“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

 

Denver, Colorado                          April 8, 2016

THE HISTORY AND IMPORTANCE OF INTERSTATE WATER COMPACTS

The 2016 University of Denver Water Law Review Annual Symposium focused on the topic of Interstate Water Compacts, both past and present.  The first speaker, retired Colorado Supreme Court Justice Gregory Hobbs, spoke on the history and importance of interstate water compacts, both in the United States as a whole and Colorado in particular.

Justice Hobbs began the Symposium by noting how interstate compacts illustrate the delicate mix of federalism that makes the United States unique.  His presentation centered around the story of Delphus Carpenter, a graduate of the Sturm College of Law and the father of the interstate water compacts created in Colorado.  Born in 1877, a year after Colorado became a state, Carpenter grew up in Greeley working the land.  After graduating law school, he became a practitioner in Greeley.  He was a strong believer in the prior appropriation doctrine.  Coloradans at that time, and settlers across the West, believed that they owned the water within their territories, but this view would soon prove incorrect.

Justice Hobbs noted the significance of 1902.,  During this year the Federal Reclamation Act took effect and Kansas sued Colorado over water rights in Kansas v. Colorado.  Moreover, both the Bureau of Reclamation and the Federal Government asserted that planned reclamation project should receive all unappropriated water.  Justice Hobbs explained that the states, including Colorado, were not happy with the situation that was developing in the West, a war of sorts for water rights.  In 1907, the Supreme Court finally issued its decision in Kansas v. Colorado, holding that a fact specific equitable apportionment analysis would control these types of disputes between states over water rights.  Justice Hobbs stated how Colorado “won” the first round of apportionment due to its settled agriculture across the state.

Next, Justice Hobbs discussed how the changing border of the United States in the late nineteenth century affected the development of water rights in the West, particularly in regards to Mexico.  At that time, homesteading was the philosophy of the West, and, when federal law granted a homestead it only included surface water rights.  Justice Hobbs asserted that this foreshadowed the eventual difficulty of adjudicating groundwater rights under interstate compacts.  Justice Hobbs remarked on the prescience of the framers of the Colorado Constitution, who declared that the water belonged to the public and the people.  This idea was part of the homestead philosophy, but had even deeper roots in the traditions of Native Americans who lived in the West long before Europeans had settled there.

Justice Hobbs then turned back to the story of  Carpenter.  He explained that Carpenter entered into this mix of uncertainty after graduating from law school.  Carpenter was a one term state senator.  Nonetheless, after he left office, the whole state of Colorado turned to him on a bipartisan basis to assist them in the growing number of disputes over waters within the state.  In 1908, the Supreme Court declared that the new reservations for Native Americans needed enough reserve water to sustain their populations and such water was not subject to any state doctrines.  Justice Hobbs discussed how it was a rude awakening for the states to learn that they did not own their own water.  Additionally, there was growing concern among the citizens of Colorado over lawsuits from downstream states.  At this time, Carpenter represented the Greeley Water District, and sought one hundred thousand acre-feet of water from the Laramie River—but Wyoming was not inclined to deal.  Justice Hobbs explained how all of these circumstances forced Carpenter to reconsider his belief in the prior appropriation doctrine, and prompted him to begin research on compacts to settle these disputes.

Justice Hobbs described how people in Colorado and the surrounding states were not receptive to the idea of the federal government issuing decrees to resolve these water disputes.  Carpenter and others wanted to rely on state sovereignty to resolve the disputes between the states and make binding contracts.  These negotiations began in 1922 in Washington D.C.  Justice Hobbs described how Carpenter brought detailed maps along with him to show plans to irrigate the entire Eastern Slope.  Carpenter also wanted the states to be able to use the water as they saw fit within their own borders.  By the end of the negotiations, he accomplished his goal of giving state courts the power to work within their own rules through compacts.  Carpenter also set the landscape for how courts adjudicate these water rights today.

Justice Hobbs closed his speech by describing the importance of water storage here in the West, especially as more and more people migrate to urban centers like Denver.  Justice Hobbs noted how Carpenter knew this when he worked as a state senator to establish the correct priority dates for the reservoirs in Colorado.  To illustrate this point, Justice Hobbs displayed various images of reservoirs across Colorado, including Cherry Creek and the Rio Grande Reservoir.  Justice Hobbs asserted that, following the 1922 negotiations, Carpenter laid the foundation from which eight more interstate compacts would arise.  However, Justice Hobbs pointed out that the success of interstate compacts does not ensure a conflict-free future.  Justice Hobbs finished his remarks by saying: “We want it all, and we think we can do it all.  But there is a limited water supply, and we share it.”

