< PREVIOUS ] [ 2002 Index ] [ Ed Quillen HOME ] [ SEARCH ] [ NEXT >
For several years, I have argued that Colorado water law and its associated politics are best understood as a species of religion.
Our language is suggestive, as in reclaiming
or
redeeming
land, as if a barren tract was once the
Garden of Eden, and can be restored to that pleasant
condition by faithfully following our Doctrine of Prior
Appropriation.
There is more faith -- a cfs
is about as tangible
as a ufo.
There is a charismatic prophet, John
Wesley Powell, whose writings can be construed to support
either free-flowing rivers or dry channels and irrigated
fields. There is the miraculous suspension of natural
laws, as with former Gov. John Love's observation that
In Colorado, water flows uphill toward money.
But recently, the faith seems to be waning. People have lost confidence in our system of water allocation.
Our system is administered by courts, which may explain
why it's so complicated. But in essence, in Colorado you
enjoy a constitutional right to divert water and put it to
beneficial use.
That right comes with something called a priority
date.
If your priority date comes after other priority
dates in your basin, they have first call on the water. If
there's not enough water for everybody, the new users --
those with junior priority dates
-- get shut down
first.
And so, if you change the way you use your water right,
you have to do it so that does not harm senior water
rights. You have to get permission from the water court to
do something like change the point of diversion,
and
the court won't approve if it will damage senior water
rights.
But now, nobody seems to trust our water courts to do that.
Consider the past decade of hydrologic struggle in the San Luis Valley, home to the 100,000-acre Baca Ranch. Its managing partner, Gary Boyce, proposed tapping a deep aquifer and exporting water to whoever might buy it.
These would be very junior water rights -- especially in a valley where some water rights are 150 years old -- and so if the law were followed, these new water rights could not be granted if they harmed senior water rights, which would be every other right in the Valley.
But it appears that few people, if any, in the Valley trust the water court. Instead of relying on the court to protect their water rights, they lobbied to get the Great Sand Dunes National Monument expanded into Great Sand Dunes National Park which would comprise the Baca Ranch as well as the dunes.
The San Luis Valley is a unique place, but it's also typical of the rural West in there's a widespread and deep suspicion of the federal government. And yet, most Valley residents appear to trust the feds more than they trust their own state courts-- at least when it comes to protecting their water.
Nor is this mistrust of our water courts confined to counties where cows outnumber humans. Observe the reaction to a bill proposed by State Sen. Ken Gordon, a Denver Democrat.
Gordon would like to amend our law so that a
water-rights holder would not be required to divert all the
water he owns. Some or all of the water right could be
converted to an in-stream flow right.
For instance, a rancher could quit irrigating a couple of unprofitable hay fields, leave the water in the river so he could charge anglers to visit, and still own the water right. Under the current law, if he doesn't divert the water, he abandons his water right. An upstream junior user might divert it, and he wouldn't be able to offer much in the way of fishing on his ranch.
An in-stream flow is something like a change in point
of diversion,
which our water courts handle all the
time, and presumably the courts are capable of protecting
other water rights in the process. Indeed, there are a
couple of private in-stream flow rights in the Gunnison
basin of Colorado that have been in place for more than 20
years, and they don't seem to have hurt anyone.
But again, there is mistrust and a loss of faith. Water lawyer Bill Brown of the Colorado Water Congress said he feared that environmental groups or the federal government might buy existing irrigation rights and convert them to in-stream flow rights. Other farms might suffer, rural economies might collapse, etc.
In this scenario, we have a willing seller and a willing buyer in a country that esteems free markets. Also we have special courts to insure that such transactions don't hurt other water rights. And yet, people don't seem to trust this system -- among the opponents of Gordon's bill are Ken Salazar, state attorney general, and Greg Walcher, head of the state department of natural resources.
So here's a project for the legislature -- find out why Coloradans, from hardscrabble farmers to the highest levels of state government, have lost their faith in the Colorado Doctrine.
Then come up with a system that people will trust. It won't be easy, of course, but isn't this why we have a General Assembly?
< PREVIOUS ] [ 2002 Index ] [ Ed Quillen HOME ] [ SEARCH ] [ NEXT >