Nonuse of the Water Resources Along the Western Slope

“These are some of the things wilderness can do for us. That is the reason we need to put into effect, for its preservation, some other principle that the principles of exploitation or “usefulness” or even recreation. We simply need that wild country available to us, even if we never do more than drive to its edge and look in. For it can be a means of reassuring ourselves of our sanity as creatures, a part of the geography of hope.”

Wallace Stegner, “Wilderness Letter”

HOW THE WEST WAS WON:

The settlement of the American West is predominantly a story of man’s ingenuity apropos of the water resource. Migration towards the Pacific in the nineteenth-century revealed many disheartening truths concerning the alien lands West of the Mississippi River, especially with regard to the availability of water. The land was abundant and full of economic promise, but the means by which to raise it were uncertain. Even so, our growing nation was hell-bent on conquering the West and, therefore, developing easy access to water became the objective.

Early estimations for successful settlement of the West, however, were dour at best. Famously, John Wesley Powell warned that “[m]any droughts will occur; many seasons in a long series will be fruitless; and it may be doubted whether, on the whole, agriculture will prove remunerative.” What Powell failed to consider, perhaps, is the tremendous potential of human inventiveness. By relying on luck, technological innovation, and an equal measure of reckless ambition, civilization was realized in the West. Nevertheless, the consequences that Powell envisioned continue to play out to this day. Many fear that soon we will reach a juncture where no amount of cleverness and scientific bravado can tame nature’s irregular hydrology. The possibility then becomes – with regard to water’s continued use and availability in the American West, has man’s reach finally exceeded his grasp?

MAKING THE CASE FOR NONUSE:

As the recent drought reaches new and frightening dimensions in much of the West, and especially in California, water users and state enforcers alike are scrambling to identify a method of addressing unprecedented shortages. In the western states where drought has not yet reached California-level magnitudes, its imminence proves equally disconcerting. For these states, such as Colorado, it is not a question of if, but when.

Amidst current efforts to reduce the threat of drought and shortage is a reinvigorated push for conservation, where nonuse of a water right has been given new import, to include legal recognition. In 2013, Colorado Governor John Hickenlooper called for the drafting of a new water plan that would analyze strategies for increased conservation and reuse of treated wastewater. The water plan, the first of its kind in Colorado, is partially designed to confront the drought head-on, and although the focus remains on divvying up appropriate amounts of water to meet growth projections across the Front Range, the preservation of healthy river systems has been encouraged with equal vigor. The operative effect of the plan is sure to be contentious, as concerns for conservation across the Western Slope clash with demands for increased water diversions to meet domestic needs and population growth in the Front Range.

Colorado’s emphasis on conservation in regards to combatting drought and attendant shortages represents a new philosophy amongst western states. Against this conservation backdrop, however, the dominant theory continues to focus on how to use or reuse available water most effectively to meet human demands. This ideal is ideologically anthropogenic, and little if any concern is given to the effects that the drought will have on the natural environment once it has run its course. In times of environmental uncertainty, the effects of a solely-anthropogenic agenda take on added significance, as man grapples with the preservation of a finite resource and the expectations for its use.

According to many, we are currently living through a water crisis in the West. Although many in Colorado take for granted water’s availability – and an uncharacteristically wet summer in 2015 did nothing to counteract this assumption – the reality of the situation is that in order to avoid California’s recent fate, residents must force conservation onto the agenda. Awareness of the risks is critical, and Colorado has encouraged the use of its imminent water plan (set to be released in December of 2015) as an educational tool for benefit of the public. Nevertheless, educating the public is no simple task, and championing the effectiveness of nonuse for conservation of a resource that is so freely accessible is no less difficult.

