Water Workshop 2006

Conference Addresses

Hobbs, Greg

THE DEVELOPED RESOURCE

Conference held July 26-28, 2006, at Western State College of Colorado in Gunnison

"We are no longer developing a resource; we are learning to share a developed resource."

- Justice Greg Hobbs, Closing address at 30th Water Workshop

Justice Hobbs' observation has presented the regional water community of users, providers and protectors with a new set of challenges and opportunities for the 21st century. The 31st Water Workshop tried to broadly explore some of the areas of concern and potential that we are facing over the coming decades.

WEDNESDAY AFTERNOON 7/26: "Water Policy for 'A Developed Resource': What should we carry forward?"

Is the Water Resource "developed"? Opening remarks by Conference Coordinator George Sibley.

Water has played a major role in every successive stage of the development of the American West since the entrada here of the first Euro-American settlers in the 16th century C.E. In each stage of that development, water has played different roles, been assigned different values, by people perceiving different sets of challenges and opportunities. These roles and values have been carried along by co-existing cultures and subcultures, in an era that did not pay much attention to the possibility of natural limits, which might impose a need to make choices. Now, as we confront a future of "learning to share a developed resource" in an era of growing demands, this is a good time to look at the roles and values water has had in the West, to see what role or roles, what value or values, might work best as we move into that future.

The first modern-era culture in the American West was Hispanic, developing on the West Coast and up into the Gila and Rio Grande Basins in the 16 th Century. Joseph Gallegos, a Centennial Farm rancher in the San Luis Valley and a Costilla County Commissioner, addressed how water has been used and valued in that culture, and what water-related policies could be carried forward from that culture.

The entrada of Anglo-Americans in the 19 th century led to the development of an "appropriations doctrine" throughout the arid and semi-arid West. David Schorr, law professor and student of the appropriations culture, addressed the role and value of water to these Americans, and what from the appropriations doctrine fits with policies for "a developed resource."

As the West grew more populated through the late 19th and 20th centuries, it also became more urbanized, with governance more centralized around national and regional priorities. A major debate began over water and other resources, as to whether these resources, principally water, were a public good, to be administered politically to achieve "the greatest good for the greatest number for the longest time, or were best treated as commodities to be distributed economically by markets. Rick Cables, United States Forest Service Region Two Forester, and Peter Binney, Director of Utilities for the City of Aurora, made the case for water as a public good-Mr. Cables looking at the historical development of the allocation of resources as a public good, and Mr. Binney on the development of public water allocation, and what from those "public good" ideals fit the new century. Dr. Charles Howe, Emeritus Professor of Economics at the University of Colorado at Boulder, addressed the idea of considering water as a commodity to be distributed by markets, and what works today.

Through the last third of the 20th century, the consequences of two centuries of careless and aggressive development became manifest in significant deterioration of our whole resource base, especially water and air. Melinda Kassen, Director of Trout Unlimited's Western Water Project, spoke to the emerging role and value of water as the foundation of all life systems.

 Justice Greg Hobbs moderated this session, and led the ensuing discussion of potential conflicts and unexplored connections as we confront the realities of developing policy for a "developed resource."

THURSDAY MORNING 7/27: Do we need a more integrated approach to the "Water-Energy-Food Equation"?
Water, energy and food are the three absolutely essential resources for human society on any level. Earlier advanced cultures in the West like the Ancestral Pueblans succumbed to complex convergences of energy, water and food crises; and today, in our most complex of all cultures, water, energy and food are linked in ways that make changes in any of the three reverberate through the other two.
Today, we know that a) the development of western energy resources will make increasing demands on water resources; b) the re-use and movement against gravity of finite water resources will make increasing demands on energy resources; and c) our food supply is already massively dependent on increasingly expensive energy resources and water resources that will be increasingly diverted from agriculture to urban/energy needs. We want to try to take a more integrated look at what's in store for "the developed resource" in the face of these interrelated challenges.

The Basic Water-Energy-Food Equation

8:30-8:35: Introductory Remarks, Catherine Shrier, Golder Associates, Calgary, Session moderator

8:35-9:00: Basics of the water-energy-food equation, Randy Udall, Community Office for Resource Efficiency, Roaring Fork Valley

9:05-9:25: The water-energy equation in irrigated agriculture, Bill Orendorff, Tri-State G&T, Denver.

9:30-9:45: Conserving water and energy through reuse, Jack Flobeck, AquaPrima, a report from the national reuse conference.

Break

New Energy development in Colorado and its potential impact on water

10:00-10:15: Introductory Remarks, Catherine Shrier, moderator: "Environmental Impact Assessments and Sustainable Development for Energy Resource Projects (An Overview)"

10:20-10:40: Where the Energy is--and where the water is. Chris Schenk, U S Geological Survey

10:45-11:00: The Big Questions that Big Energy development raises about Water Quantity and Quality. Paul Vonguerard, U S Geological Survey (on USGS monitoring programs and predicted needs for monitoring)

11:00-11:15: Colorado's Experience with Oil Shale and the State's Permitting Approach. Russell George, Executive Director, Colorado Department of Natural Resources

11:20-11:45: The Canadian Oil Sands Experience. Sue Lowell, Director of Sustainability Strategy, SunCor, and President, Cumulative Effects Management Assn.

11:45-12:00: Questions & Discussion with all morning presenters.
Lunch

THURSDAY AFTERNOON 7/27: "Science, Management, and Water from the Southern Rockies."
The Southern Rocky Mountains are the principal source for most of the major rivers of the American Southwest and Lower Midwest-the Platte, Arkansas, Rio Grande and Colorado Rivers: more than 40 million people and thousands of food producers in 19 states, served by hundreds of public utilities, conservancies, ditch companies and other water management organizations, depend to some extent, directly or indirectly, on these rivers and their alluvial basins. The region's water managers--many of whom are facing significant growth--need a high degree of certainty about present and future water supply. But the scientists who have been trying to bring predictability to the region's water supply seem increasingly certain of only one thing: that the water supply may "grow" only in the sense of "growing more erratic" in the future. What are the managers to do? These sessions will explore that tension between political necessity and scientific reality.

1:15--Dr. Robert Ward, Director of CSU's Colorado Water Resource Research Institute for 17 years prior to his recent retirement, will give an experience-based overview on "Water Resources in Colorado : Planning for Uncertainty." (15-20 min plus 5 min. questions)

1:45-3:00 Panel: "The Science and Politics of Uncertainty in the Southern Rockies " Panel:

• Chris Landry, Director, Center for Snow and Avalanche Studies: "Is desertification in the Southwest affecting the Southern Rockies snowpack?"

• James Newberry, Grand County Commissioner, and Lurline Curran, Grand County Manager: "When Development runs ahead of Analysis: Living with the Consequences of Major Out-of-Basin Diversions"

• Allan Berryman, Head of Engineering Services, Northern Colorado WCD, on the Platte River Recovery Implementation Plan: "How do you administer a bird call?"

Break

3:15-4:15 Is the Colorado River 'a Developed Resource'? Three Perspectives:

Don Ostler, Director, Upper Colorado River Commission, "Update on the Colorado River Drought Plan"

Brad Udall, Director, CU-NOAA Western Water Assessment: "An Upper Basin Scientific Perspective on the Colorado River water supply in the 21st Century."

Kay Brothers, Deputy Gen. Manager, Operations and Engineering, Southern Nevada Water Authority: "Developing a Water Supply for a Growing Desert City."

4:30 in the Cottonwood Room, College Union:

Bill Ritter, Democrat candidate for governor, will discuss water issues and answer questions, with Richard Bratton, Gunnison attorney and member of Rep. Bob Beauprez's water committee representing the Repbulican perspective. If you have water questions you would like them to consider in advance, please email them to water@western.edu.

THURSDAY EVENING: Banquet, followed by Dr. Patricia Limerick, University of Colorado, renowned western historian, who will examine the implications and consequences of our "Suddenly More Finite West."

FRIDAY JULY 28

8:30-8:50 Zebulon Pike's Epic Journey at 200 years: When the Cultural Compass of the Southern Rockies started to swing south to east. Ed Quillen, Denver Post columnist, Colorado Central publisher, regional historian and curmudgeon.

FRIDAY MORNING 7/28 MAIN SESSION: 1177 and "Educating the Democracy"

170-plus years ago, Alexis de Tocqueville observed in Democracy in America: "The first duty imposed on those who now direct society is to educate the democracy...to replace its blind instincts with knowledge of its true interests...to adapt government to the needs of time and place, and to modify it as men and circumstances require...." That is probably as good a description as any, for where we are now with the " Colorado Water for the 21st Century Act"--last year's HB 05-1177, possibly the state's most democratic measure in water allocation since the appropriation doctrine went into the constitution. With a year of Roundtable meetings behind us, and an Inter-basin Compact Charter laying out a negotiating process, we are moving into the process of "educating the democracy" to responsibly take on the tasks of allocating and reallocating our "developed resource."

9:00-9:10 Introduction to Session. Moderators will be Rep. Kathleen Curry (D), 61st Dist., Colorado House, and Sen. Lewis Entz (R), Dist. 5, Colorado Senate.

9:15-10:00 Concurrent Sessions on Efforts around the Southern Rockies to "Educate the Democracy"

Grand Valley Wise Water Use Council. Leigh Fortson , CSU Cooperative Extension, Dan Crabtree , Bureau of Reclamation, Rita Crumpton , Orchard Mesa Irrigation Dist., Greg Trainor , Grand Junction Utilities and Drought Response Information Program.

Educating the Watershed. Teresa Steely, North Fork River Improvement Association,  Rio De La Vista , various Upper Rio Grande watershed efforts, Jeff Crane, Colorado Watershed Assembly.

Educating the Democracy: Understanding Beliefs and Values in order to Move from Debate to Dialogue.
MaryLou Smith, Aqua Engineering, Ft. Collins, and Dr. Robert Ward, retired Director, Colorado Water Resource Research Institute, CSU.

The Colorado Foundation for Water Education and the IBCC Education program. Don Glaser, Exec. Director, CFWE, and Rita Crumpton, IBCC Education Committee.

Break

10:15-11:00 Report on the State of the " Colorado Water for the 21 st Century Act" and its Implementation. Russell George , Executive Director, Colorado Department of Natural Resources, will respond to presentations from Jeris Danielson, Arkansas Roundtable (Eastern Plains), Ray Waterman, Metro Roundtable, and Bill Trampe (invited), Gunnison Basin Roundtable, and speak about upcoming plans for the future.

11:00-12:00 Breakout discussion groups on the "last waterholes" (such as possible unappropriated Colorado River water)-Keeping in mind what's been said about "the water-energy-food equation," scientific prognoses for the Southern Rockies, and other considerations, what should we try to do with that water? What principles, precepts and guidelines should we apply as we move into management of "a developed resource"? Members of the Colorado Foundation for Water Education "Water Leaders" class will facilitate the discussion groups.

12:00 Get lunch and return to room for reports from breakout groups.

1:00 A Few Last Words from the WW Director, Introduction of new Director, Peter Lavigne,

 Sibley, George

IS WATER ‘A DEVELOPED RESOURCE' IN COLORADO ?

Opening Remarks by
George Sibley , Water Workshop Director 

A number of people—some here at the Workshop—have expressed polite skepticism about the idea that “water is a developed resource” in Colorado ; a couple haven't even been all that polite about it. It is, at any rate, a statement that needs to be defended and supported in a somewhat disciplined way.

The report from the State Water Supply Initiative—an almost overwhelming amassing of information about water in Colorado —has information that could support a range of opinions about the state of the state's development of its resource. But the final section of the seventh part of the report—“Availa-bility for Water Supply Development under Interstate Compacts and Decrees” (7-93)—summarizes a lot of information in a way that supports the idea that the “age of development” is past. Or nearly so.

These statements stand out:

•  “There are no reliable additional water supplies that can be developed in the Arkansas and Rio Grande Basins , though water may be available in very wet years.” (7-93)

•  In the South Platte Basin , according to the SWSI Report, “there are no reliable supplies to be developed under a new water right at or above Chatfield Reservoir.... The South Platte is similar to the Arkansas and different from the other basins in the state in that M&I return flows, primarily from wastewater discharges and landscape irrigation are significant contributors to the increased flows. Flows in the South Platte are greatest in the section of the river where the return flows from the South Metro, Denver Metro, and Northern regions combine near the Kersey gage.” (7-99) But is that really “undeveloped water”? Much of it is water brought over from the West Slope—water that the urban regions are making plans to “use to extinction” through conservation, re-use and other programs. Its “re-development” will certainly help the metro region meet some of its growth needs, but it seems to be a stretch to call it “undeveloped water.”

•  The groundwater situation (Figure 1, next page) for those drier regions of the state where ground-water is heavily used basically show barely sustainable use in good water times and a vulnerability to drought.

•  Only in the four districts of the Colorado River Basin does the report find significant water that could be considered “undeveloped” in the sense of the 19 th and 20 th centuries. Several sets of estimates are compared, with differing estimates of current, anticipated and potential depletions, leading to availability figures ranging from 390 million acre-feet to 760 maf. Eric Kuhn of the Colorado River WCD has further finessed his sense of the best estimates by subtracting the projects already in the construction, permitting or planning stages, and come up with a figure of only 250-300 kaf that could be considered “undeveloped.”

But all of the estimates share a common assumption: that the Colorado River will continue to produce around 15 maf of water a year, giving Colorado a share of just over 3 maf. And that assumption deserves a closer look.

Figure 2 (next page) shows what has happened over the past century of recorded measurements of the river. And while it is true that the average annual flow is around 15 maf now, that average has been in a century long decline from over 17 maf at the time that the Colorado River Compact was created.

Is there any reason to believe that that century-long decline is now stabilizing at around the 15 maf needed to support the estimates in SWSI? Tree ring studies from the past four or five centuries (Figure 3) correlated with the 20 th century's actual suggest otherwise; the four-century average is a little under 14 maf. And those studies indicate that there has never been, in the study period, a wet spell like the Basin experienced in the early 20 th century.

If the trend of the 20 th century in the river's flow is a gradual movement back toward the long-term average of something in the neighborhood of 14 maf instead of 15 maf, then the “developable” water in the Colorado Basin begins to look pretty ephemeral in the future.

