Getches, David H.
The Law of the River and the Quest for
Certainty, Fairness, and Sustainability
David H. Getches
Dean and Raphael J. Moses Professor of Natural Resources Law
University of Colorado, Boulder
Western State College
28th Water Workshop
“In Hard Times: Collaboration or Contention?:
Water Allocation and Use in Times of Scarcity”
July 25, 2003
Introductory Discussion: The Nature of the Problem
The statutes, treaties, compacts, cases, and agreements collectively known as the “Law of the Colorado River” comprise a formula for allocating the waters of the river among seven basin states and Mexico. It guarantees fixed quantities of water to the lower basin states of California, Arizona, and Nevada and to Mexico, and limits uses by the less developed upper basin states of Colorado, Utah, Wyoming, and New Mexico to water that is left after the guaranteed downstream deliveries.
This legal framework has given Southern California a high level of security for economic and population expansion. But California has regularly used more than its entitlement in recent years, making its supplies less secure legally. Of the other six states in the basin only New Mexico is using its full apportionment although Nevada has the capacity to use its share and soon will be doing so. Arizona is striving to take its full entitlement if only to bank it underground for future sales to other states. Consumption in the other states has not approached legal entitlements.
All basin states are concerned about the limits of supply. California is under pressure to comply with its legal limits. The states that do not use their full entitlements are becoming aware that – whatever discipline might be imposed on California – the river simply does not produce enough water to satisfy all the state’s expectations for future use. It is now clear that the Law of the River was based on false assumptions. Recent data from tree-ring studies show that the amount of water left for the upper basin is less than the quantities apportioned by the law of the River. Plainly, more water was allocated than nature produces. Although the impacts of drought can be attenuated by the elaborate storage system of some of world’s greatest reservoirs, use of “full entitlements” is simply not sustainable, particularly for the upper basin states.
Further pressures are created by environmental demands. Federal regulatory laws have supplemented the laws that allocate the river’s water. Environmental laws like the Endangered Species Act are having a dramatic impact on the extent and types of uses of the river. This affects especially the ability to impose new demands for consumptive uses, but also forces reconsideration of continuing power generating activities. Federal hydroelectric generating systems were built and have been operated without regard to the more recently enacted environmental laws.
Although the past has been filled with tensions over allocation of the river, future problems and conflicts will be even more challenging. The allocation conflict centers on California’s apparent political inability to reduce usage to quantities within its legal entitlements. This is likely to be resolved in the long run through market mechanisms. Another allocation issues concerns Indian water rights. The claims of only five tribes have been adjudicated but rights of as many as twenty Indian tribes may be claimed in the river and could amount to millions of acre-feet.
Although we are not finished dealing with allocation problems on the Colorado River, environmental issues are likely to place the largest demands on the time and creativity of policy makers and water experts. The long-standing problem of massive salt-loading, to the point the water in the river becomes useless, has been temporarily masked by high flows but will arise again. Endangered species issues will indirectly but decisively send signals that river use is approaching its limits of sustainability. The legal requirements are stringent and are not likely to be changed politically. Relations with Mexico have been strained in the past over allocation and pollution of the river. Today a conflict is brewing over protection of fish and wildlife in the Colorado River Delta in Mexico, but solutions have not yet been proposed by either nation. Meanwhile, population and related water demands are growing rapidly in almost all basin states. The resulting tensions will be exacerbated as natural supplies are squeezed by cyclical droughts and climate change phenomena.
This situation raises the questions of the durability and appropriateness of the Law of the River. Has the Law outlived its usefulness? Can the Law meet the challenges of the future?
I. Components of the “Law of the River”
A. Colorado River Compact of 1922, 70 Cong. Rec. 324 (1928) [1922 Compact].
B. Boulder Canyon Project Act of 1928, 43 U.S.C. §§ 617 – 617t [BCPA].
C. Seven Party Water Agreement, August 18, 1931 [7 Party Agreement].
D. Mexican Water Treaty of 1944, T.S. No. 994, 59 Stat. 1219 (1944) [Mexican Treaty].
E. Upper Colorado River Basin Compact (1929), 63 Stat. 31 (1949) [Upper Basin Compact].
F. Colorado River Storage Project Act of 1956, 43 U.S.C. §620 [CRSP].
G. Arizona v. California, 373 U.S. 546 (1963) [Arizona v. California].
H. Colorado River Basin Project Act of 1968, 43 U.S.C. §§ 1501-1556 [Basin Project Act].
I. Colorado River Basin Salinity Control Act of 1974, 43 U.S.C. §1571-1599 [Salinity Control Act].
J. United States – Mexico Agreement on Colorado River Salinity Confirming Minute No. 242, Aug. 20, 1973, 24 U.S.T. 1968, T.I.A.S. 7708 [Minute 242].
K. Grand Canyon Protection Act of 1992, Pub. L. No. 102-575, §1802 (a), 100 Stat. 4600, 4669 [GCPA].
L. Other laws:
a. Clean Water Act, 33 U.S.C. §§ 1251 et seq. [CWA].
b. Endangered Species Act, 16 U.S.C. § 1531-1543 [ESA].
II. Allocation between upper and lower basins
A. Colorado River basin was divided into upper and lower basins by 1922 Compact.
a. Upper basin: Colorado, New Mexico, Utah, and Wyoming.
b. Lower basin: Arizona, California, and Nevada.
c. Dividing point is Lee Ferry (at Utah – Arizona border, just downstream of Glen Canyon Dam).
B. Lower basin states are entitled to use 7.5 million acre-feet a year by Article III (a) of the 1922 Compact.
a. 75 million acre-feet must be delivered at Lee Ferry every 10 consecutive years (Article III (c)).
b. May consume another 1 million acre-feet when flows permit (Article III (b)).
c. Under Article III (e) lower basin can use any additional water not being used by upper basin (i.e., “reasonably applied to domestic and agricultural uses”).
C. Upper basin states are also entitled to use 7.5 million acre-feet a year by Article III (a) of the 1922 Compact, if:
a. To do so would not prevent them from delivering 75 million acre-feet every 10 years to Lee Ferry;
b. It is not withholding water that it does not need for domestic and agricultural uses but that the lower basin does need for those purposes.
D. Upper and lower basin must each reduce their shares equally as necessary to satisfy Mexican Treaty obligation (described below).
E. Allocation was based on mistaken assumptions about quantities of water available in river. From historical record in 1922 it appeared that annual flows were over 16 million acre-feet. Tree-ring studies now show average annual flows over 400 years to be about 13.5 million acre-feet.
III. Allocation between United States and Mexico.
A. Mexican Treaty (Article 10) guarantees Mexico 1.5 million acre-feet a year, provided:
a. The U.S. will deliver to Mexico up to 1.7 million acre-feet whenever flows exceed all U.S. uses plus the 1.5 million acre-feet due Mexico.
b. In case of drought or damage to U.S. irrigation systems, deliveries to Mexico may be reduced in proportion to reductions in consumptive uses in the United States.
B. The burden of meeting the Mexican Treaty obligation is shared equally by upper and lower basin, provided:
a. Delivered water comes first from surplus flows, i.e., in excess of all beneficial consumptive uses of up to 7.5 million acre-feet in upper basin and up to 8.5 million acre-feet in lower basin.
b. Upper and lower basin states bear equally the burden if surplus is inadequate.
c. In the unlikely event the United States undertakes a project to augment Colorado River supplies from outside sources that produces at least 2.5 million acre-feet, the Mexican Treaty obligation will be met first from such “new” water, not by the basin states. See Basin Project Act, § 1512.
C. Salt content in water delivered to Mexico must not be excessive.
a. Mexican Treaty is silent on water quality.
b. An international incident was touched off in 1961 by the United States’ delivery of extremely salty water to Mexico.
c. U.S. agreed with Mexico that it would not deliver water with salinity concentrations greater than 115 parts per million over the concentrations in water used in the U.S. as measured at the Imperial Dam. Minute 242.
d. Federal statutory law (CWA) requires water quality control.
e. Salinity Control Act authorized elaborate and expensive program of structural measures to prevent and remove salinity in river.
i. Partly a response to Mexican Treaty obligations, partly a response to CWA requirements, but also needed to make lower basin water usable.
ii. In low flow years program may not be adequate.
IV. Allocation among upper basin states
A. Under the Upper Basin Compact, the upper basin states were allocated the right to consume the following percentages of water apportioned to the upper basin by the 1922 Compact:
a. Colorado – 51.75%
b. New Mexico – 11.25%
c. Utah – 23%
d. Wyoming – 14%
e. In addition, Arizona was apportioned 50,000 acre-feet on account of the territory it has within the upper basin.
B. An Upper Colorado Commission determines the quantity of water to which each state is entitled.
V. Allocation among lower basin states
A. Arizona v. California held that the BCPA apportioned the first 7.5 million acre-feet of the lower basin shares of the water as follows:
a. California – 4.4 million acre-feet
b. Arizona – 2.8 million acre-feet
c. Nevada – 300,000 acre-feet.
B. Arizona and California each may consume up to half of any additional waters according to BCPA
C. When less than 7.5 million acre-feet is available, a provision in the Basin Project Act assures that the Central Arizona Project will be operated so as to deliver California’s full 4.4 million acre-feet.
VI. Allocation within California
A. Irrigation interests have first priority – 3.85 million acre-feet per year. 7 Party Agreement.
B. Metropolitan Water District of Southern California has the next priority – 550,000 acre-feet.
VII. Allocation to Indian tribes
A. Five Indian reservations along the mainstem of the river are entitled to use about 900,000 acre-feet a year. Arizona v. California.
a. Allocation is based on reserved rights doctrine, which implies an intention to reserve from appropriation by others sufficient water to fulfill the purposes of the reservation. Winters v. United States, 207 U.S. 564 (1908).
b. Court determined that since purpose of these reservations was to allow Indians to be farmers, rights should extend to enough water for all “practicably irrigable acreage” (PIA).
B. Waters used by Indian tribes pursuant to their reserved rights are charged against the allocation to the state in which the reservation lies. Arizona v. California.
C. Many other tribes have potential claims on waters of the Colorado River.
a. Depending on how liberally the PIA standard is applied, Indian claims in the basin could amount to several million acre-feet.
b. A number of tribes are negotiating agreements with basin states to determine and quantify their reserved rights.
c. The Navajo Nation has recently sued the Secretary of the Interior to prevent her from allowing further use of water to which the tribe may have rights.
VIII. The role of water projects in the Colorado River system
A. Hoover Dam authorized by BCPA was a major boon to agricultural and municipal development in southern California.
a. Water supplies.
b. Electrical power.
B. Projects allow California apportionment to be used fully and flexibly.
C. Glen Canyon Dam authorized by CRSP ensures that upper basin can make compact deliveries to lower basin for several dry years while allowing upper basin use of annual runoff.
a. Hydropower production drives much of actual reservoir operations.
b. A number of other CRSP projects store water and generate power within upper basin states.
D. Central Arizona Project authorized by Basin Project Act allows delivery of most of Arizona’s apportionment to Phoenix and Tucson.
IX. Pressures on the system
A. Growing demands; finite supply.
a. Population growth through much of basin
b. California’s dominant role in water usage; apparent inability to curb usage
B. Increased environmental demands: water quality, instream flows, recreational uses, fish and wildlife protection, and ecosystem values.
a. Endangered Species Act now affects whether and to what extent any additional water can be developed from the river.
b. Incomplete control of salinity.
C. Assertion and exercise of Indian reserved rights.
D. Potential for water to be required for maintenance of the ecosystem of the Colorado River Delta.
E. Drought and climate change.
X. Responding to the Challenges
A. Evolving approaches to western water issues
a. End of era of water project development
b. Movement toward sustainability.
B. A continuing quest for new supplies?
XI. Demand for more equitable and flexible responses from Law of the River
A. Revise or repeal?
B. Adapting within the legal framework
i. Interstate water marketing.
ii. Establish a basin wide authority representing diverse interests to deal with applying Law of the River more equitably and flexibly.
iii. Adjust expectations for future water use.
I. UPCO BACKGROUND
A. Water currently being diverted to Front Range from Grand and Summit Counties
1. Grand County 320,000 AF 420,000 AF
(NCWCD & DWD) 60-65% (above Windy Gap) over 75 %
2. Summit County 65,000 AF 162,000 AF
(DWD, C-Springs) 25%(above Dillon) over 60%
B. Growth Rate - Colorado is listed as one of the top 5 fastest growing states
Grand County 24% between 1990 and 1997
Summit County 43% between 1990 and 1997
C. Denver IRP released and NCWCD Windy Gap Firming project on the horizon
D. History = very contentious and litigious
E. Timing was right to look at long-term strategies for West Slope as the Front Range develops its own strategy.
II. Need for the project: Balancing Diversity of Uses
A. Need responsible decision making – know what kind of instream impacts will occur before building a new water project or expanding snowmaking.
B. Growth Rates on both sides of the Divide – West Slope needed its own IRP to plan for its future while the Front Range continues to grow and need more water.
