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. of current water issues confronting Those interested in more historical policy makers in Colorado, including a detail can also consult the brilliant historical perspective on why ancient paper written by the late Upper Colorado water debates remain so important River Commissioner Ival Goslin, called today. It is written from the perspective of “Colorado River Storage Project Act of founding principles, free-markets, private 1956, and Colorado River Basin Project enterprise, and state and local control. Act of 1968—What Do They Mean for The Issue Paper is not, as water issues Colorado?” More general summaries of themselves should not be, partisan or key Colorado water issues are published parochial. Historically, Colorado leaders by Water Education Colorado, formerly on both sides of the political aisle have the Colorado Foundation for Water battled it out among themselves, then Education; especially useful is a series put on a united front to the rest of the of ten “Citizens Guides” to Colorado country. That should still be the standard. water law, water quality, conservation, groundwater, interstate compacts, and similar topics.

SECTION 1—BACKGROUND The Principal Political Issue of the West Why water matters “Our State has been blessed with Water politics in the great American extraordinarily talented people, matchless Southwest often seem mysterious to climate and scenery, mineral wealth and people in the rest of the country. Chicago other resources. But our way of life and gets almost 36 inches of precipitation economic vitality depend on water, and it is a year, Portland 43, New York over scarce. Really scarce.” 45, Houston 50, and Miami nearly 62. - Senator Bill Armstrong Washington, D.C., where federal water policy is made and enforced, receives an average of 40 inches per year.2

By contrast, America’s second largest city, Los Angeles, sees less than 15 inches a year, Phoenix only 9, and Albuquerque barely 11. On average the Southwest gets less than a third as much rain as the rest of the country, and has but one major river, the Colorado.

The State of Colorado averages about Spring snowmelt in Colorado. Photo: Denver Water 16.5 inches of precipitation a year, which would be about 15 million acre feet in a reservoir. Yet much of that water

4 evaporates before it even reaches the shall never be denied.”3 Because Colorado streams, and almost all of it comes in streams do not contain enough water for the form of snow, which melts and runs every need imaginable in the future, water rapidly out of the state in eight major river courts confirm the water rights of specific basins: the Colorado, North Platte, South users, based on the “priority” of who Platte, Rio Grande, Arkansas, Republican, first appropriates the water to beneficial San Juan, and Yampa/White. use. As the Colorado Constitution puts it, “Priority of appropriation shall give Water will always be the source of dispute the better right as between those using in the West, for one simple reason: there the water for the same purpose.”4 This isn’t enough. In Colorado, the ability “doctrine of prior appropriation” (first in to capture, move, and use some of that time, first in right) is unique water, while it is available, is the basis to the arid West, which simply of all life, including wildlife, human life, would not have become home communities, jobs, economic growth, to millions of Americans politics, controversy, and rancor. It directly without it. and indirectly affects all other issues. As Colorado’s legendary Congressman Wayne That is different than the basic Aspinall, long-time Chairman of the premise underlying water law House Committee on Interior and Insular in the eastern U.S., which is Affairs, famously said, “In the West, when based on the riparian doctrine— you touch water you touch everything.” essentially, that water rights generally go to whoever owns Why the West is different the land along the streams. In Colorado, the fact that a person The arid states of the American West owns land, even under the developed, over the course of a century, stream and on both sides, does a complex and distinctive system of laws not mean he has the right to use its water. to make scarce water available to human The waters belong to the people of the inhabitants. Today, Westerners often find state, and the right to use them belongs themselves defending that water system, to those who divert it, put it to specified which seems peculiar to people in the beneficial uses, and in the priority order in green parts of the country. To people which they did so.5 surrounded by rivers and oceans, it seems strange that a person would actually need The differences between East and West to “own” water, that people would fight so may be exaggerated on some issues, but vociferously over such “property,” or that with respect to water, the U.S. is almost the land itself may be worthless without like two separate countries, one brown and “water rights.” one green. In the East and South, water is regulated on a completely different set Yet in the constitutions of nearly all the of principles than in the arid West. Many western states, a simple provision is national leaders simply do not understand, found: if a person diverts water from a and consequently do not support, the natural stream and puts it to beneficial need—the absolute necessity—for water use, he has acquired a property right, rights to be viewed as property that is and may not be stopped. In the Colorado owned by individuals or businesses, under Constitution, the specific wording is, “The guidelines and regulations at the state right to divert the unappropriated waters level. of any natural stream to beneficial uses

5 To most people, the movement of water • Of all the Earth’s fresh water, 69 seems fairly simple. It falls from the percent is locked in polar ice and clouds onto the land, flows to the sea, glaciers, and another 30 percent is is evaporated into the clouds and falls buried underground, much of the again, creating an endless cycle that groundwater too deep to access.7 every elementary school student learns. • About 0.04 percent is in the form of In current politics, the relationship of clouds at any given time.8 mankind to the water is mostly about • That leaves less than one percent of water quality: water must be used in ways the Earth’s fresh water available for that do not diminish its value to others, use by all the plants, animals and and in ways that do not endanger public humans in the world. health. • Of that amount, more than eighty percent is found in the world’s major Maintaining the purity of water supplies river systems: the Nile, Amazon, and eliminating pollution is important Ganges, Yangtze, Mississippi, Orinoco, everywhere. But in much of the American Congo, Ob, Yenisei, Mekong, St. West, issues of water quality are far less Lawrence, Volga, Zambezi, Danube, daunting than the nearly-insurmountable and a handful of others. challenges of water quantity. An adequate • Thus, the percentage of the Earth’s and affordable water supply means the usable water found in all the arid difference between life and death in the states west of the Mississippi is western half of the country, and owning scarcely measurable. The Southwest’s older and more senior water rights only major river, the Colorado, is not literally conveys the even among the world’s top 200. power to control— even to wipe For Colorado, the situation is even more out—agriculture, complex: businesses, industries, and even entire • Eighty percent of the State of communities. Colorado’s tiny annual water supply comes in the form of snow, The truth—Colorado mostly within a four-month period. Colorado is sometimes called the has almost no “rooftop state” because all of its water water flows out of the state in eight small rivers—virtually none flows in from Leaders who seek other states.9 to understand and • Although there are 5.8 million people succeed in the in the State, there are over 90 million politics of the West people in 16 other states that are at must understand least partly dependent on water that the politics—and originates in Colorado. importance—of water. A few harsh facts • Ten states and Mexico have legal help explain why water is so dearly held claims that require Colorado and so controversial in the West. to deliver portions of its water downstream. There are nine • 96.5 percent of the water on Earth is interstate compacts, two Supreme too salty to be available for human Court equitable apportionment 6 use. decrees, two memoranda of

