colorado common law and by statute. In instances where a ditch has been in existence for a considerable length of time, it is presumed that the owner of the land upon which it lies consented to the ditch's original construction. Leonard v. Buerger, 276 P.2d 986, 989 (Colo. 1954).
An easement for an existing ditch is established by adverse possession, by estoppel, by prior use, or as an irrevocable license. See In re Tonka, 154 P.3d 397, 404 (Colo. 2007). "Once the ditch has been constructed and is operating, consent may not be withdrawn, the right of maintenance may not be denied, and the owner of the ditch has a title equivalent to one acquired by grant." Hitti v. Montezuma Valley Irr. Co., 599 P.2d 918,920 (Colo. App. 1976). Section 37-86-102 of the Colorado Revised Statutes also sets forth that the owner of a water right shall be entitled to a right-of-way through the lands that lie between the point of diversion and point of use for the purpose of transporting water for beneficial use.
Ditch easements are considered the "dominant estate," and the owner of land over which the ditch crosses is considered the burdened or subservient estate. Roaring Fork Club v. St. Jude's Co., 36 P.3d 1229, 1232 (Colo. 2001). Under Colorado law, the dominant estate (the easement owner) may do whatever is reasonably necessary to permit full use and enjoyment of the easement. Osborn & Caywood Ditch Co. v. Green, 673 P.2d 380, 383 (Colo. App. 1983). This includes the rights of ingress and egress to inspect the ditch and for maintenance, operation, and repair of the ditch. See id.; In re Tonka, 154 P.3d at 404. The rights of a ditch easement owner are also further defined in the Colorado Revised Statutes as follows:
[A] ditch right-of-way includes the right to construct, operate, clean, maintain, repair, and replace the ditch and appurtenant structures, to improve the efficiency of the ditch, including by lining or piping the ditch, and to enter onto the burdened property for such purposes, with access to the ditch and ditch banks, as the exigencies then existing may require, for all reasonable and necessary purposes related to the ditch.
C.R.S. § 37-86-103 (emphasis added). The width of the ditch easement on either side of the ditch is determined by what is necessary to access, maintain, and operate the ditch. See Arthur Irrigation Co. v. Strayer, 115 P. 724. 725 (Colo. 1911). Not only does the Ditch Company have the rights described above, it is required by law to maintain and repair its ditch. C.R.S. §§ 37-86-107, 119.