C. All Wastewater and Treatment plants in the UPCO study area have either just finished or are planning an expansion.
D. Water Quality Issues – Abandoned Mine Sites, Greater Impervious Surfaces, WWTP return flows plus less dilution because more and more water diverted
E. Recreation Based Economy – Aesthetics, Gold Medal Fisheries, Rafting, Boating, Skiing, Kayaking
III. Who is involved?
NWCCOG – QQ (towns and Water and Sanitation District)
Summit and Grand Counties
Middle Park Conservancy District
Colorado River Water Conservation District
Northern Colorado Water Conservancy District
State of Colorado: DOLA, CWCB, SEO
Ski Areas in Summit and Grand
IV. What is UPCO?
A. A Planning tool to analyze stream flows, water supply, reservoir levels
B. Cooperative process: sharing data, using Denver’s model, agreeing on information and problems.
C. Identify issues/problems; Prioritize problems; Focus on Solutions
V. Goals/Purpose of the Project?
A. By looking projected conditions, where will there be problems? Then find cooperative solutions where possible. Cooperation - rather than bickering over data or litigating.
B. Planning Tool for water users in Summit and Grand County – water supply, fishing, reservoir levels (marina operations), land use decisions, etc.
C. Finding balance among multiple uses, all vying for a finite resource.
VI. HOW THE PROJECT IS PROCEEDING?
1. The Study (finalized)
• Meetings with headwater communities as part of transition
• Report outlining problems and potential solutions by stream segment: www.nwc.cog.co.us
2. Solutions Phase (Summer 2003)
• Put together the right groups of folks to work on the problems.
• Grand: two EIS processes Summit: South Metro Study
HOW COLORADO WATER LAW IS MADE,
Colorado Water Workshop, July 2003
Justice Greg Hobbs
Climate and the Water Laws
Native American and Hispanic water uses preceded those of the Nineteenth Century western-moving Americans. Recent survey, engineering, and archeological work by teams of the Wright Paleohydrological Institute—in cooperation with the National Park Service and the Colorado Historical Society—have confirmed the existence of four ancient Mesa Verde reservoirs. Examination of sedimentation samples, soil and pollen testing, and broken pottery and other cultural artifacts, have produced estimates of the operational life of these reservoirs:
• Morefield Reservoir in Morefield Canyon (AD 750—1100)
• Far View Reservoir (also known as Mummy Lake) on Chapin Mesa (AD 950—1180)
• Sagebrush Reservoir on an unnamed mesa west of Chapin Mesa (AD 950—1100)
• Box Elder Reservoir in Prater Canyon (AD 800—950).
PUEBLO PEOPLE OF MESA VERDE
You want to know where water’s precious,
Where every scoop of dirt’s a prayer of life;
And tomorrow’s blessing—carried in a pot
Of clay is a source of wonder up a slope
A thousand years away—perch upon
A buried kiva’s rim and take within the
Arcing southeast sun this light they saw—
You see—and may you keep this light
Within and speak it openly;
They worked and loved, like we, this
Land, this calling, this Mesa Verde
The Spanish explorer Francisco Vasquez de Coronado—looking for mineral treasure his culture coveted—reported that the Native Americans of the Southwest worshipped water:
So far as I can find out, the water is what these Indians worship, because they say that it makes the corn grow and sustains their life, and that the only reason they know is because their ancestors did so.
The New Mexico acequia tradition influenced Colorado in two direct ways. First, the oldest continuous water right in existence today is for the 1852 San Luis People’s Ditch diverting from Culebra Creek. It was built to irrigate the fields of Hispanic settlers on the Sangre de Cristo Grant, an 1844 Mexican Land Grant.
Second, when Benjamin Eaton—later, a Colorado Governor—became disillusioned with gold mining as one of the Colorado 1859ers, he learned to work acequia water on the Maxwell Land Grant outside of Cimarron, New Mexico. Returning to homestead in Colorado Territory in 1864, he dug his own irrigation ditch and helped to construct the Union Colony No. 2 Canal in the early 1870s and, later, the Larimer and Weld Canal in Northern Colorado and the High Line Canal in the Denver basin. As a member of the Territorial Legislature, Constitutional Convention, and State Legislature, he worked to shape the prior appropriation provisions of the Colorado Constitution and early statehood water statutes, including the Adjudication Acts of 1879 and 1881.
The Nineteenth Century western movement from the eastern United States was more than seeking the material goal of working lush farmlands in Oregon, like Ulysses venturing West:
(I)t was Manifest Destiny made visible in wheel tracks. It was, as Thoreau recognized, a culmination of Occidental man’s age-old instinct to follow the setting sun to the blessed isles, to the gardens of the Hesperides.
But the emigrants into the West had to go through the arid lands to get there. U.S. Army Captain Randolph Marcy’s 1859 guide to the Overland Trail warns of “long stretches where grass and water are scarce.”
Walter Prescott Webb observed that settlers coming into contact with strange and new conditions can become innovators. Sometimes, their way of coping is a radical break from the past:
In the development of institutions there is always a conflict between custom and necessity. Through custom people cling to old traditions and try to perpetuate them by adapting them to new conditions, but necessity argues the case on its merit without much regard for precedent. Out of the conflict comes a compromise in which the old is modified and adapted. Since the frontier was ever in contact with strange and new conditions, the frontiersman became an innovator and therefore sometimes a radical.
Sharp departure from prior customs may result in new laws that institutionalize the change. This happened in the American West, because of climate. Colorado’s experience is an excellent example.
The years from 1865 to 1872 were dry. In 1872, the Colorado Territorial Supreme Court issued its first water decision, Yunker v. Nichols. The reality of settling into the arid lands, long known by hard experience to the Native and Hispanic Americans—that water is a scare and precious community resource needed to grow crops—produced a radical break from the pre-existing English and American common law, which the Territorial Supreme Court encapsulated as the ruling principle of Colorado water law:
(R)ules respecting the tenure of property must yield to the physical laws of nature, whenever such laws exert a controlling influence . . . In a dry and thirsty land it is necessary to divert the waters of streams from their channels, in order to obtain the fruits of the soil, and this necessity is so universal and imperious that it claims recognition of the law.
The law of water scarcity and need—so the court declared—
imposed a servitude across private and public lands for the building of ditches to divert and carry water to its place of beneficial use for irrigation, wherever that might be. The pre-existing English and American common law assigned the right to use the waters of the stream only to those who held land adjoining the stream, limited the amount to de minimus consumption, and required the landowner’s consent for any crossing of property or the construction of facilities on the lands of another. Yunker v. Nichols abrogated all three of these pre-existing property right formulations in favor of public water ownership and the establishment of use rights therein by private individuals and public agencies.
Although the court based its decision in part on a statute of the first Territorial Legislature in 1861, it baldly proclaimed that the necessity of water use in the arid climes prevented the Legislature from repealing the fundamental right of the people to access and use the scarce public water supply:
I conceive that, with us, the right of every proprietor to have a way over the lands intervening between his possessions and the neighboring stream for the passage of water for the irrigation of so much of his land as may be actually cultivated, we well sustained by the force of necessity arising from local peculiarities of climate . . . It seems to me, therefore that the right springs out of the necessity, and existed before the statute was enacted, and would still survive though the statute were repealed. If we say that the statute confers the rights, then the statute may take it away, which cannot be admitted.
The 1876 Colorado Constitution ratified the principles of Yunker v. Nichols, establishing prior appropriation for beneficial use as the governing precept for the waters of the natural stream, and providing for a right of private condemnation across the lands of another to build the necessary water works for beneficial use. In 2002, the Colorado Supreme Court, citing the court’s 1872 decision, reiterated the Colorado Doctrine as follows:
Advancing the national agenda of settling the public domain required abandonment of the pre-existing common-law rules of property ownership in regard to water and water use rights. Reducing the public land and water to possession and ownership was a preoccupation of territorial and state law from the outset. A new law of custom and usage in regard to water use rights and land ownership rights, the “Colorado Doctrine,” arose from “imperative necessity” in the western region. This new doctrine established that: (1) water is a public resource, dedicated to the beneficial use of public agencies and private persons wherever they might make beneficial use of the water under use rights established as prescribed by law; (2) the right of water use includes the right to cross the lands of others to place water into, occupy and convey water through, and withdraw water from the natural water bearing formations within the state in the exercise of a water use right; and (3) the natural water bearing formations may be used for the transport and retention of appropriated water. This new common law established a property-rights-based allocation and administration system that promotes multiple use of a finite resource for beneficial purposes.
The water provisions of Colorado’s 1876 constitution and 1879 adjudication act of 1879 directly resulted from upstream/downstream junior/senior disputes over water scarcity. The 1870 Union Colony— downstream near the confluence of the Poudre and South Platte Rivers—built and began to operate their irrigation canals only to find in 1874 that diversions by a new ditch upstream near old Fort Collins had reduced the Poudre’s flow to a trickle. Clearly, the priority system and its enforcement—prior reliance on turning the water to beneficial use and protecting that use—had to be institutionalized within the three branches of Colorado government for the benefit of the citizens. So the Colorado General Assembly assigned the state’s judiciary to decree water rights priorities and the State and Division Engineers and Water Commissioners to enforce them.
The pitch of water scarcity resounds repeatedly along the channel of the water law.
1882, Coffin v. Left Hand Ditch:
The climate is dry, and the soil, when moistened only by the usual rainfall, is arid and unproductive; except in a few favored sections, artificial irrigation for agriculture is an absolute necessity. . . We conclude, then, that the common law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes not beneficial use thereof, is inapplicable to Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith.
1938, People v. Letford:
It is a matter of common knowledge that due to climatic conditions, except in a few limited areas, agricultural crops cannot be produced in Colorado except by irrigation of the land. Also it was early evident and still is obvious, that the economic and industrial development of an arid state is directly dependent on its water supply.
1986, County Commissioners v. Denver Water:
The effects of drought on water supply in Colorado are well known. The impact of drought on municipalities has resulted in lawn watering restriction, moratoriums on service, and other restrictions on use to conserve water. A drought in the 1950’s was so severe that the Board retracted use by temporarily creating a “Blue Line” beyond which water service would not be extended, and within which service was not assured.
As a result of the drought crisis of 1976, the board adopted water restrictions and a Tap Allocation Program which established procedures and criteria to allocate new taps among the various entities under contract outside Denver which are served the Board’s water system.
Prior appropriation is a doctrine of scarcity that curtails undecreed water uses and decreed surface and tributary groundwater junior water uses, in accordance with decreed priority, when there is insufficient water available to supply all uses. Adjudication of water rights priorities, and engineering studies of diversions and uses in wet, average, and dry times, allows water planners and suppliers to determine whether present and future water demands can be met, and what water rights have a dependable supply to support new uses by acquisition and change of those senior water rights to the new uses through water market transactions. Augmentation and substitute supply plans may operate to allow out-of-priority uses to continue if adequate replacement water is made available to the otherwise injured water rights.
Climate and Water Institutions
Drought events of four years or more occurred in large regions of Colorado and the West during the years 1899-1902, 1933-1937, and 1952-1956. Each of these climatologically-caused episodes corresponded to the enactment of major laws creating significant water institutions.
In 1902, Congress enacted the Reclamation Act, creating the U.S. Bureau of Reclamation. Also in 1902, Kansas sued Colorado, commencing the era of interstate water allocation through United States Supreme Court equitable apportionment decrees and interstate water compacts.
In 1937, the Colorado General Assembly created the Colorado Water Conservation Board, the Colorado Water Conservation District, and the Water Conservancy Act, under which the Northern Colorado Water Conservancy District became the first of the 51 water conservancy districts existing in Colorado today.
In 1956, Congress enacted the Colorado River Storage Project Act, putting into place a network of Colorado River reservoirs structured to support the operation of the 1922 Colorado River Compact. The 1956 Act became inevitable because the years 1905 to 1929 were the longest recorded wet cycle, resulting in a significant overestimation of Colorado River water available for allocation to the Upper and Lower Basin Colorado River states. The guarantee of a 75,000,000 acre-foot ten-year running average to the Lower Basin left the Upper Basin states in dire need of a large storage system that could withstand at least a severe four year drought.
In turn, reaction to the implementation of the 1956 Act—through the construction of Glen Canyon, Flaming Gorge, Blue Mesa, and Navajo dams—helped to counter-produce the 1964 Wilderness Act, as proposed dams at Echo Park and Marble Canyon dramatized the environmental call for creation of a National Wilderness Preservation System.
Harking to John Wesley Powell’s view of water scarcity and the need for redistribution of the natural hydrographic through reservoirs, the progressive era produced a marriage of the national forest preservation system with the reclamation program of irrigation development. The 1901 Congressional hearings on the Newlands and Shafroth bills sounded loudly with the principle that forest watersheds must be protected in aid of western water development and use. Congressman Newlands of Nevada emphasized that the capacity of locally built direct flow ditches to provide a stable irrigation supply had reached its limit, and the existing settlers were in need of water storage that they could not finance on their own:
On all those streams lands have been taken up and reclaimed, but the limit of reclamation under the present system has been reached. These rivers discharge immense quantities of water during the early spring and summer months, but become attenuated threads during July, August, and September. The only method of further development of irrigation is by water storage.