6 understandings/agreements and two No Stopping Population Growth in the international treaties, all of which govern how much water Colorado Southwest is entitled to use, further limiting its Since the beginning of the Jimmy Carter 10 own ability to grow. Administration and his infamous “hit • Colorado does not have enough list” of western storage capacity, in all its combined water projects, reservoirs in its eight river basins, many people to store all the water to which it have viewed such is entitled under these interstate projects as pure agreements, so every year the state political pork, the loses some of its own water because bargaining chips of the inability to capture and use of politicians in an it—even during severe droughts when obsolete era. Dams water may be rationed. and reservoirs are • Finally, 80% of the state’s water often considered Continental Divide, Grand County. Note most snow is falls on the Western side of the taxpayer-funded on the West Slope, Lake Granby side. NASA, 2008 Continental Divide, while 80% of the boondoggles 11 people live on the Eastern side. that cost a fortune to build and cause significant damage to the environment. For the people in the arid Western states, The latter is a debatable point, but it is there will never be an end to the political beyond dispute that the West could not battles over a much-too-small water be inhabited as it is today without the supply. And those battles will never really reservoirs, tunnels and pipelines that be about the amount of snowfall, which bring water to its cities. Without water political leaders cannot control, but about projects there could not be 5.8 million storage and diversion, which they can. people in Colorado or 7.3 million in Arizona. There most certainly would not Western states, especially Colorado be over 39 million people in California because of its headwaters location, must without the Colorado River Aqueduct capture and store their limited water and a dozen other major water supply supply during the few months when the projects. snow is melting and running toward the oceans, or there simply won’t be any To be sure, many during most of the year. Put simply, Coloradans do not westerners must store water during wet think the State has periods to live during dry periods. Arid been improved by the regions cannot sustain life—much less mass migration of prosperous businesses and fast-growing several million people, metropolitan cities—without water storage. who escaped the This is, understandably, a difficult concept cities only to create to national leaders who are not from the a frustrating rat race Colorado at night. Photo: NASA West. The Potomac River, in the 106 in the mountains. If miles between Washington, D.C. and the it were possible to go back in time and Chesapeake Bay, contains more water than refight the political battles of the early the entire 7-state, thousand-mile length of 20th century, even Front Range residents the Colorado River and all its combined might oppose the trans-mountain water tributaries. But it should not be a difficult diversions that allowed the extreme concept to State leaders in the West. growth between Ft. Collins and Pueblo.

7 But the people are there now, and they are somehow, is going to provide it. The not leaving—more are coming. challenge for leaders is not how to stop it—that is not possible and attempts The reality is that the arid Southwest is to do the impossible often result in bad the fastest growing part of the United decisions. Rather, the challenge for real States—a huge region dependent upon leaders is how to supply the water needed the already- for prosperous communities in a manner overused that is sustainable and environmentally Colorado responsible. The challenge is not new, River. Four of but the magnitude of it is truly without the ten fastest precedent. growing states in the nation in An issue older than Colorado 2019 are in the When westerners try to explain the Colorado River region’s water system to others, it Basin (Nevada, is easy enough to clarify the simple Arizona, Utah, impossibility of living in the arid West and Colorado). without the ability to take water out of Americans Early irrigation structure in Routt County the river and put it to use. That is true continue to nearly everywhere, so it’s the easy part migrate from the large cities of the of the dialogue. The disconnect occurs Northeast and Midwest toward the when describing the concept of “prior South and West. Of the 20 largest cities appropriation.” in 1950, all but four have actually lost population, some of them dramatically. The legal details are simple enough. If Detroit, Buffalo, St. Louis, Cleveland and a person diverts water from a natural Pittsburg all lost more than half their stream and puts it to beneficial use, he former populations,12 while America’s acquires a property right—a right that fastest growing cities are places like is senior to those who might come later, Phoenix, Dallas, Las Vegas, Denver, San and junior to those who were there Antonio,13 and St. George, Utah (one of before. Because no western stream America’s fastest growing contains enough water for every future small towns).14 need, special water courts decree the water rights of specific users, based on Put simply, Americans have the “priority” of who first appropriated a developed a love affair with quantity of water to beneficial use. This the Southwest, and in a free “doctrine of prior appropriation” is unique and mobile society, little can to the arid West, but it is not nearly as be done to stop them from new as some might think. In fact, it was moving there. That enduring an important part of the culture of the truth is the reason water has West long before the arrival of American always been, and will always settlers in the mid-19th century. be, the principal natural resources issue of the West. Many textbooks attribute the prior appropriation system adopted by those In a free and mobile society, early pioneers to Mexican laws that people move to places they existed before these territories became consider desirable to live, and then they part of the U.S. In fact, the concepts are require water. Someone, somewhere,

