2013 November Colorado Water: A Historical Perspective!

Colorado Water: A Historical Perspective!

WHAT: RMGA MEETING – Colorado Water: A Historical Perspective!

WHEN: Monday November 11, 2013.

PROGRAM: Larry Ralston, RMGA member and well-versed on Colorado’s water laws will be our speaker. We will be learning about the history of the water compacts in the Colorado state Constitution that determine how water is apportioned throughout the state. The snacks and networking will end at 7:00 pm followed by welcoming comments by Larry’s presentation and then a short business meeting which includes election of officers.

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Colorado Water: A Historical Perspective!

Larry provided the group with several handouts and brochures regarding Colorado’s water including Aurora Water’s “Water Supply Fact Book”, Northern Colorado Water Conservancy District’s “The Colorado – Big Thompson Project”, Denver Water’s “Denver Water At a Glance” and Larry’s own Colorado Water timeline and reading reference list.

The State Constitution of 1876 states– “First in time, first in right” meaning that the oldest compact has the first rights to water and the other compacts fall into line by date, behind the oldest – or prior appropriation. If the river runs out of water, the most recent compacts may not get any water.

This may not be fair but at least somebody gets a crop. People who came here from Europe and the eastern part of the US had no idea about irrigation since these areas generally received plenty of water.

Larry stated that Colorado’s water law begins with four paragraphs from the State Constitution. When miners first came here there was no government, they were unstructured groups. They created a mining association and so they made “rules” – really establishing a form of government. Some of these miners had worked in California and brought that experience and law-making with them.

In April of 1852, San Luis, Colorado established The People’s Ditch – the oldest continuous water right in the state. San Luis was settled on the Sangre de Christo Land Grant utilizing an elaborate irrigation system of acequias – a system of irrigation learned by the Spanish from the Moors.

Benjamin Eaton dealt with big irrigation projects – the Union Colony Ditch (Greeley) and the Denver City Ditch. Benjamin came to get rich in gold, he failed at that and went to New Mexico where he learned about Spanish irrigation.

Riparian law is based on English law which states that a landowner along a stream may use water from the stream but cannot divert the flow. Those not near the water couldn’t use the water. A constitutional easement allowed these people to have access to a ditch to deliver the water to their land. Any legal entity has the right to cross your land to deliver water to the guy on the next plat. Water can be diverted but not dammed or impounded.

Colorado started river compacts with the Colorado River Compact. In 1902 Kansas sued Colorado because they said that Colorado was using more than their share after delivering the water allocated to Kansas. In 1911 Colorado said that prior appropriations can cross state lines. Colorado is part of the Upper Basis water area that includes the states of Wyoming, Utah, Colorado and New Mexico. The water is allocated using a ten-year average. Colorado River water is fully or over-allocated – Lake Powell in Utah and Flaming Gorge in Wyoming are reservoirs to hold the allocation to be used in dry times when there is no water available.

In 1950 a lawsuit stated that all underground water is assumed to be a tributary of a river unless deemed otherwise. Tributary water seeps out and gets into a stream. A closed aquifer does not get to a stream. Amazingly enough, wildlife is also included in the water flow statistics through wilderness bills; i.e., four species of fish in the Colorado River need to have a certain level of water in order to sustain them. Wilderness bills in Congress can be held up for years if water is mentioned in the bill.

Larry mentioned Patty Limerick’s book about Denver water - “A Ditch in Time, The City, the West and Water”. Larry also noted that the fundamentals of water don’t change – past terms should be considered when dealing with older compacts, and those made today will be assessed on today’s terms.

Larry told us that the Northwest Colorado and the Big Thompson Projects were proposed during the Depression and they tried to get as much Federal money as they could. Senate Document 80 spells out the requirements for Northwest Colorado and the Big Thompson projects – Taylor said “If you divert water from the Colorado River, you are going to replace it gallon for gallon”. Finally they compromised. Green Mountain Reservoir is part of the Northern Colorado/Big Thompson project. It puts water back into the Colorado River. It is a state law that when a water conservancy district diverts water, they must replace an adequate amount of water (Arkansas Frying Pan/Northern Colorado District).

In modern times, the most significant water event was the denial of Two Forks Reservoir – the denial still cost the state $40 million.

In the 1960s state law says that if you divert from one watershed to another, you can use that water to extension and the South Platte River is not entitled to that water. Larry also commented that unless you are using from the headwaters of a river or stream, all water is reused.

Agricultural water rights can be sold – so long as the water is still used in agriculture, you get the water rights. If a new owner wants to subdivide, must go through the courts. Water rights can be sold separately from the land.

Larry also e-mailed the following information regarding a question:

Question: If there is essentially no water in the Colorado River by the time it reaches the Gulf of California, how could any reasonable person think there is still unappropriated water to be developed from that river in Colorado?

As with many issues there are multiple parts to what seems to be a simple question.

The amount of water in the Colorado River at the mouth is primarily a function of:
A. The amount of water crossing the U.S. Mexican border as required by the 1944 treaty between the two countries
B. The diversion and use of that water in Mexico.

The Upper Basin contends that if there is an increase in the flow to Mexico, it needs to come from the Lower Basin due to historic over use by the Lower Basin. (sounds a lot like that half filled jug from Arizona in the photo at Grand Coulee Dam)

Under the terms of the Colorado River Compact there is a division of the water between the states of the Upper and Lower Basins. The Upper Basin states negotiated a specific allocation for each state. Congress imposed allocations among the Lower Basin states because they failed to reach agreement.

The big question within Colorado is whether all of our share has been appropriated for use. Some experts conclude there is available unappropriated water. There are also intelligent people who reach a different conclusion. The availability of unappropriated flows is a function of future hydrology (as opposed to models based on assumptions regarding future hydrology). These are very legitimate, highly technical issues about which reasonable people may disagree.

If there is available water, should Colorado develop it? On one hand some argue that the entire river is already being fully utilized and it makes no sense to use more of it. Others take a more narrow view and say from a Colorado perspective we are foolish not to fully develop our allocated share of the river.

Discussions about what happens if there is a “call” under the Colorado River Compact are speculative. There has never been a plan put in place regarding how we handle the sharing of responsibilities among the many users of Colorado River water within the state.

One thing is certain, whether we further develop or choose not to develop Colorado’s full allocation of water from the Colorado River it will have zero impact on the flow of water at the river’s mouth in Mexico. That flow will be determined by decisions made under the first item on this list.

Coloradans have made a lot of progress in conserving water; obviously a lot more can still be done. After the most optimistic projections regarding conservation and water reuse, there will continue to be increased needs for municipal water. In Colorado 80-85% of water use is agricultural. Since as a society we have chosen to minimize the construction of big dams, by default we have made agriculture water our flexible reserve supply. Although there is a lot of talk about running out of water, that is not likely. The most likely scenario is that we will continue to see an orderly transition of agricultural water to municipal use. The good news is that if non-agricultural water use doubles, we will still be using 70% of our water for agriculture. There is then the challenge to see if we can incentivize the adoption of more efficient irrigation techniques. American agriculture has an impressive track record of continually becoming more efficient. I would expect that to happen in this case as well.

Just as the woman concerned about her farmer neighbors in Las Animas and the Weld County farmer who could not use his irrigation wells have strong opinions, wait until folks in Highlands Ranch and some portions of Arapahoe County start seeing the bills for alternative water supplies to supplement their deep wells. There is water available; we just don’t always like the transitions. The answers are multiple choice – “None of the Above” is not an option.

Tis a Privilege to Live in Colorado!

--Nancy Brueggeman