“The country was without law, but each individual brought with him the principles of equity and justice, which were a part of his education.”

Armstrong v. Larimer County Ditch Co., 27 P.235, 237 (Colo. Ct. App. 1891) (discussing the adoption of the rule of prior appropriation and distributive justice in the arid West).

In The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, author David Schorr details the historical development of Western water law. Schorr, a senior lecturer and chair of the Law and Environment Program at Tel Aviv University Faculty of Law, centers on the historical progress of the appropriation doctrine; a system of private rights in water divergent from the traditional eastern riparian doctrine, which affords water rights only to adjacent landowners.  Schorr memorializes the development of the appropriation doctrine as part of a radical attack on monopoly and corporate power in the arid West.  Colorado miners, irrigators, lawmakers, and judges forged a water-rights-as-property system based on a desire to spread property and its benefits as widely as possible among independent citizens, in place of speculative water rights based on land ownership.

In Chapter One, Schorr introduces the seminal 1882 decision, Coffin v. Left Hand Ditch Co.  In Coffin, the Colorado Supreme Court firmly rejects the common law riparian doctrine giving the stream-adjacent landowner rights to water, even with lack of beneficial use, by finding the doctrine inapplicable to Colorado. Coffin laid out “pure appropriation,” under which a user may create water right by diverting water from a stream and putting such water to use, rather than water rights created by land ownership.  Schorr explains the Western doctrine of prior appropriation advanced distributive justice at the expense of the property-based riparian right.

In Chapter Two, The Colorado Doctrine explores four historical sources documenting the development of Colorado Water law: (i) unofficial codes of Colorado’s mining districts in the late 1850s and early 1960s; (ii) sections of the 1876 state constitution and water-law statutes of Colorado’s legislature; (iii) decisions of the Colorado Supreme Court in the first decades of Colorado’s statehood; and (iv) ideological assumptions behind the law illustrated by contemporary sources.  Schorr compliments the development of Western water law with an argument for questioning fundamental assumptions about the appropriation doctrine.  Despite his profound departure from the established understanding of Colorado water law, Schorr effectively argues historical sources of water law collectively advanced the ideals of distributive justice as part of the broader nineteenth-century agrarian reform movement in American law.

Thus, Schorr’s analysis diverges significantly from the conventional story.  The prior appropriation concept, qui prior est tempore potior est jure (“he who is first in time is first in right”), is not simply a reflection of the frontier ethics of individualism, initiative, and efficiency, but also the overarching principle of broad distribution of water rights.  Both academic and legal institutions recognize early Colorado water law as a model for the Prior Appropriation Doctrine as it developed throughout the West.  Adoption of prior appropriation eliminated the exclusive right of landowners with property adjacent to a stream the exclusive use of water, allowing a greater number of people to benefit.  The original legal application of prior appropriation required actual beneficial use of water:  no user could claim more water than needed and, therefore, no one user could profit from speculation in a resource belonging to all.

In The Colorado Doctrine, David Schorr closely examines the reasons for this rejection of Riparianism and the values embodied in the prior appropriation doctrine.  According to Schorr, Colorado’s adoption of prior appropriation derived from two principles: (i) the limitation of appropriation to each individual the amount he could actually use, and (ii) the maximization of the number of owners able to stake a claim to water. In the arid west, limiting rights to riparian owners would deny the vast majority of citizens’ rights to an essential resource.  Schorr argues the second principle of priority strikes a balance between equality and sufficiency within the concept of distributive justice because priority prevents appropriations that would leave another user without a viable share of water. Conflict resolution between such users depends on temporal priority, where “senior” users can demand a “junior” rights holder cease his diversion if it will not leave enough water for senior rights.  Priority rules developed from the Lockean and Jeffersonian view of acquisition requiring actual use as an element of ownership, stressing the ideal of equality and limiting acquisition to an amount a person could directly use.  Further, Schorr believes the appropriation doctrine is a prevention of speculation or “monopoly” control of water supplies in allowing “actual settlers” to trespass on riparian lands and divest land owners of common-law water rights those landowners did not apply to beneficial use.

Next, Chapter Three of The Colorado Doctrine analyzes the genesis of the appropriation doctrine itself in light of how territorial statutes, the Colorado state constitution, and early judicial decisions, laid the foundation of the doctrine, with the Coffin v. Left Hand Ditch Co. decision as the confirmation of the doctrine.  Water-rights law in the Colorado territory continued to forward the main principles originating in Colorado mining laws.  Colorado’s Constitution of 1876 recorded such principles: public ownership of the state’s surface waters, the beneficial use requirement, and the complete abolition of riparian privileges.  Later, the 1882 Coffin decision reaffirmed the Colorado Doctrine.  In its decision, the Court emphatically rejects the riparian rule. In doing so, the Court explains the nature of the riparian rule prevents useful and profitable cultivation of fertile soil by sanctioning waste on sterile lands adjacent to streams.  The case emphasized the clarity of the Colorado Rule: riparian lands have no water right incidental to them;  and, all landowners acquire rights only by use, regardless of their land’s location.   Importantly, Schorr encourages the reader to acknowledge the potential consequence of a failure to recognize prior appropriations protection of a legal right in future flows— a disastrous race among irrigators, attempting to capture flows further and further upstream.  Ultimately such a race would lead upstream users to monopolization what few watercourses the West had.

In Chapters Four and Five, Schorr continues by describing how, in the decades following Coffin, the appropriation doctrine curbed the power of corporations and speculators, reserving the state’s water to bona fide users.  The Colorado Doctrine focuses on Colorado’s strict regulation of water corporations, discussing the historical difference between private property and corporate property, which motivated prior appropriation. Schorr then moves to discuss the beneficial use rule, the difficulties in allocating water, and the desired distributive justice created by the legal property regime.  For a time the threat of corporate monopoly of water hung over the agricultural industry, but legislative action and court decisions ended this danger. Court decisions favoring consumer interests over those of “monopolistic” canal companies rested on the doctrinal basis of public ownership of all surface water and beneficial use as an element of water rights that a user could satisfy, but not a canal company.  Colorado Law came down in favor of local settlers over absentee capitalists, building a system of water distribution on the basis of consumers as true proprietors, where the distributor or canal company serves as a user’s agent to care for the works and bring the water to the consumer’s land.

