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Often it is said that it's a privilege to live in Colorado, and part of that privilege appears to be that we must live in one of the only places in the world where allowing water to flow down a natural stream course is a matter of controversy.
It goes back to the founders of this state, who in 1876 established a constitutional right to divert water for beneficial use. By and large, they were either farmers and miners themselves, or directly dependent on those industries.
So it was very difficult for them to imagine any
financial advantage (another way to express the Colorado
concept of beneficial use
) that might be gained by
leaving water in a river. It wouldn't convey gold-bearing
gravel through a sluice box, or irrigate a field, or power
a stamp mill.
Granted, it might support a few fish, but Colorado has never been home to much in the way of commercial fisheries. Further, the water quality of the late 19th-century, when our rivers were viewed as convenient industrial sewers, was not such as to encourage the survival of fish, let alone their harvest.
Nor was there any money to be made with water-borne transportation. Every early effort to float out of Colorado, from Sam Adams and his Breckenridge Navy in 1869 to Coxey's Navy in 1894, ended in disaster.
Thus it's hard to fault Colorado's founding fathers merely because they disdained river beds that had water. They were trying to create a system that might work for inhabiting a high desert, and they didn't see any economic potential in free-flowing water.
But they did make it possible for future generations to adjust to economic changes. Now money can be made from water in a river, be it a float trip or a guided fly-fishing expedition, and so there's a beneficial use involved.
It took a while for Colorado's political and legal
systems to adjust to this new reality, and along the way
there was some creativity involved. The first filings for
recreational in-stream water rights claimed that putting
some big rocks in the channel amounted to a
diversion,
even though the water never left the
channel, because the rocks altered the natural flow.
This could have become the Colorado equivalent of the
discussion among medieval theologians about how many angels
could dance on the head of a pin -- i.e., how many cusecs
have to flow against the rock to cause a diversion -- but
in 2001 the legislature recognized a formally codified a
new kind of water right, the Recreational In-Channel
Flow Diversion.
Under it, a public entity like a city, county, or water
conservancy district could receive water rights for certain
flows at certain times of the year. The water flows down
the channel, which has been enhanced with rocks to create
play holes
for kayakers. They spend money in town,
and people like me, who enjoy watching them cavort on
summer evenings, may also drop a few dollars.
Thus the economic benefit. These flows are junior to existing rights, of course, but the in-channel rights could halt future actions by senior water rights holders to change their points of diversion if they wanted to move their weirs and headgates upstream.
Little wonder, then, that the instream recreational flows have come under assault by some state legislators, among them Sen. Jack Taylor of Steamboat Springs. His initial bill would have pretty well gutted future in-channel rights (i.e., there had to be at least 10 kayaks on a stretch before a water call could be made), but it has since been amended to more sensible dimensions.
Taylor told the Steamboat Pilot that unless these water
rights were reined in, the only winner will be the
downstream states.
Recall that in almost every discussion of diversions
from the Western Slope, one will hear the disparaging
statement that You're one of those people who'd just let
it flow to California
-- even if it's in your financial
interest to have water in the river, rather than in Aurora.
Recall also how in 2003, the supporters of Referendum A ran
TV ads showing verdure in the Arizona desert, implying that
Phoenicians were wasting our water.
Well, if somebody has to waste water on cookie-cutter subdivisions and big-box off-ramp developments, why not Arizona and California, rather than Colorado? When will we learn to quit being scared of that downstream-state bogeyman, and instead see him as an ally who could help us keep Colorado fit to live in?
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