The snows on the mountains are in a certain sense storage reservoirs for the water. The snows fall in immense quantities and great banks form in the ravines and the valleys, and as long as they are protected by the trees, the melting is not as rapid in the spring and summer months as it otherwise would be. When these trees are cut down the snow is exposed to the fierce rays of the sun, it melts rapidly, and the water rushes down in the early spring months. The destruction of the forests has limited and cramped many of the existing irrigation systems of the arid regions. Settlements which in former years never suffered from drought are now suffering, not because there is not the same quantity of water in the streams, but because it comes at a time when it is not needed, on account of the melting of the snow hastened by the cutting down of the forests.
Congressman Newlands invoked Powell’s earlier admonition that private corporations could not be trusted to act in the public interest:
Private capital will not undertake to build storage works unless there is a speculative profit. Investors wish to get a large area of land out of which they may make this profit by leading irrigation ditches over it, and the general tendency of such a course is to create land monopolies. The object of the people of the United States is to prevent land monopolies and promote settlement.
Pointing to the over-appropriation of the South Platte by the direct flow ditches, Congressman Shafroth of Colorado urged federal funding of reservoirs to allow irrigation of newly developed lands, along with stabilizing the water supply of existing farmers:
Now, the Platte River in Colorado has been appropriated eight times over, and on account of the increase of the population the claims on the waters of the Platte River have increased to eight times beyond what it is possible for the river with its ordinary flow to supply, and there is not a drop of water for any new lands. . . if you construct reservoirs and put them in direct connection with the reclamation of Government lands and designate that the water is to be utilized in that connection, the water turned into the stream from the reservoir can be taken out at a lower point and taken to the land the Government owns.
Shafroth emphasized that the “laws of the irrigation states” recognized conservation of water for the improvement of lands.
The great American forester Gifford Pinchot also testified at these hearings that the forest reserves would support, not impede, present and future water uses:
The successful development of those lands, the continuance of their prosperity, and the extension of this irrigation system over the West depends absolutely on the preservation of these forests.
Colorado was central to the public debate surrounding the creation of the national forests. Colorado Senator Henry Teller, who also served for a time as U.S. Secretary of Interior, contended for the conveyance of the public lands to state and local interests and fought federal forest reserves. President Teddy Roosevelt campaigned on the ground in Colorado for the forest reservations, arguing that withdrawal from homesteading and conservation of the forested watersheds was necessary to developing and using water for farms and cities. 14 million acres of forest reserve exist in Colorado today. Roosevelt convinced many Coloradans, despite Teller’s adamant states’ rights advocacy. Key to the compromise was a provision in the 1897 Forest Organic Act adhering to state water law and allowing rights-of-way for irrigation canals, ditches, flumes, and reservoirs.
The 1902 Reclamation Act wedded the national government’s role in water conservation to forest conservation. As a result of this progressive conservation marriage, the Bureau of Reclamation has celebrated its one-hundred year anniversary. It has created more than 600 dams and reservoirs, distributes water to more than 31,000,000 urban and rural residents in the West, including one-fifth of the region’s irrigation farmers on land that produces 60% of the nation’s vegetables. The Bureau’s early, almost exclusive, irrigation focus inevitably shifted as the western United States proceeded into the World War I, Great Depression, World War II, and environmental eras.
In the late 1920s, Southern Californians were as much interested in the power production and flood control benefits of the Boulder Canyon Project as they were in a water supply. Dams as energy producers and cash registers helped the effort of the United States to emerge from the Great Depression and produce the power needed to win World War II and supply the growing cities after the war. Today, Bureau dams have a total capability of producing 14.7 million kilowatts of electricity.
The creation of jobs, power, and water for cities often worked at cross-purposes to the Homestead ideal upon which it began, and, despite charges that it has tried to dominate and compete, cooperation with local interests and institutions has been a major tread of its step. Congress interjected the Bureau into a web of pre-existing land and water laws that recognized the values and rights of private entrepreneurs, and expected the Bureau to operate as a business, recapturing investments, yet produce economic and democratic miracles for the disenfranchised urban poor and soldiers returning to civilian life.
Colorado benefited from early reclamation projects and suffered detriment to its interests from others, dramatizing the point that the Bureau was responsive to a national constituency that included competing regional and state interests. Among the first five authorized projects were the Gunnison (Uncompahgre) Project in western Colorado and the Sweetwater (North Platte) Project in Wyoming and Nebraska.
The Uncompahgre Project resulted from the late 1890-early 1900s drought, rescuing and completing a project that local residents had started. The Gunnison Tunnel, diverting Gunnison River water into the Uncompahgre Valley, six miles long with a carriage canal another twelve miles long, came on line in 1909. In the ensuing decades, the Bureau built additional diversion dams and either purchased private canals or constructed new ones, totaling approximately 470 miles. By 1913, the Uncompahgre Project canals delivered water to 37,000 acres while the private irrigation structures transmitted water to 13,600 acres. Within the next decade, the irrigated acreage increased to 64,180 acres within the project.
John C. Fremont’s 1842 surveying expedition produced a seven-part strip map of an overland, watered route by way of the North Platte through South Pass. The North Platte River from Chimney Rock through Scott’s Bluff through Ft. Laramie was a critical portion of the Oregon Trail’s opening into the mountain West.
The Bureau’s Sweetwater Project benefited these portions of the North Platte valley in Wyoming and Nebraska. It included the construction of Pathfinder Dam, named for Fremont, and the Fort Laramie and Interstate canals, with water deliveries starting in 1909. By the mid-1920s, over two thousand miles of canals and laterals were constructed, bringing water to about 220,000 acres in Wyoming and Nebraska. Guernsey Dam at Goshen Hole, Wyoming, and Lake Alice and Lake Minatare in Nebraska were added. Under the Warren Act, allowing contracting of water with private water users for supplemental water on their lands, irrigated acreage increased another 100,000 acres.
Early reclamation projects resulted in an embargo on Colorado water development of the Rio Grande and North Platte Rivers and contributed palpably to: (1) interstate water litigation in the U.S. Supreme Court, (2) successful negotiation of numerous water compacts, (3) construction of ever-larger waterworks by the Bureau and others, and (4) the essential and enduring role of the states, local water districts, and municipalities. All of these embedded arrangements resulted from adaptation of a changing West to the reality of western aridity.
Interstate Disputes and Their Resolution
In the same year Congress passed the Reclamation Act, Kansas sued Colorado for impeding the flow of the Arkansas River into Kansas; Kansas was a riparian state; Colorado, a prior appropriation state; the United States, the owner of huge federal lands from which and through the vast percentage of western water flowed. In the course of the litigation, which resulted in two opinions, Kansas claimed its law required Colorado to by-pass all water to it; Colorado claimed its law could keep any water from flowing into Kansas; and the United States claimed that all unappropriated western water had been reserved for development and distribution through the 1902 Reclamation Act.
The United States Supreme Court rejected all three theories in favor of case-by-case original jurisdiction for the equitable apportionment of waters between States that share an interstate stream system. The Court held that each state could choose its own water law, could not impose its choice on another state, and the national government’s interest in reclamation of arid lands could not supplant state water law selection.
Having failed to establish a reservation of western water for the reclamation program, the United States used its property power over federal lands to embargo permits for crossing of federal lands necessary to build non-federal water projects upstream of Pathfinder Dam in Wyoming and Elephant Butte Reservoir in New Mexico. This embargo, and the looming loss to Wyoming in an equitable apportionment case, spurred Delph Carpenter of Colorado to formulate the “compact idea” resulting in the era of interstate water compact negotiation and ratification.
Professor Dan Tyler explains that Carpenter’s water compact brainstorm derived from his understanding of drought and “river culture”:
The culture of rivers and streams is dictated by geographical location. Upstream residents tend to manifest an attitude of superiority. Their connection to reliable water is guaranteed, especially during periods of drought. Their major concern comes from the fact that most western states accept the principle of first in time, first in right. Economic development downstream, where warmer temperatures encourage agriculture and population growth, results in a prior use of water and therefore a potential legal claim to that water in times of scarcity. Downstream residents worry excessively about upstream transfers of water out of the river basin and upstream consumption that diminishes downstream flows at critical times.
Experience with interstate water litigation taught Carpenter three great lessons. When the United States Supreme Court exercises its original jurisdiction to resolve an interstate water dispute, (1) the doctrine of equitable apportionment governs, (2) what is an equitable apportionment in one decade may not be so in another, and (3) the upstream state can lose to a downstream state whose development occurs first, if not now then later.
Carpenter had two primary fears, that California would preempt Colorado by its capacity for early development and that the federal government through the Bureau of Reclamation would command all western rivers to the detriment of individual states.
By the time the Supreme Court recognized Wyoming’s interstate Laramie River priority, leaving only 15,500 acre-feet per year for additional Colorado use, Carpenter had convinced the powerful League of the Southwest to endorse the compact idea for the Colorado River, and Congress had enacted legislation for a seven-state Colorado River Compact Commission, whose Chair became Commerce Secretary Herbert Hoover.
The Colorado River Compact of 1922 institutionalized, as a matter of state and federal law, the allocation of Colorado River water. Because of reliance on the longest wet cycle in recorded history (1905 to 1929), the Upper Basin States of Colorado, New Mexico, Wyoming, and Utah are shorted in dry times by the guarantee of a 75,000,000 ten-year running average of water delivery at Lee Ferry for the Lower Basin States of Arizona, California, and Nevada. This realization led to the alliance Colorado Congressmen Ed Taylor and Wayne Aspinall forged with western state Congressional colleagues to build reclamation projects in the Upper Basin and throughout the West, to assist in the operation of the compacts and assure local water supply for agricultural, municipal, commercial, power production, and recreation.
State and Local Water Boards, Districts, Municipalities, Ditch and Reservoir Companies—Their Enduring Role
The Great Depression drought of the 1930s propelled water development as a major means for rehabilitating America. Colorado’s successful effort to forge a permanent water arrangement with the United States through the Great Divide flushed up construction and operation of the Colorado-Big Thompson Project, with water features tapping the headwaters of the Colorado River to benefit water uses on the western and eastern slopes of Colorado.
In 1937, the Colorado General Assembly gave birth to the Colorado Water Conservation Board, the Colorado River Water Conservation District, and the Water Conservancy Act. The Northern Colorado Water Conservancy District became the first of the now-current 51 conservancy districts in Colorado. The Colorado River District was the first of three conservation districts established by General Assembly enactment, the other two being Rio Grande Water Conservation District and Southwestern Water Conservation District.
A primary motivator for the establishment of State and local boards and districts was that the Reclamation Act required the Bureau to contract with local entities to obtain repayment for part of federal water project construction and operation costs. The conservancy districts—empowered by the General Assembly to receive public funds from a property tax mill levy, make assessments, and charge fees for water use—undertook the water project sponsorship and repayment role. Along with the conservancy districts, the conservation districts—assigned with a regional responsibility for water development and basin protection with separate major watersheds within the state—became fixtures for state and national assertion of local water interests.
The Colorado Water Conservation Board, with representatives from all regions of the State appointed by the Governor and confirmed by the Senate, became the coordination and planning reservoir for marshalling Colorado’s interest in the development and use of its scarce water resource. The State and Division Engineers continued their historic role of administering the decrees of Colorado courts confirming the priorities of water use rights. The Colorado Groundwater Commission oversaw the permitting of ground water withdrawals from designated deep groundwater basins.
Across the state, towns and cities, water and sanitation districts, irrigations districts, mutual ditch and reservoir companies, homeowner associations, and individual businesses each have a local constituency and responsibility for water planning and delivery. Although criticized at times for acting for a narrow interest and undemocratically, each of these organizations—with the Governor, the General Assembly, and the courts also performing their assigned role—is peopled by citizens of Colorado who focus on the very important public interest the Native American and Hispanic peoples—and western visionaries like John Wesley Powell—also pursued when they focused on conserving water for community uses. Through these institutions—as the result of pressure and counter-pressure among constituent groups—the water customs and values of the people are shaped and reshaped.
The 1956 Colorado River Storage Project Act and Wilderness Preservation, Counter-Twins
The annual native flow of the Colorado River can vary between 4,400,000 acre-feet in drought times to 21,900,000 acre-feet in wet years. The Colorado River Compact guarantees a delivery of 75,000,000 acre-feet measured at Lee Ferry to the Lower Basin. Only by storing can the Upper Colorado River Basin states “even come close to meeting their
In 1956, Congress enacted the Colorado River Storage Project Act to assist the Upper Basin states in developing their allocation of water, producing hydropower, and ensuring Compact deliveries, among other uses that, as a result of the 1968 Colorado River Basin Act, include fish, wildlife, and recreation. Particularly in times of drought, the Aspinall Unit on the Gunnison River in Colorado—together with Navajo Dam in New Mexico, Glen Canyon Dam in Utah, Fontenelle Dam in Wyoming, and Flaming Gorge Dam in Utah—operate as a “savings account,” so that the citizens of Colorado and the other Upper Basin states can develop and use the water allotted to them by the Compact “without fear of being ‘called out’ at some time by the demands of the Compact.”