 

Brian Hinkle


Vermillion Ranch Ltd. P’ship v. Raftopoulos Bros., 307 P.3d 1056 (Colo. 2013) (holding (i) the water court did not need to interpret the phrase “all other beneficial uses” in a previous decree nor determine the abandonment of commercial and industrial uses where the applicant only sought to change its irrigation rights; (ii) the water court incorrectly applied the “can and will” doctrine for a finding of reasonable diligence of a conditional water right when it found that a water right is speculative only when it is impossible to implement; (iii) the water court improperly granted conditional water rights because the applicants failed to prove a non-speculative use).

The Colorado Supreme Court (“Court”) reviewed three cases in which the District Court for Water Division 6 (“water court”) granted the parties’ applications for two conditional water rights and a change to an absolute right on Talamantes Creek in Moffat County.  The first adjudication of water rights on Talamantes Creek took place in the 1890s.  A single ranching family owned all of the decreed water rights on the creek until the 1950s, when the family split the property and water rights into two parts.  The Raftopoulos Brothers (“Raftopoulos”) eventually acquired the upstream parcel in 1985.  Vermillion Ranch Limited Partnership (“Vermillion”), members of which belong to the original ranching family, controlled the lower parcel.  The competing applications both proposed to appropriate water from Talamantes Creek for commercial and industrial purposes.

 

Case No. 11SA86 – Raftopoulos’ Application

The Court first reviewed Raftopoulos’s application.  Raftopoulos requested a change to its existing direct flow rights in order to add alternate points of diversion for irrigation and to move the place of use upstream.  Raftopoulos also sought a new conditional right to store 1440 acre-feet of water in one of two as yet unconstructed reservoirs.  Vermillion opposed Raftopoulos’s application on the grounds that the decrees for the absolute rights (“1974 decrees”) did not permit commercial and industrial uses by using the phrase “all other beneficial uses.”  In the alternative, Vermillion argued the water rights should be limited to irrigation, domestic, and stock uses only because Raftopoulos previously abandoned the commercial and industrial uses.  The water court decided the decree included commercial and industrial purposes in the phrase “all other beneficial uses” but granted the changes in diversion points and place of use for irrigation purposes only.  The water court also determined Raftopoulos did not abandon its commercial and industrial uses because it consistently used the full amount of its water right, albeit for other uses.  Finally, the water court granted Raftopoulos’s application for conditional storage rights in two sections of the Elk Ranch Reservoir because Raftopoulos “may” need the water rights for future mineral development.

Upon review, the Court held that the water court never needed to interpret the phrase “all other beneficial uses” in the 1974 Decrees.  Vermillion, in opposing the application, brought forth the argument that “all other beneficial uses” did not include industrial and commercial uses, but the Court held the interpretation had no relevance to the application because Raftopoulos sought to change its irrigation rights only.  The Court further held that the water court did not need to determine if Raftopoulos abandoned the commercial and industrial uses.  The Court vacated the water court judgment concerning these issues.

The second issue the Court considered was whether Raftopoulos met its burden to demonstrate a non-speculative intent to use the new conditional water storage right for commercial and industrial purposes.  To obtain a conditional water right, the Court noted, the applicant must show that (i) it took the “first step,” which includes an intent to appropriate the water and an overt act manifesting such intent; (ii) the intent is not based on speculative sale or transfer of the water to be appropriated; and (iii) the applicant “can and will” complete the appropriation with diligence and within a reasonable time.  The water court found Raftopoulos met this burden based on testimony that it “may” develop mineral rights and “may “need water for that purpose, and that it contracted with Moffatt County for dust suppression.  However, the Court reversed and held that without tangible evidence of actual development activities or a reasonable estimate of the quantity of water required for that development or for dust suppression, Raftopoulos did not demonstrate a non-speculative need for the water.  As such, the Court reversed the water court decree and denied Raftopoulos’s new conditional storage rights.