And that analysis does not include any assumptions about climate change—and none of the predictions about greenhouse-gas-induced global warming are very positive for the Colorado River Basin .

In conclusion—if water is not a fully-developed resource at this point, it is so close to being that, that wisdom would seem to dictate that we begin to transition into what Justice Hobbs has called “learning to share a developed resource.” It is clearly our future, if maybe not quite our present.  3 Pictures!

Cables, Rick D.

Water as a Public Good 

 

Rick D. Cables, Regional Forester
Rocky Mountain Region, U.S. Forest Service

Colorado Water Workshop -- July 2006

I'm pleased to return to the Colorado Water Workshop. I appreciate the honor of being included on this panel and being able to address the role the Forest Service has in managing the public interest in water resources.

My topic today is water as a public good . This topic is a perfect fit for the Forest Service for two reasons. First, the primary architect of the Forest Service - our first Chief, Gifford Pinchot - firmly recognized that national forests were to be used for the public good. To use his words: "Where conflicting interests must be reconciled, the question will always be decided from the standpoint of the greatest good of the greatest number in the long run."

Second, the water resource has always been at the heart of reservations of national forests. A reading of the legislative debates surrounding passage of the agency's founding legislation - the Organic Administration Act of 1897 - clearly shows that protection of water and watersheds was the central purpose for reserving these lands from the public domain. Timber production was secondary, to be allowed only to the extent that it did not interfere with the original mandate for watershed protection. Pinchot is famously quoted for saying: "The connection between forests and rivers is like that between father and son. No forest, no rivers. So a forester may not be wholly beyond his depth when he talks about streams."

I would like to talk about the concept of water as a public good - the greatest good of the greatest number in the long run - from three perspectives:

•  How water as a public good has been defined for the Forest Service;

•  How we've managed water for public interests over the last 100 years - at a time when we've been primarily managing a developing resource; and

•  What challenges are ahead as we continue to manage for water as a public good in the context of learning to "share this developed resource."

Underlying my discussion is Pinchot's ethic about rivers, which I would like to share with you because I believe his philosophy should continue to guide all of us: "Every river is a unit from its source to its mouth. If it is to be given its highest usefulness to all the people, and serve them for all the use they can make of it, it must be developed with that idea clearly in mind. To develop a river for navigation alone, or power alone, or irrigation alone, is often like using a sheep for mutton, or a steer for beef, and throwing away the leather and the wool. A river is a unit, but uses are many, and with our present knowledge there can be no excuse for sacrificing one use to another if both can be served." That is what the dialogue needs to be about today, serving all uses and not sacrificing one to another if both can be served.

Water as a Public Good in the Establishment of the National Forests

Think about your favorite personal places and experiences on the national forests - a favorite spot, activity, or memorable vacation. Chances are that place on the national forest, and that experience, involved water in some way. It might be a quiet resting spot along a lake, high up a mountain valley; an unexpected and stunning waterfall; or water rushing down a mountain stream near a campground or trail. Fishing, boating, hiking, and quiet contemplation are often centered near water. Water is what people expect when they enter their national forests.

As I mentioned previously - and as many of you know - national forests were initially set aside primarily for watershed protection purposes. Under the authority of the Organic Administration Act, national forests were born in the West, with western forests reserved by the early 1910s. In 1911, Congress extended the concept of public lands to protect watersheds to the East. Congress passed the Weeks Act in 1911 to provide for the purchase of privately owned, cut-over timber lands in the headwaters of navigable streams to protect their watersheds. So clearly from the start, for reserved and acquired lands, national forests were established to protect watersheds.

A central underlying premise of all early Congressional acts was protecting water as a public good. An integral part of that public good from the start has been to recognize water storage and diversion as a beneficial use - to supply the needs of people on the farms and in the towns.

In subsequent legislation over the years, Congress continued to direct the Forest Service in how to manage water resources on national forests and grasslands for the public good. Some laws you may be familiar with include the Multiple Use-Sustained Yield Act and the Clean Water Act - but over 30 laws direct the Forest Service how to manage water on public lands. Congress has spoken to the Forest Service and clearly defined the public interest in water - which is to manage the watershed and the water it yields - for the public good. Congress has defined my responsibilities as Regional Forester to manage water as a public good.

The First 100 Years - Managing a Developing Water Resource as a Public Good

What is the scope of this water resource I am managing, and how have the watershed protection mandates been carried out by me and my predecessors over the last 100 years?

National forests and grasslands, 193 million acres in 43 states and Puerto Rico, are the largest single source of water in the United States. They contribute water of high quality to over 3,000 communities, including major cities like Denver and Grand Junction.

Excluding Alaska, about two thirds of the nation's runoff comes from forests, and national forests contribute 14 percent of the total runoff. In the West, national forests yield proportionally more water - about 33 percent - and include the headwaters of major rivers in the forests of major mountain ranges. In Colorado, about 50 percent of the forested lands are national forests.

Water is hard to value. Many of the in-stream and ecological services values of water have no market place. But it is clear that runoff from national forests - which the 2000 publication Water and the Forest Service estimated to be 200 million acre feet nationally, and over 9 million acre feet here in the Rocky Mountain Region - is an extremely important resource.

So we are managing a valuable and extensive water resource - possibly the most valuable asset of national forests. Recognition of this value is not new. In 1918 Pinchot's successor, Henry Graves, wrote: "Undoubtedly the greatest value of the mountain ranges of the West, most of which are within the national forests, lies in their influence upon the regularity of the water supply.. The vegetative covering has a very decided influence on runoff."

Managing the national forests for water and watershed protection, particularly when that might dictate how other uses of national forests like grazing or timber are managed, has never been easy or without controversy. But controversy has always been a part of public land management. Almost one hundred years ago, in 1907, when Pinchot came to Denver for the first public lands conference, he met a buzz saw of controversy from private citizens and western politicians over the very idea of reserving national forests from the public domain. Controversy over managing our national forests continues to this day - oil and gas development, ditch bill authorizations, and roadless areas are current Colorado examples. And water issues are included in these debates.

But despite the present-day controversies, the initial controversy - whether or not it is a good idea to establish these lands as national forests for the public good - is no longer at issue. To the contrary, national forests, public lands managed for the greater public interest, are highly valued by our society and envied by much of the world. In recent years, the notion of conveying even small parcels to the private sector - no matter how noble the reason - has drawn criticism because people from many different walks of life have come out strongly in support of keeping these lands in public ownership. The value of public lands managed for the public good has stood the test for 100 years and has grown stronger. This public land ethic is stronger in the United States than in any other nation on earth.

Having said this, however, I would be the first to admit that initially, our managerial role toward the water resource was primarily a passive one. The early assumption was that one protected the water resource by protecting the forest, preserving the "sponge" of forest cover so to speak, and thereby regulating runoff, preventing erosion, and tempering stream flows. Once the forest was protected, the water and the watershed were protected and the job was done. That concept was successful early on, when the agency primarily put out fires to protect the forests - but we have learned a lot since then, about the role of fire and the role of water. Our needs for timber have also changed, particularly after World War II when there was a great need to build homes.

In response to the changes, Congress passed the Multiple Use-Sustained Yield Act in 1960. This law formally expanded the purposes for which national forests were managed. Before this, the Forest Service always managed national forests for multiple uses - but with the passage of this law, Congress formalized our practices. Congress also said that management of the national forests was to have five co-equal purposes: outdoor recreation, range, timber, watershed, and wildlife and fish. Managing national forests under the concept of multiple use and sustained yield of these five co-equal purposes remains our mandate today. I would further suggest that none of these purposes could be accomplished without a healthy watershed and more active water resource management than existed at the turn of the century.

The growing science of ecology and the laws passed during the environmental movement of the 1970's introduced a much broader understanding and more specific direction for how national forests and water on the national forests should be managed. It increased the understanding of the role that water plays in sustaining terrestrial and aquatic habitats and functions.

And demands for water grew. No longer was there enough to go around. Protecting water and watersheds moved from a passive custodial role to one of active decision making. In response to these changing demands, the Forest Service hired its first hydrologists in the 1960's. This was a turning point in our water management history. No longer were decisions made only by foresters. Consulting with hydrologists, as well as botanists, biologists, and geologists, expanded our understanding of the complexity of our mission and the demands upon our resource base.

The Next 100 Years - Managing the Developed Water Resource as a Public Good

Just as in Pinchot's day, controversies have arisen. I'm sure that many of you in this audience have been a participant or a bystander in at least one controversy over decision-making about water and the management of national forests.

Our challenge now and in the future is not to shy away from the interests that resulted in these controversies. I must continue to manage these public lands as directed by Congress - to be an advocate for the public good, the public interest, in the midst of other, competing ideas about how to manage water resources. Some of these competing interests are represented here with me on this panel. The challenge, however, my challenge - your challenge - our challenge - is to see if there is a way to satisfy these interests in a spirit of cooperation - working together to share the developed resource. Put more simply, the real question is where and how do our efforts best serve the public for the next hundred years?

We have begun to take steps to address that here in Colorado. In 2004, I signed a Memorandum of Understanding (MOU) with the State of Colorado on the management of water and water uses on national forests. Under the framework of that MOU, the progress we've made on numerous issues has proven what can be accomplished when we work together in a spirit of cooperation.

It is clear that the concept of water as a public good is well established. Meeting all our needs, and not sacrificing one use of water for another, will require us all to manage the water resource on a watershed basis - from forest to faucet. This will be especially vital in our arid west.

It is also clear that in the process of developing this valuable resource, many of the valuable life support services provided by healthy streams, lakes, wetlands, floodplains, and other freshwater ecosystems - services like water purification, groundwater recharge, and flood mitigation - have been unintentionally compromised in the past. This compromise must be corrected.

This situation is not unique to Colorado. Global concerns about the availability of fresh water supplies are serious and growing. The United Nations considers access to clean water as fundamental to human life and health. In November 2002, they declared water as a public good, a community resource - not just an economic commodity - and access to water as a binding human right. Clean water supplies and sustainable water development are true global priorities.

Nationally, water shortages due to population pressures and drought, potential impacts of climate change on water supply and infrastructure, and growing water quality concerns, are but a few examples of the water uncertainties that we face in the future. Several years ago, the Department of Interior, our sister department that hosts most of the other federal land and water management entities, launched Water 2025 - a look at where water shortages were apt to be most severe in the coming decades - and proposed solutions to address concerns.

Locally, concerns about the value of water as a public good have given birth to some outstanding state and local governmental efforts to plan and conserve. For example:

•  The City and County of Denver has taken bold steps with its sustainable development initiative - Greenprint Denver - and its water conservation measures, and with Denver Water's 10 year plan to cut water use by 22 percent.

•  The State of Colorado has moved boldly with its Colorado Water for the 21 st Century Act , and its basin and inter-basin committees that address statewide water planning - and with its 2005 water conservation law that provides grants for creative water-use ideas.

I really want to applaud Denver and the State for moving forward so strongly. I think their efforts illustrate the continued awareness of water as a public good, and the need to include the public good in making decisions. Water is shaping up as the defining conservation issue of this century. I think how we - local, state, and national governments and organizations - collectively continue to advocate for the public good will be our biggest challenge as well as our biggest legacy for the future. Here are three things to ask ourselves as we move forward:

1) How can we value and provide water for uses that were not recognized when much of our legal framework for allocating water was put in place ? One example where the system is currently being adjusted for new uses in Colorado is with recreational in-channel diversions. In-stream flow programs in Colorado and around the West are making steady progress in protecting some of the in-stream values of water. However, improved mechanisms to value and protect the full range of the non-consumptive uses of water, some of which are now commonly referred to as "ecosystem services," are still needed. For example, fishing on the national forests added 10,000 jobs and $500 million in retail sales to Colorado's economy last year.

As Sandra Postel notes in the recent Worldwatch paper Liquid Assets : "Because most ecosystem services lie outside the realm of commercial markets, governments and public entities have important roles to play in valuing and capturing these benefits." The governments and public entities that must play a role include all levels, from local watershed groups, counties, and states to the Forest Service and other federal agencies. It is instructive to look at South Africa, where extraordinary examples of work done by governments in managing water resources are occurring. Given a fresh opportunity to look at managing water resources, the post-apartheid government took a visionary approach. The 1998 National Water Act makes provisions for a Water Reserve. This reserve allocates water for both basic human needs and sustainable aquatic ecosystem functions.

2) How can we manage existing uses differently to conserve water and better meet multiple needs ? An example of managing existing uses differently to conserve water happened on a large scale in the city of Boston. It began a water and watershed conservation program in the 1980s that indefinitely postponed a $500 million diversion from the Connecticut River. Water use in 2004 was the lowest in 50 years. Out here in the West we are also learning - like how to re-operate dams to better meet ecosystem needs, through programs such as the Upper Colorado River Endangered Fish Recovery Program. I've already mentioned Denver Water's conservation goal to reduce water use by 22% in 10 years. Locally, we have also been able to address multiple needs through cooperative efforts, like developing a management plan for the South Platte River that met water-user interests and preserved wild and scenic values. This is where creativity and a willingness to think beyond our traditions are invaluable.

3) How can we build market incentives for ecosystem services to fully value and care for assets like water purification, ground-water recharge, and flood mitigation ? New York City is investing $1.5 billion in watershed measures over 10 years to avoid a filtration plant that would cost $6 billion to build and $300 million a year to operate. That's a good example of investing in the ecosystem at the top of the watershed to save investments in infrastructure at the bottom end of the faucet. The Forest Service is currently exploring our role in developing markets for water quality trading. How can we encourage investments in the natural infrastructure that is the basis for high quality water - the watersheds of the national forests and grasslands that are the water supply for over 60 million Americans? I would suggest that we already make public investments when that natural infrastructure fails - we call it a treatment plant, or disaster relief. Can we adjust that equation and invest more of those dollars upstream on protection and restoration, rather than downstream on mitigation and clean-up?