Finally, Chapter 6 highlights some theoretical issues historical study of the Colorado Doctrine raises.  Schorr points out that economic efficiency was not the primary goal of prior appropriation.  Rather, the goal was limiting appropriations in order to maximize the number of appropriators.  His examination of additional economic incentives supports the claim distributional ideology played the dominant role in shaping Colorado water law in the nineteenth-century.  The Colorado Doctrine demonstrates ownership of water rights in Colorado relied not on concerns for economic efficiency, but on social justice. Schorr maintains these principles express the values of the West at the time, reflecting a utilitarian ideal of “the greatest good for the greatest number.”

 The Colorado Doctrine is a reconsideration of the common understanding of the development of the appropriation doctrine. Schorr argues the widespread distribution of resources, rather than economic efficiency, is the foundation of the Colorado Doctrine and the water law of the West.  Schorr concludes with the need for a paradigm shift—where classifications of property regimes fully consider distributive justice.  Water users should understand the evolution of the institution of water rights as an element of riparian property, and evaluate its desirability as a legal system, so that concentration of a given water resource may be a more significant consideration than the form of its allocation.

 The Colorado Doctrine advances a cogent argument full of interesting historical details of western water law.  Schorr does an excellent job of introducing the reader to his novel perspective on legal theory surrounding Colorado water.  In writing The Colorado Doctrine, Schorr develops a comprehensive insight on how the prior appropriation doctrine deliberately created an anti-commons for purposes of distributive justice.  His perspective is highly important, not only to understand Colorado water law, but also as insight into critical implications of future policymaking. The Colorado Doctrine’s is an apt contribution to both legal and economic history.

David Schorr, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier. Yale University Press, New Haven & London (2012); 235PP; $65.00 ; ISBN 978-0-300-13447-6; hardcover.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law and was published in the Water Law Review, Volume 2 in 1998. 

Chatfield East Well Company, Ltd. v. Chatfield East Property Owners Ass’n

“Waters of the natural stream, including tributary ground water, belong to the public and are subject to use under Colorado’s constitutional prior appropriation doctrine and implementing statutes. Rights of use thereto become perfected property rights upon application to beneficial use. In contrast, the right to use water in designated ground water basins, nontributary water outside of designated ground water basins, or any Dawson, Denver, Arapahoe, or Laramie-Fox Hills ground water outside of a designated ground water basin, is governed by the provisions of the Groundwater Management Act. Ground water located in designated basins is subject to a modified system of prior appropriation administered by the ground water commission. Use of nontributary ground water and Denver Basin aquifer water outside of designated ground water basins is subject to the provisions of section 37-90-137(4). Regardless of whether water rights are obtained in accordance with prior appropriation law, or pursuant to the Ground Water Management Act, no person “owns” Colorado’s public water resource as a result of land ownership.”

Click here for a PDF of the entire article: 2 U. Denv. Water L. Rev. 223, 1998-1999.

View the first article by Justice Hobbs here. 


The Colorado River provides water to meet the needs of nearly 40 million people across seven US states and part of Mexico. Historically, the Colorado River ran 1,450 miles from the Rocky Mountains down to the Gulf of California in Mexico. However, within the last century the river has begun drying up just short of its Mexican delta. Before this change, the delta was a vast and diverse ecosystem that sustained over 300 species of birds, and provided lush spawning grounds for many species of fish. Today, the delta looks more like a desert.

The change came in 1944 when the US and Mexico signed a treaty titled “Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande.” The treaty allocated 90% of the Colorado River’s water to the US, and limited the amount of water the US was obligated to pass on to Mexico to 1.5 million acre-feet per year, not to exceed 1.7 million acre-feet per year.

This treaty allowed US citizens to use the Colorado River to establish large cities in otherwise desert climates by extracting drinking and irrigation water. Vast consumption of the river’s water slowly reduced the availability of water in Mexico for the same purposes. Eventually, the two countries grew to consume enough water from the river to keep it from reaching its natural termination.

Minute 319

On November 20, 2012, the US and Mexico signed “Minute 319,” an amendment to the 1944 treaty designed to address multiple issues on an experimental basis over the next five years.  Minute 319 established a method by which the US and Mexico will share in the benefits of high water flow and the burdens of drought in the Colorado River. Mexico gained the right to defer some of its water delivery during times of surplus by temporarily storing water in Lake Mead. In proportion to Lake Mead’s water level, Mexico may then order the previously deferred water, up to 200,000 acre-feet per year, to make up for reductions in base flow during droughts. Reductions in base flow due to drought are also determined in proportion to Lake Mead’s water level, and return of Mexico’s stored water will be refused when the water level of Lake Mead is below 1,075 feet. These provisions will help increase water use efficiency and the reliability of Lake Mead’s water level.

Also outlined in Minute 319 is a pilot program addressing the issue of ecological restoration in the Colorado River delta. For the program, the US agreed to give Mexico $21 million to be used for construction on Mexican water infrastructure to improve efficiency, to develop programs to enrich the ecology of the delta, and to fund half of the supply of a new pulse flow and base flow in the river. As consideration for the $21 million, Mexico agreed to transfer ownership of 124,000 acre-feet of its deferred water to the US before 2018. The pulse and additional base flow are aimed at increasing water delivery to the delta by 2014. The pulse flow will consist of a single delivery of roughly 100,000 acre-feet of water, followed by 50,000 acre-feet per year of additional base flow. A report about the effects of the additional flows on the delta will be published by 2018. Both governments hope to see hydrological and biological restoration in the delta as a consequence of this pilot program.

Finally, Minute 319 implemented a 50-acre environmental restoration project just south of the US-Mexico border on the Colorado River. Several other proposed projects in environmental restoration, water conservation, and establishing new water sources were listed as potential future endeavors.

 Opposition

Though many view Minute 319 favorably—as headway for fairness in water use and environmental protection—some groups have spoken out against the agreement. Mexico’s National Farmer’s Confederation has united in opposing Minute 319, arguing that the transfer of 124,000 acre-feet of water for $21 million is not in their interest. The organization claims that farmers along the Colorado River in Mexico will not be able to meet the water needs of their crops as a result of the reduction in available water.