8 even older than that. Few Coloradans Mark Twain never actually said that realize it today, but water was just as vital “whiskey is for drinking; water is for to the Native American tribes, long before fighting.” But the saying is accurate, and Colorado became a Territory in 1861. the West’s white settlers did not invent it. The native people were every bit as The famous 1868 book, Life Among the dependent on, and therefore attached Apaches,15 has long been noted among to, water rights as the new settlers. historians because its author, Major John Attachment Cremony, had such a unique opportunity to water—in to get to know the Apache tribes and almost the leaders, first as interpreter to the U.S. same direct Boundary Commission in the 1840s, legal sense in then as a cavalry officer in Arizona, New which we think Mexico, and Texas during the Civil War. of it today— He was the first white man to become was notable fluent in the Apache language, and throughout the published the first written compilation of West, including it.16 He met the Apaches first as an enemy, among the but became their advocate as he grew to Ute tribes understand why these tribes viewed white that originally Remains of an ancient Anasazi reservoir in Mesa Verde settlers with such alarm. As he explained, occupied much National Park it was more about their water than of Colorado. anything else. One band of Northern Utes called “The Apaches entertain the greatest themselves Pahvant, which meant “living possible dread of our discoveries of near the water,” mineral wealth in their country,” Cremony a description wrote. But not because they attached any not only of their particular significance to the value of geographical mineral ore—they found the Americans’ location near obsession with gold and silver comical. the Wasatch Rather, it was about the water. mountains, but “The occupation of mines their way of involves the possession of water life, connected facilities… To occupy a water to the water privilege in Arizona and New economically, Mexico is tantamount to driving historically, and the Indians from their most culturally. cherished possessions, and Orchards and vineyards in Palisade, Colorado, once infuriates them to the utmost The same was a barren desert but now a lush green valley, entirely true of the because of irrigation, made possible by the State’s system extent. If one deprives them of water rights of their ill-gained plunder he Weminuche is regarded as an outrageous Utes who robber; but should he seize inhabited the Dolores and San Juan upon one of their few water watersheds, and the Tabeguache Utes springs, he is rated a common who occupied the Uncompahgre and and dangerous enemy, whose Gunnison all the way to Grand Junction. destruction is the duty of all the Other Ute bands were located in, and tr i b e .” 17 named for, the valleys of the Grand,

9 White, and Yampa Rivers. Their lives and their modern counterparts, those ancient livelihoods were inextricably linked to Pueblo villagers had to be able to survive those river systems, and any incursions droughts, so their ability to cooperatively that threatened their water threatened maintain—and defend—their water their survival. They suddenly had to systems was essential to their survival.22 contend with outsiders who not only wanted to live on the land, but to do so, That was just as true for more modern needed to establish a legal system of arrivals, such as the Hispanic settlers ownership over that same water. who dug what is now called the People’s Ditch in the San Luis Valley. It is thought Centuries earlier, original inhabitants to be the oldest irrigation system still in of the Mesa Verde region (c. 600–1300 use in Colorado. The ditch was probably a.d.), survived the dry climate by building there some years earlier, but the water water projects, some of them fairly rights were eventually allocated under elaborate.18 There are at least twenty Colorado’s new legal system after prehistoric water basins, with capacities statehood in 1876. The ditch was given up to 25,000 gallons, in the region.19 the priority adjudication date of 1852, They are thought to have stored mostly making it the earliest recognized water domestic water,20 though the Anasazi right in Colorado.23 also built significant dams, ditches, and irrigation systems, making them the West’s first water conservationists.21 Like

SECTION 2—NO PLACE LIKE COLORADO Why Water Issues Are Different Here The development of agriculture, mining, cities, and towns in Colorado was enabled “Here is a land where life is written in by the science and technique of water water” diversion. It also required hard work, - Thomas Hornsby Ferril pitched battles, controversy, lawsuits, organization of taxing districts, ballot The Colorado pioneer farmer was measures, political campaigns, hundreds symbolized by the character of Hans of millions of dollars, and generations of “Potato” Brumbaugh in James Michener’s effort. novel “Centennial.” The Volga-German immigrant came to Colorado in 1859 State Capitol buildings throughout to prospect, but instead found his gold America are built around lofty rotundas through irrigation—turning marginal decorated with lofty works of art. Many land along the South Platte into rich feature statues and busts of early state cropland—and made a fortune in leaders. Others display historical artifacts potatoes and sugar beets. He “harnessed or allegorical paintings of Freedom, the river and nourished the land,” and Liberty, Democracy and Justice. But in demonstrated that “it was the farmer, the rotunda of the Colorado State Capitol, bringing unlikely acreages into cultivation early leaders were so acutely aware of the by shrewd devices, who would account for importance of the water on which all else the wealth of the future state.”24 depends, that its walls were decorated with murals and poetry about water.

10 Men shall behold the Water in the Then Shall the River-namers track Here shall the melting Snows renew Sky and count the Seasons by the the Sunset. Singing the long song to the Oxen here Firewood is and here living Grasses. the Shining Mountains. shall men build Cities.

Water shall sluice the Gold yellow as And Men shall fashion Glaciers into Deep in the Earth where roots of leaves that fall from Silver Trees on Greenness and harvest April rivers Willows drank shall Aqueducts be silent Hills. in the Autumn. laid to nourish Cities.

Water the lightning gave shall give Beyond the Sundown is tomorrow’s back lightning and Men shall store Wisdom Today is going to be long the lightning for their use. long ago.