That concept has deep roots. In 1915, the City of Grand Junction signed an agreement with the Department of Agriculture to protect the watershed of Kannah Creek, which supplies water to the city - in the then Battlement National Forest. The government agreed to manage uses in the watershed to protect the water supply - measures included keeping campers and salt for stock away from surface waters and limiting the number of livestock in the watershed. In return, the city pledged to pay the salary of extra guards needed to patrol the watershed and ensure that the water supply was protected. One amusing provision even stated that "all dead bodies of horses, cattle, mules or other animals in said area shall be burned or buried in the manner provided by the regulations of the national forest."

Conclusion

Will answering these questions and solving these problems be easy? No. Is managing for water as a public good critical to managing this developed resource in the 21 st century? Absolutely. Will there be continued challenges in integrating the public good with the other viewpoints represented on the panel? No doubt. But I do think that we collectively have the talent to adapt our law, infrastructure, economy, and our thinking to meet the needs of the future.

The Forest Service has much to bring to the table as we work together.

We bring the land base, the science, and the technical know-how to manage the land for long-term ecosystem health. Our ability to advance the science and bring better information to the table is key. The Forest Service will continue to manage the forests for watershed protection, a sustainable water supply, and the multiple uses of water that are our charge. We'll continue to focus on the upstream end of water management - healthy watersheds - while some of the rest of you will focus on the downstream end of efficiencies and conservation.

Will we do that in exactly the same manner as we have for the last 100 years? Probably not. While we will continue to bring the spirit of Gifford Pinchot's original words of "the greatest good of the greatest number in the long run" to our management, we will also continue to bring new science and understanding to our decisions. We don't know what the state of our knowledge of ecosystem processes will be in 2106, or how the uncertainties of climate change and population growth will affect our management needs and decision-making.

I also believe that water use and development and ecosystem purposes can all be accommodated as we move forward. If we apply our collective skills and ingenuity, we can work together and find creative solutions that meet the needs of all the interests represented on this panel.

To return to the words of Gifford Pinchot: "Every river is a unit from its source to its mouth ... but uses are many, and with our present knowledge there can be no excuse for sacrificing one use to another if both can be served." We must work together to advocate for all uses if we are to succeed in sharing the developed resource.

Thank you for the opportunity to speak with you today. I look forward to our collective journey in this endeavor and to the rest of this conference.

Crane, Jeff

THE COLORADO WATERSHED ASSEMBLY 

Jeff Crane, Executive Director

OVERVIEW: The Colorado Watershed Assembly occupies a key position in the State of Colorado . It is a collaborative, cooperative group formed by the state's 60 or so watershed groups. The local organizations are on-the-ground, grassroots, non-ideological and relatively new outfits composed of a variety of citizens dedicated to solving local problems through consensus and collaboration.

When an organization's challenges cannot be met within their boundaries, CWA becomes its connection to the larger world. As a result, CWA is in a position to advance democratic processes within the State of Colorado by helping to empower individuals who would otherwise have little influence within the state's water system.

CWA and its member groups appear on the stage at an auspicious moment. Twice within this decade the State of Colorado has decided that it makes sense to work within the context of watersheds and river basins, most recently with the creation and funding of the Basin Roundtables. As a result, the CWA coalition of watershed groups are poised to create a democratic infrastructure that advances the interest of the under-represented.

INTRODUCTION: The Colorado Watershed Assembly has been a strong proponent for community-driven leadership through cooperation, communication, and consultation since the organization's inception in 1999. The Assembly is a coalition of watershed protection groups that has been encouraging Colorado citizens to take a proactive, consensus-driven approach to address natural resource issues. Our member organizations have been affecting change across Colorado by promoting this approach to achieve local conservation, restoration and water-quality enhancement projects.

The watershed approach has grown substantially. In 1996 there were six recently organized local watershed initiatives in Colorado . In 1997, the Colorado Water Quality Control Division was reorganized around the watershed approach which resulted in funding capability for non-point source projects through the Water Pollution Control Revolving Fund and the creation of four new regional watershed coordinator positions.

As a result, by 1999, there were 40 local, citizen-based organizations addressing critical resource issues to meet community needs. They were formed by concerned citizens working side-by-side with government agencies and regional water districts to better understand the “threats to their watersheds” and address a myriad of problems including water quality, water supply, environmental degradation, community education and outreach, recreation, agricultural diversions, water conservation, quality of life concerns and compact compliance.

Today these groups may undertake very different activities, and even have memberships that differ widely in their sociopolitical and economic makeup, but they share a commitment to solving problems within watersheds based upon consensus, cooperation and on-the-ground projects. The leaders of these groups have realized that some of the problems they're facing at the local level were the result of decisions, policies and circumstances that occurred far beyond their watersheds. They understand that if they wanted to succeed at making substantial improvements to their natural resources and protect their watershed, they need to have influence at the state, regional and national levels.

CWA POLICY & GOALS: That need created the Colorado Watershed Assembly. The purpose of CWA is to recognize and publicize the fact that Colorado needs grassroots citizen groups concerned with natural resources and their relationship to human problems. Its mission is to support collaborative efforts to protect and improve the conservation values of the land, water and other natural resources of Colorado watersheds. A primary goal is to ensure that when citizens anywhere in Colorado encounter a problem at the intersection of nature and human activities, they seek a watershed-based solution. CWA strives to create, strengthen and sustain such groups in every one of the state's watersheds by serving as a statewide voice for watershed groups, providing an ongoing mechanism to funnel additional resources and to amplifying local public outreach and educational efforts.

CWA helps people see the big picture importance of watershed groups, and helps the individual groups achieve their goals. The groups are a democratic instrument in part because it is easier for people to agree on local issues surrounding land and streams than it is to agree on social issues such as immigration and abortion. Watershed groups are a way to get people working together with a minimum of divisiveness.

CWA is organized to help citizens have a voice in Colorado state affairs. Watershed groups attract a broad range of people, who are looking to accomplish things on the ground without getting involved in ideological or political battles. CWA and watershed groups can make democracy work because we're working on: public health, rational planning, beautiful streams, recreation: fundamental issues that concern everyone.

Watershed groups are the ideal way to organize communities because by definition they cover all of a state, everyone can relate to them in some way, and they touch a broad array of human and natural issues. For example, the James Creek Watershed Initiative had to deal with off-road vehicle riders along its stream in order to safeguard the purity of its drinking water. The Friends of the Poudre had to reopen parks along its river so that residents of its county would have a place to recreate. The Eagle River Watershed Council had to educate the Colorado Division of Transportation and their own community about the impact its sanding operations were having on one of the most beautiful streams in the area.

Careless growth led other watershed groups to work on conservation easements. Public health concerns led a group in the Arkansas Valley to focus on septic systems. Public health and concern for wildlife led the Animas River Stakeholders to remediate many, many abandoned mines. The Cherry Creek group, being in an urban area, concentrates on educating school children about the importance of streams even in heavily populated area.

In other words, watershed groups are all about building a civilization in a place that isn't all that civilized. The desire to protect a stream requires these groups to understand a great deal about their geographic area – about its golf courses, about what towns do with street sweepings, about the discharge of prescription drugs into sewage systems, about surrounding agricultural runoff and many other site specific examples. This understanding leads to planning for the future of the watershed, and then that leads to intimate and on-going participation in the operation of everything from planning commissions to town councils and county commissions to state legislatures.

UNDER-REPRESENTATION: Member groups come together because they feel under-represented. Citizens are under-represented because special interests, especially moneyed special interests, dominate public decision making. Citizens in rural areas are doubly under-represented because they're not a special interest, they're often far from the seats of power, and there are few of them. For instance, the population centers of the Front Range often rely on the recreational and environmental benefits of the West Slope, an important economic engine for those rural communities, but insufficient funding for environmental and recreational uses is further intensifying conflicts between wealthy Front Range cities and rural West Slope communities, widening the gap of social equity.

CONNECTION TO GOVERNMENT: For the past 25 years, the West has been experiencing dramatic demographic change. Today Colorado is the third fastest growing state and its population is expected to grow by another 65 percent by 2030. According to the Western Water Policy Review Advisory Commission, the new Federal challenge will be to effectively encourage local stakeholder participation through watershed groups and integrate them with federal, state and local governmental requirements. The Commission recommends watershed groups develop plans and recommend specific projects to accomplish local objectives. These local citizen groups provide a forum to educate stakeholders and stimulate local innovation and flexibility.

The Colorado Department of Natural Resources and the Water Conservation Board similarly recognizes the value of communication and dialogue among interest groups to reduce conflict and ensure wise management of natural resources. The Colorado Water for the 21st Century Act established nine separate basin roundtables for each of the major river basins in the state and one for metro Denver . These roundtables are permanent structures set up to facilitate discussions on water management issues and to encourage locally driven collaborative solutions. The roundtables will also serve as a forum for public involvement.

The roundtables are a democracy-building effort that by law will be open to the public. The roundtables appear to be creating an expanded foundation for public involvement in meeting water needs. In what is clearly an advance in democratic decision making, Colorado has gone from water deal making being an insider game to state-supported collaborative efforts in every basin. And what is a basin if it's not a large watershed, or a collection of watersheds. CWA's constituent groups fit into this new Colorado initiative while CWA serves as the entity that can bring many watershed groups into the roundtable process.

CWA ENGAGES CONSTITUENCIES: Public participation is not easy. Many interested citizens feel locked out of the process. The Colorado Watershed Assembly exists to enhance and increase public participation and awareness by coordinating with its member groups and disseminating vital information. The Assembly has direct contact with its 60+ members and each watershed group has dozens, if not hundreds, of members and the ability to send information to particular groups or to all the groups.

Past efforts to “organize” a western state from an environmental perspective have never been totally successfully. For example, Western Colorado Congress has pulled together several grassroots groups in Western Colorado , and made them part of a multi-state group called the Western Organization of Resource Councils. But those groups, individually and collectively, appeal to an important but relatively narrow constituency.

There have been similar efforts centered on the Front Range , such as the Colorado Environmental Coalition, which also has state-wide ambitions. And then there are national groups with strong state presences, such as the Sierra Club, TNC, and Audubon. None of them can be said to speak for broad citizen engagement with natural resources on a state-wide scale.

Which brings us to the Colorado Watershed Assembly. An approach by watershed is broader, less divisive, and less advocacy oriented. Implicit in the watershed approach is the recognition that advocacy, especially when married to political action and litigation, leads in reaction to more advocacy and more litigation. Hence, the emphasis in the watershed community is on getting projects done rather than stopping someone else's project. From a practical point of view, watersheds are a natural way of dividing up the state, making the bane of public interest groups – turf wars – less likely. Many challenges – from water supply and quality to weeds to transportation to population – are specific to watersheds. The ridges and divides that separate watersheds also determine the location of roads, streams and ultimately home sites. Sometimes even the boundaries between watersheds are the boundaries between political subdivisions. But a strength of watershed-based organizing is that even when watersheds cross political subdivisions, they remain within a physical subdivision. Approaching challenges within a physical subdivision has great strength, as we see in the creation of the Roundtables.

The Roundtables are only one of several examples where greater public participation can affect a significant and lasting change in water policy. Another example is Colorado 's in-stream flow program. It is responsible for the appropriation, acquisition and protection of in stream flow and natural lake level water rights to preserve and improve the natural environment to a reasonable degree. Since 1973, the CWCB has appropriated water rights to protect over 8,500 miles of streams and 486 natural lakes. But many other important segments of streams have been denied protection only because those opposed to the appropriations were the only participants at the hearings.

The same is true for the Water Quality Control Commission, the Division of Wildlife, the Army Corps of Engineers and other regulatory agencies. More people who care can be empowered through a local network than through a statewide website and those people can have a large effect on our decisions made about water and on our democratic system.

INFRASTRUCTURE COMPONENTS: Many of the components of a statewide progressive infrastructure are already in place. The local citizen groups made up of dedicated, caring individuals are there and ready to be mobilized.

The Assembly intends to improve the leadership capabilities of its member groups by raising the funds necessary to provide local education and training, especially to the small rural communities who need it the most. The Assembly has been asked to coordinate the Watershed Support Network in Colorado . This new EPA sponsored program, administered nationally by River Network, will provide training and assistance to local watershed groups. The SB 179 bill that provides $40 million to the Roundtables for projects in each basin will also be explored to provide public education and outreach to the local watershed groups.

Money will also be sought by the Assembly to provide financial assistance to the local groups so they can attend meetings and conferences such as the Colorado Water Congress' semi-annual conventions and membership in the State Affairs Committee, the Western Water Workshop, the meetings of the Roundtables and the Water Quality Control Commission, the annual Colorado Watershed Assembly conference and a host of other relevant events. The goal of such participation is to create an army of well-informed citizens who understand how the state's water system works and how to influence that system.

Often individuals have expressed frustration from the overwhelming sense that they, as one person, cannot make a difference, either from lack of confidence, knowledge or money. The empowerment of a large group of new leaders is not only possible but attainable in a reasonable amount of time. The existing political landscape is eager for new voices and faces and the Colorado Watershed Assembly can deliver them.

Schorr, David

The Appropriation Doctrine and Water as Property:
Lessons for “A Developed Resource”

31st Colorado Water Workshop
Western State College, Gunnison, Colo.

July 26, 2006

I've been given the task of talking about viewing water as property, and to people with any familiarity with water law, water as property is most strongly associated with the appropriation doctrine, a doctrine which achieved its purest form here, in Colorado , nearly 150 years ago. Now, what I have to say about 1) “the appropriation doctrine”, and 2) “water as property”, is perhaps not what most people would associate with either of these terms, but I think the organizers of this panel knew my views ahead of time, so I'm going to go ahead and indulge in some heresy.

Unlike myself, most of you here are from the region bounded by the Pacific coast and the 100 th meridian - here the appropriation doctrine is a well-known phenomenon. Now, you may or may not know it, but the fame of the doctrine has spread far the confines of its home in practice, and is quite well-known around the world, at least among people dealing with water, or property theory, or both.

Why is that? Well, it seems that over the years, the doctrine has taken on a lot of ideological baggage. In particular, it has become associated with a certain way of thinking about natural resources or even property in general – namely, the idea of creating private rights in the resource, and then letting the market make decisions about how best to allocate those rights. Moreover, under the appropriation doctrine, the initial allocation of the resource is made in a very specific way: according to the rule of priority. “First in time, first in right”, goes the maxim, and nothing seems to sum up better the pioneer ethic which is presumed to have held sway in the mid-nineteenth-century American West.