Additionally, the California-based Imperial Irrigation District (“IID”), the organization with the largest allotment of Colorado River water in the US, has raised some concern about the distribution of the 124,000 acre-feet of water that will be transferred to the US from Mexico. Currently, the additional water is to be split among Arizona, Nevada, and California, with the entire Californian share going to the California Metropolitan Water District (“CMWD”). IID argues that the CMWD does not have a right to the entire Californian share, and that the water should be split between them. Negotiations over allotment of the extra water have not taken place between the two organizations. IID has expressed interest in the past about storing its own water in Lake Mead to help meet water needs, but it has never been allowed to do so. In light of the additional water to be stored in Lake Mead by Mexico, IID and others have also expressed some concern about decreased production of hydroelectric power and less reliable indication of drought conditions based on Lake Mead’s water level.

Conclusion

There are still details that need to be worked out in implementation, but the overall message of Minute 319 is that the US and Mexico are working together towards restoring the hydrology and biology of the Colorado River Delta. The desert-like landscape that once was a lush and vibrant ecosystem may one day return to something resembling its natural state. Minute 319 is but the first step towards significant environmental restoration


Sources:


George Sibley is a freelance writer and former educator who has written several histories on Colorado’s Western Slope, where he has roots and is a longtime resident.  Water Wranglers: The 75-Year History of the Colorado River District, A Story About the Embattled Colorado River and the Growth of the West depicts a history of the Colorado River Water Conservation District (“CRWCD”).  The book explores the CRWCD’s work protecting the Colorado River for West Slope residents against transmountain diversions, as well as maintaining Colorado’s share of the river under the Colorado River Compact.  In providing the story of the CRWCD, Sibley explores much of the progression of the water history and law of Colorado as a whole.  The book’s sections each discuss roughly a decade of the CRWCD’s existence.

PART I: THE AMERICAN PREHISTORY OF THE RIVER DISTRICT

The book’s first section explores conditions leading to the formation of the CRWCD.  With arid conditions in Colorado in the early 1930s, western farmers developed a grand desire to store and conserve water for future use.  This movement culminated in the Colorado River Compact’s signing, in large part authored by attorney Delph Carpenter.  Soon thereafter, Colorado’s East Slope made its first attempts to divert water from the Colorado River Basin across the mountains in 1933.  Officials justified the diversions to reluctant West-Slopers under the rationale that most of the state’s population lived on the East Slope and under Colorado water law there is no legal prohibition against transmountain diversions.  In response to the transmountain efforts, the Western Colorado Protective Association (“WCPA”) formed and, partially due to its actions, these first attempts at transmountain diversions failed.

This section also introduces the formidable West Slope Congressman Edward Taylor.  A powerful member of the House Appropriations Committee, Taylor ensured that any transmountain water project requesting federal support would need to also provide compensatory storage for the West Slope—one acre-foot of storage for one acre-foot diverted.  The Congressman also strategically changed the name of the “Grand River” (the upper fork of the Colorado River until it meets with the Green River in Utah) to the “Colorado” as a way of dispelling notions that most of the lower river’s water originated elsewhere.

Parties from both slopes supported a Bureau of Reclamation (“Bureau”) study for future water needs.  In these years, the WCPA found itself trying to work a middle ground between East Slope ambitions and an increasingly intransigent Congressman Taylor.  To reach compromise, these parties agreed that if the East Slope was in a rush, the West Slope would insist on acre-foot for acre-foot compensation; however, if the East Slope conducted the process in a reasonable and studied manner, all sides could work together.

The federal government completed the Boulder (Hoover) Dam in 1935.  However, President Roosevelt indicated that the Public Works Administration would not provide free money for reclamation projects—rather the state had to work through the Bureau, meaning that the Colorado would have to repay the federal funding.  The section ends with Congress passing the Grand Lake Project (now called the Colorado-Big Thompson).  Colorado also passed several bills, including one creating the Colorado Water Conservation Board (“CWCB”).  The CRWCD formed June 7, 1937 as a parent organization to valley-specific authorities.  Additionally, voters elected Judge Clifford Stone to the Colorado General Assembly, who would later be an important part of the CRWCD’s history.

II: A FAST BUT UNEVEN START ON MANY FRONTS (Late 1930s-Early 1950s)

Sibley next charted the CRWCD’s earliest years.  Originally representing seven West Slope counties, the CRWCD aimed to use as much of the Colorado River’s waters as possible within the state, preferably for mining and agriculture on the West Slope.  Judge Stone, though not on the board, was a de facto member of the CRWCD staff.  At this time, the WCPA turned over its work to the CRWCD and dissolved.

During these years, the CRWCD and Stone attempted to demonstrate to the West Slope that, although they could not be legally halted, compensatory storage for transmountain diversions could still benefit West Slope interests.  Work began on the Colorado-Big Thompson project and, when finished in 1957, the project diverted on average 232,000 acre-feet annually.  Following its completion, the Gunnison Valley and Congressman Taylor opposed a request to study a potential Gunnison-Arkansas transmountain project.  However, Taylor’s death in 1941 enabled federal funding for the study to come through.  Completed in 1948, the study charted a project that exceeded the Colorado-Big Thompson in size and complexity, allowing for 655,000 acre-feet to cross the mountains each year.  The CRWCD supported the Gunnison-Arkansas diversion, much to the displeasure of the Gunnison Valley.  In this dispute, the Gunnison Valley users portrayed the CRWCD in an almost traitorous light.  However, in mid-1949, the CWCB approved a smaller diversion plan, which became the Frying-Arkansas project.

Congress divided the lower basin states’ allocation of the Colorado River Compact in the 1928 Boulder Canyon Act.  To determine Mexico’s share, the seven basin states formed a “Committee of Fourteen” with Stone as chair.  In 1944, the Bureau published its long-awaited study of the entire Colorado basin, with a plan to develop the river “to the very last drop.”  In 1946, Stone then represented the state of Colorado at the upper basin states’ compact commission.  The resulting Upper Colorado River Compact allotted Colorado 51.75 percent of the upper basin’s share of the river’s waters, though the state produced 73 percent of the total flow.

