Water conservation easements: an idea whose time has come | Columns

It’s a heartening thought for people with good ideas that no one else seems to understand. We wonder if the time for good ideas will soon come.

When I led the Colorado Department of Natural Resources in 2003, we helped convince the Legislature to update conservation easement rules to allow easements not just on land, but on water as well. A decade later, no one had yet tried the novel idea, although Colorado was the first state to legally allow it. In 2013, I wrote: “Several years later, the idea is still considered experimental, and few people have tried to buy or sell such an easement—yet. It is an idea whose time will surely come…”

I repeated the hope in one of my first columns in the Daily Sentinel in 2016, because I thought then, as now, that this idea is a potentially powerful tool to save farms, ranches and open spaces from the thirst of growing cities. The concept is simple. Conservation easements are already common to save land from future development. Landowners sell their “development rights” to a land trust or local government and their deed is then restricted against the ability to subdivide, build homes or change the essential character of farms and ranches. For the public, valuable open space is preserved. For the landowner, the easement can infuse the operation with what it needs most — cash — without having to sell to developers. So why couldn’t the same tool preserve water rights on farms and ranches?

Water rights are often worth at least as much as the land, sometimes much more. It’s hard to blame farmers for selling to a growing city for more money than they could ever hope to make farming. Yet despite the desperate need for water in many cities, most residents understand that draining farmland to get that water is a long-term mistake. So if society wants farmers to hold out and refuse to sell their water to cities, why shouldn’t we pay them for that decision, just as we often pay them to preserve the land itself?

Hope is the last thing to hope for, and at last the tool has been used successfully in Colorado, not to preserve surface water rights, but groundwater rights (perhaps even more creatively). The nation’s first groundwater conservation easement was negotiated on an 1,800-acre farm in the San Luis Valley a couple of years ago, and some of us were wondering, “Has the idea’s time finally come?” Unfortunately, few took notice, but word is finally getting out about this imaginative and creative approach to conserving water without killing agriculture. This is due in large part to the research and excellent writing of Paul Schwennesen, whose article, “Easy Does It,” appeared in the quarterly “PERC Reports” published by the Montana Property and Environmental Research Center. Schwennesen is an Arizona rancher and director of the Agrarian Freedom Project who is a regular contributor to PERC, where he has been a fellow since 2020. He is known for his free-market approach to environmental management, and his work has brought considerable attention to the potential of water conservation easements.

PERC’s recent article recounts some of the West’s “water wars” and concludes, “There may be another way: a cooperative way defined by voluntary exchanges.” It recounts “the extraordinary degree to which free market transactions operating on cooperative principles can generate environmental surpluses rather than simply more fighting over relatively scarce resources.” It is absolutely correct in writing that “voluntary water conservation efforts like these can do much more to conserve water with much less effort than approaches that rely on regulation or mandates.”

The authorization of water conservation easements has tangibly turned water rights into valuable, marketable property. Schwennesen puts it succinctly: “True ownership must be definable, defensible, and transferable.” These easements add that third essential element, making it possible for landowners to remain on their land and for rural communities to remain vibrant and prosperous.

Now that water conservation easements have proven their worth, and especially now that people are finally hearing about them — not just in Colorado but across the West — I’m confident that other states will also update their laws to encourage this creative approach. It’s an idea whose time has finally come.

Greg Walcher is president of the Natural Resources Group and author of “Smoking Them Out: The Theft of the Environment and How to Take it Back.” He is a native of the Western Slope. Email him at [email protected].