For some, this approach seems like a great idea: water can best be managed, for the greater good, if rights are clearly delineated and if owners can make decisions about what to do with their water, without interference from others. Getting there first, appropriating the water from its unowned state, shows entrepreneurial spirit, and is something the law should encourage and reward, goes this way of thinking. Private-property rights are the key to both efficiency and freedom, and so the appropriation doctrine is a model regime, to which the shapers of the law of other natural resources should aspire.

Critics, on the other hand, see appropriation as a paradigm of everything that is wrong with privatizing natural resources. The rewards given to initiative and drive come at the expense of other values that might have been given priority, so to speak, values such as community, equality, need, ecological integrity, and so on. Appropriation, on this view, is a symptom of all the ills of the supposed “cowboy culture” of the West.

What I'd like to do in the next 15 minutes or so is set out a different, historical , understanding of the appropriation doctrine, and of what “water as property” might mean for us today, in the age of what Justice Hobbs has dubbed “the developed resource”. To do that, I'm first going to talk about the origins of the “ Colorado ” or “pure appropriation” doctrine, its ideological roots, and its role in keeping the waters of the public domain out of the hands of speculators – here I'll mostly be summarizing what some of you may have already read in the article that was reproduced for you. Next, I'd like to describe how Colorado law applied the principles of the appropriation doctrine in the closing decades of the nineteenth century, when Coloradans first began to face the reality of water as a developed resource - that is to say, many of the state's rivers were, at least on paper, completely over-appropriated. Last, I'd like to conclude with some thoughts about property and water for the future.

 

So let's start with the origins of the appropriation doctrine. The first myth we have to dispel has to do with the purpose and function of the priority principle . While I have been speaking of the “appropriation doctrine”, you may have noticed that I have studiously avoided calling the doctrine by its more common name – “ prior appropriation”. The reason for my reticence is that, historically speaking, at the appropriation doctrine's origins, priority was at best a secondary principle; the doctrine was not about grabbing or privatizing the public domain or rewarding aggressive behavior. The guiding principles of the Colorado Doctrine were, rather, equality, need and sufficiency. I'll explain.

After the question of slavery, one of the leading issues troubling the American republic in its first century or so was what to do with the public domain. Two main policies competed for supremacy. The first, promoted by most of the political and financial establishment as well as land speculators (often the same people) was conservative and simple: auction off public lands in large blocks to high bidders, allowing the winners of the auctions to sell off the land to whomever, and at whatever price, they please. The second, pushed by a coalition of Jeffersonians, Jacksonians, and social reformers of various party affiliations, was more radical: reserve the public lands for actual settlers , allowing them to acquire family farms at a nominal price, or even for free, on the condition that they actually settle and work the land. This policy has been termed “radical Lockeanism” – Lockean , because the institution of private property in land was legitimated by labor performed on that land, in keeping with John Locke's justification for private property – and radical , because the policy was aimed at nothing less than social engineering on a massive scale, looking to create a polity of smallholding farmers, each with sufficient land to give him the economic independence believed necessary to ensure a thriving democracy.

While these two philosophies battled for ascendancy throughout the nineteenth century, the latter, agrarian, view, gradually gained a foothold in the law, at first in various federal Preemption Acts, and most famously in the great Homestead Act of 1861. These laws, as well as many informal rules found in various claim clubs throughout the West, were based on the idea that public property should be distributed as widely as possible among the people who were actually going to use it, not allowed to be grabbed by speculators interested only in turning a profit.

When the first miners arrived in what was to become Colorado , then known as “ Pike's Peak ”, in the summer of 1859, they quickly formed “mining districts”, each with its own surprisingly sophisticated code of laws. The texts of over a hundred of these have survived. When it came to the question of property in mining claims, including claims over the water necessary to separate precious metals from the ore, the miners, and later the territorial legislature, reached to the principles of radical Lockeanism, taken from the context of land settlement and applied now to ownership of mines and water.

How did equality, need, and sufficiency come into play? The first equality-enhancing rule was the abolition of the monopoly over surface-water sources previously held by riparian landowners under the common law of property in water. Now anyone, regardless of where or whether they held land, could acquire a right to use water. This was a significant reform for a region in which water sources are few and far between, and insufficient to water all the arable lands.

Second, equality and need were given expression in the rules limiting the amount of water that could be claimed by any one user. Sometimes the informal laws of the mining districts did this in a direct and inflexible manner: just as the Homestead Act declared that no one could acquire more than 160 acre by homesteading, some mining codes explicitly laid out the maximum flow of water that could be appropriated by a miner. More often – and this is the approach that ultimately took hold in Colorado water law – a more flexible standard was adopted: claims were limited to the amount that could be used by the appropriator. He or she might try to claim more than this – and many did – but claims beyond what was actually used would have no legal force.

The final principle – sufficiency – is where the priority rule had its place. In the land context, where every settler was allowed 160 acres, what would happen if two or more settlers claimed the same parcel? The obvious answer was recourse to the equitable rule of first in time, first in right – not as an expression of encouraging grabbing, but as a practical way of providing some security to those who had already acquired their homestead. Similarly, in Colorado 's appropriation doctrine, priority was a way of ensuring that those who had acquired their use-limited rights to water, would not have those rights shrunken to the point of invisibility, by the arrival of more and more settlers in the watershed.

As I point out in the article, this interplay between the principles of equality, need and sufficiency, and the proper place of priority in this scheme, can be seen clearly in the rules of the mining districts. Since the Gregory Mining District is sometimes cited – mistakenly, I think – as a demonstration that the mining codes were the source of the appropriation doctrine's priority rule, let's focus on the laws of this district. The misleading passage which led some to see priority as the central rule of the appropriation doctrine, is section 8 of the Gregory District Resolutions of June 1859. It reads: “in all cases priority of claims, when honestly carried out, shall be respected”. But the very next section shows that priority was not the whole story – it says: “when two parties wish to use water on the same stream… no person shall use more than one half of the water ”. How do we reconcile these competing rules of priority and equal division?

The answer can be clearly seen in the section that replaced these two, in February of 1860: “if two or more parties wish to use water on the same stream …, no person shall be entitled to use more than his proportionate share of water, but in case there shall not be water sufficient for all, priority of claim shall determine the right to such water”. “No person shall be entitled to use more than his proportionate share of the water” – that's the equality principle – “but in case there shall not be water sufficient for all, priority of claim shall determine the right to such water” – that's the sufficiency principle at work.

Moreover : not only was priority a secondary principle in Colorado's legal scheme for water rights – which is why I think “prior appropriation” is a misnomer for the system – in some ways the appropriation doctrine actually was a reaction, and antidote, to other, stronger claims of priority.

The main claim of priority in the 1860s and ‘70s was to be heard not from the miners and small farmers, but from the land speculators, big ranchers, and corporations hoping to gain control of the western water sources, and through them, western land. The priority they claimed was not priority of actual use, but of a different sort. They claimed priority based on ownership of riparian lands , acquired, sometimes hundreds of thousands of acres worth, through various methods, some le gal , some less so. Their business plan was simple: buy up riparian lands, which, under the common law in force all over the US , had attached to them the rights to use the water of adjacent sources, and, by controlling the water, gain control of all the lands in the region. Or, alternatively, get the legislature to grant them ownership of the water in a stream. Anyone could acquire 160 acres of dry land from the public domain, but if he wanted to make that land productive, he would have to pay dearly to the monopolists to get some water to irrigate crops.

In this situation, fears abounded of a new “water aristocracy”, water “lords” who would turn the small farmers of the country into serfs, gaining control not only of the expected economic bounty of the region, but of the political power that would come with such unbridled economic power. The appropriation doctrine was aimed precisely at breaking this monopoly over the crucial resource. Effectively, it was a massive expropriation of private property: water rights that had been acquired under the common law were stripped from their owners and declared by the Colorado Constitution to be public property. The water was then given, free of charge, to the thousands of settlers converging on the region, under one condition – that they actually use it, not hold it for speculation or future profit.

With this brief sketch – you can find a more detailed analysis in my article – I hope I've convinced you that the appropriation doctrine was, at its root, a radical one, aimed at redistributing property in water in a way that rewarded labor and discouraged speculation. Until now, though, the discussion has focused on the initial distribution of water rights, the stage at which these rights pass from the public domain into private hands. What does this story have to tell us about water as a developed resource, when essentially all the water in a region has already passed into private hands? Does the appropriation doctrine have any relevance after all the water has been appropriated?

Colorado courts and lawmakers faced exactly this question over a hundred years ago, in the 1880s and ‘90s. Water corporations had laid claim to basically all the available water in the Front Range , and had begun to do the same for the other regions of the state, as well. Fears of “monopoly” and “water aristocracy” were stoked by the press. In the great 1888 case of Wheeler v. Northern Colorado Irrigation Company , Justice Helm, noting that the new situation called for a new water jurisprudence, wrote:

“Hitherto attention has been mainly directed to the adjustment of priorities and differences between individual consumers; but hereafter, owing to the rapid settlement of the eastern part of the state, the status of the carrier and its relations with the consumer will command the most earnest and thoughtful consideration.”

What Justice Hobbs' predecessor was saying, was that the issue of appropriation from the public domain had been effectively settled, and was no longer of paramount importance. The question now was whether the principles of the appropriation doctrine could be applied to the new situation of a “developed resource” , to regulate the relations of canal company and farmer, in a way that gave the individual irrigator effective ownership of the water, and the profits deriving from it.

The Wheeler case is a good example of the approach of the Colorado courts (and legislature) in this era. Byron Wheeler was a physician and farmer, active in the state Grange, and an organizer of Colorado farmers against the water companies. The litigation he initiated was a test case, designed to attack the constitutionality of one of the most hated practices of the state's water corporations in the 1880s – their sale of what they called “water rights”, or what Wheeler and his allies dubbed “royalties”, or “bonuses”. What was at issue was the companies' not-too-subtle attempt to bypass the price controls that had been imposed on them by statute, authorized by the state constitution. To evade these restrictions, the companies charged farmers, over and above the le gal rates for water, a one time per-acre charge for the privilege of entering into a water contract with the canal company. When Dr. Wheeler refused to pay the “royalty” demanded by the company, it refused to supply him with water, and so he sued to compel them to do so.

The state supreme court, which heard the case on appeal, sided with Wheeler and the farmers, against the powerful canal corporations. It did so based on the principles of the appropriation doctrine, namely, that water was the property of the public, and was to be made available to actual users, on an equal basis. The corporation, therefore, could have no property right in the water for which it could charge – it could only charge enough to get a reasonable return on its capital investment and operation costs. Supplying water only to those able to pay the “royalty” – so said the court – constituted ille gal discrimination between members of the public who could afford to pay this additional charge, and those who could not.

Wheeler was just one case among many in which the supreme court used the principles of the appropriation doctrine to reallocate water in watersheds that were already, in the 1880s, completely appropriated (this was before the era of the great dams) . The primary tool in its doctrinal toolbox was that of beneficial use, the principle that use, and only use, could create a valid water right, and that continued use was necessary for the continued validity of the right. The court was extremely aggressive, stripping registered water-right holders of their speculative holdings (meaning paper rights that were not being used, but rather held in expectation of resale for profit), even when those rights had already been adjudicated. Moreover, even use did not ensure a valid right; as indicated in the 1892 case of Combs v. Agricultural Ditch Company , where the court said:

“No matter how early a person's priority of appropriation may be, he is not entitled to receive more water than is necessary for his actual use. An excessive diversion of water cannot be regarded as a diversion to beneficial use, within the meaning of the constitution. Water, in this country, is too scarce, and consequently too precious, to admit of waste. The constitutional rule of distribution, 'first come, first served,' does not imply that the prior appropriator may be extravagantly prodi gal in dealing with this peculiar bounty of nature.”

In this and other cases, the court effectively partially expropriated water rights that were based on appropriation and use, when the amount claimed was more than necessary for the original use. This was a far-reaching rule, striking not only at speculators, but also at bona fide appropriators who may have found a way to efficiently stretch their appropriation to water additional lands. But the court's hostility to speculation, and its ideology of spreading the state's water wealth as widely as possible, led to this extreme position. In this and in other water issues, the Colorado court was willing to sacrifice efficiency , in order to advance the principles of equality and need .

I could give many more examples of how the late-nineteenth-century state supreme court bent and shaped the law, in keeping with the ideology of wide distribution of the resource, but I want to get away from this historical discussion to briefly raise some thoughts about what we might learn from this story, that might be of some use, today, in the new, post-modern era of the developed resource.

First, I want to point out, that the goal of economic efficiency and growth , which some claim should be the guiding light for courts and other makers of law and public policy, has no roots , from a historical point of view, in Colorado water jurisprudence. The history of the Colorado Doctrine's early years shows that lawmakers were preoccupied with advancing other goals, primarily that of ensuring a wide distribution of the resource , and that they did so even when they were aware that they were severely cramping the efficiency of the system. Courts and legislatures need to understand that the raison d'etre of the appropriation doctrine, was the wide distribution of water and its economic benefits that it made possible. To the extent that we want to work within the tradition of the doctrine, specific issues such as water transfers and new supply projects should be evaluated by this distributive criterion. Now it may be argued that the practices of the past, have but limited relevance to the needs of the present and future, but that is not the general tenor in American le gal discourse today, especially when it comes to property rights.

Second, regarding the nature of those property rights. The Colorado Constitution states clearly that the waters of the state are the property of the public , and the courts took this very seriously when it came to working out the nature of appropriative rights. They learned from this, for instance, that previously valid rights would revert to the public domain to the extent that they were no longer needed by their appropriator. They also invoked the principle of public ownership to justify draconian regulation of canal corporations , to invalidate polluting uses, and so on. Somewhere along the line, though, this approach seems to have weakened. Maybe it is time to bring it back.