 

Case No. 11SA124 – Vermillion’s Two Applications

The Court next reviewed the water court’s approval of Vermillion’s two applications.  Vermillion acquired a conditional water right in 1975 and amended it in 2003 to include three alternate places of storage that would not exceed 1200 acre-feet.  The first application sought a finding of reasonable diligence with respect to this conditional water storage right.  The second application aimed to expand new conditional storage rights for commercial and industrial uses and involved constructing reservoirs on Raftopoulos’s land for storage.  Vermillion’s second application sought to expand its total storage to 2400 acre-feet to provide for industrial and commercial uses.

Raftopoulos opposed both applications on the grounds that both were speculative because Vermillion could not acquire the necessary permits, did not assess the condition of the land, and did not show how it would finance the possible costs of construction.  The water court initially denied both applications but later reversed its decision and entered decrees granting both applications.  The water court did not change its findings of fact when it reversed the judgment but rather applied a different standard to the evidence.  The alternative standard the water court applied stated that the water court could only deny the applications if it found that impediments made it impossible for Vermillion to construct the diversions.

The Court looked to the “can and will” requirement found at Colo. Rev. Stat. § 37-92-305(9)(b) (2012) to determine whether the water court properly granted Vermillion’s applications.  The “can and will” doctrine asks if a project to appropriate water “can and will be completed with diligence within a reasonable time.”  According to the Court, the “can and will” test is a balance that includes relevant factors, including economic and technical feasibility.  Though these two factors are not dispositive of the “can and will” test, the Court relied on them to decide whether Vermillion exercised reasonable diligence and noted their relevance in most applications of the “can and will” doctrine.

In opposition to Vermillion’s applications, Raftopoulos argued Vermillion failed to show the economic feasibility and technical feasibility of the reservoir meant to store the new conditional water storage rights.  The Court recognized that the “can and will” requirement did not impose a burden of proof upon the applicant to prove feasibility but also observed that feasibility remained a relevant factor that Vermillion did not address.  The Court reasoned that such evidence could take the form of construction timelines, construction cost breakdowns, land acquisition budgets, steps to acquire necessary permits, or analysis of the feasibility of design and construction of the reservoirs.  Vermillion failed to present any such evidence.  The Court reasoned the failure to set forth economic feasibility evidence might lead to the conclusion that Vermillion had no intent to build the project.  The Court concluded that Vermillion failed to meet its burden to show a substantial probability that the reservoirs “can and will” be completed with diligence in a reasonable amount of time.

 

Conclusion

The Supreme Court ultimately vacated the lower court’s interpretation of the 1974 Decrees and reversed the judgments granting both Raftopoulos’s and Vermillion’s applications for anti-speculation reasons.

 

 

 

 

 

 

The title picture is covered by the Creative Commons Attriubtion-Share Alike 3.0 Unported License.  This picture is attributed to TheSoberPirate, and the use of this picture does not suggest TheSoberPirate endorses this blog.


 

The fifteen inches or more of precipitation that began falling the second week of September caused massive flooding across the state of Colorado, with some describing the torrential rains as a “one-in-a-thousand-year rainfall event.”

As Colorado floodwaters recede, new health risks have begun to arise, and residents now face a threat of contaminated waters. Gary Wockner, Colorado program director for Clean Water Action, said: “[the biggest] concern is oil and gas and fracking chemicals in the water. . . . Oil, gas, and fracking chemicals are poisonous to people and animals and could pollute farms and drinking water supplies.” The full extent of damage is not yet known, as many areas have not yet been inspected.

Floodwaters caused the release of more than 43,000 gallons of oil and more than 18,000 gallons of produced water. Carl Erickson, a Colorado resident and activist with the local group Weld Air and Water, said that the flooding has served as a “wake-up call” that oil and gas development has its consequences.

Anadarko Petroleum Corporation reported two oil spills – 323 barrels (13,500 gallons) along the St. Vrain River, and 125 barrels (5,250 gallons) into the South Platte River. Environmental Protection Agency (“EPA”) spokesman, Matthew Allen, said that both releases involved condensate, a mixture of oil and water. Anadarko workers attempted to contain the South Platte oil spill by placing absorbent booms in the water, but state officials reported the booms have only collected residual oil. The Colorado Oil and Gas Association (“COGA”) is currently working with the Colorado Department of Public Health and Environment, the National Response Center, and the EPA to monitor cleanup efforts.

