SOOOOOOOO, YOU WANT TO BUILD A FISH POND

Michael Graber, Colorado Division of Water Resources, Pueblo, CO

The typical scenario includes someone buying a parcel of property with a small stream flowing through it and thinking how nice it would be if they had a pond on the creek with a few fish in it. How hard could it be? One little pond couldn’t be much of a problem! Two separate and distinct issues are involved in constructing a dam and impounding water behind it to form a reservoir (pond).

First, approval must be obtained from the Division of Water resources (State Engineer) to construct a dam. The State Engineer has statute authority for approving construction of new dams and establishing the safe storage level of existing dams and their repair and alteration. Most of the dams that are envisioned for fishing purposes are of nonjurisdictional size. A jurisdictional dam is one that is greater than 10 feet in height to the spillway, or impounds more than 100 acre-feet of water at the high water line, or impounds a reservoir with a surface area more than 20 acres at high water line. A nonjurisdictional dam is one that is smaller in size than a jurisdictional dam. Formal Plans and specifications prepared by a Colorado Registered Professional Engineer and approved by the State Engineer are required for jurisdictional size dams. Nonjurisdictional dams require the owner to submit a Notice Of Intent To Construct A Nonjurisdictional Water Impoundment Structure form to the Division Engineer in the water division in which the dam is to be located for his approval. Typical requirements for approval include that the dam be built to the minimum specifications for an erosion control dam which are small check dams built on normally dry water courses used to control soil erosion and that the dam have a gated outlet capable of draining the reservoir and passing normal tributary inflow from the stream.

Second, a right to store and impound water behind the dam is required before water can be stored. This could take the form of a court decreed storage right, plan of augmentation, or temporary substitute water supply plan. In over appropriated river basins, these rights can be difficult and expensive to obtain and will normally involve the services of a water engineer and a water attorney. Often, prospective dam owners lament that this seems like a lot of trouble for a little pond and how could building just one little dam hurt anyone. A five surface acre pond could impound 20 acre-feet in the reservoir pool and have an annual evaporative loss of 10 acre-feet. This would short a senior water right holder 30 acre-feet of water that he would have been entitled to and if these fish ponds were built without regulation all along the stream, it would soon dry up.

While building a pond on a stream may seem like a simple and innocent aspiration, it can cause significant injury to senior water rights and has the potential, in the event the dam fails, to cause property damage to those downstream for which the dam owner is legally liable.