The proposal to build a dam on the Green River at Echo Park near the Colorado-Utah border—and another at Marble Canyon just east of the main gorge of the Grand Canyon below Lee Ferry—gave birth to the compromise of constructing Glen Canyon Dam and also helped the 1964 Wilderness Act. to flow forth from Congress and the Grand Canyon and Echo Park dam plans to be junked.
In late 1955 and early 1956, Howard Zahniser of the Wilderness Society worked unceasingly at trying to inset a proviso into the CRSP that would protect the sanctity of the park system from future reclamation projects. Conservationists also insisted upon a second provision protecting Rainbow Bridge National Monument from the huge reservoir that would be created by the proposed Glen Canyon Dam. After another round of negotiations on Capital Hill, Zahniser gained assurance from Upper Basin leaders like Aspinall and William Dawson of Utah that they would support the provisions in return for the cessation of conservation-organization opposition to the CRSPO. At long last, the way seemed clear to passage.
Water storage to assist state use of water compact allocations, park protection, and wilderness preservation—these are the three essentials of the CRSP compromise that forged beneficial use and preservation, not just beneficial use, to the maturing western experience. Just as the reclamation movement tapped Native and Hispanic American water use roots, so the wilderness movement tapped a resonant core of awe and respect in Americans. Wilderness has fundamentally shaped our American character. Preservation of its remaining vestige is a great national achievement, the argument for which included the water quality and quantity benefits of preserving natural watersheds.
The movement for preservation started with the great 19th century western surveyors themselves—and the artists, photographers, botanists, and geologists who accompanied them—but most importantly the citizens of the United States. The surveys of George Wheeler, Clarence King, Ferdinand Hayden, and John Wesley Powell were intended by Congress to provide the location and resource nexus for settlement of the West. But, the people of the United States through the work of artists, journalists, and popular magazines, such as Harper’s Weekly, also saw how vast, beautiful, varied, and stupendous is this land carved of sporadic surging rivers and trickling drops, sun, wind, and plenty of parching days.
The paintings of Thomas Moran, the sketches of William Henry Homes, and the photographs of W.H. Jackson were direct products of the Powell and Hayden surveys, leading the way for the establishment of those jewels of the Park system, including Yellowstone, Grand Canyon, and Mesa Verde National Parks—and with the tremendous added value of John Muir’s hiking, writing, wandering, and advocacy, Yosemite.
San Francisco tapped Muir’s beloved Hetch Hetchy Valley for municipal storage. Muir’s reaction to what he viewed as a moral outrage sounds a high and clear tone of the liberty bell that Americans can hear—and appreciate—among all the tones we hear from the lyric and rhythm of Nature and its influence on our national character.
That any one would try to destroy such a place seems incredible; but sad experience shows that there are people good enough and bad enough for anything. The proponents of the dam scheme bring forward a lot of bad arguments to prove that the only righteous thing to do the people’s parks is to destroy them bit by bit as they are able. Their argument are curiously like those of the devil, devised for the destruction of the first garden—so much of the very best Eden fruit going to waste; so much of the best Tuolumne water and Tuolumne scenery going to waste. Few of their arguments are even partly true, and all are misleading. Thus, Hetch Hetchy, they say, is a ‘low-lying meadow’. On the contrary, it is a high-lying natural landscape garden.
Twenty-four wilderness areas, over 3 million acres, exist in Colorado today, because Coloradans joined with other citizens of the United States to pass the wilderness acts, starting with the 1964 Act. Congressman Wayne Aspinall, as Chairman of the House Interior Committee—a procurer of water projects for Colorado—played a key if reluctant role. Echo Park dam had been a part of plans for the Colorado River Storage Project and was deleted because of wilderness advocate opposition in favor of preserving Dinosaur National Monument.
Wallace Stegner’s Wilderness Letter of December 3, 1960 speaks to the preservation chamber of America’s heart, just as John Wesley Powell’s water writings address the beneficial use chamber of the same heart:
We need wilderness preserved—as much of it as is still left, and as many kinds—because it was the challenge against which our character as a people was formed. The reminder and the reassurance that it is still there is good for our spiritual health even if we never once in ten years set foot in it. It is good for us when we are young, because of the incomparable sanity it can bring briefly, as vacation and rest, into our insane lives. It is important to us when we are old simply because it is there—important, that is, simply as idea.
The state of the Great Divide—mother of rivers—headwaters of the Platte, Arkansas, Rio Grande, and Colorado Rivers has an enduring legacy of water preservation, conservation, and beneficial use.
2000-2003 Drought, Testing the Limits
In the South Platte, Arkansas, and Colorado River watersheds Colorado has approached the limits of its interstate water allocations. The Colorado Water Conservation Board uses an estimate of 400,000 acre-feet of water available for development under its Colorado River Compact and Upper Colorado River Compact apportionment.
Normally, Colorado rivers generate 16 million acre-feet of water, annual average. In the drought year 2002, they produced approximately 4 million acre-feet. Colorado lived in 2002 on 6 million acre-feet of storage water it released from reservoirs. About 2000 reservoirs exist in Colorado.
Colorado’s current population is over 4.25 million persons. In 1971, agriculture accounted for 92% of the state’s consumptive use; today, that consumptive use is 85%. The difference represents market transfers, primarily to domestic and municipal use, which accounts for 10% of Colorado’s water consumption.
Together with demand-reducing measures, such as water restrictions and surcharge pricing, reservoirs with adequate storage rights are crucial to the state’s ability to endure drought, such as the one Colorado has just experienced. A water right is a right to share in the public’s water resource. Conservation is indispensable—in all its forms—to stretch a scare resource. The measure, scope, and limit of a water right is beneficial use. Beneficial use without waste without speculation is the core of our western water law doctrine. In times of scarcity, juniors defer to seniors, and the water market operates to transfer senior priorities to those who want to make a new use or firm up a junior use. Augmentation plans allow out-of-priority diversions to operate if adequate replacement water is supplied to senior water rights that would be injured otherwise.
The Colorado General Assembly has adopted an instream flow law for fish and wildlife protection and a recreational in-channel diversion law for rafting and boating. Surely, these laws are reflections of our maturation as westerns in settling in. They take their place in the priority system, with the opportunity to firm their use, through water market transfer of senior rights and water storage and release, legal mechanisms that have their institutional counterparts: the Water Conservation Board for the instream flow program; cities, conservancy districts, and other local governments, with consultation by the Water Conservation Board, for recreational in-channel diversions.
A true mark of western water being a scare public resource is how long and how often we have institutionalized its conservation and use in legal assignments made to national, state, and local public agencies, from the U.S. Geologic Survey to the Bureau of Reclamation, from the Water Conservation Board to the Upper Gunnison Water Conservancy District, from the City and County of Denver to the Town of San Luis.
The public institutions the legislative bodies at all levels create have the duty, in the public interest, to plan for and secure a firm water supply, responsive to environmental laws as well as all other applicable laws to the best of their ability. Environmental institutions and citizen groups help shape how, when, if, how and why additional water works will be built, but they do not have the public’s water supply responsibility and will not be answerable for a lack of planning and failure to undertake the needed actions. Public officials will be held accountable.
As a result of severe drought at the outset of the 21st Century, public officials at all levels are engaged in drought planning and response. In 1981, as a result of the 1976-1977 drought and a dry year in 1981, Colorado’s Governor initiated the development of a comprehensive drought management plan. “The Colorado plan is effective because it incorporates three primary components: a monitoring system, an impact assessment system, and a response system. The State is currently attempting to give greater emphasis to mitigation in its plan.” This effort has redoubled as a result in the most recent drought.
In its 2003 session, the Colorado General Assembly added additional flexibility to Colorado water law, extending administrative authority in the State Engineer for water banking, changes of water rights, substitute supply plans, emergency water plans, loans of water including for instream flow purposes, prohibition of new covenants that restrict the use of drought-tolerant vegetative landscapes, state technical assistance for water usage and billing systems, and water rights for conservation easements, consistent with the laws for water court adjudication of water rights and State Engineer enforcement of them. The General Assembly also provided for financial mitigation to counties that suffer tax revenue loss from the removal of agricultural water from their jurisdiction. The Assembly has directed the Water Conservation Board to undertake a statewide assessment of water supply, water demand, and water development strategies; project alternatives are to include social, economic, and environmental impacts and a consensus-building approach. These short term and long term measures have their bud in the most recent drought but their root in the long-ongoing process of adapting to the arid lands. Surely, the arena of reducing water demand and increasing the efficiency of water application and use deserves additional action.
We must not forget the contributions of the professional community, including climate scientists—meteorologists, hydrologists, climatologists, among them—who help us gauge, analyze, and forecast based on past and current data, so we can prepare for what we must do to conserve supply and reduce demand.
Our heritage is the same as all of those who have preceded us here. We must work the water well, and we must also leave it alone to do its shaping.
In one ironic sentence, Bernard deVoto summed up the problem and experience of the Way West—such as Lewis and Clark realized after they had bushwhacked their way with a lot of supreme effort, and luckily, to the mouth of the Columbia with the help of Native Americans, Sacagawea, the Shoshone, and the Nez Perce:
The point it indicated was clear and precise: the route they had taken west was certainly not the shortest and probably not the best one.
I would add, how else goes the course of western civilization? Weather and water politics, in the wild cycle of their beneficial seasons, will always be with us.
GOOD COLORADO HEADWATERS EDUCATION
Good we don't have to buy the Weather,
Good isn't for sale and just happens whenever.
Predictions, though good and getting better,
Are wildly inaccurate when the best worst Weather
Hits so suddenly you can't tell where the pitch
I prefer Weather to politics,
I mean, at least, when you sear your lips
Or an will wind spanks your bottom, you can
Rightly say, "Wait just a minute, it'll change"--
Colorado axiom--any politics charging straight
Off the Divide is worth standing to for.
Sure you have to hunker down when thunder
Booms and lightning catches between a vortex
Pit-of-gut instinct and a gearing rain that may never
Touch ground. "Norm" is only a mathematical
Possibility. Yell, Hail! and run. Your average-
Staked tent blows down any minute.
(University of Denver Water Law Review, Spring 2003)
DANIEL TYLER, SILVER FOX OF THE ROCKIES, DELPHUS E. CARPENTER AND WESTERN WATER COMPACTS, University of Oklahoma Press: Norman (2003); 392 pp.; $34.95; ISBN o-8o61-3515-8 REVIEWED BY JUSTICE GREGORY J. HOBBS, JR.
Professor Dan Tyler tells a remarkable story of a remarkable man, Delph Carpenter, a small town water lawyer who became a national statesman of rivers.
Architect of the “compact idea” for settling interstate water allocation disputes, Carpenter was born to a nineteenth century pioneering family in Horace Greeley’s Union Colony, founded in 1870. Carpenter grew up working water with his father from the irrigation ditches that tap the Poudre River, which flows east from its source in what is now the Rocky Mountain National Park.
Carpenter’s life mirrored the Great Divide he revered. He loved the shining mountains and the Great Plains that take one inevitably to them. He drew from their strength as a husband, father, lawyer, legislator, and craftsman of treaties. When litigating for Colorado against Wyoming in the United States Supreme Court, for example, he climbed to the source of the Laramie River to understand the lay of the land and how the waters flow. He wanted to leave his name on the mountains he had climbed with the district water commissioner:
Carpenter wanted precise information on the Laramie River’s origins, but he also enjoyed the adventure of planting the first American flag on these unnamed peaks. Having deposited a record of their ascent in a Prince Albert tobacco can at the summit, Carpenter later asked the U.S. Geological Survey to recognize these mountains henceforth as the Carpenter Peaks.
There are no Carpenter Peaks. But, Carpenter’s work is indelible in the day-to-day, year-in-year-out administration of four great rivers from source to mouth—the Platte, the Arkansas, the Rio Grande, and the Colorado. His signature and mark are upon the 1922 Colorado River Compact, the 1922 La Plata River Compact, and the 1923 South Platte River Compact. His groundwork prepared the way for the 1938 Rio Grande River Compact, the 1942 Republican River Compact, the 1948 Arkansas River Compact, and the 1948 Upper Colorado River Compact.
Carpenter was a local northern Colorado ditch company lawyer and one-term state Senator who became the state’s equitable apportionment litigator in the United States Supreme Court. His decade-long scorching struggle against Wyoming from 1911 to 1922 converted him from a state-of-origin win-at-all-costs litigator into a patient-and-tireless negotiator of durable interstate agreements.
Ironically, Carpenter became a peacemaker because the reality of water scarcity and necessity—upon which the prior appropriation doctrine turns—applies with equal logic to interstate rivers, if litigation in the United States Supreme Court is the only device for resolving water disputes between states.
Colorado had won against downstream Kansas in their 1907 equitable apportionment case, on the basis of Colorado’s settled equity in continuing established water uses over prospective Kansas water uses. When Wyoming brought the same argument to bear against Colorado, Carpenter initially resorted to claiming sovereignty over waters originating in the headwaters state. He knew the argument was likely a loser, and—while the Supreme Court was busy taking evidence and briefs, hearing oral argument, ordering further briefs, convening re-argument, and then pondering its decision for years—Carpenter was busy formulating the “compact idea.”