The section also provides a brief history of the Denver Water Board of Commissioners (“DWB”).  Always highly autonomous from the rest of the city’s municipal government, the DWB saw itself as a providing for the future of a large metropolis with a “thousand-year” water supply system.  Represented by attorney Glenn Saunders, the DWB pursued an aggressive policy of acquisition of West Slope rights.  With the Colorado Supreme Court’s holding that municipal plans for future growth is not speculative, the DWB began planning for the large Blue River project.  This led to years of litigation between DWB and the CRWCD.  During this time, Denver grew a great deal, and the DWB saw its water supply was running short.  It confined services to within a certain defined area in 1950, forcing some suburbs to develop their own water systems.   Judge Stone died in 1952, and with him, so too did the CRWCD’s formative era.

III: CULMINATION OF THE RECLAMATION ERA I (the 1950s)

West Slope Congressman Wayne Aspinall had a significant impact in the next decades.  Running for Congress in 1948 as a “second Edward Taylor,” Aspinall became chair of the House Committee on Interior and Insular Affairs, which allowed him to exert substantial influence over federal reclamation projects.  Aspinall exemplified the thinking of historical western water management, aiming to harness and conserve as much water as possible for reclamation and mining developments.  However, the period also saw a burgeoning environmentalist movement which felt that conservation should keep the West in as natural a state as possible.

The 1950s and 1960s were the biggest dam-building period in the nation’s history.  The Bureau composed a list of their most promising storage projects and dubbed it the Colorado River Storage Project (“CRSP”).  The Bureau envisioned transforming the Upper Basin into a new industrial and irrigation center for the United States.  The CRSP planned storage of forty-eight million acre-feet—three times the Colorado River’s annual flow.

The new environmentalist movement defeated the planned Echo Park dam (located where the Yampa River meets the Green River) despite the support Aspinall and the CRWCD.  As a compromise, Aspinall offered an amended CRSP bill which did away with Echo Park but included the Navajo (New Mexico), Glen Canyon (Utah), Flaming Gorge (Utah), and Curecanti (Colorado) dams.  Glen Canyon dam construction began in 1957, eventually allowing storage of twenty-seven million acre-feet (twice the annual flow of the river, and three-quarters the total storage for the CRSP).  Construction on Flaming Gorge and Navajo dams began next in 1958.  While both were finished in 1962, Glen Canyon, which began earlier, was not finished until 1963.  With much of the CRSP thus under construction, the CRWCD ended the decade on a high note.

IV: THE CULMINATION OF THE RECLAMATION ERA II (the 1960s)

By the early 1960s, CRWCD grew to encompass the entire West Slope, with the exception of the San Juan counties, which formed their own Southwestern District.  The CRWCD engaged in further courtroom disputes with DWB, the Colorado Supreme Court often ruling in favor of the latter.  Though the parties sometimes reached settlement, there was still a mood of distrust.  Following completion of the three dams of the Curecanti project, construction on the biggest units of the CRSP was complete.

During this period, the new conservation movement, supported by Congressman John Saylor of Pennsylvania, Aspinall’s environmental-friendly counterpart, slowed down construction on several new dams.  Environmental movement advocates began to perceive Aspinall as a reactionary and foe to the movement, though Sibley argues Aspinall merely supported an evolutionary approach to public land law.  Aspinall won a major legislative victory in 1962 with Congress’ passage of his Wilderness Bill and the Fryingpan-Arkansas project.  However, this marked the apex of his career and the beginning of its decline.  Sibley notes that Aspinall and the CRWCD did not realize that a future of recreation and skiing was replacing the old vision of water use for agriculture and mining.

This decade also saw further developments in the lower basin states.  In 1961, Mexico complained that its allocation of the Colorado River’s waters was too saline, due to runoff from a California canal.  In response, the Western Governors’ Association reconvened the Committee of Fourteen from the 1940s to coordinate the basin states’ interests in the salinity question.  Additionally, Arizona Senator Carl Hayden dreamed of a vast Central Arizona project supported by Colorado River water.  Despite opposition by environmentalist movement and Aspinall, Congress eventually approved the Central Valley Project.

V: THE ECOLOGICAL ERA BEGINS

The Colorado General Assembly passed the 1969 Colorado Water Rights Determination and Administration Act, reorganizing much of the state’s water law procedures and marking the beginning of the ecological era.  Shortly thereafter, on January 1, 1970, President Nixon signed the National Environmental Protection Act, creating the EPA.  And finally, in 1972, Congress passed the Clean Water Act.  At the same time, Aspinall’s critics accused him of becoming too supportive of mining interests, particularly uranium.  In 1970, for the first time, he faced a primary election challenge.  Though Aspinall won that election, the 1970 census redistricting cut his West Slope district in two.  Facing another primary challenge in 1972, he lost by sixteen-hundred votes.

The 1970s saw further developments in the Colorado River salinity issue.  Although studies found that the salinity in Mexico was largely natural, the newly-formed EPA involved itself by supporting a regulatory solution.  President Nixon guaranteed low salinity to Mexico, providing the EPA with an opportunity to intervene.  This demonstrated that Aspinall’s world of quid pro quo solutions was gone, replaced by a highly centralized enforcement scheme.

Congress passed the Endangered Species Act in 1973 and the Colorado General Assembly passed an “instream flow” law in 1973, despite the CRWCD opposition to the law.  In February 1977, President Carter issued his “hit list” of nineteen water projects, asking Congress to cut funding for these projects.  Carter’s hit list put certainty to the suspicion that the era of big federal reclamation projects was coming to a close.

Lastly, the 1970s saw the arrival of the West Slope’s long-awaited oil shale boom.  Following the 1970s oil crisis, President Nixon gave several large companies leases on the West Slope for development.  However, oil development was in direct opposition to the environmentalist movement gaining strength in the region.  In any case, Black Sunday in 1982 effectively ended the boom before it ever began.  Environmentalist post-urbanites and skiing then began to dominate the West Slope.  Work on the Windy Gap Reservoir, the most recent transmountain diversion project, completed in June 1985.  Congressman Aspinall died in October 1983, definitively ending the era in which he played a key role.

