Don’t get washed away by critics of Colorado water resource management
During the Colorado gold rush of 1859, tens of thousands of fortune-seekers realized water was as valuable as the gold and silver they sought. They adopted the water right concept of “first in time, first in right” because it worked in a dry and inhospitable land. This principle is the basis of the Colorado Doctrine of prior appropriation, which is the foundation of the state’s water law.
When Colorado became a state in 1876, the constitution was drafted to address water ownership and administration. Article XVI, Section 5 reads, “The water of every stream not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided.” Section 6 begins with, “The right to divert the waters of any natural stream to beneficial uses shall never be denied.”
As the need for irrigation water increased, reservoirs were built to store surplus waters in spring runoff. Controlled releases extended the growing season and bolstered flows in streams that were naturally dry or a trickle for most of the year. Additionally, irrigation return flows (i.e., water not consumed by crops) recharged streams during the historically dry fall and winter.
Over the decades, Colorado developed with 80 percent of the population east of the continental divide. Ironically, 80 percent of the water is on the West Slope. In the 20th century, numerous transmountain tunnels were bored below the Rocky Mountains to deliver water from west to east. Today, many water rights depend on imported water and return flows.
Colorado water is also lifeblood for 18 downstream states and the Republic of Mexico. The Colorado River Compact (signed on Nov. 24, 1922) and eight other interstate compacts, two equitable apportionment decrees, and the 1944 Mexico-U.S. Treaty guarantee that about 2⁄3 of the water Colorado produces flows out of the state.
Management of Colorado’s water requires comprehensive understanding of water law, engineering, hydrography and water use accounting as well as practical field experience. The Colorado Division of Water Resources (DWR) employs skilled personnel who provide consultation to the water court, collect and report real-time flow data, maintain water diversion records, and physically administer water diversions.
DWR works with the U.S. Bureau of Reclamation, Colorado Parks and Wildlife, the Colorado Water Conservation Board (CWCB), and others to deliver Colorado water to millions of people while addressing environmental concerns. Though relatively junior, the CWCB holds decreed minimum flow rights on many streams throughout the state. Additionally, recovery programs have been established in a number of major river basins to better balance water use and endangered wildlife.
Unfortunately, many activists claim Colorado water managers solely guard private interests in water at the expense of the “public interest.” They assert that aesthetic, biological, and recreational purposes should trump senior decreed water rights because they are in the public interest. This is the groundwork to replace the Colorado Doctrine of prior appropriation with the “public trust doctrine.”
The public trust doctrine requires voter approval of two ballot initiatives to revise the Colorado Constitution. Article XVI, Section 5 would be modified with, “…appropriated water rights are subordinate to the public interest.” Section 6 would include, “…beneficial uses shall never be denied, but may be limited or curtailed to protect natural elements of the public’s dominant water estate.”
In short, the public trust doctrine would grant the public (i.e., politicians and environmental special interests) arbitrary authority over all water in Colorado. Flows for fish and kayak parks would be top “beneficial uses.” Diversions for irrigation, industry and energy production, are likely to be curtailed to ensure more water flows out of Colorado. Reservoir storage rights and public access to stream banks could also fall under the public trust doctrine. Besides the infringement on property rights, such a reckless approach would be detrimental to the entire surface and ground water regimes in many basins.
The water needs of millions of people and the environment are best served by the legal and regulatory framework of the Colorado Doctrine, founded on 150 years of history. Management of Colorado’s water resources requires cooperation by experienced experts with careful attention to the complex interrelationships of water demands and supplies. Radical proposals like the public trust doctrine amount to throwing the baby out with the bath water.
James D. Kellogg is a professional engineer in Glenwood Springs, the author of the thriller Radical Action, and a freelance writer. Visit jamesdkellogg.com or email firstname.lastname@example.org.
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