11 The scenes feature Art Deco/WPA-style Early conservationists believed it was murals painted by Allen True, illustrating their obligation to make uninhabitable a poem by Thomas Hornsby Ferril.25 It places livable. They believed, as John begins, “Here is a land where life is written F. Kennedy articulated in his inaugural in water,” and concludes by referring to address, “that here on Earth, God’s work the storage and transportation of water must truly be our own.” They developed as “tomorrow’s wisdom.” The sentiment confidence in the American ability to continues in a series of eight murals that build water projects on a scale massive describe the importance of capturing enough to change the entire Great Plains, and storing water for the beneficial uses once called the “Great American Desert,” of agriculture, cities, mining, and electric into the “breadbasket of the world,” and to power. alter the livable environment of the entire American Southwest. “Make the deserts People throughout history have viewed bloom” became a sort-of national calling dams, reservoirs, ditches, hydroelectric for conservationists, so that moving water generators, aqueducts, canals and pipes from great distances to bring agriculture as essential for supplying water to people, and civilization to arid lands was more and for improving the environment. The than just one item on the agenda—it great water works of the Roman Empire became synonymous with conservation. were counted among the man-made wonders of the world for centuries, the Conservation leaders throughout envy of a millennium.26 Colorado’s history pursued water projects as a means for irrigating otherwise Making the deserts bloom—the dry regions, supplying domestic water to growing towns and cities, restoring purpose of water projects degraded environments, preventing Early leaders of the American floods, and improving public health. conservation movement were deeply For several generations of conservation religious and came to view their pioneers, advances in agriculture went environmental hand in hand with access to clean and work as a religious plentiful water. In a literal sense, they undertaking. They were not wrong—these great projects did took to heart Old tame the floods, irrigate the dry valleys, Testament predictions and allow the growth of cities.1 about the promise of the second coming, That is why President Theodore which included—in Roosevelt’s great conservation agenda addition to sight included creation, in 1902, of the Bureau for the blind and of Reclamation, to build water projects President Taft dedicating the Gunnison hearing for the deaf— and “make the deserts bloom.” It is why Tunnel, Montrose, September 23, 1909 improvements in the President Taft made the train trip from natural environment Washington, D.C., to Montrose in 1909 of a people scratching out an existence personally to dedicate the Gunnison in a wasteland: “…and the desert shall Tunnel and bring irrigation—and rejoice, and blossom as the rose… for in prosperity—to the Uncompahgre Valley. the wilderness shall waters break out, and streams in the desert. And the glowing For the same reason, President John sand shall become a pool, and the thirsty F. Kennedy traveled to Pueblo in 1962 ground springs of water.” (Isaiah 35:1–7) to celebrate the Frying Pan-Arkansas

12 project, which provided water to cities Babbitt helped create today’s and farm throughout the lower Arkansas conventional wisdom that human use Valley. These projects made growth of water is bad for the environment. and prosperity possible for numerous Consider that this Colorado communities. Herbert Hoover, 2011 television ad serving as Secretary of Commerce, came was an effective draw to Grand Junction in the process of for tourism in “Pure negotiating the Colorado River Interstate Michigan”: “Water. We Compact, a deal that makes the Colorado take our showers with River the lifeblood of 40 million people in it; we make our coffee seven states. with it. But we rarely tap its true potential Water leaders in every part of Colorado and just let it be struggled for years to create the giant itself, flowing freely President Kennedy dedicating the Frying Pan- water systems that make today’s cities into clean lakes, clear Arkansas Project, Pueblo, August 17, 1962. possible. History has already forgotten streams, and along most of their names, but shouldn’t: more freshwater Benjamin Eaton, Robert Cameron, coastline than any other state…..”30 Note Edward Taylor, Wayne Aspinall, Ival the clear message that taking showers Goslin, Charles Hansen, Alva Adams, and making coffee is bad environmental Frank Delaney, Delph Carpenter, policy. Glenn Saunders, Felix Sparks, Michael Hinderlider, Tommy Thomson, W. D. Farr, Today, even across the arid western states Fred Kroeger, Sam Maynes, William Miller, there are no more than a handful of new John Fetcher, Chips Barry, and many storage reservoirs even planned. New others.27 reservoirs have become so unpopular that they are rarely proposed and when The new normal—why Colorado they are, the public instinctively reacts suspiciously. In the West, water projects stopped building water projects are, more often than not, viewed as a Sadly, today’s water leaders spend far threat to the existing order. A ballot more time defending their existing proposal in 2003 to create a simple facilities than thinking of visionary ways financial mechanism for funding new to store more water in environmentally water projects (then responsible ways. Reservoirs and known as Referendum water storage have been so vilified by A) became so the environmental lobby that they are thoroughly unpopular not generally considered an option in in Colorado that it addressing future water needs. In fact, was defeated on the in the 1990s when Bruce Babbitt said he ballot in every single wanted to be “the first Secretary of the county,31 and became Interior in history to tear down a really a campaign issue large dam,”28 he was criticized by very against candidates few western leaders. On the contrary, he in three consecutive Mary’s Lake power plant, an 8,100 KW generator, helped further popularize the perception election cycles. The Colorado-Big Thompson project of dams as ecological criminals. Over the measure did not past 20 years, more than 850 dams have authorize a single been removed from American rivers and water project—it was merely a funding streams.29 mechanism. Still, a century of history