VI: LIFE AFTER OIL SHALE—A DECADE OF TURBULENCE

The 1980s and 1990s saw another period of change for the CRWCD.  The DWB sought to build the Two Forks Reservoir at the confluence of the North and South Forks of the South Platte River, despite a sure to be strong opposition from environmentalists.  Governor Lamm convened a roundtable for the Denver metro area but also included representatives from both East and West Slopes.  Lamm also included forward-thinking policy makers, and not just old-fashioned “water buffaloes” (referring to those who bellow, splash around, and muddy the waters).  Though the roundtable limited discussion to water supply in the immediate metro area, the CRWCD thought it would be easier to deal with the DWB than with many individual suburbs.  By this point, new players and strategies were beginning to change water policy in Colorado.  A demonstration of this shift occurred when aggressive DWB counsel Glenn Saunders left the organization.  DWB and the CRWCD decided to begin attempts at cooperation rather than their previous near-constant litigation.  Further, the DWB regarded Two Forks as a way of building unity within the Denver-Water supply.  Denver metro communities signed a Memorandum of Agreement, with the idea of cooperating and preventing courtroom battles.  The DWB, now headed by manager Hamlet “Chips” Barry, announced a new conciliatory direction and the organization changed its name to Denver Water.

At the same time, the CRWCD tried to take stock of changing situations on the West Slope.  The CRWCD wanted to work on better terms with the environmentalist-friendly headwater communities.  Differences proved to be mainly cultural: urban expatriates seeking a more rural lifestyle, but not reflecting the region’s traditional culture, began replacing the remnant population from the mining era which the CRWCD originally served.  Environmentalists then formed a separate organization, the Northwest Colorado Council of Governments (“NWCCOG”).

The environmentally-conscious headwater communities, led by NWCCOG general counsel Barbara Green (the state’s first major female water figure), succeeded in using its land use powers to delay diversions across the Divide for a large Colorado Springs and Aurora project.  The CRWCD, however, did not take part in the litigation.  Later, NWCCOG, this time with CRWCD support, also blocked another large planned diversion at Union Park.

The environmental movement took another step forward when the U.S. Fish and Wildlife Service listed four fish in the Colorado Basin as endangered by 1991.  The Upper Colorado River Basin Coordinating Committee conditioned further diversions and management on the fish populations but the biggest evidence of the burgeoning environmental movement came when the EPA vetoed the Two Forks project in November of 1990.  After an eight-year planning process and many millions spent, the federal government shut down the project solely because of the EPA director’s judgment that it was incompatible with Section 404 of the Clean Water Act.  Finally, former DWB counsel Glenn Saunders died in 1990.  His death signaled the fact that water issues were no longer in the hands of the old-time “water buffaloes” in the West.

VII: THE RIVER DISTRICT HITS ITS STRIDE

The book’s final section describes the CRWCD’s history up to the present day.  Environmentalist actions on the West Slope continued, particularly to protect the four endangered fish.  Parties adopted a Programmatic Biological Opinion in 1999, recommending running all of the Upper Colorado as an integrated system to aid fish populations.  It is unclear today if the four fish are rebounding, but efforts seem to be helping allow future construction projects while not further endangering the fish.

This section also describes how the National Park Service finally quantified its reserved water right for Black Canyon National Park.  In 2001, the Park Service filed for a flow that mimics the canyon’s natural flow to the greatest extent possible, with a 1933 priority date.  There was much opposition, and Department of Interior director Gayle Norton reduced the application to a later and effectively meaningless priority date.  A federal court, however, rejected this alteration as an abuse of discretion.  The water court issued its final decree in 2007.

Sibley also provides a description of the severe drought that struck the state through early 2000s.  The Colorado General Assembly passed the Colorado Water for the Twenty-First Century Act in 2005, which called for Basin Roundtables in each of the state’s eight water basins, plus another for the Denver metro area.  The future is uncertain as to whether cooperation will continue and whether the Colorado River will contain enough water for all in the future.

The book draws to a close by providing estimates for available unused water remaining in the Colorado River, running anywhere from zero to nine-hundred-thousand acre-feet.  Faced with these possible shortfalls, communities are exploring several proposals for planning for the future.  The book ends with a quote from Justice Gregory J. Hobbs of the Colorado Supreme Court: “We are no longer developing the water resource; we are learning to share a developed resource.”

CONCLUSION

Water Wranglers, despite its length and extremely in-depth discussion of a complicated historical subject, is an easy and enjoyable read for anyone interested in the history of water development in the Colorado River Basin and the state of Colorado.  Well-researched and containing useful maps and photographs, Water Wranglers provides valuable, objective information for individuals, neophytes or experts, interested in Colorado’s transmountain diversions.  As seen through the lens of the CRWCD, the book describes a complex history in pieces that illustrate how a region’s goals and priorities shift over time.

George Sibley, Water Wranglers: The 75-Year History of the Colorado River District: A   Story About the Embattled Colorado River and the Growth of the West, Colorado River District (2012); 466 pp; ISBN 978-0520254770; paperback.


Climate change is routinely studied through the lens of air quality and air pollution.  However, climate change also has clear and often severe impacts on water quality and water law.  Those impacts include: rise in sea levels, changes in precipitation, extreme drought conditions, less snow pack during winter months, and increased likelihood of wildfires.  Accordingly, it is important to provide an overview of some of the impacts climate change has on water, and how water law may be required to adapt to the widespread and perhaps dramatic changes.

Water Quality and the Clean Water Act

One effect of climate change on water is that the average water temperature will increase.  Warmer water can cause an increase in algae, bacteria, and/or parasites.  The increased presence of microbes in warm water could have adverse impacts on human health.  As such, water quality laws, like the Clean Water Act may be required to account for the consequences and health effects that result from warmer water caused by climate change.

Additionally, scientists have noted that the increase of greenhouse gases that cause climate change have also contributed to ocean acidification by causing a shift in the pH of ocean water.  However slight the shift in ocean water pH may be, some species, like coral, cannot adapt to a more acidic environment.  As such, some marine ecosystems, like coral reefs, may be in danger of extinction.

The Clean Water Act may not be the most useful tool in combating climate change because it was designed to reduce and prevent direct pollution of water, which does not address the impacts of climate change.  Moreover, the act typically is used to address water quality issues on a local or regional level, and is not in a position to deal with climate change on a global level.  In short, the Clean Water Act could be used to help alleviate some effects of climate change, but it cannot necessarily be used to address the causes.

Water Use and Water Law

Climate change also has a direct impact on the amount of water available and the uses of water.  Wet climates will likely continue to see an increase in precipitation, and precipitation events will become more intense in those areas.  Conversely, dry climates will become even drier as a result of climate change.  Drought conditions will become pronounced and agricultural growing seasons will be shorter in those areas.  The upshot is that areas like the western United States will likely not have enough water to go around as what water there is will be subject to competing interests.  For example, will water be used to maintain agricultural production or will it stay in-stream in order to protect aquatic species and ecosystems?  In areas and regions where choices like this are already divisive and politically charged, it will only become worse as the effects of climate change increase.