The flooding reportedly affected at least a thousand gas wells. Noble Energy estimates it shut down between five to ten percent of its wells. In addition, a four-inch Anadarko natural gas pipeline began leaking after the ground around it washed away. Anadarko spokesman, John Christiansen, stated that Anadarko promptly shut off the pipeline and contained the leak.

The flood’s impact on Colorado’s oil and gas fields and the resulting threat to health and the environment is of particular concern to Representative Jared Polis, who serves on the House Committee on Natural Resources (the “Committee”). In a joint letter with Representative Peter DeFazio, the Committee’s ranking Democrat, Polis asked the panel’s chairman, Representative Doc Hastings, to hold a hearing in order to “fully understand the [potentially] grave consequences resulting from [the] flood.” In the letter, Polis stressed that a congressional inquiry might help identify “best practices,” which could mitigate future contamination caused by flooding.  Best practices, include prohibitions on open pits of produced water; closed loop systems for recycling produced water; ways of securing holding tanks, which can be swept away by flood waters; and limitations on well drilling in flood plains.

Additional problems could emerge once inspectors examine sites more thoroughly. Currently, the EPA is working with the Federal Emergency Management Agency (“FEMA”), as well as state and local agencies, to assess the flood’s impact on drinking water and wastewater. Wockner stated, “It’s great news that the EPA is engaging. We have serious concerns that because [Colorado] has so few inspectors and regulators, the [oil and gas] industry is out there self-policing. We need [the] EPA to step in and make sure the public and environment are protected.”

The September 2013 floods have been described as “the worst natural disaster in Colorado so far this century.” Now that the waters have begun to recede, the long process of cleanup and reconstruction can begin. If you would like to help, please visit: www.helpcoloradonow.com.


Sources:

Samantha-Rae Tuthill, Thousands of Gallons of Oil Released into Colorado Floodwaters, AccuWeather, Sept. 20, 2013, http://www.accuweater.com/en/weather-news/water-contamination-boulder-fl/17865986.

Colleen Slevin and Matthew Brown, Colorado Flooding Triggers Oil Spills, Shutdowns, The Boston Globe, Sept. 20, 2013, http://www.bostonglobe.com/business/2013/09/19/colorado-flooding-triggers-oil-spills-shutdowns/2cG8nHJBmyNmjEAApJYh8L/story.html.

Keith Coffman, Likely Death Toll in Colorado Floods Rises to At Least 10, Reuters, Sept. 20, 2013, http://www.reuters.com/article/2013/09/20/us-usa-colorado-flooding-idUSBRE98I0YX20130920.

Tom Yulsman, Colorado Floods: Rescue and Recovery from ‘Biblical’ Rainfall, Sept. 20, 2013, http://nation.time.com/2013/09/18/on-the-ground-in-colorado-digging-out-after-the-deluge/.

Tom Kenworth, Full Extent of Oil and Gas Spills From Colorado Floods Remains Unknown, Oct. 7, 2013, http://thinkprogress.org/climate/2013/10/07/2738341/oil-spills-colorado-floods/.

Editorial, As Colorado Floods Recede, A Will to Rebuild, The Denver Post, Oct. 7, 2013, http://www.denverpost.com/editorials/ci_24107674/colorado-floods-recede-will-rebuild


Greeley water officials are once again concerned about the effects of wildfire on the city’s water supply.  The Galena fire that started on March 15, 2013 burned 1,348 acres of land west of Fort Collins before full containment five days later.  This fire was reminiscent of the nearby High Park fire of last June that burned 87,284 acres, destroyed 259 homes, killed one person, and cost millions of dollars to clean the Poudre River.

The major concern for Greeley, located about 50 miles away from the Galena fire, centers not on the damage from the blaze itself, but the effects of runoff washing ash and fire debris into the city’s water supply.  The fire burned parts of Lory State park that drain into the Horsetooth Reservoir; a reservoir that provides up to 35% of Greeley’s water supply.

Northern Water, a public agency established to build the Colorado-Big Thompson Project and provide supplemental water to northeastern Colorado, immediately stepped in after the Galena fire to mitigate the effects on the area’s water.  Northern Water installed ten debris booms throughout Lory State Park at areas that drain into the Horsetooth Reservoir.  The debris booms consisted of mesh bags filled with wood chips to filter the water and catch any ash and debris before reaching the reservoir.  Northern Water used similar debris booms during the June High Park fire cleanup.