13 gave people in Colorado good reason If you don’t build it, they won’t come— to suspect the worst—that it might eventually be used to build or so Colorado leaders once thought While serving on the Colorado trans-mountain diversions Since the early 1970’s many environmental Water Conservation Board in 2003, to “steal” water from one leaders have labored under the delusion I went to a classroom of advanced basin and move it to another. 6th-grade students studying sci- of a simple fallacy. Namely, that if we That feeling was exacerbated ence, because they were complet- refuse to provide the infrastructure because the measure created ing a unit on water. We had an needed for growing populations, we can the funding mechanism before excellent conversation about the stop the growth. In a free and mobile natural processes of water, and the specific projects were society, though, the strategy has never 32 about the shortage of water dur- identified. So the proposal worked, and it never will. Americans do ing the drought years Colorado was went down in flames at the not have—and do not want—any legal experiencing at the time. There was ballot box and the result was, at authority to tell people they are not much concern about water ration- least for another generation, no allowed to move to desirable places, like ing, and the students were working new water storage at all. Colorado. Like it or not—and many of on various plans to reduce water us don’t—they move anyway, and then usage in their own homes. Similarly, in the race for they require services like transportation, The students could describe in alternative energy, hydro- communications, and water. impressive detail the process of electric power is rarely evaporation, and the cycle of water mentioned. Flowing water is To be clear, the arrogance of some people that rains, flows, evaporates, then more readily renewable than can be frustrating—including people rains and flows again. They had any other energy source, and who build their home in the middle of toured a wetland and understood in Colorado alone produces fairly well the importance of water the wilderness, then expect paved roads 1.5 million megawatt hours of quality, and the various threats to that are plowed in the winter, redundant electricity a year.33 Like the sun it. Yet shockingly, when I quizzed fiber optic cable loops, police and fire them a bit about the infrastruc- and wind, gravity is free, but protection, electric, water and sewer ture of water in their city, all they water continues to flow even services. In such circumstances, taxpayers really knew was that it comes out when the wind doesn’t blow may emphatically say no. But to ignore of the faucet. When I asked them and the sun doesn’t shine. Nor the growth of major metropolitan cities how it got into the faucet, I got is hydro-electric energy off the like those on Colorado’s Front Range and blank stares. One sharp student table because dams inevitably pretend it will go away is futile. mentioned the pipes buried under destroy fish migration routes. the streets that bring water into In fact, modern technology In 1975, Colorado Governor Richard homes, but when asked how the can solve the problem of fish Lamm was so concerned about projected water got from the river into the passage around dams, as growth south of Denver that he led a pipes, the “disconnect” was palpa- has been demonstrated at campaign against building the city’s ble. Not one single student had any hundreds of dams across the proposed $75 million southwest beltway idea that the water was available 34 country. It is simply because (I-470). His Administration took the to their homes specifically because most Coloradans no longer of dams, reservoirs, and diversions. segment out of the Interstate highway view dams, reservoirs, tunnels, 35 They had been studying water system and held a press conference to aqueducts and pipelines as issues for more than a month, but “drive a silver spike” through the project, necessary—much less as part no one had even mentioned the saying it would foster urban sprawl. Of existence of such water projects, of the future solution to growth course, in the end, the sprawl occurred nor the vital relationship between problems. This is, above all, an anyway, so a generation later the humans and water, nor given them education problem. highway was completed at a cost of $270 any concept of where their own million.36 The E-470 tollway was added a water comes from. few years later. Today the last segment of a complete beltway is still not built, and may never be, to the frustration of

14 commuters frozen in gridlock. Lamm water projects killed during the Carter wanted the money spent instead on mass Administration did not cause even a transit, and far more has now been spent downward blip in the relentless migration on the light rail system. But today many of Americans to the South and West. Does people even oppose that—people who that mean all these water projects were continue to believe if you don’t built it the well-designed, responsible, and visionary people won’t come. Anti-growth activists efforts that should have been built? all over America today can be counted Certainly not. Many Coloradans still think on to oppose any public works project on Two Forks was ill-advised, for example. the same theory, despite clear examples that lack of infrastructure does not keep What it does mean is that any discussion people from moving where they choose. of water issues must at least begin with the underlying premise that water must The reality is the same with water as be provided where people live. Failing with highways, power lines, or any other to provide the necessary infrastructure infrastructure. Delaying construction of does not stop or control growth; it merely the Central Arizona Project, for more than prolongs the inevitable, making solutions 20 years after Congress authorized it, did more difficult and more expensive. The nothing to keep Phoenix from doubling in great challenge for today’s leaders is not population during that period.37 38 stopping all projects, which is easy, but finding the right balance, which is hard. Nor did the EPA’s 1989 veto of the proposed “Two Forks Dam” keep another 1.5 million people from moving to Denver since then.39 In fact, the entire “hit list” of

SECTION 2—WHICH BRINGS US TO... Colorado Water Issues of the 21st In November of 2015, then-Governor Century Hickenlooper announced what he called Colorado’s “first-ever” comprehensive The shadows sway and seem to say water plan. It was the final Tonight we pray for water, cool water product of a decade of And way up there, He’ll hear our prayer meetings, committees, and And show us where there’s water—cool, proposals.41 As finally adopted clear water by the Colorado Water - Sons of the Pioneers, 1934 Conservation Board (CWCB), the 500-page plan calls for $20 Colorado’s water plan billion worth of conservation measures, though no specific As the Book of Ecclesiastes observed more strategy for funding it. That than 200 years b.c., “there is nothing particular statewide planning new under the sun.”40 The writer was not process started at the CWCB referring to Colorado’s continual water in 2013. It followed on the planning, but he could not have described heels of the 2004 Statewide it better. Water Supply Initiative of the Owens