Two major systems of water law are riparian rights and prior appropriation, neither of which is particularly well-equipped to deal with the effects of climate change.  First, under riparian rights systems, it may seem fair that less water means that each user is assigned a new share of water on pro rata basis.  However, in extreme drought conditions it is possible that the amount of water each user receives is not enough to be effectively used.  In that scenario, everyone loses, because while everyone has some water, no one has enough to do anything useful.  As such, riparian rights systems need to have some way to promote best-use decisions among competing users.  Meanwhile, under prior appropriation systems, senior users would be able to use the full amount of their water rights in drought conditions.  While this may make it so that at least some users have enough water to be effective, the problem is that senior users may not be the users that provide the most beneficial use of the water. Additionally, in prior appropriation systems, as long as they receive their portion, senior users are not incentivized to conserve water even during drought conditions.

Climate change and the resulting shifts in water supply could cause tensions between countries or regions that use common water resources.  Tensions could also occur between industries with competing interests in water.  For example, continued use in agriculture and irrigation during drought conditions could affect energy producers that rely on water flow.  Accordingly, there may be situations in which governments, particularly state governments, may be forced to step in and regulate the amount of water used among various users in order to mitigate the impacts of climate change.

Conclusion

Some agencies are already trying to find answers and come to grips with the changes that are taking place.  The Environmental Protection Agency released a report in 2012 that was the agency’s National Water Program’s “Response to Climate Change.”  The report explains the impact of climate change on water systems and sets out the ways in which the agency will seek to address those impacts going forward.  Additionally, state agencies have also started to address these same concerns.  In 2012, at the behest of California’s Energy Commission, the University of California, Berkeley completed a document titled, “Climate Vulnerability and Adaptation Study for California: Legal Analysis of Barriers to Adaptation for California’s Water Sector.”  The document outlines the impacts of climate change on California water supplies and the possible measures that the state can take to mitigate those impacts.  However, it is likely that there may not be a one-size-fits-all approach to addressing climate change impacts on water.  Ultimately, each country, region, or state will have to come to terms with how climate change affects their water resources and plan accordingly.

 


Sources:

  • Robert W. Adler, Climate Change and the Hegemony of State Water Law, 29 Stan. Envtl. L.J. 1 (2010).
  • Robin Kundis Craig, Climate Change Comes to the Clean Water Act: Now What?, 1 Wash. & Lee J. Energy, Climate, & Env’t 9 (2010).
  • Envtl. Prot. Agency, Climate Change and Coastal Watersheds: Adaptation to Attain Clean Water Goals and Sustainable Coasts (Dec. 2012), available at http://water.epa.gov/type/oceb/cre/upload/CRE_2012Report_CWApullout_508.pdf.
  • Envtl. Prot. Agency, National Water Program 2012 Strategy: Response to Climate Change (Dec. 2012), available at http://water.epa.gov/scitech/climatechange/upload/epa_2012_climate_water_strategy_full_report_final.pdf.
  • Michael Hanemann, Deborah Lambe & Daniel Farber, University of California, Berkeley,  Climate Vulnerability and Adaptation Study for California: Legal Analysis of Barriers to Adaptation for California’s Water Sector (California Energy Commission, Publication number: CEC-500-2012-019, 2012), available at http://www.energy.ca.gov/2012publications/CEC-500-2012-019/CEC-500-2012-019.pdf.
  • Dan Tarlock, Takings, Water Rights, and Climate Change, 36 Vt. L. Rev. 731 (Spring 2012).  

WATER WARS ALONG THE SOUTH PLATTE RIVER: FEW PRISONERS LEFT TO TAKE

University Club Luncheon Series
Denver, Colorado    March 14, 2013

Tom Cech is the current Director of One World One Water (“OWOW”) Center for Urban Water Education and Stewardship at Metropolitan State University of Denver (“MSU”) in Denver, Colorado. Originally from Nebraska, Cech received his B.S. in Math Education and went on to receive his Masters in Community and Regional Planning from University of Nebraska.  Highlights in his accomplished career include serving as Executive Director of the Central Colorado Water Conservancy District and educating future water experts at the University of Northern Colorado and Colorado State University in various water resources courses.  Cech has also published articles and textbooks on water resource issues that have been translated into Portuguese, and he is in the process of completing a history of the Colorado Water Conservation Board and the Colorado State Engineer’s Office.

Cech’s presentation at the University Club Lecture Series included discussion of (i) the OWOW Center, (ii) water resource course offerings at MSU, (iii) historical cultural water issues, (iv) historical issues of Colorado water, and (v) potential water supply issues for Colorado in the future.

The OWOW Center and Water Resource Course Offerings

OWOW is a new program at MSU designed to educate students on how to protect and preserve limited water resources.  MSU undergraduates have the option of completing a minor in Water Studies  (known as the Pilot Water Studies Minor) by taking at least 21 credit hours of course work in water resources and stewardship.  Classes offered include: Water Essentials, Introduction to Water Law and Administration, Water Conflict Resolution, Limnology, Multicultural Water Issues, as well as other elective courses, internships, and capstone projects.

Historical Cultural Water Issues

After providing a brief introduction to the OWOW Center, Cech continued his presentation by discussing significant historical water issues.  Resolution of water disputes has been around since the beginning of time.  Some notable moments in cultural water appropriation began in Babylon when King Hammurabi created the “Code of Hammurabi.” These laws, created between 1795 B.C. and 1750 B.C., are the first examples of prior appropriation.  The Stele of Hammurabi, a large stone statute the size of an adult human with the Code of Hammurabi etched into it, tells us the law that, “if a man has released waters and so has let the water carry away the works on his neighbor’s field, he shall pay 10 gur of corn for every bur (of land) flooded.”  Many years after Hammurabi, farmers and villages in Iran and Iraq developed Qanats, whereby a massive aqueduct system was excavated underground to bring water from the mountainous regions to irrigate the farmland.

