Colorado Legislature Contemplates Fire Suppression Ponds

Photo credit: BTL Liners

By Alida Soileau

“Fire season's [now] year round,” according to the incident commander for the nearly 200-acre grass fire that arose in southern Boulder, Colorado in late March 2022. Dubbed the “NCAR fire” after its location near the National Center for Atmospheric Research, this blaze thankfully proved much less destructive than the Marshall fire that struck December 30, 2021, between Boulder and Denver, destroying over 1,000 homes.

An ever-looming threat, it is now more important than ever that fire-prone areas be prepared. To bolster fire preparedness, SB22-114 “concerning fire suppression ponds” was introduced in the Colorado Senate on February 3, 2022. The bill explicitly acknowledges the severity of Colorado’s wildfire problem, calling it a “crisis,” and names the 2021 Marshall fire as the most destructive fire in the state’s history. This bill, which aims to preserve certain existing ponds, is timely because the western U.S. is experiencing a historic drought. Soil moisture has reached all-time lows, and in some areas, the current drought is the worst they’ve seen in roughly 1,200 years. Needless to say, access to water, while always critical, is now, particularly so. Protecting specific ponds would help ensure that firefighters can access water when it’s most important.

A fire suppression pond is a body of water that “provide[s] an essential water source for firefighters in the case a blaze erupts.” These ponds play an especially important role in rural areas that may not have municipal water systems and related infrastructure. Without the infrastructure, we’re familiar with in metro areas (e.g., fire hydrants), first responders sometimes use ponds to fill tanks and extinguish fires. Through SB22-114, the Senate aims to “preserve ponds that are deemed critical for firefighting purposes.”

Identifying, classifying, and preserving some ponds as fire suppression ponds is important because many ponds exist illegally in Colorado, meaning that they could be drained. While a pond might have existed for decades, the owner of the property surrounding the pond may not own the water itself. When a landowner does not own the water in his pond, the pond is considered “illegal,” and the government can force the landowner to effectively give up the water by getting rid of the pond. If a fire should break out, and the pond has been drained, firefighters may not have access to the water they need.

Colorado’s water right system, a system of prior appropriation, says that whoever first takes water from a stream, aquifer, etc. and puts it to beneficial use has the right to use that water. This first beneficial user becomes the “senior water right holder.” This is significant because the senior water right must be satisfied before other right-holders, who put the water to a beneficial use after the senior right-holder, get any water. 

In the hierarchy of water right-holders, people who do not have any legal water right – but have a pond on their property – are at the very bottom. This means that all other downstream senior water right-holders are entitled to their shares of water first, and only then –  if there’s anything left – may those without a legal water right retain some water, such as the water in a pond. This is a pressing issue now because, as water is scarce in a drought, downstream calls on the Colorado River and other water bodies are happening more frequently. (A “call” is “[a] demand that upstream water rights with junior priority dates cease diverting, so that water may be delivered to a downstream senior water right holder.”) On the ground, this means that some property-owners with ponds are receiving cease-and-desist letters from the Colorado Division of Water Resources, instructing them to stop filling their ponds because of outstanding calls.

However, satisfying the legal rights associated with water calls may ultimately lead to the destruction of ponds that could be integral to fire-fighting efforts. SB22-114 addresses this problem. The bill allows a county board of commissioners to seek fire suppression pond designation from the state engineer, thereby ensuring the pond – even if it technically exists illegally – can stay. Once designated as a fire suppression pond, a pond and its water are effectively removed from Colorado’s water right system. Specifically, the pond is “not considered a water right,” “[does] not have a priority for the purpose of determining water rights,” and “[m]ay not be adjudicated as a water right.” Further, after a pond receives fire suppression designation, a presumption that there is “no material injury to the vested water rights of others” (those downstream with greater priority) arises. A senior holder of a water right may rebut this presumption by showing that material injury has occurred or will occur.

Before a county board of commissioners may seek fire suppression designation for a pond though, the board must identify ponds in areas where a fire’s outbreak could result in a “major wildfire disaster” and perform a “needs assessment” of each such pond. In addition, when an identified pond is on private property, the board must obtain the “voluntary written approval of each [property] owner” to seek the pond’s designation as a fire suppression pond.

A fire suppression pond designation lasts twenty years. Thus, if a pond receives this designation, a landowner may retain the pond on their property for at least 20 additional years, despite not having any legal right to the water therein. At the end of the twenty-year period, the board of commissioners performs a “needs assessment” of the pond, and if it passes, the state engineer “shall redesignate the pond.”

By designating some ponds as fire suppression ponds, regardless of whether there’s an outstanding water call, SB22-114 would help ensure rural areas have the water resources they need to put out fires. Preserving ponds in areas where a fire could lead to a major disaster is now more important than ever, as the West learns to live with the realities of drought.