Third, the fact that we are dealing today with a developed , that is to say, a fully appropriated , resource, should not blind us to the fact that new aspects of that resource's use, and value, are constantly being discovered, and so need to be distributed anew. For instance, environmental issues of water quality, habitat for endangered and other species, and so on, have come to the fore only relatively recently, and lawyers have been grappling with the question of how to integrate these concerns within the framework of the appropriation doctrine. From a theoretical point of view, these environmental values can be viewed as resources, and that means that the question of property rights in them has to be settled. Again, I would argue, if we take the appropriation doctrine seriously, the principles of public ownership and broad distribution of the benefits of the resource, should be applied.

Finally, I want to point out something about private property rights and privatization of water resources. There is a lot of concern in the world today about the privatization of water sources and infrastructures, and about what private control of these critical assets might mean for the general population. Leaving aside the practical difficulties in creating water markets, which I happen to believe are deeply ingrained and insurmountable, the Colorado experience can teach the world that private rights in water, need not be all they are cracked up to be, either by their promoters, or by their detractors. With a proper view of the essentially public nature of the resource, courts and regulators have a variety of le gal tools at their disposal, to ensure that a system of private rights works to serve the interests of the public, not against those interests.

Thank you.

Gallegos, Joe 

WATER WORKSHOP PRESENTATION

July 26, 2006, Western State College

Joe C. Gallegos is the Vice-Chairman of the Costilla Board of County Commissioners . Joe earned a BS in mechanical engineering with a concentration in energy conservation and environmental engineering from Colorado State University . He worked as a drilling engineer in the US , Ireland , Angola and Kenya . Upon returning to his native San Luis Valley , Joe taught high school math and science. He continues to provide math tutoring to youth and is an active member of his community. Joe is the Vice-President, Co-Founder and past President of the Costilla County Committee for Environmental Soundness and Co-Founder and past President of the Colorado Acequia Association. He is the Co-Founder of the Culebra Cooperative Growers. Joe is a consultant for the Costilla County Economic Development Council and former secretary of the Costilla County Conservancy District. Joe currently operates his centennial family farm and promotes the preservation of family histories. He is a strong proponent of the development of educational programs which would encourage youth to stay in Costilla County or after completing college, return to their family-operated farms or businesses. As a commissioner, Joe promotes environmental friendly business and sustainable development.

Thank you everyone for this opportunity to speak about water to such an honorable and knowledgeable group. I feel privileged and grateful. My name is Joe Gallegos, and I am a fifth generation farmer and rancher in this wonderful state of Colorado . Our Colorado Centennial farm designation is an honor that has been bestowed upon us which my family is very proud of. My farm is one of the oldest if not the oldest in Colorado and is still in operation by the same family. I still live in the main homestead adobe house that my great grandpa and grandma built in 1876. It is a two story adobe home with thousands of stories and memories that have passed in time. My father Corpus, who has passed on, was raised on the farm and fought in World War II in the Pacific. He received many honors including two purple hearts and a bronze star. Dad married Mom in 1949, and I have two brothers and one sister. When Dad came out of WWII he became and educator and ran the farm with my grandmother who had recently lost my grandpa Celestino to a kidney disease. I was reared on our farm by a stern grandma that took the job of grandma very serious. Her name was Eliza and when it came to hard work she was a master of taking on difficult tasks; maybe that is where I got the strength to be here today.

Besides being a farmer, I am also a County Commissioner . In 2000, I ran for county commissioner and won. I ran for re-election in 2004 and again won. I will be term limited in 2008 where I again will dedicate my life to the self gratifying industry of agriculture. I am also a member of the Colorado Acequia Association which is a 501(c)3 non-profit association that was formed to represent the acequias throughout our region. After saying acequia there are some who are asking, what is an acequia ? I will get into that later, so for now just go with the flow.

Our farm at this time is mainly into cattle and grass hay with some row crop production which are all watered by the number one adjudicated water rights in the state which were registered in 1879. This statistic has always amazed me because it indicates to me the importance of water to my former generations and why it should be thought to be just as important now as back then. In a time when the community of San Luis basically only spoke Spanish and the new US government was installed, the foresight to be the first on the list to register their water right with a law that was basically foreign to them and probably illegible seems impossible to have occurred. I wish that I could have been a fly on the wall when my great-great grandpa Dario Gallegos disguised the whole issue of registering their water rights with the new state of Colorado . I bet there were members of the Gallegos family that shared the opinion that claiming water rights would be like claiming the clouds in the sky.

I can see Dario who was known more for his trading ability and little for his farming probably saying something like, “ …With this new government, it couldn't do us any harm to register the water although I can't really understand how anyone can own water.” This has been the issue of many family discussions. I have a cousin, Emerita Romero, who recently wrote a book about Dario, which revealed great maneuvering and entrepreneurialship in Dario's life but little data about his love of agriculture. Unwritten family lore had Dario as, yes a good entrepreneur, but also as a good farmer. From living on Dario's ranch, all indicators lean towards Dario being a good farmer/rancher. The layout of the homestead is a marvel with main irrigation traversing the valley and with this perfect placement of the ditch, delivery of irrigation water to the valley pastures is possible. If Dario was only a trader, then he relied on a lot of luck when laying out the homestead.

Back to the being the first to register their water. I do not know where the water registration took place or how the procedure happened, but either way there was some type of strong insight to even register. I have a couple of theories, one being that through Dario's trading in the front range and seeing for himself the expansion of the west, this brought on foresight. Dario probably understood better than others the importance the new government placed on paperwork so he set up the San Luis Peoples Ditch on the register. Dario probably spoke English, but I am sure it was not excellent. So when they registered the water I bet the name of the ditch was something like “ La acequia de la gente de San Luis .” The literal translation is the San Luis Peoples Ditch. Dario must have had some confusion as to how the new country of los Estados Unidos would like the name of the acequia . I believe that in order to be respectful of the new formed state and to cause as little friction as possible, the literal translation of the acequia , San Luis Peoples' Ditch was used. I say this because growing up on the acequia , the old-timers used the name “ La acequia de la gente .” And all knew as to which ditch one was speaking of.

No matter what happened in 1879, I am very proud of Dario's insight, and holding the title of the first adjudicated water rights in our state is very prestigious for me. In a time of confusion and ever-changing laws, the importance of water in the future was noted by this little acequia more than 150 years ago.

Before I use the term acequia anymore let me give you a definition. Well, there are many definitions so let me start with literal definitions and then I will show the larger picture of an acequia . The literal definition of acequia is a ditch. This definition oversimplifies the word because I can also say that an acequia is a micro-water government or community. It is a community of families that have a common resource that must be shared by all. An acequia is different than a regular ditch company because the land layout is different in that most members are families that have had ownership of the land for many generations. An acequia usually only has surface water rights and many rules of running the organization are unique to this part of the world. For example, if a parciante or water share holder has 100 acres, under the acequia and another has 1 acre, the voting power for both parciantes is still the same. On an acequia the easement along the ditch is common property. It is not written but understood that any parciante can use the ditch easement as an access across the properties of other parciantes . This is a difficult rule for newcomers on the acequia to understand, seeing a stranger traverse their land without their permission kicks in the private property right issue to.

When I was the San Luis Peoples' Ditch mayordomo or ditch rider, I was inspecting the acequia when I was suddenly approached by the owner of the old Lobato place. The owner instantly wanted to know who I was and what I was doing on his property. I tried to explain to him about common easements and unwritten rules, but this just confused the new owner even more. I had to fight this owner for a long time when I did my ditch inspections, but after many years of having the owner deal with me, he finally got the message when I took along two other parciante neighbors to explain how we had this right to traverse his place, as long as we were on the ditch easement. We never heard about that situation again.

Due to the long-term families and close ties, violators of acequia rules were usually approached in a more diplomatic manner than a fine or lawsuit. I can count on one hand the number of times a parciante was taken to court for a violation of the acequia rules. When the acequia has a habitual water violator, the violator will be approached by other parciantes at one time to discuss the situation. If there is a conflict between the ditch-rider and the violator, the impromptu parlay will require the nonbiased parciantes to settle the dispute. I must remind you that this type of micro-water government has been effective for more than 150 years and is still operating quite effectively. The Colorado acequia water system was in existence for some 30 plus years prior to Colorado becoming a territory in 1879.

The second unique situation of an acequia , is the land layout. Most land in our county is layed out in a square grid system, but in the southern part, the acequia terrain is layed out in long rectangular sections called extensiones or long-lots. This design was brought here by the Spanish. This design was introduced to the Spanish by the Moors when they occupied Spain during the eighth through fifteen century. I have been educated by many professors about our special layout, one being Professor Devon Pena who has been a great resource for the acequias and much of my history data has come from him. I learned that it makes much sense that the extension system was created for the equity of the landowners. This system allows all landowners equal access to the rivers and acequias as the water bodies traverse all land. In the grid system a river may only allow a few owners access to the valuable waters. The extension system is also equitable in terrain distribution. Each landowner has a bit of each type of terrains whether it is bottomlands or uplands. There is no domination of certain terrains.

Being a County Commissioner has educated me on many issues and about much of our county and Colorado history. When I revisit the history of our area, there have always been attacks on the acequia water rights. In the 1890's much development was envisioned by Front Range entrepreneurs that were into trains, farm development and further westward expansion. The investors conducted a study of our area for water development but were fooled by an abnormal wet cycle that occurred during that era. The Freehold Development Company secured storage water rights and built the Sanchez Reservoir which was going to supply water to the newly developed farms in the Mesita area of our county. The acequia was nervous of the new water rights, but the company managed to get their reservoir built with little difficulty. The acequias had some disputes with the reservoir when the canal that carried the storage water traversed the old acequias . But the newly formed ditch company satisfied the acequias by building small flumes that would cross the canal. Of course, there is a lot more history involving the Freehold Company and acequias.

There was a legal battle with Freehold Water in a federal case held in Denver around 1910. The acequias lost the case but physical and economic events hampered the speculative plans of the big money that tried to water grab much of our acequia water rights. Around 1915, the weather in our county started to play back into its normal cycle of aridness. The change in weather caused many of the new developed farms that depended on storage water to be in short supply. The over adjudicated water rights took their toll. Along with the change in precipitation, the economic depression on the 1930's finished the economy and desire to continue exploiting water rights in our area of the Freehold Company which had changed its name to the Costilla Development Estates.

Like most viruses, Freehold may still be alive just in a dormant stage. There are still signs of Freehold, but it has been a long time since Freehold has raised its ugly head. The last was in the 1980's when the state engineer had a call for Freehold water and some of the acequia head gates were shut down and the water was diverted into the river. A local near-riot ensued with the whole watershed gathering to demand why the state closed head gates to allow the water to flow into the river. The state kept quiet about who made the call, but when the head gates were returned to normal the excitement died down and the parciantes went about their business. The acequia system shook off the virus for now, but a resurgence and demand for water by hundreds of municipalities and industry create a perfect medium for water grabs and other water sales. Again, I must reiterate that this ghost of a water company has existed for more than one hundred years and is still in our acequia- hood. We are trying to be proactive in dealing with the monster by educating and arming ourselves with legal means to confront the power of money when the grab starts. With the philosophy that water is a commodity, money will play a dominant factor in our law of prior appropriations when the next grab occurs, but let us hope that whatever transpires the heart of the community is not to be killed.

There is another important story to be told about the 1900 Freehold water issues and that is that the acequias manage to endure the long economic depression with little impact to our families and acequias . The families on the acequias had natural assets that were based on large families and healthy high-intensity agriculture to feed the folks. I recall my father telling me about his growing up during the depression and always bragging about not knowing that there was a depression. He would say that the only way he knew there was a depression was by all the poor people that visited San Luis on their way to other areas. He would say, “We had everything we wanted and more. We had no idea there was a depression.” This is my great example of how the acequias are the back bone to a sustainable agricultural community. With little money but a strong agricultural base, the acequias proved to many that agriculture can be a saving grace to many a society. Many in academia theorize about sustainable societies, but in my watershed I have proof of a sustainable livelihood. Let us take this history and see if we can utilize this when we look into Colorado 's water history. From all indicators and from all the land that is dried up for new demands on the water, it seems the road we are taking is coming to a problematic situation.

As you probably deducted, the water courts are nothing new to the old acequias . There is always some legal issue that the acequias have to deal with. Recently, the acequias had to deal with a farmer that wanted a “change of use” for some water and to augment the same right for a fish pond. The applicant was not prepared for a protest and requirements to fulfill this plan, and the acequias prevailed by the judge dismissing the case. Much of the acequias defense was based on traditional use of the water rights and how the rules of the acequia are different than the laws of prior appropriations. The adapting of the so called riparian water law to that of the prior appropriations has always been a problem in our watershed. The whole idea of augmentation leaves a sour taste in the mouths of the acequia parciante s. The whole concept of taking water from one place to another without physically taking the water or piping is very difficult to explain to acequia water users.

My real first experience with water law was when I was mayordomo for the San Luis Peoples' Ditch. A mining corporation came into town and started to try and buy acequia water rights to run their gold mill. The mine was unsuccessful in accruing surface water rights from the acequias but was successful in buying water rights from a corporate farm that had subsurface rights. The mine piped the water about six to seven miles to their facility near our farms. The San Luis Peoples' Ditch opposed the plan, but the mine plowed over the acequias by dazzling us with science and paperwork. The acequias wanted to deal with water quality along with quantity, but the courts would have nothing to do with us so the mine prevailed with their augmentation and change of use plan. It must be noted that the mine in involved deeply with water quality issues and there is no telling where this will leave the acequias .

It was sunset in our green valley and the water that was irrigating the alfalfa was in need of changing. I grabbed the tarp and reset it at a different location that was a little downhill from the last position. I was with my father at the time, and where I had set the tarp was not a proper location to catch the dry spot. Dad looked at me in disgust and grabbed my shovel. He ripped out the tarp from where I had placed it and reset it at a new location where instantly the water ran over the dry area. I was amazed but acted unimpressed; Dad knew I had learned something. When the dry area started to bubble from the fresh water soaking into the soil Dad looked at me and said, “The problem with you son is that you don't let the water tell you what to do. Let her tell you where she wants to go.” With these words I have taken on the trials and tribulations of water values and water law.