Cech further discussed resolution of historical water disputes in the years of Anno Domini, when Moorish farmers established the Water Court at the Cathedral of Valencia in Spain to settle disputes between local farmers.  Since its inception in 961 A.D., seven elected members have met every Thursday at eleven o’clock in the morning to render judgment.  The court is not a traditional western court, but holds hearing without oaths of affirmation, written records, or even lawyers.

In 1300 A.D., with the development of tin mining, England began using canals to divert water for mining operations.  This process would become very important more than 500 years later when the Gold Rush brought settlers to Colorado.

Historical Issues of Colorado Water and Supply

In 1876, Colorado became a state and adopted the Doctrine of Prior Appropriation to ease the burden of the limited supply of water.  In nineteenth century Colorado, miners constructed hundreds of canals along the South Platte River and throughout Colorado.  The Doctrine of Prior Appropriation gave priority dates for irrigation ditches, but set no dates for wells.  This doctrine plays a very important role in establishing water rights in Colorado and continues to evolve and be a source of guidance for the growing disputes.  Cech also briefly discussed Theodore C. Henry who was responsible for constructing numerous irrigation canals throughout Colorado in the 1880s and was appointed by the Colorado governor to review irrigation laws and recommend changes.

Colorado has a rich history involving water law, as the oldest operational ditch in Colorado, the San Luis People’s Ditch, was built in 1852. While the last 161 years of Colorado water law pales next to Hammurabi’s water laws, Coloradans have also developed their own water courts for dealing with quarrels over water rights.  Greeley, Colorado houses one of the many water courts have expanding throughout the United States.

Potential Water Supply Issues for Colorado in the Future

The common consensus in arid regions is that there is growing need with a limited supply of water.  With continued drought conditions and increasing population, water experts are working to find ways to prioritize various uses.  Without more quantities of water, supplying every growing need will not be possible.  There are an estimated 5 million people in Colorado with a 2030-projected growth to 7.1 million.  The Denver metropolitan area is home to approximately 2.4 million people and is estimatee to expand to 3.9 million by 2030.

While the South Platte River Basin supplies most of the water to the Front Range population, many communities have been forced to develop pipelines to bring much needed water to citizens.  Yet transportation of water is not enough, the effects of global warming have created conditions that require water users to adapt and reevaluate water uses in order to be more efficient.

Conclusion

Cech’s brief overview of the history of various water laws around the world and the development of Colorado’s water law was informative and well presented.  While there is constant controversy about where the water is going to come from and who gets to use it, if history dictates truth, then humanity will find the best possible outcome, even if it means sacrificing a lawn or two.

 

Cech can be reached at tchech@msudenver.edu.  For more information on OWOW please visit, http://www.msudenver.edu/owow/.

 

 


Bostwick Props., Inc. v. Montana Dept. of Natural Res. and Conservation, 2013 WL 696352 (Mont. 2013) (holding the Montana Department of Natural Resources and Conservation had the authority to deny a developer a water permit; runoff from impermeable surfaces could not be used in calculating net depletion of surface water; developer’s burden to prove lack of adverse effect was not shifted because of an uncertain hydrological connection or a senior rights holder’s ability to bring administrative action; de minimus use did not establish developer’s lack of adverse effect; developer proved lack of adverse effect for its proposed irrigation season only mitigation plan; and developer was not prejudiced by the bias of the Montana Department of Natural Resources and Conservation).

Bostwick Properties (“Bostwick”) filed an application with the Montana Department of Natural Resources and Conservation (“DNRC”) for a water use permit for municipal use in a subdivision in Gallatin County, Montana.   When DNRC failed to take immediate action, Bostwick sought a writ of mandate to require DNRC to issue the permit or hold a hearing on the matter.  DNRC then denied Bostwick’s water use permit saying it failed to demonstrate no net depletion of surface water, and failed to prove legal availability and lack of adverse impact.  The District Court for Gallatin County (“district court”) granted Bostwick’s writ of mandate request, which DNRC appealed to the Supreme Court of Montana (”Court”).  The Court reversed the district court’s decision and remanded the case to DNRC to hold a hearing on Bostwick’s permit application because Bostwick had not proved lack of adverse effect and DNRC had no legal duty to grant Bostwick’s permit.  After the hearing, DNRC again denied the permit, determining Bostwick’s water use would cause a net depletion of surface water; it failed to demonstrate lack of adverse effect; and its mitigation proposal was inadequate.  Bostwick sought review by the district court, which agreed DNRC failed to show no net depletion or lack of adverse effect, but found Bostwick’s proposed mitigation adequate.  Both Bostwick and DNRC appealed this decision to the Court.

The Court ruled on five issues on appeal.  First it determined whether DNRC had the authority to deny Bostwick’s permit.  Bostwick argued Montana law required DNRC to grant the permit because Bostwick settled all objections.  The Court held that not only must Bostwick resolve all objections, but it must also prove legal availability and lack of adverse effect by a preponderance of the evidence, and DNRC had the authority to deny Bostwick’s permit if it did not do so.

The second issue was whether DNRC and the district court’s requirement Bostwick mitigate its water usage was proper.  Bostwick argues four theories to support the proposition that it would not cause net depletion of surface water or adversely affect senior rights.

First Bostwick asserts paved roads and parking lots in its proposed development prevent water from being used by native plants or evaporating, which can then be collected and used to recharge the Gallatin River.  Bostwick argues DNRC should consider this runoff when calculating if a net depletion exists.  The Court said Montana law did not require DNRC to consider any sources of water other than those sources in the proposed permit; to consider other sources would be contrary to legislative intent; and doing so would cause an absurd result if Bostwick could factor that water into their calculation even though it had not right to use it.

Next, Bostwick argues because there is no way to determine when its proposed extraction of groundwater would cause the Gallatin River to lose water, the DNRC could show no net depletion or adverse effect.  Bostwick asserts DNRC must grant the permit if it cannot prove there is net depletion.  The Court said this attempt to shift the burden of proof to DNRC was impermissible and Bostwick failed to carry its burden to show lack of any adverse effect.

Bostwick then argues the amount of water it applied for is de minimus and would not adversely affect senior rights.  The Court said it was Bostwick’s burden to demonstrate a lack of adverse effect and it failed to do so.

Finally, Bostwick asserts senior rights holders could force Bostwick to stop using water through the administration of priorities, yet again attempting to shift the burden.   The Court once again said that the law was clear; it was Bostwick’s burden to show it would not jeopardize senior rights, and it failed to make that showing.