Because the forecast predicated rain only a few days after the fire, Northern Water wanted to act quickly and place appropriate mechanisms before any significant runoff occurred.  Northern Water completed the debris boom installation in two days and spent $15,000 on the project.

The wildfire increase of recent years, combined with the extremely early-season Galena fire, causes concern for Greeley water officials.  Accordingly, the city began exploring new ways to reduce fire damage and seeks partnering with the United States Forest Service to achieve this goal.

While the Galena fire’s effects on Greeley’s water supply still remain unclear, the fire’s smaller acreage and reduced devastation suggest that the impacts on the water supply and quality will not be as great as after the High Park fire.


Sources:

Fire Burning Northwest of Fort Collins, The Greeley Tribune, Mar. 15, 2013, http://www.greeleytribune.com/news/crime/5570876-113/fire-homes-friday-reservoir.

Alex Ruiz, Galena Fire Has Greeley Water Officials Concerned, Northern Colorado 5, March 19, 2013, http://www.noco5.com/story/21694538/greeley-water-supply-hit.

John Orr, Galena fire: Northern Water installs debris booms to mitigate effects to Horsetooth Reservoir #codrought, Coyote Gulch (Mar. 24, 2013, 7:24 AM), http://coyotegulch.wordpress.com/2013/03/24/galena-fire-northern-water-installs-debris-booms-to-mitigate-effects-to-horsetooth-reservoir-codrought/.

Galena Fire in Larimer County 100 Percent Contained at 1,348 Acres, Denver Post, Mar. 20, 2013, http://www.denverpost.com/breakingnews/ci_22833790/galena-fire-larimer-county-100-percent-contained-at.

Northern Water, http://www.northernwater.org (last visited Sept. 4, 2013).

 


 

The Green River

While the Green River, which runs through Utah, Wyoming, and Colorado, is only a tributary of the Colorado River, it has still become a major source of debate and controversy among the three states’ residents and lawmakers.  The Green River starts in the Wind River Mountains in Wyoming and then winds 730 miles downward toward the ocean running through places such as the Browns Park and Dinosaur National Monument.  Many people from all over the nation love the Green River because it carved out some of America’s most iconic canyons and is seen as one of the most beautiful waterways in the nation.  The river is also valued as home to several threatened and endangered species, including the bonytail and humpback chub, the razorback sucker, and the Colorado pikeminnow.

 

Background

Recently, serious debate unfolded over the fate of the Green River and Colorado’s ever increasing water deficit.  A new study from the U.S. Department of the Interior, Bureau of Reclamation indicates Colorado will have at least a nine percent decline in water flow by 2050.  The study projected significant impacts on fish and fishing as well as negative impacts on other recreation.  White water rafting, which brings in at least $4.2 million a year for local businesses, would be impacted particularly hard.  While Colorado has allowed more than it is legally required to flow downstream, other states are already violating the 1922 Compact for the Lower Water Basin by taking more than their legal share of water from the river.  Many politicians and water developers have put forward different ideas in recent years to deal with the water deficit, but one of the most controversial plans is constructing a pipeline to take water from the Green River.

 

Flaming Gorge Pipeline

The pipeline, proposed by Aaron Million, is known as the Flaming Gorge pipeline.  The proposal calls for a 500 mile water pipeline to pump eighty-one billion gallons of water per year out of the Green River in Wyoming for use in Colorado, which amounts to approximately twenty to thirty percent of the river’s annual flow.  At this time, the pipeline would cost between seven and nine billion dollars without including any costs to deal with the massive environmental impacts the pipeline would cause.  The State of Colorado’s Water Conservation Board (“CWCB”) initiated a preliminary study on the pipeline, but the CWCB denied additional funding in January of 2013 for a subsequent, more intensive study.

The pipeline creates several concerns, one of which is how likely Utah and Wyoming will let the project go unchallenged despite the significant potential impact on their states.   Additionally, the pipeline lacks substantial popular support in any of the three states it directly impacts.  In fact, surveys of Colorado residents show that seventy-six percent of residents prefer a solution for the state’s water issues that focuses on using existing water more efficiently rather than building a pipeline.  American Rivers, a non-profit seeking protection of the United States’ rivers and streams, listed the Green River as the second most endangered river in a 2012 national study, mostly because of the proposed Flaming Gorge pipeline.