With clarity, scholarship, and a profound understanding of Carpenter’s keen passion and intellect, Professor Tyler explains that Carpenter’s water compact brainstorm derived from his understanding of “river culture”:
The culture of rivers and streams is dictated by geographical location. Upstream residents tend to manifest an attitude of superiority. Their connection to reliable water is guaranteed, especially during periods of drought. Their major concern comes from the fact that most western states accept the principle of first in time, first in right. Economic development downstream, where warmer temperatures encourage agriculture and population growth, results in a prior use of water and therefore a potential legal claim to that water in times of scarcity. Downstream residents worry excessively about upstream transfers of water out of the river basin and upstream consumption that diminishes downstream flows at critical times.
Experience with interstate water litigation had taught Carpenter three great lessons. When the United States Supreme Court exercises its original jurisdiction to resolve an interstate water dispute, (1) the doctrine of equitable apportionment governs, (2) what is an equitable apportionment in one decade may not be so in another, and (3) the upstream state can lose to a downstream state whose development occurs first, if not now then later.
Carpenter had two primary fears, that California would preempt Colorado by its capacity for early development and that the federal government through the Bureau of Reclamation would command all western rivers to the detriment of individual states.
Carpenter’s fears were real. In the Kansas/Colorado suit, the Supreme Court—citing section 8 of the 1902 Reclamation Act deferring to state water law—rejected the Government’s contention that Congress had reserved all unappropriated western waters for use as the United States saw fit. Yet, the Government proceeded to embargo Colorado from getting federal right-of-way approvals necessary for additional water development of Rio Grande River and Platte River water, in favor of assuring water supply for the federal Elephant Butte Project in New Mexico and the Pathfinder Project in Wyoming.
California’s demand for a mainstream Colorado River dam for flood control, power production, and irrigation water was long, loud, and compelling, and its Congressional delegation insistent.
In this maelstrom, Carpenter refined and forwarded his principle of interstate comity based on the Constitution’s compact clause and federalism guarantees. To Carpenter, “comity” meant that states sharing an interstate stream system would apportion the waters between themselves in perpetuity, respecting each other’s legitimate present and future needs. Of course, Carpenter knew that Congressional assent was necessary to make the apportionments legally effective and enduring.
By the time the Supreme Court recognized Wyoming’s interstate Laramie River priority, leaving only 15,500 acre-feet per year for additional Colorado use, Carpenter had convinced the powerful League of the Southwest to endorse the “compact idea” for the Colorado River, and Congress had enacted legislation for a seven-state Colorado River Compact Commission, whose Chair became Commerce Secretary Herbert Hoover.
Professor Tyler’s story of Delph Carpenter is marvelous biography of national significance culminating with particular resonance in the telling of Carpenter’s key Colorado River Compact role. Following Professor Donald Pisani’s Foreword and Professor Tyler’s Introduction, this biography includes chapters devoted to (1) Lineage and Love Letters; (2) Education and the Beginnings of a Career; (3) The Making of an Interstate Stream Commissioner; (4) The Colorado River Compact: Phase I; (5) The Colorado River compact: Phase II; (6) The Struggle for compact Ratification; (7) Last Years as Interstate Streams Commissioner; (8) Vindication; and (9) Carpenter and the Compact Legacy. Extensive notes and a bibliography document Professor Tyler’s ten-year successful effort to bring Delph Carpenter to life.
Carpenter was sick at the time of his greatest achievement. Advocacy and negotiation wore him down. He suffered from Parkinson’s disease aggravated by stress.
Aided by the first-ever access to Carpenter’s personal and professional papers—made available by the Carpenter family—Professor Tyler tells how a stern-minded adversary of the federal government became a close personal friend of the future president and former state opponents in reaching monumental agreements.
These agreements are essential to the needs of a growing and diverse western United States. In the twenty-first century, rapid western urbanization—and the need to protect all creatures that share this harsh and magnificent environment we love and depend on—will test the durability of the river compacts. Because the states and their citizens have placed great reliance on the guarantee that their water compact apportionments will be available to them for beneficial use when needed, continued decision-making within the compact framework appears to be a well-counseled choice.
Ultimately, Delph Carpenter learned that there is no substitute for hard work and good will. His love for the land of the Great Divide and his dear wife, Dot, welled up in these verses:
From the blackest clouds come the brightest rains
The tree that is most exposed to wind and storm is the strongest.
The best fish come from the purest waters.
Circumstances must be turned and are not anxious to turn themselves.
Statutory Expansions of State Agency Authority to Administer and Develop
Water Resources in Response to Colorado’s Drought
Melinda Kassen, Director, Colorado Water Project, Trout Unlimited
Gunnison Water Workshop, July 24, 2003
• Drought prompted legislature to pass suite of legislation aimed at drought relief.
• One common thread among the bills enacted is an increase in state agencies' authority over water rights administration and development.
• The slow decision-making process of Colorado's court-based system was unable to provide immediate drought relief.
• New laws increased flexibility and speed of water rights administration.
• New laws also expanded state agencies’ water development authority.
• New laws may be the leading edge of a new era with increased state agency power over water administration and development, or just an incremental response to mitigate drought conditions.
II. Water Rights Administration
A. Colorado's Prior Appropriation System
• Water courts’ role: determine water rights, including injury
• State Engineer’s Role: administer water rights.
B. 2003 Legislative Action
1. Water Banks
Amends C.R.S. §§ 37-80.5-102 to 106; adopts C.R.S. § 37-80.5-104.5
• Builds on 2001 Arkansas River Pilot Program (first operational in 2003)
• One bank per basin on request of water conservation/conservancy district.
• In consultation with the Colorado Water Conservation Board (CWCB) and following notice and opportunity for public comment, the State Engineer issues rules governing the operation of the bank and limitations on allowable transfers. Such rules are subject to judicial review.
• State Engineer matches willing owner of vested water rights, with willing renters whose use of the offered water will not result in material injury. (This is different from a “real” bank that would allow blind deposits and withdrawals, without the need to “match” to prevent injury.)
• The State Engineer determines material injury, with no judicial review.
• The rights can only be used in priority where the leased water is subject to administration within the prior appropriation system.
• No adjudication necessary because it is a short-term transaction (each bank’s rules will establish maximum duration, likely no more than 3 years).
• Allows State Engineer to delegate the authority to administer the bank to the water district requesting the bank.
• Unlike 2001 pilot, no banks can lend water out of the water division.
• Unlike other 2003 bills, this bill is not limited to drought circumstances.
2. Temporary Instream Flow Protection
Amends C.R.S. § 37-83-105
• Impetus: In 2002, the State Engineer determined that Aspen, Glenwood Springs and the Salvation Ditch could not use the century old loan statute to trade water on the Roaring Fork to preserve sustaining flows for the gold medal fishery, even with a downstream diversion and use.
• Legislative Response:
• Expands original loan statute to allow a water rights holder to lend water rights temporarily to the CWCB for the purposes of instream flow protection in any basin or county in which the Governor declares a drought—or other—emergency.
• No adjudication necessary because loan limited to one irrigation season.
• Law requires notice to area water users and an opportunity for comment.
• Division Engineer determines if material injury will result. Division Engineer may deny the loan on a determination there is a substantial likelihood that material injury will result. If Division Engineer makes a no injury determination, a water user claiming injury may make an expedited appeal to the water court.
3. Interruptible Water Supply Agreements (IWSA)
Adopts C.R.S. § 37-92-309
• IWSA: Option contracts between two or more water rights owners facilitating the temporary transfer of the historic consumptive use of an absolute water right to a different use and/or place of use.
• Impetus: Last year, entities (e.g., Aurora) tried to implement ISWA's under HB 1414 (substitute supply plans) adopted in 2002. The procedure for the transaction under HB 1414 was unclear and language in HB 1414 did not permit water to be transferred out of the basin.
• Legislative Response:
• IWSA expressly authorized.
• State Engineer approves IWSAs, after making a determination of no injury. State Engineer can make determination without a hearing, but other water users must receive notice and an opportunity for comment.
• On a finding of no injury, a water user who disagrees may file an expedited appeal to the water court.
• No adjudication necessary because ISWA’s can only operate if the Governor has declared a drought or other emergency and the first full year after such declaration.
4. Substitute Supply Plans (SSP’s)
Amends C.R.S. § 37-92-103, 305(8) & 308, and 37-90-103 adopts 37-90-137
Amends C.R.S. §§ 37-87-101, 37-95-109, 37-86-104, 37-87-101; adopts §§ 37-60-126, 37-92-308
• In 2001, the Colorado Supreme Court held in Empire Lodge v. Moyer that the State Engineer had exceeded his authority by continuing to approve SSP’s year after year for decades even though the water user never applied for an augmentation plan in water court.
• In 2002, the legislature responded by adopting C.R.S. § 37-92-308 granting the State Engineer limited authority to issue SSP’s.
• The following summer however, the combination of extreme drought and the Division 1 Water Court's rejection in Simpson v. Bijou, of the State Engineer's rules governing SSPs for out-of-priority well depletion, further reduced the scope of the State Engineer's authority to issue them. This ruling also would have curtailed out-of-priority pumping resulting in extreme financial hardship to an important agricultural community, but for the State helping find substitute water for these well owners in 2002.
• Legislative Response: SB 73. Limited "bridge" authority for the State Engineer to issue SSP’s that meet certain statutory conditions for three years to well users in the South Platte Basin currently operating thereunder to allow them time to apply for and obtain decreed augmentation plans.
• Legislative Response: HB 1001
• New, more expansive and permanent statewide authority to the State Engineer to approve SSPs where a water user applies either for a plan for augmentation or a change of water right.
• If an entity pays for repairs or improvements so as to remove a storage restriction imposed by the State Engineer on a storage structure owned by a third party, such entity can apply for approval to use all or some of the newly unrestricted storage as part of a substitute supply plan.
• Note: In an unrelated provision, the bill prohibits new restrictive covenants that bars or limit installation or use of drought tolerant landscaping in subdivisions. This was the only conservation measure to pass the legislature in 2003.
III. Water Development in Colorado
1. Federal Role: Project builder, primarily through the Bureau of Reclamation, e.g., Aspinall, McPhee, Colorado-Big Thompson, Frying Pan- Arkansas; and, for the last thirty years, also a project permitter through federal environmental laws (e.g., NEPA, Clean Water Act).
2. Local governments and water users groups role: Project builders, e.g., the Grand Ditch, Homestake Reservoir, Dillon Reservoir), and local governments have also been project permitters, through 1041 powers.
3. State's role
a. Colorado Water Conservation Board (CWCB)
• Construction grant program: $25 million per year in loans or grants.
• Act through negotiation and litigation protect Colorado's shares of interstate rivers
b. Colorado Water Resources and Power Development Authority (CWRPDA)
• Safe drinking water and wastewater treatment plant revolving loan programs
• Issuance of revenue bonds up to $100 million per public proponent for water development projects, as of 2002
B. 2003 Legislation
1. Statewide Water Supply Initiative (SWSI)
SB 110, §14
• Statute appropriates $3M for the CWCB to develop an inventory existing water supplies and future water supply needs and propose both basin-specific and a statewide alternative to meet those needs.
• Report due to legislature in November 2004.
• For further information, see: http:/www. cwcb.state.co.us /SWSI/SWSI_SOW.pdf
2. Colorado River Return Project ("Big Straw") Feasibility Study
SB 110 § 15
• Project Description: Pump from 250,000 to 750,000 AF of Colorado River water from the Utah border 4,500 feet and 200 miles back up the Continental Divide for Front Range water users at a cost of $2.5 billion and likely more.
• Legislation: CWCB authorized to spend $500,000 on feasibility study due in November, 2003.
• Implication: Possibility of state involvement in water project construction if found feasible and included in SWSI.
3. State Revenue Bonds for Financing Water Infrastructure Projects
Amends C.R.S. §§ 37-95-103, 107, 107.5 & 116
If Referendum A passes, adds C.R.S. §§ 37-60-201 to 210, 37-60–106, 37-95-106
HB 1001 (revisited)
Amends C.R.S. §§ 37-95-109
• Total amount of bonding (financing state water projects) allowed for "small water projects" increased from $100 million to $500 million per project proponent, limited to governmental or quasi-governmental entities. (SB 236)
• Statute directs CWRPDA to proceed with financing for projects that the CWCB identifies in the SWSI. (SB 236)
• CWRPDA is to subsidize the cost of issuance of bonds and notes for water projects financed by the authority. (HB 1001)
b. CWCB (if Referendum A passes)
• The CWCB obtains new authority to borrow $ 2 billion for public and private water infrastructure projects and payback up to $ 4 billion out of project revenues (sale of water and hydropower) by issuing tax-free revenue bonds.
• CWCB can issue bonds to build its own projects (e.g. a state water project) or for other governmental, quasi-governmental or private entities.
• CWCB recommends projects to the Governor who must chose at least one with a 2005 start date.