The third issue was whether the district court’s determination that Bostwick’s mitigation proposal was adequate was proper.  Bostwick’s proposal mitigated it water usage but only during the irrigation season.  The district court noted Bostwick’s non-irrigation season usage could only potentially adversely affect one party, FWP, who said Bostwick did not adversely affect them.  The Court held that while generally settling with objectors was not enough, because there was only one affected party who would not suffer adverse effects, Bostwick met its burden of showing its mitigation plan was adequate.

The fourth issue was whether DNRC could require Bostwick to specifically identify a water right it would use for mitigation.  Bostwick argued providing DNRC with other details including the amount and location of water, timing, and seniority rights was sufficient.  The Court agreed with DNRC that the identification of the specific water right was necessary to fully evaluate the mitigation plan.

The final issue was whether DNRC was biased and therefore prejudiced Bostwick.  Bostwick argued DNRC’s bias during the permit application procedure violated its right to due process.  The Court remanded the case to DNRC after the first denial of Bostwick’s application, despite Bostwick’s request a neutral party hold the hearing.  The district court held there was no prejudice because it independently came to the same conclusions as DNRC.  The Court found this reasoning to be persuasive and held Bostwick failed to show substantial prejudice.

The Court affirmed the judgment of the district court on all counts.

 


A photographer and author teamed up to capture the geographical, environmental, and historical journey of the Colorado River in their photo-essay book, The Colorado River: Flowing Through Conflict.  Peter McBride, a photographer from Colorado, visually documented his aerial expedition along 1,450 miles of the Colorado River, from its headwaters toward its delta.  Jonathan Waterman’s text, augmented by his past experiences as a wilderness guide, recounts his own personal travels paddling along the same length of river as well as the history surrounding the waters of the Colorado River.  The authors organized the book into three parts, corresponding to the sections of the river as it travels from the Rocky Mountains toward the Sea of Cortez.  Their combined intention was to capture the issues facing the river in a photographic record, showing both the beauty and sometimes eerie nature of the Colorado River Basin.  The aerial perspective, McBride explained, “shows where we as humans have been, how we connect to the earth, and how nature relates to itself.”

McBride began the book by recounting his childhood memories growing up on a Snowmass, Colorado farm near the headwaters of the Colorado River.  The introduction to the book, aptly entitled The River, provides a statistical overview of Colorado River, highlighting the more than one-hundred dams obstructing the river’s natural flow.  The Colorado River Basin drains 243,000 square miles, spanning seven states and two countries.  The river itself supports thirty species of native fish as well as fourteen coal and natural gas power plants, demonstrating the range of reliance on the continuous flow of water.

In Part I: The Mountains, the authors describe the beginning of their journey at the Colorado River’s headwaters near the Continental Divide in the Rocky Mountains of Colorado.  This section documents the river geographically through the Upper Basin.  The river first flows south through Rocky Mountain National Park, then west through Cataract Canyon, where it crosses the border into Utah.  The river then winds through the Canyonlands near Moab and spills into Lake Powell.  This section also highlights threats to the Upper Basin ecosystem, including impacts of invasive tamarisk and pine beetle on native habitat.  A vast number of uranium claims along the Colorado River also pose another potential environmental threat.  However, Part I also depicts the many benefits of the river to humans.  Recreation activities, especially, sustain the region’s tourism-based economy, including rafting, floating, fishing, and wildlife watching.

Part II: Big Reservoirs, Grand Canyon next depicts the Colorado as it flows southwest from Lake Powell toward Lees Ferry.  The Colorado River Compact utilized Lees Ferry, a historic river crossing in northern Arizona, as the arbitrary divide between the Upper and Lower Colorado River Basins.  The authors’ journey continued on to Lake Mead, the vast reservoir storing water for downstream consumers in Arizona, Nevada, California, and Mexico.  The Colorado River slowly travels through the Grand Canyon to Lake Mead, then almost five-hundred miles west to the Hoover Dam.  The creation of Grand Canyon National Park in 1919 resulted in formal protection of the landscape.  Yet wildlife native to the Colorado continue to face threats to their survival.  For example, the humpback chub, a native fish species, adapted to hunt in the shallow, muddy, and warm waters of Little Colorado River.  However, deep water held behind the dams of the Lower Basin is colder and clearer which nonnative species prefer, such as trout, which compete with native species for limited food resources.

Part III: To the Delta documents the final leg of the authors’ journey of the Colorado River toward the sea.  This section maps the river’s flow below the Hoover Dam, through the Black Canyon in California south to Baja California, Mexico.  However, the river no longer ends at the delta in the Sea of Cortez, but runs dry about fifty miles north.  The river delta itself is 95% diminished.    A myriad of water diversions have caused the Colorado River to run dry in the Sonoran desert before it reaches the Sea of Cortez.  Agricultural irrigators in the region have diverted much of the river into canals, such as Coachella and All-American.  Much of the irrigation runoff in southern California flows into the Salton Sea, over two-hundred feet below sea level.  The Salton Sea is an important oasis in the desert, visited by over four-hundred bird species.  Yet the Sea’s water level is decreasing six inches each year as more river water flows to major cities, resulting in increased salinity levels which threaten the resident fish and birds that prey upon them.  This section summarizes these and other downriver ecological impacts of damming and diverting the river for human uses in southern California and northern Mexico.

McBride and Waterman depict their personal expedition along most of the Colorado River through colorful photographs and detailed maps that invoke in the reader both feelings of appreciation and concern for the Colorado River.  Waterman’s text skillfully integrates summaries of the natural history and geography of the Colorado River Basin with meaningful quotes.  His passages describe anthropogenic impacts to the surrounding ecosystems throughout modern history.  McBride captures the river from both the ground and aerial perspectives, providing the reader with beautiful natural images rarely seen.  The use of historical photos for comparison with current conditions visually demonstrates the environmental impacts of damming the river on the local landscape.  This photo-essay book is much more than a collection of pictures and would do well to complete any collection for a water enthusiast or one who simply enjoys the natural beauty of the Colorado River.

Peter McBride & Jonathan Waterman, The Colorado River: Flowing Through Conflict, Westcliffe Publishers, Colorado (2012); 160 pp; $27.95; ISBN 978-1-56579-646-1; soft cover.