Living on an acequia is a great way of life and a matchless experience. As a child, I learned from my elders that water is the divine medium for all social activities and necessary for all our existence. If my elders would hear how many people believe that water is a commodity that can be sold or traded, they would definitely question how this could be and why anyone would think that such a required liquid for life could be owned by anyone. The ancianos would chronically enforce to me that water is a miracle resource and must be considered that. It must be shared, not horded and definitely not wasted. There are many examples where our parciantes gather as a community and share the scarce resource. One example of this is when the weather is dry and a parciante has a crop that was excessively dry and a fellow parciante(s) will forfeit their turn to receive water to allow the parched member to irrigate his crops, risking crop loss themselves.

The acequia enforces the power and necessity of a strong and active community. Of course there is interaction between parciantes on hundreds of issues, but in the end, the necessity of the parciantes to band together and ensure delivery the life giving moisture is the first priority. In my acequia- hood, the parciantes are extremely unified in keeping the delivery system, the network of ditches, operable. There is an annual ditch cleaning where the parciantes will bring themselves together to clean large sections of the acequia madre or mother ditch. Other times, when there is a need to replace a head gate or if some deterioration along the acequia occurs, the parciantes will all pitch in, at any time, to fix the situation and keep the delivery system operable.

When we think about Colorado 's water future I will refer to my father's advice and let the water tell me what to do. First, I would like to fight the ideas of water being a commodity. Of course many would think that such changes in ideology would be too radical and impossible, but if you do the research, there are many examples of water democracies throughout the world making this ideology more realistic and feasible. The way our prior appropriation water law is working, water is flowing towards the money. With more water democracies the water will let you know where she wants to go, down hill. It is my belief that water is a spiritual substance, and with that attitude, all visions of commoditizing water perish. I believe a water society will improve our water quality and decrease water waste. I do not have the details about specific problems with such a society, but I live in a small water democracy that has a positive legacy and when problems occur, they are resolved by necessity and community. I at least hope that such an idea may be looked into to at help ease the growing water problems that are not being solved by prior appropriation water law.

I feel that I have given you a small dose of acequia culture and there is so much more to explain but like any acequia farmer, this irrigation season needs to be complete and someone needs to be watching the ranch. I hope that you can visit our acequia- hoods and see for yourself the unique and strong social culture that the acequias create. You would be impressed and assure you a colorful tour. I know that Justice Hobbs has visited so others are welcome. Once again, thank you for allowing me to share these insights, and I hope I've been helpful in explaining our general view of water in the acequia- hood.

Newberry, James & Curran, Lurline

LIVING WITH THE CONSEQUENCES OF OUT-OF-BASIN DIVERSIONS PAST AND FUTURE

COLORADO WATER WORKSHOP, JULY 28, 2006

James Newberry, Grand County Commissioner
Lurline Underbrink Curran, County Manager  

It is a pleasure to be allowed to speak about a subject that is very near and dear to Grand County and to share with you issues and concerns associated with transbasin diversions out of our County.

We would like to discuss problems that Grand County faces with current transbasin diversions in general and two proposed firming projects in particular. Before we get to that, a brief history of current transbasin diversions that either are located in the county or have significant impact on the county might be helpful

  • Denver Water began diverting water from Grand County through what is known as the Moffat Diversion System in the 1930's. This diversion system begins as the very headwaters of the Fraser River above Winter Park from the Fraser River, St. Louis Creek, Vazquez Creek, and Meadow Creek and diverts water to Denver's Moffat Treatment Plant which serves what is defined by Denver as its North system.
  • The CB-T system (Colorado Big Thompson) was a partnership between the Bureau of Reclamation and the Northern Colorado Water Conservancy District which had its genesis in the late 1930's and became reality in the 1940's. It was authorized by and operates under Senate Document 80. This partnership saw the construction of Lake Granby and Shadow Mountain Reservoir, Willow Creek Reservoir, plus the Adams Tunnel to transport waters from the Colorado River to Northern Colorado. Eastern slope reservoirs and hydro-power facilities were also components of this action. At the time the project was envisioned and constructed, 65% of the water was to be for agricultural uses while 35% would go to M & I (municipal and industrial uses). Today, that number is reversed.

•  The Grand Ditch, which diverts water to Northern Colorado is located within Rocky Mountain National Park.

•  As part of the CB-T project, Green Mountain Reservoir, located on the southernmost boundary of Summit County and the northern boundary of Grand County stores water from the Blue River, was constructed as a replacement reservoir, dedicating 52,000 acre feet for the Western Slope uses, as well as another 100,000 acre feet reserved pool and also a power production component to help offset the cost of the project. The Blue River connects with the Colorado River at Kremmling.

•  Denver Water's Dillon Reservoir is associated with Green Mountain in that it can hold water destined for Green Mountain if calculations show that Green Mountain will make its “paper” fill. Waters from Dillon are transported to Denver via the Roberts Tunnel.

•  The Windy Gap project was proposed by the Municipal Subdistrict of the Northern Colorado Water Conservancy District and came on line in the early 1980's. Windy Gap is located just below the confluence of the Fraser and Colorado Rivers near Granby. This project pumps water from the Windy Gap Reservoir through a 13 mile pipeline to Lake Granby and on through the CB-T system via a carriage contract with the BOR. The purpose and need of this project was to serve the water needs for the five (5) cities of Estes Park, Boulder, Loveland, Longmont, and Greeley as well as the Platte River Power Authority . This should be noted as it will have significance later in the presentation.

•  Settlement with the subdistrict for this project brought $10M to the Colorado River Water Conservation District to construct a replacement facility on the western slope. This resulted in Wolford Mountain Reservoir, a 66,000 acre foot reservoir, located on Muddy Creek, 5 miles above the confluence with the Colorado River north of Kremmling. Under a last minute agreement, Denver Water ended up owning 40% of this capacity and uses it as exchange and/or substitution. The other 60% is for west slope uses.

•  Williams Fork Reservoir was constructed by Denver Water to replace waters taken from the Fraser. It is used as needed to meet the Shoshone Power Call or for Green Mountain replacement from Dillon. Williams Fork also has a hydro-power component, and is located on the Williams Fork River just above its confluence with the Colorado River near Parshall (for those of you who don't know where Parshall is, it is located about half way between Hot Sulphur Springs and Kremmling).

•  Denver Water also diverts water from the Williams Fork drainage at its very headwaters in the summer and fall through the Jones Pass diversion into the Gumlick Tunnel to the Moffat system. Several tributaries that comprise this system will completely disappear into the diversion located in the middle of the stream. Downstream from the diversion, the stream is no more.

Grand County is presently participating in two EIS processes, one as a consulting agency (a designation that was established especially for us when we objected to not being allowed to be a cooperating agency) and the other as a consulting agency. The Denver Water Board and the Municipal Subdistrict of the Northern Colorado Water Conservancy District, each have proposed firming projects; Denver Water's Moffat Project and the Municipal Subdistrict's Windy Gap Firming Project, both of which are expansions of their existing transbasin diversions out of Grand County. 

CURRENT COUNTY ISSUES

•  At the present time, the Fraser River experiences extreme shortages at certain times. The flushing flows have all but disappeared, and groundwater recharge is highly compromised as the river system shrinks. Environmental shortages will be approximately 5000 af. annually at projected buildout according to the Upper Colorado Study (UPCO).

•  M & I shortages currently exist especially during the winter months. Dilution flows are almost non-existent especially given the fact that wastewater treatment requirements can spike from 500,000 gal/da. to over 1M gal/day on holidays and weekends. Given that, it still would require as little as little as 1 cfs in the winter to address this shortage. According to UPCO, at buildout of the Fraser Valley, 3000 af. of M & I shortage will occur.

•  Taking the two combined shortages as designated by UPCO, the total shortage in the Fraser Valley, above the confluence with the Colorado River, would by 8000 af. Leaving this much in the Valley doesn't seem so terrible when you consider that currently over 500,000 af. is diverted to the front range.

•  Increased water temperature, algae growth, and low flows have compromised the once vibrant fishery and the viability of the river that provided an escape for President Eisenhower to fly fish. A once pristine, high-mountain, clear stream no longer appears that way.

•  Over the past years, water quality in the Three Lakes area has decreased significantly. Weed growth, nutrient loading, and algae have all increased in the CB-T/Northern system. Grand Lake, the deepest natural lake in Colorado, has seen decreased water clarity, weed migration from Shadow Mountain, and overall degradation. More diversions and prepositioning will exacerbate this.

•  Windy Gap and Williams Fork create “holes” in the Colorado River below Windy until it reaches the Blue River. Low flows, algae growth, temperature increases, whirling disease (from Windy Gap), threaten a gold medal fishery.

•  The Big Gore Canyon is one of the premiere class 5 whitewater areas in the nation, and is the location of a national whitewater race. Thousands of commercial and private rafters, as well as sport fishers, use the Colorado River each year, adding to the economy of Grand, Summit, and Routt counties.

•  Historic ranching operations have difficulty, and at times find it impossible, to access their senior rights for irrigation purposes, even though this is guaranteed by Senate Document 80.

I asked you to remember the term “mighty upper”. That term denotes strength, which in a river defines flows. I have rafted the “mighty upper” beginning at Pumphouse Recreation Area, when the flows were 11,000 cfs. In 2003, the flows in the “mighty upper” at pumphouse were 100 cfs and the temperature, in a cold water fishery, was 78 degrees. You could walk across the what was historically known as the “Grand River” just like it was a small stream with no problem.

FUTURE CONCERNS

The proposed Moffat Firming Project will remove an additional 18,000 acre feet from the headwaters of the Fraser River by building a new storage reservoir on the Front Range to meet projected shortfalls in the year 2016.

The Windy Gap firming project will also build a new storage facility on the front range for 30,000 acre feet of firm yield by 2010 to meet a PORTION of the water deliveries anticipated from the original project (53,000 af.). However, unlike the purpose and need of the original Windy Gap Project that was to serve needs of five (5) cities and Platte River Power Authority, this project is proposed to serve City and County of Broomfield, Central Weld County Water District, Town of Erie, City of Evans, City of Fort Lupton, City of Greeley, City of Lafayette, Little Thompson Water District, City of Longmont, City of Louisville, City of Loveland, Platte River Power Authority, and Town of Superior. The Municipal Subdistrict says this is not an expansion of their project, but Grand County disagrees.

The Municipal Subdistrict is proposing what is called “prepositioning” as a major component of its Windy Gap Firming Project. The definition of prepositioning is storing federal CB-T project water in a new non-federal reservoir on the front range (Chimney Hollow appears to be the subdistrict's choice). Storage of CB-T water in Chimney Hollow would free up space in Granby Reservoir and Adams Tunnel for Windy Gap water when those rights are in priority. Once pumped into Granby Reservoir, the Windy Gap water would be “book-exchanged” into the new Front Range reservoir. The new reservoir becomes a new storage facility for both CB-T and Windy Gap water. Grand County views this as a conflict with Senate Document 80 and a settlement of the Blue River Decree. (Credit is given to Peter Fleming, Attorney for the Colorado River Water Conservation District for the language used to describe correctly prepositioning).

Both projects are touted to be for dry year needs and will remove approximately 50,000 af. annually from what is termed as the rising limb of the hydrograph in wet and average years. So lets see, today Denver and Northern are currently taking all the water they can in dry years, but with the firming projects will remove additional water “off the shoulders” in average and wet years. Doesn't sound so bad until you realize that this results in every year being a dry year in Grand County.

By the way, these existing diversion systems and storage reservoirs remove approximately 65% of the virgin water originating in Grand County above the Windy Gap project. If the Moffat Firming Project and the Windy Gap Firming Project are approved, that number will climb to approximately 82%.

What can be done?? Good question. You may or may not have heard of what is often referred to as the Global Proposal. This is a document that was drafted by Grand, Summit, and Eagle Counties, the Grand Valley water users, Vail Associates, Colorado River Water Conservation District, and Middle Park Water Conservancy District and presented to Denver Water in the hopes of negotiating a settlement that would benefit both Denver Water and the future of the western slope. While the details of this proposal are confidential, needless to say, the west slope is seeking some surety with regard to water quantity and quality while recognizing the needs of Denver Water and its customers.

Grand County is also a participant in the 1177 Roundtable for the Colorado River Basin as established by the Governor. The Colorado River Basin Roundtable is pretty united in its concerns about the future of the western slope and water, both quantity and quality. Will the Colorado Basin's work come to fruition in time to assist with the impacts of the two firming projects remains an unknown.

IN SUMMARY, GRAND COUNTY IS STRUGGLING TO PRESERVE THE LAST VESTAGES OF WATER IN THE COUNTY. WE PROVIDE THE RECREATIONAL AMENITIES THAT BRINGS PEOPLE TO COLORADO AND HELPS FUEL THE ECONOMIC ENGINE OF THE FRONT RANGE. HOWEVER, THAT MAY BECOME IMPOSSIBLE WITHOUT WATER.

In closing, we would like to leave you with two things that we hope will help you remember the issues associated with the Upper Colorado. One is related to the handout we have provided that shows the historic flows in the Colorado River below Hot Sulphur Springs and how we, in a visual manner, understand how those have been and will be changed. The other is a quote. We will start with the visual.

The quote is by William Safire and is appropriate, in our opinion, to water issues. “ The right to do something doesn't always mean it is the right thing to do”.

THANK YOU FOR YOUR ATTENTION AND THANK YOU TO Mr. George Sibley for allowing us to give you Grand County's perspective on living with the consequences of out-of-basin diversions, both current and anticipated.

 Hobbs, Greg

Justice Greg Hobbs, Moderator of Panel, July 26, 2006

Water Policy for ‘A Developed Resource':
What should we carry forward?

Thank you for the privilege of moderating this panel. Moderating entails humility and balanced substance. I look forward to the dialogue we will have this afternoon.

Over the years I have considered this Workshop to be the highlight of the summer. Summer is a time for letting the River in us have some slack time, do its work, and run along home.

A sort of sanctuary.

I want to single out two persons who have greatly contributed to water education during the early part of the 21 st Century in Colorado . They are Karla Brown and George Sibley . I mention them, not because there aren't many others I could mention, but because they have carried a particularly heavy freight, carried it well, and are ready for other boatpersons to continue putting some muscle into the oars.