15 Administration,42 which included the Conservation alone is not enough Basin Roundtables envisioned by Natural Resources Department Director Russell The Plan explicitly acknowledges the vital George. So the 2015 plan was part of importance of water storage: a process that had been underway for several decades. The result of basin “Colorado’s water infrastructure, round-table meetings throughout the including water storage, is State, much of the new water plan was critical to the ability to maintain praiseworthy, and remains the foundation stable water supplies; water for water planning in Colorado. storage infrastructure allows Colorado to use its legal It calls for a statewide conservation goal entitlements before water flows of 400,000 acre-feet of water by 2050, out of the state. In addition, an ambitious but reasonable goal. It water storage infrastructure also mentions a projected shortfall in is essential in assisting with municipal and industrial water supply of flood control; supporting 560,000 acre-feet by 2050, and proposes all types of use—including to reduce that shortfall to zero by 2030. agricultural, environmental, The math was always a bit unclear, but municipal, and industrial—in whether Coloradans conserve 400,000 periods of drought; complying or 560,000 acre feet, it would be a good with interstate compacts; and thing. Importantly, the plan also calls augmenting stream systems to for construction of 400,000 acre-feet of allow water use by water users additional water storage—also without that would otherwise not have specifying locations or projects.43 a right to divert under the prior appropriation system. Most Colorado is still growing, and its need for storage projects, however, were water will continue to grow. Colorado developed in the middle of the is entitled under interstate agreements last century, and the construction to substantially more water than it of both new infrastructure and uses, so it is irresponsible not to store storage has remained relatively 44 the water available during wet periods, static over the last 30 years.” for use during dry periods. However, that does not necessarily always mean Despite the attempted balance between storage through additional new dams storage and conservation, though, many and reservoirs. The CWCB began about leaders remain skeptical of the official 20 years ago State water plan, partly because it also advocating creative mentions the prospect of new trans- new ways to store mountain diversions—which are as water, both by controversial as ever. Half of the Colorado expanding existing River is already diverted to the Front reservoirs, and by Range, between 450,000 and 600,000 acres using underground feet a year. There are, as the plan points storage in closed out, plenty of ways for the Front Range aquifers. Both to conserve water, and to store more of techniques have its own supply (as Two Forks would have been used successfully elsewhere, and done). In fact, as Denver Water CEO Jim both are now part of Colorado’s official Lochhead points out, metro area residents state plan. have already reduced water consumption

16 by more than 20 percent in the last 15 very many more specifics about the years, despite a 15 percent increase in statewide conservation goal of 400,000 population.45 Lochhead was quoted acre feet by 2050. There is additional saying, “We can go a lot lower without conversation and planning of several sacrificing quality of life.”46 He is right. proposals for new water storage, which has been desperately needed for a long Coloradans have been down this road time. many times before, and the same giant unresolved issue is always present— Naysayers continue to insist there is no funding. Much of the anticipated $20 way to finance $20 billion for new water billion cost of these water measures measures. But consider that Denver’s would be borne by utilities and their transportation master plan calls for $133 customers (who have not yet been asked billion by 2035; water issues are every bit if they want higher water bills), but the as serious as transportation. The problem State also needs another $100 million with water is political will, not money. a year for its share.47 The CWCB report Most water districts today are afraid even accompanying the plan suggested new to propose new projects, because of the federal funding (unlikely from today’s predictable environmental opposition. Congress), tax increases (perhaps a Colorado’s last major reservoir project statewide mill levy, higher severance (Reuter Hess) took almost 30 years.48 Few taxes, or a sales tax increase)—or a new leaders want to dedicate the rest of their bond program. Only the latter approach working lives to such a project. would really be new, although the 2003 experience with Referendum A makes A few notable projects clear what a can of worms that can be. A notable exception is the White River Storage Project proposed by the Rio Still, the existence of a statewide water Blanco Water Conservancy District, plan, which resulted from such a long- which urgently needs to replace Kenney term collaborative effort by so many, Reservoir, where silt has reduced the provides at least the hope that Coloradans storage capacity from 13,800 acre feet might eventually emerge from those years to about 8,000, and taken away half of distrust, and work together on long- the surface acreage.49 The district can term solutions. That should involve both solve the water supply problem with conservation and creative new storage its proposed Wolf Creek in every river basin of the State, instead reservoir, and also generate of diverting water between them—which huge economic value in an is the source of so much of the distrust. area that can no longer rely It should also involve public-private on coal mining or oil. The partnerships, bonding, and other new project could also improve funding sources. That might actually be the environment, supply “something new under the sun.” water for endangered fish, and build a whole new future Since the plan was adopted in 2015, in the Rangely area.50 the annual summer conferences of the Colorado Water Congress have featured Another notable active plan lengthy discussions and various updates. to increase storage is the There has been virtually nothing new Northern Integrated Water Supply Plan, about the source of the proposed $20 which would add two new reservoirs and billion for conservation measures, nor

