WHERE LIFE IS WRITTEN IN WATER Why Water Issues Unite, Divide, and Matter So Much in Colorado by Greg Walcher Natural Resources Group Grand Junction — Washington, DC IP-1-2021 • March 2021 EXECUTIVE SUMMARY There is a simple reason why water is Coloradans should resist efforts to change so contentious in Colorado: there isn’t their unique system of water law. That enough. There never has been, and never system, developed in Colorado, forms will be, enough water to supply nearly six the basis of all western water law, and million residents, much less 90 million reopening long-settled issues could people in 16 other states who depend at subject Colorado’s future to decisions in least partly on Colorado water. more populous and powerful states. Colorado averages about 16.5 inches The amount of water stored, for use in of precipitation a year, but much of it Colorado, can be significantly increased: evaporates before ever reaching the • By enlarging already existing streams. It comes mostly in the form of reservoirs, either slightly raising snow, mostly within a four-month period, the dam height, or dredging silt to then it melts and runs rapidly out of the increase the depth, state. Put simply, life in the Centennial • And by adding additional reservoirs State depends on the ability to store water in carefully selected areas, especially during the wet periods, for use during the small sites off the main streams, dry periods. where dams have a much smaller environmental impact. Water must be stored in Colorado, or lost to downstream uses. Thus, the primary Finally, water supplies and water quality issue will never be about the amount of can both be improved, even without new snowfall, which officials cannot control, storage, by: but about storage, diversion, and use, • Better management of national which they can. forests, whose overgrown and • Ten states and Mexico have legal unhealthy condition blocks claims that require Colorado thousands of acre feet of water from to deliver portions of its water ever reaching the streams, downstream. • Removing tamarisk, Russian olive, • Colorado loses much of its own and other non-native invasive species water every year because of the that clog waterways and consume inability to capture and use it—even millions of gallons of water, during severe droughts when water • Upgrading irrigation and other may be rationed. That’s because delivery systems to reduce the State does not have enough evaporative losses, reduce salinity storage capacity, in all its combined and other mineral pollutants, and reservoirs, to store all the water to apply water most efficiently, which it is entitled. • Constructed wetlands, which • Roughly eighty percent of the state’s treat wastewater naturally while water falls on the Western side of significantly improving water quality, the Continental Divide, while eighty especially in cities. percent of its people live on the Eastern side. That creates a built-in Such actions would dramatically increase tension between the Front Range and the amount of clean water flowing in Western Slope that is a constant of Colorado’s rivers. water debates. 1 INTRODUCTION Colorado water issues are legendary feeling or levels of exasperation for their divisiveness, giving rise to a as I saw in Colorado.”1 gigantic statewide industry of government planners, water districts, associations, It has always been that way in Colorado, irrigation companies, engineers, and still is. The reason Colorado leaders contractors, and lawyers. Water always are so passionate about water is simple: seems to be near the top of legislative there isn’t enough of it. Unlike every agendas, at the federal, state, and local other state, Colorado is prevented from levels. Hundreds of reporters specialize using most of its own water by a series in water, closely following dozens of interstate compacts, agreements, and of conferences, committees, boards, treaties. It is required to deliver water to roundtables, and public meetings. The every neighboring state except Oklahoma, discussions at water meetings are often and to others as far away as California. more contentious than almost any other Thus, the primary issue will never be issue facing the State. about the amount of snowfall, which public officials cannot control, but about In the 1970s writer Marc Reisner went storage, diversion, and use, which they to Colorado to interview water leaders can. and write a piece called “Water Wars in Colorado” (a commonly used phrase). He Colorado has pioneered numerous wrote that: conservation practices and does more than many other states to use its water “There was obviously a lot of wisely. State law prohibits waste, fighting going on in Colorado, speculation, and downstream marketing, and most of it seemed to be while allowing exchange agreements, over water. As the days went conservation easements, and other tools on, I interviewed upstream promoting efficiency. Its original system farmers who cursed downstream of “prior appropriation” (copied by most farmers, ditch irrigators who other western states) has made the cursed pump irrigators, East growth of cities and industries possible. Slope Coloradoans who cursed Without it, there simply could not be over West Slope Coloradoans, West five million people in Colorado. Slopers who cursed East Slopers, boosters of industry who cursed The future of the State’s prosperity, boosters of agriculture and visa however, is continuously threatened by versa, water lawyers who spun attempts to change its complex but vital conspiracies before my eyes, and water system—especially efforts to allow environmentalists who, railing interstate marketing, to renegotiate one against nearly everyone, were or more of the interstate compacts, or to in turn railed against by nearly repeal the water rights system in favor everyone else. Even in my home of some sort of public trust doctrine. state of California, where battles All attempts to develop further uses of over water have been going on Colorado water inevitably face opposition, almost from the day the first especially from California and other states white settlers arrived… I have that benefit from Colorado’s failure to use rarely seen such intensity of all its entitled water, and increasingly, from many of its own citizens. 2 Water planning is a never-ending process, Unfortunately, that system also makes it because water shortages are a constant. easy to stop any and every project, good The current Colorado Water Plan, or bad. That is where Colorado finds adopted in 2015, forms the basis for much itself today with respect to water issues. of the official government policy and The future is uncertain because of public funding activity, though it is by definition opinion divisiveness, legislative deadlock, a “living” document. Most of the focus east-west brinkmanship, rural-urban of water districts is on conservation distrust, and municipal-agricultural practices, and more efficient operation competition. of existing storage and delivery systems, but that will never be the end game. It can All of those divisions can be solved. never completely supply the needs of our Doing so requires a shift in the public growing population. thought process. The continual focus on water shortages must shift to a greater Colorado has a dire need for more water discussion of ways to get more water storage, in nearly every part of the state, into the system. Obviously, political in order to hold its entitled share of leaders cannot make it snow more, water during wet periods, for use in dry but the problem is more than just the periods. Additional storage is a crucial amount——it is the timing. When the part of the official water plan, but there state gets almost all its water during four is little discussion about it. There are a months of the year, capturing it for later small number of new storage systems now use is of far greater importance than the envisioned, but many people now view amount. water projects as either a waste of public funds, or harmful to the environment, Fifty years ago, congressional committees or both. That is an unfortunate and proposed augmenting the flow of the unnecessary view. Colorado River through a grandiose scheme to pipe water from the Columbia In fact, there are many ways to store River in Oregon. Today, it is clear that additional water in Colorado, beyond there are much better ways to augment the traditional system of dams and the available water supplies—by being reservoirs. Many existing facilities can smarter about how we use the water be enlarged, and in many places water Colorado already has. can be stored underground, with almost no environmental impact in either case. Water has already been the subject of The shortage of water is, in reality, more a almost innumerable articles, essays, problem of political will than engineering studies, reports, analyses, debates, know-how. The ability to design and build arguments, lawsuits, agreements, and modern systems to deliver clean water, compacts. The legal aspects of Colorado without harming either the environment water, based on a complex system of or other users, is the exciting challenge for laws, compacts, and treaties, is an entire a new generation of leaders. field of academic study. Hundreds of people over the past 150 years have The alternative is to oppose every project, made a prosperous living understanding, stop every proposal, and do nothing. That litigating, and teaching water law. is not only feasible; it is easy. Perhaps by design, the American political system Students of Colorado River history and makes it far easier to slow down or block politics will find indispensable the 2005 a bad plan than to adopt a good one. paper, “History of Colorado River Law, 3 Development and Use: A Primer and This Issue Paper provides a new analysis Look Forward” by Justice Greg Hobbs.