Karla served as the first Executive Director of the Colorado Foundation for Water Education from October of 2002 to June 19, 2006 . To her credit are: conceiving and editing 12 Headwaters Magazines, 7 Citizen's Guides, hatching the cultural and historical K-12 on line course Teaching the Poetry of Rivers, producing the poem book Colorado Mother of Rivers, and circulating all around Colorado in conversation with the people of the manifold watersheds of the Great Divide Community.

She came to us in a time of drought. She leaves her directorship in a time of budding dialogue she helped start and shape. She pursued the mission of balanced, accurate, non-biased water education with verve, coolness in the whirlpool, comprehension of the sweep around the next bend before your craft nears the point of curvature.

George Sibley is no intelligent petite. He's an intelligent long guy. A rural witty savant. A writer philosopher backwoods open meadow take in the long view let your neighbor park the old junk cars on his lot--but hate he does that guess zoning can't take the starch completely out of freedom--kind of guy. He's the best argument Crested Butte ever came up with--and then let pass on down the road.

If I could ever learn to write like him, I'd write some common sense wit into community and let it ride. I thank him, I know you thank him for the Water Workshops he has planned and hosted in the early 21 st Century.

When George asked me to moderate this panel some months ago, I began to think about the work of the Water Foundation and the content of all the publications Karla edited, and all the themes of the many sessions of the Gunnison Water Workshop I've attended over the years, and my work as a water lawyer and judge, and my fun in, on, along the singing and the working waters.

As I was considering the themes that are emerging in this 21 st century—influenced by where we have been in Colorado since the Puebloans of Mesa Verde operated their reservoirs between 750 and 1180 A.D., and the Hispanos emigrating into the San Luis Valley built the 1852 People's Ditch, and the first Colorado Territorial Legislature in 1861 adopted an irrigation beneficial use law, and the evolution of our customs and values, and the water roundtables which have formed and have begun their discussions —and then most recently when I was asked by an international education organization to write a draft chapter on water policy for a book that is currently in edit, I articulate twenty themes as among those water themes worth articulating.

Surely, the most certain of all that underlies these, and all the other themes that may come out of our dialogue today, and in the future, is that we live in the time of the developed water resource, and now must learn how to live and let live with each other and the environment that supports all life. This will involve great and small reckonings. And so let's get on with learning from and with each other.

Twenty Basic Water Policy Themes at the Start of the 21 st Century

1. WATER POLICY REFLECTS THE CUSTOMS AND VALUES OF PEOPLE IN COMMUNITIES ORGANIZED TO PROVIDE A SECURE, RELIABLE, AND FLEXIBLE WATER SUPPLY FOR HUMANS AND THE ENVIRONMENT.

2. OWNERSHIP OF THE SURFACE AND GROUNDWATER RESOURCE ALWAYS REMAINS IN THE PUBLIC.

3. SAFE, RELIABLE, AND AFFORDABLE DRINKING AND SANITATION WATER SUPPLY IS MADE AVAILABLE TO ALL PEOPLE.

4. WATER NECESSARY FOR INDIGENOUS COMMUNITIES IS RESERVED TO THEM.

5. WATER NEEDED TO SUSTAIN AQUATIC LIFE, WETLANDS, RIPARIAN ZONES, AND THE CARRYING CAPACITY OF WATERSHEDS IS WITHDRAWN FROM ALLOCATION TO OTHER USES.

6. THE NEEDS OF WATERSHEDS OF ORIGIN WITHIN NATIONS, AND THE NEEDS OF NATIONS UPSTREAM AND DOWNSTREAM OF EACH OTHER, ARE NEGOTIATED, DETERMINED AND HONORED.

7. THE AMOUNT OF WATER AVAILABLE FOR USE IS ALLOCATED FOR AS MANY BENEFICIAL PURPOSES AS POSSIBLE.

8. HISTORICALLY EXERCISED WATER USES CURRENTLY IN EXISTENCE ARE IDENTIFIED AND CONFIRMED.

9. NATURAL INTERACTION OF TRIBUTARY AQUIFERS AND STREAMS IS RESPECTED.

10. SURFACE WATER AND TRIBUTARY GROUNDWATER USES ARE ADMINISTERED IN TIMES OF SHORT SUPPLY IN ORDER OF THEIR HISTORICAL DATE OF ACTUAL BENEFICIAL USE.

11. WATER POLLUTION SOURCES ARE REGULATED SO THAT WATER QUALITY IS SUITABLE FOR AGRICULTURAL, DRINKING WATER, RECREATIONAL, AND AQUATIC LIFE USES.

12. WATER USE EFFICIENCY, DEMAND REDUCTION, AND CONSERVATION MEASURES ARE EMPLOYED.

13. WATER WILL BE ALLOCATED TO NEW USES ONLY IF THERE IS AN AMOUNT AVAILABLE THAT CAN BE USED WITHOUT INJURING PRE-EXISTING USES.

14. CHANGES OF WATER USES FROM EXISTING USES TO NEW USES WILL BE ALLOWED IF THEY DO NOT INJURE OTHER EXISTING USES.

15. A PROGRAM IS INSTITUTED FOR RESTORING DAMAGED AQUATIC ENVIRONMENT.

16. COOPERATIVE FORUMS FOR ADJUSTING WATER POLICY ESTABLISHED AND JUST TRIBUNALS FOR RESOLVING WATER USE CONFLICTS ARE OPERATIVE.

17. TECHNICAL ASSISTANCE GRANTS, LOANS, AND FINANCING MECHANISMS ARE AVAILABLE.

18. STREAM AND AQUIFER QUALITY AND QUANTITY DATA ARE COLLECTED, MAINTAINED, AND MADE PUBLIC.

19. DROUGHT PLANS ARE PREPARED AND READY FOR IMPLEMENTATION.

20. PUBLIC WATER EDUCATION IS FOSTERED.

 Kassen, Melinda

Water as Ecosystem Base 

Melinda Kassen
Director, Western Water Project, Trout Unlimited 

31st Gunnison Water Workshop -- July 25, 2006

I appreciate the opportunity to address the Gunnison Water Workshop regarding “the emerging role and value of water as an essential foundation” of the earth's ecosystems.

1. What is the ecological value of water?

Poets and philosophers wax eloquent regarding water as life, rivers as the arteries of a landscape. In addition to the scientific belief that life on earth first emerged from the water, we know that no living creature can survive without water. A few more practical examples of the importance of water to ecosystems are:

a. Species' water dependency . Many species, including terrestrial ones, are water dependent. As a result of hydrologic modifications and other alterations to the natural environment, a much larger number of water dependent species are currently at risk (threatened, endangered, sensitive)

b. Relationship between healthy rivers and healthy fisheries. Intact watersheds are usually the richest in species health. This map shows the White River National Forest in Colorado . This Forest constitutes only 4 percent of the land base of the Colorado River Basin , but its watersheds contribute 16% of the flow measured at Lees Ferry AZ. The Forest Service rates only 31 of the 121 watersheds as Functional. Of those, 69% are in designated wilderness and roadless areas.

c. Relationship between contaminated water and unproductive land. While not an ecosystem value, per se, it is important to note that the converse is also true. Whether from over-irrigation with salty, selenium-laced water, or from the unregulated discharge of highly contaminated ground water produced during energy extraction, productive farmlands can become un-useable due to bad water.

Friday Morning Panel Presentation

 

Keeping the Wet in Wetlands

Community Collaboration in the Rio Grande Basin

Rio de la Vista
Coordinator, San Luis Valley Wetlands Focus Area Committee
Environmental Representative, Rio Grande Basin Round Table

And don't you know the life that lives
Within the silent hills
Is just as rich and beautiful
And just as unfulfilled
As man with all his intellect
His reason and his choice?
Oh who's to say
The nightingale has any less a voice?"
From “Children of the Universe”

- By Joe Henry, sung by John Denver

The San Luis Valley may not have nightingales, but we know the call of the cranes, and the raucous gaggle of thousands of ducks and geese as they arrive here each spring and fall. A vast array of birds and waterfowl fill our skies as they travel between their wintering grounds to the south and their breeding grounds to the north. They depend upon our 200,000 acres of intercontinentally important wetlands for success on their journeys. Up to 30,000 Sand Hill cranes, the entire Rocky Mountain flock, migrate through our Valley twice yearly. They feed on “waste” grain in the farm fields and forage in the wet meadows where the ranchers have cut hay, and then stand protected overnight in the nearby shallow waters of our Monte Vista National Wildlife Refuge, in the shallow ponds and sloughs along the Rio Grande , and other wetland areas of the Valley.

Wetlands and riparian zones comprise only about 3% of Colorado 's land base, but approximately 75% of our wildlife depend upon them for their very existence. And in the San Luis Valley , our wetlands are wet because of a combination of factors:

  • essentially all of our wetlands depend upon the high ground water table that exists due to the large aquifer that underlies the Valley floor.
  • in many cases, the abundant wet meadows and shallow wetlands are actually created and sustained by agricultural water diversions that have occurred, in many settings, for over 100 years.
  • the deep snowpack that typically accumulates on the Continental Divide in the San Juan Mountains on the west and in the Sangre de Cristo range on the east. The melting snow is held for slow release in the high altitude wetlands that feed the mountain streams and eventually supply the rivers, as well as gradually seeping into the groundwater and recharging the aquifer.

All of this is also at risk, due to a number of factors:

•  exacerbated by drought, the groundwater levels have fallen and not recovered. This is basically a result of the pumped withdrawals for irrigation exceeding the recharge supply over time. Aquifer depletion is affecting ag production in several ways. Surface flooding water doesn't go as far nor wet up the land as well as it has in the past. Ground water levels across the Valley floor have fallen in many areas, as shown by long term monitoring. Increasingly dry wetlands are also indicators of this drop in ground water levels and likewise, even when surface or ground water is applied to wetland areas, they are not wetting up as effectively as in the past.

•  Changes in water distribution patterns, as a result of residential development and fragmentation of land from larger working ranches and farms, and the associated change of water use from ag to residential, is altering the amount and location of water applied to the landscape and thereby, in some locations, reducing the water held and released into the system through return flows.

•  Changes in the management of and in many areas the gradual deterioration of the health of the uplands that comprise the entire watershed (or alternatively, the water “catchment”—and all that those two terms imply). The result is that water is not held as effectively in the soils nor is it protected from evaporation by ground-covering vegetation. One consequence of this long-term decline in soil coverage is that the water that does fall, in the form of rain or snow, tends to run off the surface more quickly and/or dry up more quickly. This creates a kind of “double whammy” on the hydrology: we are extracting water from the ground faster than it can recharge, and at the same time we are reducing the landscape's ability to capture, hold and use whatever precipitation does come our way.

•  The unknown effects of global climate change!

The issues facing wetlands, the need to find a way to keep them wet enough over time (while allowing for natural fluctuations in weather and precipitation) to perform their ecological functions of water storage and purification, flood mitigation, and critical wildlife habitat, are the same ones facing our entire community: Our current challenge is to recover our aquifer (one of few aquifers that can be recovered), so that all of the dependent uses-- agriculture operations, municipal water supplies, recreational activities (from bird watching to fishing and rafting) as well as the wetlands - and thus our rural way of life and our economy, can be sustained.

This convergence of issues has generated many interesting conversations and brought together many interest groups that are not typically linked as partners. Long before there was the idea of basin round tables in Colorado , our community had many collaborative efforts underway. Here are just a few of them:

•  For many years, the Rio Grande Water Conservation District's (RGWCD) quarterly meetings have provided a time and place where virtually everyone and anyone involved in water issues in any way can meet, share information and updates, develop strategies for problem solving, and more. The RGWCD has been a leader in taking a proactive approach to issues and trying to get programs and options developed before problems become intractable. While many challenges remain, their years of investment in research and work with the State Engineers' office have produced data that helps the Valley protect its water resources in many regards.

•  One recent example is the development of a Habitat Conservation Plan (HCP) for the federally endangered Southwestern Willow Flycatcher. The HCP will insure adequate willow habitat for the tiny bird, largely on public lands, while allowing agricultural practices to continue basically along historical lines. Eventually, it may also provide access to additional funds for voluntary conservation of private lands.

•  In an effort to try to allow a greater degree of local control, the community and the RGWCD helped get Senate Bill 222 passed in the State Legislature. Among other things, this provides for the formation of Ground Water Management Subdistricts to work to reduce the overall pumping of the ground water, to protect senior water rights, and to help restore the aquifer for the benefit of the entire community. These sub-districts are now in various stages of development across the SLV, with many challenges ahead.

•  Formed under the auspices of the San Luis Valley Water Conservancy District and begun with a study funded by the Colorado Water Conservation Board, many entities and community members participate in a river restoration project. The Colorado Rio Grande Headwaters Restoration Foundation was founded and this project aims to help restore and sustain the historical, environmental, and recreational functions of the Rio Grande as well as to address public safety issues (such as flood mapping and protection), county planning processes that affect the river corridor, and to meet the on-going obligations of the Rio Grande Compact.

For over a decade, the San Luis Valley Wetlands Focus Area Committee has also provided a forum where collaborative plans are developed, funds raised, site visits and tours offered for elected officials, agencies, Boards, funders and more. We have active participation from our federal and state land and wildlife agencies such as:

•  the USFWS which now has three national wildlife refuges in the Valley (Alamosa, Baca and Monte Vista) and their private land program, Partners for Fish and Wildlife, which actively helps landowners enhance their wildlife habitat;

•  the US Forest Service (that is co-managed with the BLM in our area) owns and manages the majority of the uplands surrounding the Valley. Among many other things, they have cooperated with our wetlands group to offer site visits to the location of the proposed Village at Wolf Creek to view the significant fen wetlands at the headwaters of the Rio Grande .