17 pumping plants, pipelines, exchanges primary storage basins for water diverted with two existing irrigation companies, from the Colorado River headwaters and a new diversion of the Poudre River— through the Moffat Tunnel. the combination of which would supply 15 Northern Front Range entities with Both the Northern Integrated Water 40,000 acre-feet of new water supplies. Supply Project and the Gross Reservoir Importantly, the project would store expansion are tied up in the seemingly excess water that otherwise leaves interminable lawsuits, though, which have Colorado during wet years. Since 2009, become a standard part of the process— more than 3 million acre-feet of water, and one of the most significant threats to beyond legal requirements, have left the future of Colorado water.53 Colorado downstream to Nebraska—while the Front Range thirsts for more water.51 Colorado River Cooperative The area simply cannot use all it might be entitled to use, because of the shortage of Agreement storage capacity. Meanwhile, the project The signing of the Colorado River was subject to a federal Environmental Cooperative Agreement represented a Impact Statement that took more than 15 significant new relationship between east years. and west, in the way water issues would be addressed, at least for the next few Another important example is Denver years. After five years of negotiations, Water’s proposed enlargement of Gross Western Slope leaders agreed not to Reservoir. Part of the value of the ill-fated oppose Denver Water’s plan to enlarge 1980s “Two Forks” proposal was its ability Gross Reservoir, and Denver Water agreed to store water on the South Platte River to provide water for flows that support itself, as opposed to additional major ski areas and other recreation on the diversions from the Western Slope. Gross Western Slope, as well as flows for habitat Reservoir, located in Boulder County, now improvement in Grand County, significant holds about 41,000 acre-feet of water, and payments to Summit and Grand Counties, the expansion would triple that capacity and an agreement to continue to supply by raising the existing dam another 131 water to the Shoshone Generating Station feet, at a cost of about $464 million. The (the old hydroelectric plant in Glenwood project is slated to be complete by 2025, Canyon), whether the plant is operating assuming the resolution of lawsuits and or not.54 federal permits—a big assumption.52 Shoshone is a long-standing and crucial In part, the Gross Reservoir project issue to Western Colorado, because the signals a new approach that resulted plant’s water right is senior to all the from the Colorado River Cooperative transmountain diversions, but is owned Agreement, signed in 2012 by by Minneapolis-based Excel Energy, Denver Water and 17 Western Slope not by any Western Slope entity. The entities, including Grand, Summit, and “Shoshone call,” needed to keep the Eagle Counties and the Colorado River 15-megawatt plant running during low- Water Conservation District. The main flows, guarantees a water supply and river purpose was to allow Denver to develop flows from Summit and Grand Counties additional water supplies while also to California, while limiting diversions protecting watersheds in the Colorado for Northern Colorado, Pueblo, Colorado River Basin. That included the plan Springs, Aurora, and potentially Denver.55 to expand Gross Reservoir, one of the Thus, many West Slope and downstream

18 entities have grown reliant on Excel’s mentioned above, and also the cities/ use of that power plant to ensure water towns of Glenwood Springs, Rifle, Fraser, 56 in the Colorado River. The plant is also Granby, Breckenridge, Dillon, When Durango attorney Gerry unusual in that it depends on river flow, Frisco, Silverthorne. They also McDaniel and I walked into the rather than captive water in a reservoir, included the most important Colorado Water Congress in 1991, so its operation is central to many water water districts in the Colorado we felt like strangers entering a debates throughout the West. There are River Basin, including not saloon in old western movies—the frequent attempts to convince Excel to only those in the headwaters piano player stops while the entire sell the plant, or to decommission it, counties, but also all the room stares. I was president of either of which would have a dramatic major districts in the Grand Club 20 and McDaniel chaired its impact on water supplies. That is unlikely, Valley. 60 Ironically, while all Water Committee. Several Western because of its unusual reliability, and those signatories agreed not to Slope legislators were already because it generates over $4 million in oppose Denver’s storage of its there: Reps. Scott McInnis, Danny revenue to Excel annually, at almost no Blue River and Gross Reservoir Williams, and Tim Foster, along with Senators Dave Wattenberg cost because it has been paid for since Expansion Project water on and Tillie Bishop. its construction in 1909. Thus, while the Front Range, they could Denver did not have the ability to deny not speak for everyone else. Legendary Denver Water Board lob- the Shoshone water right, it gained some Predictably, the Gross Reservoir byist Sarah Duncan (coincidentally ability to relax the quantity during dry project was opposed in court by a former Durango resident and years. But the pledge to supply Shoshone Boulder County and at least one friend of Club 20) approached us water, whether or not the plant was environmental organization, with her usual wry smile and said, operating, was intended to avoid the so Denver Water may or may “I suppose you’re all here to talk need for the “Shoshone call,” and was not see the hoped-for fast- about basin-of-origin—again.” She significant to the Western Slope.57 track benefit of that part of the already knew well that Club 20 agreement.61 was pushing legislation to codify a Significantly, the agreement also requires Such cooperation, though, permanent requirement for future increased the amount of conservation is what the State Water Plan water projects. and reuse required for Denver Water’s was supposed to be about. It customers. And in perhaps the greatest remains to be seen whether the The never-resolved “basin-of- departure from a century of legal idea will gather momentum, or origin” issue has been a top wrangling and power plays, Denver join other strategic plans that Western Slope priority for decades. Legislators from that region had Water agreed that any new water project sit on shelves gathering dust. sponsored “basin-of-origin” bills it proposed in the Colorado River Basin many times. For eight years, the would be developed only in cooperation Basin-of-origin protection effort had been led by succes- with the Western Slope entities affected In a larger sense, the Colorado sive House Majority Leaders, Scott by the development.58 River Cooperative Agreement McInnis and Tim Foster. Despite is a component of the century- their seniority, effectiveness, and At the signing ceremony in 2012, old dispute over “basin of popularity in the House, they were Governor Hickenlooper said, “I’m not sure continually outvoted on this issue origin” protection—a factor in the fighting’s ever going to completely by Front Range majorities, as were virtually every trans-mountain stop, but it is nice to see that it is at least several of their successors. The diversion project debate in moving into rubber bullets and bean bag Club 20 group met the same fate state history. For example, shot guns.”59 Indeed, Denver’s agreement that day, trying in vain to convince part of the agreement made not to pursue new projects except by the Colorado Water Congress to by the Northern Colorado working with the Western Slope was not endorse the bill. Water Conservancy District, unique, but making the commitment to gain approval for the in advance of any specific proposal Windy Gap project, was construction of represented a new era of comity. Wolford Mountain Reservoir to provide The signatories included the counties