• $ 100 million is reserved for bonds for projects that either rehabilitate existing facilities or conserve supplies without new infrastructure
COMPACT CONFLICTS & NAVAJO WATER RIGHTS
Stanley Pollack, Water Rights Counsel
Navajo Nation, Window Rock, Arizona
It is evident . . . that the Navajo reserved right has been all but ignored in the 71 years since Winters v. United States. But in an era of increasing demand for water from the Colorado River Basin, it is apparent that western water users can no longer continue to ignore the Navajo claim to its share of water. The effect of the quantification of Navajo and other Indian rights necessarily will affect the status quo. As Northcutt Ely, chief counsel for California during congressional hearings on the Colorado River Storage Project in 1955, stated on the question of whether Indian rights are inside or outside the provisions of the compact apportionments: If inside, and as large as claimed, the Compact is splitting at the seams, and if outside, busted.
-- William Douglas Back & Jeffrey S. Taylor, Navajo Water Rights: Pulling the Plug on the Colorado River?, 20 NATURAL RESOURCES JOURNAL 71, 90 (1980)
I. COLORADO RIVER COMPACTS - BACKGROUND
A. Historical Context of Compact Negotiations
1. The United States first entered into a treaty with the Navajo Tribe of Indians September 9, 1849. 9 Stat. 974, ratified Sept. 9, 1850, Proclaimed Sept. 24, 1850. The U.S. Supreme Court recognized that the water rights necessary for a permanent homeland were reserved at the time the reservations were created. Winters v. United States, 207 U.S. 564 (1908). At the time of the first treaty, none of the Colorado River basin states had achieved statehood. Arizona and New Mexico were only recently admitted to the Union in 1912.
2. At the time of the Colorado River Compact negotiations, the Colorado River basin was predominantly Native American. See Norris Hundley Jr., WATER AND THE WEST 2 (1975). Native Americans were not recognized as American citizens at time of 1922 Colorado River Compact. See Act of June 2, 1924, ch. 233, 43 Sat. 253 (superseded 1940). At the time the Upper Colorado River Basin Compact was negotiated Native Americans did not even have the right to vote in many of those states.
B. Compacts do not bind the Tribes.
1. Present Perfected Rights. Most portions of the Navajo Reservation were created prior to June 25, 1929, the effective date of the Boulder Canyon Project Act. The U.S. Supreme Court recognized that the water rights of the Colorado River tribes vested as of the time the reservations were created and if vested before June 25, 1929, the effective date of the Boulder Canyon Project Act, are considered A present perfected rights.@ Arizona v. California 373 U.S. 546, 600 (1963). As such Article VIII of the Colorado River Compact of 1922 excludes the water rights of the Navajo Nation. (A present perfected rights to the beneficial use of waters of the Colorado River System are unimpaired by this compact.@) By the terms of Article I(b) of the Upper Colorado River Basin Compact of 1948, the protections afforded by the 1922 Compact were extended to the Upper Basin. (AIt is recognized that the Colorado River Compact is in full force and effect and all of the provisions hereof are subject thereto.@)
2. Compact Savings Provisions.
a. Colorado River Compact of 1922 (CRC), Article VII. ("Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes.")
b. Upper Colorado River Basin Compact (UCRBC) of 1948, Article XIX (a) ("Nothing in this Compact shall be construed as: (a) Affecting the obligations of the United States of America to Indian tribes.")
3. C.f.: Arizona v. California, 376 U.S. 340 (1964 Decree) (AConsumptive use from the mainstream within a State shall include all consumptive uses of water of the mainstream . . . including, but not limited to consumptive uses made by . . . the United States for the benefit of Indian reservations and other federal establishments within the State.@); UCRBC Art. VII. (The consumptive use of water by the United States of America or any of its agencies, instrumentalities or wards shall be charged as a use by the State in which the use is made . . .@)
II. ARIZONA COMPACT ISSUES FOR THE NAVAJO NATION
A. Upper Colorado River Basin.
1. Arizona apportioned the first 50,000 acre-feet of the water available to the Upper Basin. UCRBC Art. III(a)(1). The Navajo Nation agreed to limit its water uses in the Arizona portion of the Upper Colorado River basin until 2018 so that the total uses do not exceed 50,000 acre-feet per year. See: Navajo Nation Council Resolution CD-108-68:
[T]he Navajo Tribe of Indians agrees that they will not make demands upon the 50,000 acre-feet of water per year allocated to the State of Arizona, pursuant to the Upper Colorado River Basin Compact, in excess of 50,00 acre-feet of water per year, of which 34,100 acre-feet of water per year shall be used by the coal-fuel power plant to be located on the Navajo Reservation near Page, Arizona . . . It shall be understood that the Navajo Tribe=s promise to limit its claim to 50,000 acre-feet of water per year shall only be for the term of the lifetime of the proposed power plant, or for 50 years, whichever shall occur first....
2. Current uses are approximately 50,000 acre-feet per year. Bureau of Reclamation, October, 2002, Consumptive Uses and Losses, AZ Portion of the Upper Colorado River Basin, Calendar Year 1998 (DRAFT). The Navajo Nation will require substantially more water in this area if the Navajo Reservation is to be a permanent homeland for the Navajo People.
B. Lower Colorado River Basin.
1. Navajo water rights unquantified. The Navajo Nation recently filed a lawsuit against the Department of the Interior alleging breach of trust for failure to quantify to water rights or provide for the water needs of the Navajo Nation. Navajo Nation v. United States Department of the Interior, CIV 03 0507 PCT PGR (U.S. District Court for Arizona, filed March 14, 2003).
2. Proposed Lake Powell Pipeline. Pipeline from Lake Powell to provide water to Navajo and Hopi communities and to the Black Mesa Mine in the Lower Colorado River Basin. Arizona consent to Upper Basin diversion not forthcoming without resolution of Navajo mainstream Colorado River claims. In response, the Navajo Nation has evaluated mainstream Lower Basin diversions.
3. Navajo use of Colorado River water in the Lower Basin will require diversion out of the Grand Canyon. Navajo Reservation predates creation of Grand Canyon National Park. (Grand Canyon National Park established 1919. Act of Feb. 26, 1919, ch 44, ' 1; 40 Stat. 1175. Marble Canyon not added until Grand Canyon National Park Enlargement Act, Act of Jan. 3, 1975, P.L. 93-620, ' 1, 88 Stat. 2089.) The Navajo Nation recently proposed a diversion out of jackass Canyon@ on the western edge of the Navajo Reservation. See Peabody Coal Black Mesa Mine Water Supply Appraisal Study, Prepared by Bureau of Reclamation, Phoenix Area Office, Preliminary Team Draft October 2002. Substantial opposition from environmental organizations ensued. See e.g.: Glen Canyon Institute Online Newsletter 23 (www.glencanyon.org); http://www.latimes.com/la-ed-grand2dec02,0,4155779.story. If a Grand Canyon diversion is to be avoided the Upper Basin states must agree to permit Lake Powell diversion.
III. NEW MEXICO COMPACT ISSUES FOR THE NAVAJO NATION
A. Quantification Issues. New Mexico=s apportionment is 11.25% of the water available to the Upper Colorado River Basin UCRBC Art. III(a)(2). Based on the Secretary=s 1988 Hydrologic Determination, New Mexico=s water supply is calculated at 669,000 acre-feet per year. Navajo rights to the San Juan River in New Mexico could exceed New Mexico's apportionment. See: Stanley M. Pollack, Integrated Water Resources Management in the San Juan River Basin - The Navajo Perspective, Proceedings of the 41st Annual New Mexico Water Conference, New Mexico Water Resources Institute, February 1997; Judith E. Jacobsen, The Navajo Indian Irrigation Project and Quantification of Navajo Winters Rights, 32 NATURAL RESOURCES JOURNAL 825 (1992).
B. Development Issues. Proposed Navajo-Gallup Water Supply Project would divert water out of the San Juan River and Navajo Reservoir for use in Navajo communities in New Mexico, including communities in the Lower Colorado River Basin, the City of Gallup in the Lower Basin, and Window Rock, located in the Arizona portion of the Lower Colorado River Basin.
1. Questions have arisen concerning the ability to use Upper Basin water in the Lower Basin.
a. UCRBC Article II(f). (The term Upper Basin means those parts of the States of Arizona, Colorado, New Mexico, Utah, and Wyoming within and from which waters naturally drain into the Colorado River System above Lee Ferry, and also parts of said States located without the drainage are of the Colorado River System which are now or shall hereafter be beneficially served by waters diverted from the Colorado River System above Lee Ferry.@)
b. CRC Art. VIII. (AAll other rights to beneficial use of waters of the Colorado River System shall be satisfied solely from the water apportioned to that Basin in which they are situated.@)
2. Resolution of the Upper Colorado River Commission, Regarding the Use and Accounting of Upper Basin Water Supplied to the Lower Basin in New Mexico by the Proposed Navajo-Gallup Water Supply Project, June 19, 2003. (ANOW, THEREFORE, BE IT RESOLVED by the Upper Colorado River Commission that the States of Colorado, New Mexico, Utah and Wyoming, support and to the extent necessary consent to the diversion of water from the Upper Basin for use in the Lower Basin solely within New Mexico via the proposed Navajo-Gallup Water Supply Project; provided, that any water so diverted by said project to the Lower Basin portion of New Mexico, being a depletion of water at Lee Ferry, shall be a part of the consumptive use apportionment made to the State of New Mexico by Article III (a) of the Upper Colorado River Basin Compact.@)
3. Water supply for the Arizona portion of the Navajo-Gallup Water Supply Project remains an outstanding issue. UCRBC Art. VII. (A[C]onsumptive use incident to the diversion, impounding, or conveyance of water in one State for use in another shall be charged to such latter State.@)
IV. UTAH COMPACT ISSUES FOR THE NAVAJO NATION
A. Quantification. Utah=s apportionment is 23% of the water available to the Upper Colorado River Basin. UCRBC Art. III(a)(2). Based on the Secretary=s 1988 Hydrologic Determination, Utah=s water supply is calculated at approximately 1.37 million acre-feet per year. Navajo rights should fit within Utah apportionment.
B. Compact Problem. Article XIV of the Upper Colorado River Basin Compact apportions the San Juan River between the states of Colorado and New Mexico. (Subject to the provisions of this Compact, the consumptive use of the waters of the San Juan River and its tributaries is hereby apportioned between the States of Colorado and New Mexico . . .@) However, Navajo rights secured by the treaties of 1849 and 1868. Even if the treaties are not dispositive of the priority issue, Navajo lands in Utah adjacent to the San Juan River predate CRC and UBRC. Utah lands south of the San Juan River were added to the Navajo Reservation by Executive Order of May 17, 1884, as modified by Executive Order of October 29, 1892. Executive Order 324A of May 15, 1905 added additional land from Montezuma Creek to the Colorado state line. These lands and portions of Aneth Chapter were formerly added to the reservation by the Act of March 1, 1933, ch. 160, 47 Stat. 1418, 1419. Navajo rights are prior perfected rights exempt from UCRBC. See I.B.1 supra.
V. COMPACT SOLUTIONS REQUIRE TRIBAL COMITY
A. Quantification Issues. Conflicts over quantification are most acute for the Navajo lands in the Upper Colorado River Basin in Arizona. One possible solution is to treat the Navajo Nation like a state for purposes of where water apportionments can be used.
1. In the same manner that each of the Upper Basin states can use water outside the basin within its state boundaries (UCRBC Art. II), the Navajo Nation should be able to use water within its Reservation, irrespective of the state of use.
2. Adopt Ano harm, no foul@ standard. If the total Navajo water use in the Upper Basin does not exceed the aggregate of the apportionments from the three Upper Basin states, or jeopardize the delivery obligation to the Lower Basin, the place of use should be irrelevant for Upper Basin accounting purposes.
B. Development Issues. Wet water@ development projects such as Navajo-Gallup Water Supply Project and the Lake Powell Pipeline are central to the settlement of Navajo claims. Settlement of the Navajo claims is important to all of the basin states in terms of providing certainty and limitation. William Douglas Back and Jeffrey S. Taylor, Navajo Water Rights: Pulling the Plug on the Colorado River?, 20 NATURAL RESOURCES JOURNAL 71, 74 (1980) ("If Navajo Winters rights ever are adjudicated, the potential award is staggering."); Allen V. Kneese and Gilbert Bonem, Hypothetical Shocks to Water Allocation Institutions in the Colorado Basin, NEW COURSES FOR THE COLORADO RIVER: MAJOR ISSUES FOR THE NEXT CENTURY at 97 (Weatherford & Brown, eds. 1986).
THE (MOSTLY) COLLABORATIVE SPIRIT OF
THE COLORADO RIVER COMPACT
George Sibley, Journalist and Conference Coordinator
We will spend this final morning of this workshop considering what was maybe the first great act of collaboration in the development of western water, the Colorado River Compact. Most of what passes for civilization in the American Southwest is built around the Colorado River and the great structures built to control and distribute its waters. And if you go down into the political and legal infrastructure of all of those great structures, what you eventually come to at the bedrock of it all is a comparatively small document, the Colorado River Compact. A lot of weight to bear.