 

Recent Developments

In the face of the recent Bureau of Reclamation study and urgings from the public to look at conservation measures, the CWCB’s decision to stop funding the second study of Flaming Gorge pipeline may forecast trouble for the project.  Some even see abandonment of the study as an implied rejection of the project.  In the next few months, Colorado lawmakers will set a future course for the state’s water usage, which will impact generations of residents.  Any measure these lawmakers choose will also set a tone for the rest of the region on dealing with this increasingly desperate water situation.  Hopefully, Colorado chooses to set a tone of interstate cooperation that places conservation and smart water use above more environmentally questional proposals.


Sources:

 

Heading Photo Copyright Don Cload and licensed for reuse under the Creative Commons Licence


Background

The Colorado River Basin (“the Basin”) spans parts of seven western states: Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming.  The Basin currently provides water to around 40 million people and 4 million acres of irrigated agricultural land, making it one of most important watersheds in the western United States.  Beginning in January of 2010 and lasting for three years, the Department of the Interior funded a supply and demand study of water use in the Basin through the Bureau of Reclamation and its WaterSMART program.  Completed in December 2012, the published full report of the Colorado River Basin Water Supply and Demand Study (“Study”) can be found in the links provided below.

 

The Study

The Study evaluated future imbalances in the watershed over the next 50 years, up to year 2060.  The Study, however, did not result in any decision on how exactly the future imbalances will be addressed.  Performed in four phases, the Study (1) assessed the water supply of the watershed; (2) assessed the demands for water within the basin; (3) analyzed the reliability of the computer models; and (4) developed and evaluated strategies to decrease the imbalance. The Study found the average imbalance between supply and demand for water would be more than 3.2 million acre-feet.  Most of this imbalance is due to an increase in demand from municipal and industrial users because of an estimated doubling of the population within the Basin.  The study estimated that by 2060 the population could be approximately 76.5 million people.

 

It is important to note that any future water supply and demand scenarios predicted within the watershed are highly uncertain because an infinite number of possibilities exist.  While no study will be exact, the Bureau of Reclamation analyzed four different scenarios for both supply and demand.  On the supply side, four scenarios exist: (1) an Observed Resample scenario that looked at water tends over the past 100 years; (2) a Paleo Resampled scenario that looked at water trends over the past 1,250 years; (3) a Paleo Conditioned scenario that looked at water trends over the past 1,250 years but conditioned on the water values observed over the past 100 years; and (4) a Downscaled GCM Projected scenario estimating that the climate will continue to warm substantially over the next few decades.  This last scenario estimated that the natural water flow within the basin will decrease by approximately 9% over the next 50 years.  On the demand side, four scenarios also exist: (1) a Current Projected Growth model; (2) a Slow Growth model; (3) a Rapid Growth model; and (4) an Enhanced Environment Growth model accounting for enhanced environmental stewardship.  All the scenarios were then run in different combinations through the Colorado River Simulation System in RiverWare software, obtaining a range of potential future system conditions.

 

The Study next evaluated more than 150 options and strategies on how to resolve imbalances in the watershed.  The options and strategies can be generally organized into four groups.  The first group included options that increase water supply such as reuse, desalination, and importation.  The second group included options that reduce water demand from both M&L and agricultural conservation.  The third group included options that modify operations such as transfers & exchanges and water banking.  Finally the last group included options that focus on governance and implementation of water such as stakeholder committees, population control, and reallocation.

 

Finally, the Study listed ten general areas of options and strategies seeking to resolve water imbalances that are realistic to implement within the watershed: water conservation and reuse; water banks; watershed management; augmentation; water transfers; tribal water; environmental flows; data and tool development; climate science research; and partnerships.  The Bureau of Reclamation closed public comments on the Colorado River Basin Water Supply and Demand Study on April 19, 2013, and all comments will be summarized and considered in planning activities.

 

Brief Comments on the Study

The best solution laid out in the Study is water conservation.  Because irrigated agriculture is responsible for approximately 70% of watershed water use, conservation is this sphere could result in significant savings.  Effective conservation can also occur in cities by reducing water use in outdoor landscapes because half of all city water use is involved in such endeavors.  With desalination technology rapidly evolving, it could become another very attractive option.  Desalination projects do occur in other countries, but the energy cost and cost of recovery are still very high.


Sources:


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/.

 

 


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.