In the face of these uncertainties, a question arises: does non-use for purposes of conservation play any critical role in a region that is routinely paralyzed by the effects of drought? At microcosmic level, some water users in Colorado would answer that question in the affirmative, and early results are promising. In anticipation of the Colorado Water Conservation Board’s new water plan, water rights owners are distancing themselves from Colorado’s timeworn “Use It Or Lose It” rule, which has been at the heart of water law in the state ever since its inception. In a region where the effects of past droughts have had tremendous impacts on both the economic and cultural pulse of communities, the benefits of focusing more on conservation and less on use could be enormous. In fact, in 2013, Colorado’s General assembly passed a law allowing for an owner of water rights to leave water unused without fear of penalty or revocation of the water right, provided that the owner is enrolled in a conservation program and is granted local approval.

Benefitting by this safe harbor provision, drought-conscious ranch owners and other water rights holders in Grand County and Aspen are spearheading a new movement whereby users leave water in streams and tributaries, rather than abandoning their rights to any excess waters. In Colorado, long-standing doctrines governing the use of water were often incongruous to conservation efforts. After the passage of the 2013 law, a shift in perception is currently underway. Appropriators now face less legal obstacles when they decide to exercise restraint in exercising their water rights.

Recently in Glenwood Springs, the Colorado River basin roundtable (a collective of regional water-supply planners), have prioritized an ongoing process to identify methods by which water can be left in the heavily used Roaring Fork River watershed. Pitkin County went one step further by giving support to a $35,000 grant to help a Front Range nonprofit move forward with its plan to provide a pathway for water right holders to leave more of their allotted water rights in the Roaring Fork, made possible without penalty by the 2013 law. Unsurprisingly, the city of Aspen has given its blessing to both the grant and to any proposed effort to improve upon the health of the Roaring Fork. Although support at this level is no doubt promising, the overall success of these efforts hinges on the individual user’s willingness to forsake a portion of his or her allotted water rights in order to conserve river flows. To be sure, any reluctance is to be expected; but the reward of compensation without fear of penalty is certainly an enticing offer. Efforts already undertaken by ranchers in Aspen and Grand County, therefore, represent an encouraging start.

ENVIRONMENTAL BENEFITS:

Water consumers on the Front Range have certain expectations regarding the use of water. The manufactured urban environment – with its golf courses, green lawns, and public parks – provides residents with a much-needed respite from the detachment attendant to urban life. Unfortunately, the consequences these luxuries have on the natural environment, from which they extensively borrow, are too often ignored. As the Front Range continues to expand its base, the Western Slope bears a heavy burden in keeping its river ecosystems healthy. Within this framework, nonuse could be hugely influential, especially considering that the whole of Colorado’s Front Range depends entirely on healthy rivers in the Western Slope for much more than irrigation of golf courses.

The environmental benefits behind this method are easily understood: irrigators and other users will leave unused water they have rights to in the river, and the water saved will then serve to sustain river ecosystems. Convincing domestic users to cut back on their water consumption is difficult in its own right, but convincing water users that depend on their appropriative rights for their economic livelihood, is another thing entirely.

Across parts of Colorado’s Western Slope, there seems to be at the very least a middling interest among ranchers to cut back on the use of excess waters. If these users can be convinced to leave even a small portion of their waters unused, the aggregated benefits could be substantial. According to Amy Beatie, director of the Colorado Water Trust, “[o]n a stream, one cubic foot a second can make a big difference [with regard to environmental benefits].”

In this way, conservation via nonuse becomes a part of the discourse in how we tackle foreseeable drought problems, while simultaneously protecting the natural environment. Unfortunately, and notwithstanding the importance of water conservation, this discourse has been complicated by the fact that non-use is chiefly at odds with the central tenets of the appropriative regime, forming the very foundation of water rights in Colorado. Inevitably, allowing for a right to nonuse of the water amenity has been met with its fair share of criticism.

NONUSE AND THE COLORADO DOCTRINE:

At the heart of the law of water in Colorado is the concept of beneficial use. Once an appropriator puts water to a beneficial use, the right becomes absolute relative to junior appropriators. The term “beneficial” has proven to be remarkably flexible, and any attempt to apply a precise definition is stifled due to the evolution of economic, cultural, and social norms regarding water and its many uses. In recent decades, the idea of conservation has entered the fray regarding the ever-evolving definition of a beneficial use. Indeed, Colorado has already recognized the value of environmental conservation by including the protection of instream flows as a lawful beneficial use.