Dr. David Getches is going to take us on a tour of that political and legal infrastructure in a minute, and our other presenters this morning will be addressing and that foundational document in the context of contemporary situations. But I wanted to start with a word about that Compact and its creation. I’ve been interested in the C.R. and its development for a long time, and one winter break, when my wife had to spend a few days in Denver on business, I decided to go along because I knew the Bureau of Reclamation had a set of the minutes of the Colorado River Compact meetings in its archives there, and I’d always thought they would make for interesting reading. So I spent three days there reading those old browning pages, and it was truly like reading a good John Grisham novel.
In the context of this conference, the process of negotiating the Colorado River Compact provides a good illustration of the difference between cooperation and collaboration. Cooperation is the working out of some act or process among friends; collaboration is an effort to work out something among enemies, or at least competitors, who come to share the realization that mutual needs mean they’ll all do better working together than working competitively. Everyone has to have something to gain from a collaboration, but in the end, they are all still who they were at the beginning – competitors still, or enemies again if that is how they started.
When the seven states of the Colorado River Basin decided to come together to negotiate a division of the waters of the Colorado, six of them were driven by a fear of the seventh, California. California was huge, and ready to grow even more huge as soon as it had the controllable water to do so; and because they were all appropriations states, the six feared that California could appropriate the whole river before they really got in gear.
What brought California to the table was the realization that, big as it was, it lacked the financial resources and legal imperative to put in place the structures necessary to bring the river under control. Only the federal government had the resources – financial and political – to do the job, and the feds were making it clear that they weren’t going to do anything until the states resolved their concerns. So the thousand-pound gorilla was forced to negotiate with the rest of the zoo.
But the other six states did share with California a realization that all their futures were closely connected to the control and development of the wild waters of the Colorado. So they met as competitors, contenders, on the one hand burdened with a history of the kinds of internal and external contention that the appropriations doctrine tended to nurture, but on the other hand, they shared a mutual desire to get about the work of developing the river. They began with a series of meetings in January of 1922 – meetings that left the federal representative to the commission, Secretary of Commerce Herbert Hoover, in despair: “We have not been able to get to any agreement on a general single idea for a compact.... The question arises, is it worth while to have another session? Or shall we make the declaration now that we are so hopelessly far apart that there is no use in proceeding?”
An inauspicious beginning. Nonetheless, they persevered, and after a year of often contentious meetings all over the West, ending with a 27-meeting marathon in Santa Fe that November, they had – six of them, anyway – an interstate agreement dividing the Colorado River in order to conquer it.
We speak often of the difference between the “letter of the law” and the “spirit of the law,” and the Colorado River Compact gives one interested in such distinctions much to think about. The Compact hinges on what emerged as a desire of the eight commissioners to “provide for the equitable division and apportionment of the use of the waters” between two basins separated naturally by the Colorado Plateau uplift, but there were serious difficulties resolving that seemingly straightforward idea into legal language.
By the 21st meeting in the 27-meeting Santa Fe marathon – almost the end – Hoover had set his bulldog mind on “three principles” that he believed had emerged out of the hearings and discussions to that point. Here are his words, to try to state the spirit of their hard won agreements – but I present them to this gathering more as a riddle to be sorted out than as some clear statement of principles:
“One of the fundamental things in safeguarding the proper normal development of the basin is the principle of what we have designated, for lack of a better term, equation. I think that principle is proper because, if we did not have it, we simply would have a race between the upper basin and lower basin for accumulation of appropriation rights. And if we can decide on the principles– first, that we thrust the equitable division of the river on some future period; second, that we temporarily establish some basis of maximum; and third, that we establish the principle of equation, we reduce the entire problem to one, i.e., the solution of the maximum.... There is still another device that might be worth consideration, that we maintain, first, the principle of throwing the fundamental equity of the division upon the future; second, that we maintain the principle of equation; and third, that we make the time when equation takes place such a time as may be demanded by either basin and thus avoid the notation of any figures of the maximum.”
That was, remember, in the last few days of a collaborative process that had ground on, often painfully, for almost a year. Despite their wariness of it, they did end up with a “notation of figures of the maximum,” mostly because California insisted on it – they were ready to roll; Phil Swing and Hiram Johnson were already introducing Boulder Canyon bills in the US Congress to develop the Colorado, and California needed an outside figure, so in adherence to the “principle of equation” they tried to do a 50-50 split based on the best knowledge they had about the river, and came up with numbers that we now know do not reflect the river’s reality at all.
To me, the interesting discovery from reading those minutes was their apparent conviction that they were doing a kind of a temporary thing just to get development going, but that they would be “throwing the fundamental equity of the division upon the future.”
And much of the language of the Compact seems to reflect that conviction. Article I ends with the statement that “an apportionment of the use of part of the water of the Colorado River System is made to each of [the two basins] with the provision that further equitable apportionments may be made.” Sections (f) and (g) of Article III – the “division of waters” article – establish a procedure for, in essence, reconvening representatives of the states to “divide the apportion equitably between the Upper Basin and Lower Basin.” Article VI is entirely dedicated to setting up mechanisms for dealing with “any claim or controversy” that might “arise between any two or more of the signatory States.” Article VII states outright – presumably with full awareness of the Winters doctrine of reserved rights established 15 years before – that it wasn’t trying to resolve the Indian rights issue; one can hypothesize that there might have been a similar article about environmental issues under the EPA had there been any awareness at all in 1922 of such issues. Article X says that “this compact may be terminated at any time by the unanimous agreement of the signatory states.” They spent days discussing whether there should be what we call today a “sunset” type provision on the Compact 40, or 45, or 60 or 41 years down the road.
It seems to me that the spirit of the Colorado River Compact, in short, could be summarized in the statement: let’s come up with a collaborative agreement that relieves righteous fears and enables us to get going, and leaves the problems of the future to the future. It was a solution that fit its time – a solution, based on inadequate information, that accomplished its immediate goal without pretending to be a solution for all times and all situations. In their articles, they left for the future a lot of ways to build on the Compact, or around it, or even without it if that seemed to suit the times better.
To me, that wariness embodies, as it were, the spirit of the Colorado River Compact. Representatives from seven competitive growth-oriented states came together in the knowledge that their own futures were only as wide-open as they allowed the futures of the other six states to remain wide open too; they all had to work together to develop the Colorado River at all; but with full faith in their own capacities to compete, they didn’t want to bind the others in restrictions and limits that would also bind them.
As our presenters this morning will probably point out, a lot comes down to interpretations of what words and phrases mean, in the strictest legal sense. When the Compact, for instance, speaks of “equitable division and apportionment,” does that mean what Hoover meant when he spoke of the “principle of equation” – or what McClure of California meant when he brought in a proposal for “a 50-50 division... of the normal flow of the river”? A lot comes down to whether enough of us on both sides of Lee’s Ferry think it is right enough that individual states have to answer to the EPA alone for problems that other states can legally make worse under the Compact. And there’s always that Native American wild card – a state-sized nation in the middle of the region, overlapping both basins, with a reserved right dating back to 1868. The Compact got western civilization launched in the Colorado River region, which was all it really wanted to do; and its authors left, it seems to me, lots of leeway to ask: is it really helping to keep an increasingly enlightened and increasingly burdened civilization going in the basin? And if not, would there be anything for anyone to gain through re-collaborating?
Some interesting quotes from the minutes of the Santa Fe meetings:
Colorado commissioner Delph Carpenter introduced the idea of a “natural” division of the use of the river into two basins as a way of transcending the futile and frustrating efforts to divvy the river among the seven states. Here he reflects on the rationale for that idea (11th Santa Fe meeting): “My advisors and I myself found ourselves in the position of saying that, as respects a virgin territory, we would be called upon to fix an artificial limitation that might work grave injustice later.... Proceeding upon that conclusion, it became then a problem of seeing if it could not be worked out on a divisional basis, that divisional basis largely having been fixed by nature. We have a great catchment basin like the receptacle basin of a funnel; we have the funnel neck, the canyon, and below the territory that receives the water through this funnel neck with certain additional supplies arising and flowing in that territory.... The upper states cannot, should not, economically be compelled to develop, as development will proceed (in the lower division) with a proper flood control.”
Arizona’s commissioner W.S. Norviel was the constant, contentious contrarian of the negotiations from start to finish; one can’t read these minutes without coming to think that Arizona’s purpose from the start was to undermine the negotiations. Here is Norviel responding to the two-basin idea (11th meeting): “The division of the basin into two divisions... isn’t, as I conceive it, what we were appointed for. It doesn’t arrive at any conclusion, and, as it is stated, it leaves the two divisions to work out their own salvation on whatever plan they may choose in the future.” (The other commissioners thought that was just fine.)
R.E.Caldwell, from Utah, after Norviel began to have second (or fifth or fourteenth) thoughts about the two-basin division, and spoke vaguely of Arizona’s "vision of an empire within our state to be irrigated and reclaimed from the waters of the Colorado River,” but acknowledging an uncertainty about what “our needs might be out of the Colorado River” (13th meeting): “The upper states have entered into this thing with spirit, with zest, and with all good feeling for the Colorado River Basin, and even with compassion for the citizens of the United States who are now in jeopardy in the lower regions of the stream. That’s my chief motive for considering what I think is a correct method of developing the Colorado River to the point of agreeing to a partition of the water. I don’t think that this river should be cut up, sliced up and partitioned forever regardless of whether this state or the other state could use it or not. To me, that’s as abhorrent as (the 50-50 two-basin partition) is to Mr. Norviel. The principal of beneficial use is fundamental and is correct; the water should go to the people who can use and benefit by the water.... It isn’t conceivable to me that any state in this basin would wish to corral and forever hold when it could not use it, any portion, not a quart or cupful of the water of the Colorado River.”
Colorado’s Delph Carpenter, reflecting on the 50-50 proposal for dividing the river’s water (13th Santa Fe meeting): “Any shortage of flow in the river strikes the states of origin much harder than the lower states, because that very famine is what causes the shortage in the upper territory. It seems to me incumbent upon the lower states to be reasonable in the demand of guarantee. In other words an absolutely preferred delivery should not run wholly to the lower states. In naming a division of the water it should rather be the disposition to lay the burden of water shortage, a drouth, upon the whole territory, and also to permit the enjoyment of excess flows to the whole territory. Another thought, any student of the river must realize that the future development in both areas will be that predicated upon the construction of reservoirs. Nevertheless, we have no power to say by whom these reservoirs shall be constructed, in what localities or when they shall be constructed. That should be left free to both communities to use such instrumentalities as may be at hand, and the division of the water should be so made that either area may build, or neglect to build, of its own motion, and as it may believe construction or lack of construction is at any one time justified.”
Stephen Davis, New Mexico’s negotiator, having finally had it with Arizona’s W. S. Norviel (19th meeting): “As I understand Mr. Norviel’s position so far it has been that it was up to somebody to make propositions to him which he continually rejects and frankly I have been unable to ascertain, and am unable now to know, just what is acceptable to him. It seems to me the time has come when Mr. Norviel should do a little something constructive on his own part and should state in writing just exactly what the Arizona idea is..., then let us see whether or not on that basis we can work something out. Without that we are absolutely and utterly up in the air because none of us knows what it is Mr. Norviel really wants.”
R. E. Caldwell of Utah, taking the large look as they are finishing up details (26th meeting): “I think for a practical matter we are almost making two rivers out of one in the Colorado River, to meet a practical situation.”
Drought Response Plan
(Still awaiting final approval)
Drought Response Plan
Clifton Water District; City of Grand Junction; Town of Palisade
Ute Water Conservancy District -- April 2003
Drought can be defined as an extended period of below-average precipitation and/or stream flow that stresses a water supply. Drought is a natural, on-going situation in Colorado - a phenomenon that has recurred regularly throughout Colorado’s history.
For planning purposes, the City of Grand Junction, Ute Water Conservation District, Clifton Water District and the Town of Palisade water supply strategy is to have enough water to meet unrestricted customer usage during a period similar to the 1977 or 2002 droughts.
No one can predict how long a drought will last or if it will be worse than those used in our calculations. Therefore, even though Grand Valley domestic water supply currently exceeds its use, the providers must be prepared to recognize drought conditions early and respond appropriately. The attached Drought Response Plan (DRP) is designed to provide Governing Boards and City Councils with a set of options to consider in dealing with a prolonged drought.
Each domestic water provider has developed a water conservation plan. Implementation of this plan will be accomplished through an on-going annual effort, budgeted and paid from the four domestic water providers. These plans include, but are not limited to, the following items:
• Initiate Drought Response Information Project to provide public education through all sources of media on why and how to reduce per capita consumption.
• Encourage all customer classes to evaluate, redesign and reconstruct existing landscapes and outdoor water uses to reduce overall consumption.
• All public institutions to take the lead in evaluating in-door and out-door water use practices. Parks, open spaces, medians, golf courses, fountains, etc. to be audited for current consumption and redesigned or re-operated to reduce consumption.
• Examine all municipal and county code provisions that affect water usage, such as landscape standards, storm water best management practices, and building codes provisions and amend, if appropriate, these code provisions to meet not only the objectives of the Code as originally intended but also to reduce water consumption.
• Campaign proclamation to alert public to the need to conserve water.