•  the Bureau of Land Management (BLM) owns and manages the exceptional wetlands complex, Blanca Wetlands, the lush McIntyre Springs, a vital wetland area on the Conejos River with important habitat for many species and the western side of a long reach of the Rio Grande at the southern end of the Valley;

•  the Natural Resources Conservation Service (NRCS) works on many issues with landowners, including extensive river restoration projects. Through Farm Bill funding, the NRCS provides substantial funds for conservation easements through several programs including the Wetland Reserve Program;

•  the Colorado Division of Wildlife (CDOW) owns and manages several State Wildlife Areas with important wetland and riparian habitat and has provided substantial funding for conservation, research, management and monitoring through various programs including their statewide Wetland Program. The local CDOW's Habitat Protection Program Committees have supported the local land trust with funding for transaction costs for private land conservation easements and annual estate planning conservation easement workshops that inform local landowners and professionals (attorneys, accountants, appraisers, and realtors) about conservation options and processes;

•  the Division of Water Resources personnel work closely with the conservation community to insure proper water use in wetland restoration projects and due diligence efforts for conservation easements that tie water rights to the land.

•  The Rio Grande Watershed Association of Conservation Districts members work actively on numerous conservation and educational programs and provide important outreach to landowners and elected officials;

Active non-profit conservation organizations from the national to the local include:

•  Ducks Unlimited (DU) has already protected thousands of acres of private lands along the Rio Grande corridor, in the important Rock Creek corridor adjacent to and hydrologically vital to the Monte Vista National Wildlife Refuge, and in other important wetland areas of the Valley. DU has also worked extensively to restore wetlands on both public and private lands and raised millions of dollars for conservation in the Valley.

•  The Nature Conservancy (TNC) owns the 100,000 acre Medano-Zapata Ranch and worked with many local entities for the purchase of the adjoining 100,000 acre Baca Ranch and its subsequent transfer, through federal legislation, to expand the Great Sand Dunes National Park and create the new 90,000 acre Baca National Wildlife Refuge. TNC also owns the Mishak Lakes Preserve and they work across the Valley with many important conservation efforts.

•  The Trust for Public Land has helped the national wildlife refuges acquire key parcels and partners with the local Rio Grande Headwaters Land Trust on important projects.

•  Colorado Cattlemen's Agricultural Land Trust has been working to successfully protect the Saguache Creek Corridor and other important ranchlands in the SLV.

•  Colorado Open Lands holds an 80,000-acre conservation easement on the Forbes Ranch, and was vital in helping the Rio Grande Headwaters Land Trust in its start up phase.

•  Great Outdoors Colorado Trust Fund (GOCO) provides substantial funding support for land conservation in our community and statewide and is essential to our on-going efforts.

•  Colorado Conservation Trust provides valued funding and counsel for land protection efforts.

•  Rio Grande Headwaters Land Trust, the local land trust which does land protection projects Valley-wide and partners with the above organizations, also provides educational programs for the community on subjects from estate planning to land management and is the fiscal agent for the SLV Wetlands Focus Area Committee

•  Together with many of our partners, we are now developing the Rio Grande Initiative, a long term effort to protect as much of the river corridor as possible, through voluntary, incentive based conservation easements, while we still have the chance!

Now we have the Rio Grande Basin Roundtable in the mix here as well. The people at Roundtable meetings are many of the same folks seen at any number of meetings of the active groups mentioned above. But it's heartening to note that there are some new faces appearing too. We see the Roundtable as a chance to reach out to more and different people, to build better bridges between agricultural and municipal water users, to provide basic water education where needed, to better inform ourselves on-goingly about water law, administration, legislation, state planning processes, the Rio Grande Compact and more.

Global thinker Buckminster Fuller said that illiterate people need leaders to make decisions for them. Extrapolating on that idea, I perceive “literacy” to include knowledge about a broad range of issues-- in our case, literacy about water in all of its aspects. Such “water literacy” is key to success in decision making, especially if we want to succeed with locally developed decisions. Educating ourselves and as much of our broader community as possible is one of the valuable roles we see for our Roundtable here.

We also hope to access funds for additional projects that can help us more forward and to provide many more benefits to our community over time. As a relatively new entity, the Roundtable is just beginning to develop and we look forward to seeing how it can best contribute to meeting our collective needs and providing new opportunities.

Perhaps there is no single over-arching structure for addressing these multifaceted issues, diverse and multiple organizations and complex of relationships. Rather, perhaps they can be seen as an organic, living dynamic of relationships. Perhaps that's what is called a “community”. What makes much of our work more successful, possible, and rewarding is that in the San Luis Valley , not only do we see each other at official meetings. We also see one another informally in the course of daily life, while out and about in town and on hiking trails, at restaurants and gatherings, at kids sporting events and on the ski slopes, in the churches and schools, at community activities of all kinds. Sure, we have our Republicans and Democrats, but there is a larger, shared concern that connects us across that all-too-over-amplified divide. We care for our land and water and for the livelihoods and wildlife that depend upon them. As one leading citizen of our community, Ralph Curtis, said upon receiving the Wirth Chair Lifetime Achievement Award (from the University of Colorado at Denver ) in April 2006, “My father always said that if you take care of the land and the water, it will take care of you. I guess that's what you call sustainability nowadays.”

In my experience, the land and water ethic is still alive and well in the San Luis Valley . None of the issues we are struggling with is necessarily unique to our area; resource issues are universal across Colorado , the West, and the world: scarce water, challenges of growth management, impacts to wetlands and diminishing wildlife habitat, and much more, are everywhere. But what is relatively unique and relatively intact, exceedingly precious, and probably quite fragile, is the sense of community the San Luis Valley still has. As Justice Hobbs said in Alamosa last summer, “In scarcity is the opportunity for community.”

We know we have a jewel of a place, in the San Luis Valley , and in Colorado as a whole. We know there are many forces that would diminish that—both internal and external—and we know, on a deep level, that we must work together if we are to protect, sustain and possibly even enhance the things we have, care about and depend upon. We must be as flexible, proactive and responsive as possible, as inevitable change occurs over time. We must commit to on-going communication, as difficult as it sometimes may be, so that conflicts can be averted if possible and minimized when they do develop. Notice the word: MUST. Not should. If we don't, we will likely lose the opportunities we have. Time will tell. It's worth our best effort. And who knows, maybe we have a chance!

 

2. How has our society's water management system incorporated the ecological value of water?

For the first 100 years, Colorado 's didn't. The Colorado Constitution provides that the right to divert water to beneficial use shall never be denied. There is no public interest test, no caveat for ecosystem protection.

In 1973, the General Assembly authorized the Colorado Water Conservation Board to appropriate junior instream flow water rights to preserve the natural environment to a reasonable degree in streams with adequate water available. As structured, the program provides some protection for healthy stream systems from future growth, but does not restore those stream systems that became over-appropriated in the first 100 years of the prior appropriation system's use.

Even since 1973, the system still does not allow for protection to the ecosystem from other adverse ecological effects of dams and diversions, such as degraded water quality.

Moreover, given that the system has never limited new diversionary appropriations (except for injury to appropriated instream flow rights), rivers without instream flow rights may still face being dried up, even when they provide critical habitat to water dependent species.

Meanwhile dams and diversions lead to the following problems with the ecosystem:

      • Blocked fish migration and habitat fragmentation
      • Higher summer temperatures while increased winter risk of anchor and frazzle ice
      • Increased sediment deposition
      • Increased risk of stranding, predation and disease
      • Decreased available spawning and rearing habitat

3. What is the impact on water's ecological value of having a fully developed water resource at the same time we face continually increasing demands for water?

Having a fully developed water resource creates a zero sum game with regard to changing water uses. In large part because ecosystem protection was recognized as a beneficial use only late in the life of the prior appropriation system, and then only in a limited way, the current allocation of the water pie has resulted in unsustainable depletions and alterations of western rivers, including many in Colorado . Thus, restoration of a critical mass of rivers is difficult indeed. The constraints of a largely over-appropriated situation on moving water to ecosystem protection are, simply put, formidable. Not only are there significant costs of transfers, but philosophical resistance remains in many corners of the water establishment to the notion that the use of water to sustain ecosystems should be on a par with traditional, diversionary water uses.

Still, there are a surprising number of entities who are at least willing to, and in some cases affirmatively engaged in, shifting some water back to ecosystem protection. Interestingly, these entities have quite varied interests in such work:

•  Federal agencies with obligations to protect threatened and endangered species;

•  State and local government agencies, along with affected water users, who want to avoid additional species' listings or mitigate the effect of such listings on water users;

•  Agricultural producers who have discovered that recreation based on healthy stream flows can provide an important income stream; and

•  TU, other conservation organizations (including those focused primarily on land use preservation) and state water trusts.

Because most western state legal systems severely limit the availability of market-based water transactions for moving water to ecosystem protection, these entities resort to other means, some of which are more popular than others. Given the reality that the bulk of the region's water development occurred before anyone thought much about the importance of the value of ecosystems (or the value of water to ecosystems), there are often three components to this approach: conserve what's still functioning, protect streams at risk and restore enough degraded rivers to sustain a functioning ecosystem. Colorado conservation organizations have nicknamed this River CPR. See , Facing Our Future (2005), available at a booth outside or on-line at www.cotrout.org ; the relevant section of this report is reprinted in the attached Appendix.)

Regional examples of creative means for restoring stream flow include:

•  Re-operations of federal facilities to restore fisheries, as occurred on the South Fork of the Snake River using Bureau of Reclamation facilities

•  Voluntary agreements to forego diversions during drought to protect minimum fishery flows, as the Blackfoot Challenge accomplished in Montana ;

•  30 year leases of water from Montana agricultural water users to Trout Unlimited, the Montana Water Trust and Montana state agencies for instream flow restoration;

•  Releases from storage, such as was pioneered right here in the Upper Gunnison Basin using the second fill from Taylor Park Reservoir;

•  Bypass flow requirements to preserve endangered fishes as required in Forest Service special use permits along the Okanagon in Washington State; and

•  Releases from Ruedi and Green Mountain Reservoirs to deliver water to endangered fishes in the 15 mile reach on the Colorado River .

In addition, as the region contemplates increased demands on water, it will also be important to rethink how much water is “necessary” to maintain existing water uses. Most members of the conservation community believe that it is possible to free up relatively large quantities of water for other uses from conservation, starting with municipal water use, which happens to represent the fastest growing new need for water in the region.

For example, looking only at Colorado 's Front Range communities, Facing Our Future suggested that the following water could be freed up exclusively by municipal water conservation programs. The savings are consistent with the goals Mayor Hickenlooper recently set for Denver in his State of the City speech earlier this month. The first column in the chart below includes the 2004 Statewide Water Supply Initiative projected gap for comparison purposes. All numbers are in acre-feet per year.

 

SWSI Gap

Indoor Use

Outdoor Use

South Platte Basin

133,000 – 226,000

48,131 – 106,314

19,969 – 112,323

Arkansas Basin

23,000 – 72,000

10,920 – 23,910

4,711 – 26,501

 

For agricultural water use, which still uses a large majority of the region's water, there are also major technological advances that could result in significant water savings, some of which could be used to restore sustainable stream flows. However, there technologies are often beyond the financial capacity of agricultural water users. Farm Bill programs have created some incentives for producers to install such technologies. In addition, some states have made it possible for non-governmental organizations like Trout Unlimited to pay for such efficiencies in exchange for being able to put the water in stream on a temporary (30 year) basis.

4. What elements of a water policy appropriate to this region are necessary to protect water's ecological value?

•  Watershed-based management (as first suggested by John Wesley Powell);

•  Water markets open for transactions that change diversionary uses to ecosystem protection in the same way as such markets currently allow changes from one diversionary use to another;

•  Implementation of “smart” water development principles, such as Facing Our Future espouses [NOTE: see attached Appendix];

•  Implementation of CPR principles both to new and changed water facilities;

•  Conservation incentives, if not requirements, along with real enforcement of the bar against waste;

•  Basin of Origin protection;

•  Integration of water quality regulation and water allocation;

•  Enforceable conjunctive management throughout the region;

•  A recognition that all parts of the ecosystem serve important functions, i.e., to protect ephemeral and intermittent streams from the adverse effects of the discharge of produced waters;

•  Financial and legal incentives to restore and protect streamflows in critical reaches to the same extent that such incentives exist for traditional water uses.

Steely, Teresa

 

EDUCATING THE DEMOCRACY AT THE WATERSHED LEVEL 

Teresa Steely, President, North Fork River Improvement Association

History of the North Fork River Improvement Association:

Established in 1996, the Association is a 501(c)3 non-profit group that empowers a coalition of riverfront landowners, farmers and ranchers, environmentalists, irrigation companies, outdoor recreators, gravel mining companies, and concerned members of the community in resource restoration efforts.

Originally formed to research alternative methods to reduce extreme bank erosion along the North Fork of the Gunnison River , the group quickly transformed into an innovative local watershed group aimed at rehabilitating the ecology of the river corridor while working closely with all river interests to develop consensus. Hunting, fishing, boating, tourism and scenic enjoyment are important to the area's quality of life and help create a stronger, more diverse economy.

The North Fork is inseparably linked to the surrounding land and the species that depend upon it. By enhancing and restoring the river, we protect health, ensure economic viability, and serve as stewards. The Association strives to be a model watershed organization, working hard to develop consensus, collaboration and local participation on watershed issues in the North Fork basin.

Action and education :

  • Dialogue with landowners- through e-mail updates, newsletters, monthly press releases , conversations on the street, etc.
  • Board participation- Bylaws stipulate our board must consist of 50% or more river front landowners. They talk to their neighbors.
  • River Float- we take 200 + people down the river each year to educate them about our projects and programs. This often inspires dialogue and creates connections between individuals and the river that last.
  • Main street office creates convenient interface with public
  • River Park- educational facilities
  • Engage volunteers in on-the-ground restoration and monitoring
  • Non-regulatory approach- helping landowners understand and comply with federal agencies (preferably pro-actively) instead of “blowing the whistle” on them after a violation has taken place.
  • Visits to classrooms and civic groups

Efforts to link diverse stakeholders through the watershed-group coalition:

  • Developing win-win solutions (consensus) and collaboration that benefits everyone (ex. Water-conserving irrigation diversions)
  • Acknowledging partners and their contributions
  • Communication
  • Using the democratic process to plan projects

Additional Power Point presentations

Berryman

Brothers

Flobeck

Howe

Landry

Lowell

Orendorff

Ostler

Shier

Smith

Udall

Vonguerard

WWUC Gunnison

Ward