For a system that places such importance on the efficient use of water, it is not difficult to understand the precarious position a water rights holder places himself in with regard to other users in advocating for nonuse. The appropriative regime’s old-fashioned preference towards a “use-it-or-lose-it” rule, primitive as it may seem, still holds sway in water’s legal identity.

Traditionally, water rights holders in Colorado who do not use all the water entitled to them via their appropriative right faced the possibility of curtailment, and even outright legal abandonment of that right. Even today, when a water right holder uses less than an allotted maximum over a statutory period, any water not being diverted “goes up for grabs to other rights holders next in priority.” In essence, this system conceives a race-to-capture dynamic amongst users, whereby fellow users remain vigilant of any non-used portions of a specific watercourse, and then race to capture whatever is left unused or forgotten. Moreover, waste is fiercely prohibited in a prior appropriation system, and water used for any purpose beyond what was originally intended is prohibited. Any water right that is not continuously put to an active beneficial use can be lost.

CRITICISMS:

It comes as no surprise then that many water users find the new trend of conservation of water via nonuse to be repugnant. The importance of water in Colorado, and elsewhere in the West, goes far beyond its economic utility. Water holds important social, cultural, and recreational value for many diverse actors, and thus any action, legislative or otherwise, that is seen as curtailing any of these rights is immediately met with suspicion, and just as often this suspicion is joined by outrage. This is true of anything that diminishes a person’s long-standing rights, but in a region where water continues to be scarce, the backlash is even more emphatic.

In the present example of nonuse conservation in Aspen and Grand County, many competing users staunchly argue that senior rights must be reduced if the rights holder is not exercising his or her full allotment, in keeping with the principles of Colorado water law that have endured for more than a century. Along these same lines, critics argue that because a core tenet of the Colorado Doctrine holds that a water right holder is to use only an amount of water that is reasonably necessary to fulfill the intended beneficial use, any unused water should be released for appropriation by junior users, otherwise those unused portions constitute waste.

In response to these arguments, John McKenzie, director of the Ditch and Reservoir Company Alliance, explains that in the absence of the safe harbor provided by the 2013 law, agricultural irrigators are induced to flood fields with excess amounts of water out of fear that any unused portions will then be subject to abandonment.

In addition, residents in the more densely populated Front Range argue that they also have individual water needs, beyond those primary uses such as domestic consumption, that befit a certain quality of life. Representatives from Denver and Aurora argue that urbanites are entitled to a “reasonable residential experience,” claiming that the ability to have an irrigated lawn or golf course matches certain recreational amenities specific to mountain communities in terms of importance. One should not have to read too much in to this assertion to recognize the imbalance. The footprint left by the whitewater enthusiast or angler on a river ecosystem pales in comparison to the diversions wrought by the amusement park owner or golf course superintendent. Moreover, the former largely enjoys their recreational activity on nature’s own terms, giving as much as they take, and leaving a river in as pristine a condition as possible so that the activity may continue.

True enough, maintaining healthy urban environments is critical, but in balancing the urban with the natural, one must identify and respect the leverage the former has with regard to the latter in terms of environmental degradation. The equation is surely not equal on both sides, and the Western Slope should be allowed to take its own preventative measures concerning that most vital of natural resources. It is within this framework that nonuse could have a profound impact.

PARTING THOUGHTS:

Thus, what results from the example in Grand County and Aspen is a veritable catch-22; in an effort to ensure that water is not put to waste (as the appropriative regime defines the term “waste”), it is the exact opposite that occurs. Preventing economic waste perpetuates environmental waste and degradation. Profit maximization and the “use-it-or-lose-it” ideal has a pernicious effect on environmental conservation, and this is true even more so during times of drought. As Willow Creek rancher Witt Caruthers explains, “Colorado’s water system created an incentive to use our water even in times when it’s not absolutely necessary. When you’re under that pressure to use it or lose it, you’re almost forced to abuse it.”