• Acquaint customers with measures they can expect if Stage I or Stage II drought occurs.
• Monitor potential drought response effectiveness; recommend adjustments as needed to the City Councils and Governing Boards and report to the public regularly.
• Highlight unusually high use on customers’ bills. Contact these customers and special interest groups with heavy water use to get their ideas and suggestions for obtaining long-term reductions. (Golf courses, parks, hospitals, schools, government.)
• Suggest water use surveys (comprehensive water use analyses) for high volume water users in all customer classes, advise them on ways to reduce water use and, where appropriate, suggest retrofit devices.
• Coordinate with Mesa County; invite to meetings.
• Meet with citizens groups and convey messages of basic water conservation and Stage I and Stage II drought conditions.
• Publish “water waste reduction” suggestions for households and aggressively promote it by including it with water bills, putting it on web sites, and using other effective distribution methods, including bill boards, and Public Service Announcements.
• Train customer service employees to respond to conservation-related questions and give information.
• Communicate with the irrigation districts and companies to cooperatively work with them to ensure that adequate irrigation water will be available throughout irrigation season.
• Develop some Demonstration Xeriscape™ areas for customers to identify with.
• Encourage Xeriscaping and low-water consumption practices.
• Quarterly meetings of domestic water providers to review water supply projections, current reservoir capacity and ongoing conservation efforts.
• Consider incentives by the domestic water providers to customers to replace out-dated, water consuming in-door plumbing fixtures, faucets and shower heads.
• Each provider consider adjusting increasing block rate (separation of residential from commercial/industrial rates.)
• Train and assign field and customer service personnel to:
o Monitor outdoor use.
o Offer suggestions to customers on water wise use.
o Identify and work with high water users.
Denver Water holds the trademark for the term Xeriscape. The word Xeriscape was created in 1981 for landscape water conservation education programs. The name is a combination of “landscape” and the Greek word “xeros”, which means “dry.”
DROUGHT RESPONSE PLAN
The Drought Response Plan is based on two stages of drought, each of which is triggered by either a combination of the Historic User Pool projections, Water Provider storage, or stream flow projections.
Stage I Drought - On-going intensive water conservation – Conditions are similar to 2002 drought, but no real impacts to area domestic water providers; Statewide drought conditions may or may not exist that affect area irrigators. Some voluntary water use reductions anticipated. Actions undertaken involve predominately sharing water supply.
• The 2002 drought had a Statewide drought declaration, Ute Water Conservancy Districts primary water source and the Lower Molina power plant was out of water by mid July, Vega reservoir did not fill. The Town of Palisade’s cabin reservoir had only 75% of normal but springs remained steady. The City of Grand Junction’s Purdy Mesa and Juniata Reservoirs started out about 75% full with about 1,100 acre feet of municipal water available on top of Grand Mesa. The Historic User Pool (HUP) received approximately 75 – 80% of full allocation but had water for full irrigation season.
Stage II Drought - At least one of the four water provider’s supply is at or near minimum target levels (to be determined) for either storage or stream flows requiring drastic water conservation measures to ensure water needs, for the most essential uses are met for all Valley water customers. Mandatory water use reductions and a drought rate imposed.
• Moving from a Stage I Drought to a Stage II Drought will be dependent on several factors. During a Stage I drought all water providers will have gone from meeting on a quarterly basis to be meeting on a monthly basis and all water supplies, either storage or stream flows, will be monitored very closely. If it is anticipated that the Historic User Pool (HUP) is expected to only receive 75% of entitlement and irrigation districts are anticipating they will not be able to stretch available water supplies throughout entire irrigation season we will need to take stronger action to ensure our domestic supplies are not over burdened. Domestic water suppliers usually have enough water resources to supply their current water demands, if outside irrigation demand that has normally been supplied by one of the irrigation canals is suddenly added to the domestic demand it will cause both treatment and capacity delivery problems.
Individual triggers for each domestic water provider have been discussed and will be modified as Weather and demand dictate. Currently the Ute Water District trigger for moving to Stage II will be they will be at 75% of storage capacity in Jerry Creek reservoirs by mid summer. The Town of Palisade’s Cabin Reservoir is below 75% capacity right after spring runoff and Ute Water may not have capacity to keep them whole. Clifton Water District will use the 75% of Historic User Pool storage available as their trigger as does not anticipate any numeric triggers, only hardship may be getting water to treatment facility from river. The City of Grand Junction is anticipating a trigger of 50% of storage for Juniata and Purdy Mesa Reservoirs by end of irrigation season.
This plan identifies two ways to respond to a drought: increasing water supply and decreasing water use.
Increasing Water Supply. The four area water providers can possibly augment their water supply from other sources. There are several options for doing this, each presenting its own set of intergovernmental and technical considerations. Among the possibilities:
• Call back water rights we allow others to use. (Ranch lessees)
• Augment raw water sources through River Pump Stations if river water is in priority.
• Pay an upstream water user to allow us to divert more water.
• Seek waivers from State agencies to allow us to divert and use irrigation water decrees if available.
• Purchase Municipal Water contracts from federal projects if available. (possibly must do in advance)
Decreasing Water Use. The prime drought response is to budget water use for the most essential uses for the drought’s duration. There are a wide variety of options that could be used to decrease water use. In general, we expect that reductions would be voluntary as outlined above in the introduction. Voluntary measures would continue with a Stage I drought. Mandatory measures would be implemented during a Stage II drought. We believe it is important to ensure that any discomfort, difficulty or potential loss is shared as equitably as possible across all customer classes.
Stage I Drought – Based on past experience of other domestic water providers we can expect to achieve between 0% and 10% reduction in water consumption with the following measures.
• Monthly meetings of domestic water providers to review water supply projections, current reservoir capacity and ongoing conservation efforts.
• Continue all measures outlined in the on-going water conservation plan implementation as outlined above.
• Initiate campaign to alert public of Stage I drought conditions.
• Monitor drought response effectiveness; recommend adjustments as needed to the City Councils and Governing Boards, report to the public regularly.
• Request all government entities to reduce their own short term domestic water use by 30 percent of last five year average to demonstrate leadership in dealing with the crisis, and then publicize the results.
• Publicize creative water saving efforts of individuals and business customers as examples of leadership.
• Assist city and county health departments in distributing guidelines for using gray water where legal and appropriate.
• Suggest the following ideas to reduce indoor water use:
o Serve water in restaurants only upon request.
o Encourage all hotels, motels, inns and bed and breakfast establishments to have only showerheads meeting maximum flow rates of 2.5 gallons per minute and faucet aerators meeting maximum flow rates of 2.2 gallons per minute.
o Promote the reduction of water-cooled air conditioning.
• Suggest the following ideas to reduce outdoor water use:
o Cut back on street cleaning, sidewalk and driveway washing—except where spills of toxic or hazardous substances or where public health and safety issues can only be resolved by washing the impermeable surface.
o Suggest to customers other ways to clean sidewalks or driveways and any other hard surfaces without the use of hoses.
o Suggest to customers other ways to wash vehicles to minimize water waste.
o Suggest home owners not to fill private swimming pools.
o Require that ornamental fountains in buildings and parks be turned off.
• Provide information and assistance to customers planning for post-drought landscape revival or replacement.
Stage II Drought - Based on past experience of other domestic water providers we can expect to achieve between 10% and 20% reduction in water consumption with the following measures.
• Continue all measures initiated in Stage I droughts.
• Increase meeting frequency from monthly to weekly.
• Adjust drought water rates to increase financial incentives for using less water.
• Intensify public information to reinforce the need for extreme measures (generate awareness of drought status, response, policy recommendations, requirements and penalties).
• Provide information and assistance to customers planning for post-drought landscape revival or replacement.
• Eliminate all fire hydrant uses except those required for public health and safety.
• Reduce indoor water use:
o Eliminate serving water in restaurants except upon request.
o Require all hotels, motels, inns and bed and breakfast establishments to have only showerheads meeting maximum flow rates of 2.5 gallons per minute and faucet aerators meeting maximum flow rates of 2.2 gallons per minute.
o Assist County health department in distributing guidelines prohibiting use of gray water.
• Intensify reductions of outdoor water use:
o Increase penalties for wasting water, violating any permits or ignoring restrictions.
o Prohibit street, sidewalk and driveway washing by flushing methods—except where spills of toxic or hazardous substances or where public health and safety issues can only be resolved by washing the impermeable surface.
o Prohibit curbside car/truck washing by all customers.
o Prohibit car/truck washing on dealers’ lots.
o Prohibit filling private swimming pools.
o Require that ornamental fountains in buildings and parks be turned off.
o Impose restrictions in landscape water use in proportion to the severity of the drought.
o Prohibit all new landscaping including planting of trees and shrubs.
o Train and assign field and customer service personnel to:
o Police outdoor water use.
o Issue warnings.
o Impose penalties for water waste, violations of any permits and noncompliance with restrictions.
• Prohibit outdoor water use (as a last resort in an extremely severe drought) except for subsistence irrigation of trees and shrubs.
During a drought, it is essential that the four area water providers communicate effectively not only with their customers, but also with other area water suppliers, local governments, and other groups who may be affected by this drought response. An intense water conservation effort is being implemented during 2003. This effort once initiated is planned to be on going with continued support from Ute Water Conservancy District, Town of Palisade, Clifton Water District and the City of Grand Junction.
While the options listed in the Drought Response Plan are based on lessons learned here and from other water utilities during past droughts, it is important to understand that every drought is different and that the Governing Boards and City Council will adjust and refine measures based on actual drought conditions. This plan is intended to help staff, customers, stakeholders and the Boards and Council be better prepared when a drought occurs.
“COLORADO 64” WATER PRINCIPLES
Presentation by Chris Treese, External Affairs
Colorado River Water Conservation District
Drought is a naturally recurring part of Colorado’s climatic cycle. The past four years of drought, culminating in the record-setting parched conditions of 2002, have touched every region of the State of Colorado.
Water shortages throughout Colorado have reached crisis proportions. However, every crisis offers opportunity: opportunity for cooperation, opportunity for understanding, and opportunity to unify diverse positions. Our current drought provides opportunity for all three.
Colorado law recognizes the right to move water from where it flows to where it is needed and to change the historical use of water from one beneficial use to another. In the 130 years since adoption of our constitution, Colorado has grown significantly, both in population and in expanded uses for water. The volume of undeveloped water in Colorado has shrunk tremendously. As our quest for solutions considers transferring water from one part of Colorado for new or different uses in other parts of the state, we must address the impacts such measures have on the people and economies where these waters originate.
We recognize that in the free exercise of private property rights, some water will continue to be transferred from willing buyers to willing sellers, and will continue to move away from traditional uses to new uses. The goal of all parties should be to ultimately advance the economic, environmental, cultural and recreational health of all Colorado communities.
The following principles are offered by “Colorado 64” – a coalition representing communities, water providers, and business interests across Colorado – to frame the debate about preparing for Colorado’s water future. These principles are intended to inform and assist decision makers and water managers in crafting fair and mutually beneficial water projects, as well as balanced water-related policy and legislation to address Colorado's water challenges. The following principles begin our earnest efforts to find water supply answers that benefit all Coloradans, for this and future generations. In this spirit, this document is intended to be a working document. All parties commit to remain at the table where the principals may be amended or expanded as times and conditions change.
1. All Colorado water users must share in solving Colorado’s water resource problems.
2. The State of Colorado should provide assistance, when requested, for local water supply planning and assist in the implementation of consensus-based water resource solutions that respect local authorities, private property and water rights.
3. During the process of planning to meet future needs, water suppliers and utilities should give preference to development of economically viable local water sources and demand management as they consider other options, including development of new water transfers.
4. Additional water storage should be pursued through the improvement and rehabilitation of existing structures and the development of new structures. These activities should be accomplished with local consensus.
5. The right of water rights owners to market their water rights must be protected.
a. Colorado must fully explore flexible, market-based approaches to water supply management, including interruptible water contracts, water banking, in-state water leasing and groundwater recharge management.
b. Those seeking to transfer agricultural water to another use should consider leasing or other temporary arrangements for transfer of water, rather than relying exclusively on the purchase of water rights. Leasing or other such temporary arrangements could allow for reversion of the water to agricultural purposes under certain conditions.
c. In the event that agricultural water is transferred, the transaction must adequately address the need for maintaining the existing tax base, protecting the remaining water rights in the area, and maintaining the proper stewardship of the land including revegetation and weed control.
6. Appropriate recognition should be given to preservation of flows necessary to support recreational, hydroelectric and environmental needs concurrent with development of water for beneficial consumptive uses.
7. Adverse economic, environmental, and social impacts of future water projects and water transfers should be minimized; unavoidable adverse impacts must be reasonably mitigated; all communities involved should commit themselves to identifying and implementing reasonable mitigation measures as an integral part of future water projects or transfers.
8. Future water supply solutions must benefit both the area of origin and the area of use.
9. Water conservation measures that do not injure other water rights should be aggressively pursued.
10. There must be an ongoing, concerted effort to educate all Coloradans on the importance of water, and the need to conserve, manage, and plan for the needs of this and future generations.