Will irrigation ditches be covered under the Clean Water Act?

Conversations about water currently stand to effect producers who irrigate using ditch water after a rule reversal regarding WOTUS.
Photo by Marc Arnusch

Doug Kemper, executive director of the Colorado Water Congress, said major discussions surrounding water are taking place. Specific to Colorado, a rule regarding the Waters of the United States has been repealed, leaving the future of irrigation ditches uncertain.

The WOTUS rule dates back to the 1972 Clean Water Act, an act that regulates any activities in waterways including in a stream or any action that alters the stream bed or banks. The question, he said, is in defining small waters and understanding which types of streams are covered. Central to that, he said, is the definition of a wetland. In 2015, the Obama administration authored a rule, later repealed by the Trump administration. Now, the question is what the rule will be replaced with. Simplicity is not at the center of the issue, he said, as the original rule was 75 pages and the new rule is nearly 300.

“The key thing for the agricultural community is related to whether or not agricultural irrigation ditches are covered under the Clean Water Act and whether they are going to be regulated by the federal government,” Kemper said.

The intent of the new rule, he said, is to help provide clarity. Hearings are scheduled for January with a 60-day comment period to follow. Kemper said this opens a new chapter of discussion and potential litigation.

“We’ll be talking about this for a while,” he said.

Colorado is one of seven states connected to the Colorado River Compact, a 1922 agreement that dictates water usage by the states. Kemper said lakes Powell and Mead have reached critically low levels, leaving the states to internally manage water to reduce risk. The process is drought contingency planning and is meant to reduce the risk of a Compact Call, a forced reduction in diversions on a state by state basis.

Kemper said the groups are all meeting this week as the Colorado River Water Users Association to discuss each state’s actions to reduce risk.

“The outcome of these negotiations is one of the top things in the last 100 years,” he said. “It’s a big deal.”

A decision will have to be made in the coming month or Kemper said the federal government will have to step in.

The Forest Health Alliance is another group engaged in important discussions in the months following major wildfires across the West. A number of water user groups, environmental, and commercial groups, including the Colorado Water Congress, are a party to the conversation surrounding the acceleration of the pace of forest management and restoration.

Kemper said they’re excited to begin the conversation and work, but it is another issue that will still be discussed by younger generations in coming years. The most controversial issues surround mitigation in terms of forest thinning and prescribed burns. ❖

— Gabel is an assistant editor and reporter for The Fence Post. She can be reached at or (970) 392-4410.