We must remain practical when it comes to diverting and using water in times of shortage. Sustainability for future generations must not be ignored, nor should we remain tilted towards temporary solutions that keep festering wounds dormant. Moreover, conservation should not bend in the face of urban luxury. If we are to continue to survive in the arid regions of the West, we must give nature the respect it is due. Centuries after Howell pleaded his case for abstention, we have moved far beyond the point of no return.

For the ranchers and irrigators in Grand County and Aspen, and for the rest of us who occupy the fabled West, where water is so very important to the social fabric, the issue remains: how can we ensure that our waters are preserved not only in times of drought, but also for their own sake, and for the sake of all those both present and future that depend on water for their survival. To this we continue to search for an answer, but at least in the interim, we have become aware of the benefits of nonuse.


Sources:

John Wesley Powell, Report on the Lands of the Arid Region of the United States, With a More Detailed Account of the Lands of Utah, 1, 3 (1879) http://pubs.usgs.gov/unnumbered/70039240/report.pdf.

Bruce Finley, Colorado water plan draft goes to Hickenlooper to address shortfall, THE DENVER POST (Dec. 10, 2014).

John Stroud, Conservation, urban interests clash at water board meeting, POST INDEPENDENT (Sept. 11, 2014) http://www.postindependent.com/news/12984610-113/colorado-conservation-plan-river.

Jedidiah Brewer, Robert Glennon, Alan Ker and Gary Libecap, Transfering Water in the American West: 1875-2005, 40 U. Mich. J. L. Reform 1021, 1022-27 (2007).

With water, Coloradans are all in the same boat, THE DAILY SENTINEL (Sept. 13, 2015) http://www.gjsentinel.com/opinion/articles/with-water-coloradans-are-all-in-the-same-boat.

Bruce Finley, Colorado cuts into use-or-lose system that caused water waste, THE DENVER POST (June 16, 2015), http://www.denverpost.com/environment/ci_28319640/colorado-cuts-into-use-or-lose-system-that.

COLO. REV. STAT. ANN. § 37-92-305(c)(II)(A) (2015).

Brent Gardner-Smith, Colorado River roundtable prioritizes water projects, ASPEN JOURNALISM (March 30, 2015) http://aspenjournalism.org/2015/03/30/colorado-river-roundtable-prioritizes-water-projects/.

Collin Szewczyk. Project aims to restore Roaring Fork flow levels, ASPEN DAILY NEWS (Aug. 31, 2015) http://www.aspendailynews.com/section/home/168027.

Sarah F. Bates, Reed D. Benson, James N. Corbridge, Jr., David H. Getches, A. Dan Tarlock, WATER RESOURCE MANAGEMENT: A CASEBOOK IN LAW AND PUBLIC POLICY 134 (Foundation Press 7th ed. 2002).
Colo. Dept. of Nat. Resources, Instream Flow Program, http://cwcb.state.co.us/environment/instream-flow-program/Pages/main.aspx (last visited Sept. 13, 2015) (explaining that because of water scarcity and environmental characteristics, reasonable preservation of the natural environment in Colorado is paramount and, therefore, the Colorado Water Conservation Board distributes rights for nonconsumptive uses of water in an effort to preserve and maintain water levels and quality to a reasonable degree). Colorado cuts into use-or-lose system, http://www.denverpost.com/environment/ci_28319640/colorado-cuts-into-use-or-lose-system-that.

Gregory J. Hobbs, Jr., Bennett W. Raley, Water Rights Protection in Water Quality Law, 60 U. Colo. L. Rev. 841, 877 (1989).

Bruce Finley, Colorado cuts into use-or-lose system that caused water waste, THE DENVER POST (June 16, 2015), http://www.denverpost.com/environment/ci_28319640/colorado-cuts-into-use-or-lose-system-that.