19 “compensatory storage” for Western Slope River Basin to conservancy districts; the use (to “compensate” for the loss of water no-impairment rule does not apply to diverted across the Continental Divide).62 Colorado River Basin diversions to cities.66 Similarly, part of the agreement enabling And most trans-mountain diversions were the Frying Pan-Arkansas project was the built by cities: Denver, Aurora, Colorado construction of Reudi Reservoir, for the Springs, and Pueblo. The proposed “Basin- same “compensatory” purpose.63 of-origin” legislation would have applied that same compensation requirement Such “deals” are not technically required to any future project, whether proposed under Colorado law, however, nor is such by a water district, a city, or anyone else. compensation necessarily required for all Without such protection for the basin- such diversions. It should be. of-origin, the Western Slope has never supported trans-mountain diversions, and The idea of “basin-of-origin” protection presumably never will. was well understood by the 1930s, when the first major transmountain diversion The legislative saga continued for years. A came with federal particularly notable effort in 2001–02 was construction of the led by Rep. Matt Smith, whose bill would Colorado Big Thompson have made future diversions contingent Project. It included ten on compensation acceptable to local reservoirs, 18 dams, leaders in the basin-of-origin, essentially six power plants, and giving veto power to the Western Slope; a Continental Divide Arizona has a similar limit on transbasin tunnel. But it also diversions.67 In 2003 Rep. John Salazar included “compensatory carried a similar bill, followed by Rep. Josh storage” for the West Penry the next session, and several others Blue River water is diverted from Dillon Slope, Green Mountain since then. None of them succeeded. Reservoir, into the Roberts Tunnel, under the Reservoir.64 The concept Continental Divide, into the South Platte is simple—water should The debate has quieted somewhat, partly not be diverted out of its because the Colorado River Cooperative natural river basin, across the Continental Agreement addressed the issue—at least Divide to the Front Range, without some with respect to the Colorado River—and protection for those living in the river partly because of a compromise in the basin from which the water is taken. 2015 Colorado Water Plan. It included The most common form of protection the principle that “future Western Slope is “compensatory storage,” as in the case needs should be accommodated as part of of Reudi, Green Mountain, and Wolford a new trans-mountain diversion project.” Mountain. That is the only way Western That could mean either compensatory Slope leaders can realistically retain the storage or money, but either way “a new ability to develop water in the future. trans-mountain diversion would move forward only as a package that also Colorado water law has always allowed accommodates both the eastern and water conservancy districts to divert western slopes.”68 That is conciliatory water out of the Colorado River Basin— language that calms the debate, and but only if the diversion will “not impair was crafted from years of round-table or increase the cost of present or future meetings, but it lacks the force of law. water supplies for the exporting basin.”65 Thus, future Governors and Legislatures However, the no-impairment rule only will continue to face the issue. applies to diversions from the Colorado Nor is the 2015 Agreement universally

20 accepted. The 2018 Legislative Policy have not been agreed upon by respective Agenda for the City of Loveland, for areas.”72 instance, still wants it both ways, insisting that “Any transfer of native flows from Saving agriculture Northern Colorado to other basins must During the same years the legislature compensate the native basin.” Yet with debated basin-of-origin legislation, respect to the West Slope, it takes the there was controversy over growing defiant position that “Any basin of origin cities, especially Aurora, purchasing bill must not unduly inhibit Loveland’s agricultural water rights in the lower ability to acquire… water rights and Arkansas basin, then transferring them to change the use of any such rights for Aurora (South Platte Basin). In 2003 the inclusion in Loveland’s water supply legislature required compensation of the sy st e m .” 69 lost tax revenues for 30 years whenever an agricultural water right is transferred That is why Club 20, the Colorado Basin out of one county for use in another.73 The Roundtable (in its 2016 report), and theory behind the 30-year many other Western Slope leaders, still limit was that by that time insist “that any project which includes a county would be able trans-basin diversion must include basin- to diversify its economy of-origin protection and/or mitigation” to be less dependent acceptable to the local governments.70 upon agriculture—which no doubt seems short- Following defeat of the 2002 bill, Rep. sighted to Arkansas Matt Smith warned that without such Valley counties now, two- protection, there would never be another thirds of that time having trans-mountain diversion in Colorado. He expired already. was obviously right—there hasn’t been, and almost certainly will not be. One of Colorado’s most tragic examples is Perhaps ironically, while the legislature Crowley County, which has neglected to place compensation Former Governor Bill Ritter once had 50,000 acres requirements in statute, advocates for of irrigated farmland, basin-of-origin protection may have won but today fewer than 5,000. The other 90 the cultural and political battle anyway, percent of that once fertile cropland is as collaboration has become the only now dry, the water rights having been sold tenable position for statewide candidates in the 1970s and 80s, mostly to Pueblo, of both parties. In 1998, candidate Bill Pueblo West, Colorado Springs, and Owens famously told an audience in Aurora. The Arkansas Basin Roundtable Gunnison that “the era of trans-mountain spent considerable time discussing how diversions, without the approval of both to restore water to Crowley County, sides of the mountain, is over.”71 Following and made several recommendations, that precedent, candidate Jared Polis told including county purchases of water the Colorado Water Congress in 2018, rights to refill Lakes Meredith and Henry, “As a matter of principle, I will oppose though with neither specific funding transmountain diversions that are not sources nor ideas on why the cities would developed through the collaborative want to sell the water back.74 principles that the inter-basin compact The incentives faced by many farm committees have agreed on.” He “would families are difficult to overcome. oppose any transmountain diversions that

21 Thousands of rural families have children Especially in a drought cycle, western who see a different future than farming, water rights have huge economic value, so many parents have no one to carry so if farmers can save water by upgrading on the business. That is mainly why the their systems, others (especially growing average age of farm owners has been cities) will happily pay for the cost of the rising for decades, and it now nearly 60.75 upgrades—and purchase the saved water, It is the primary reason Colorado has sometimes at a very high price. But in the 600,000 fewer acres of farmland than early stages of the drought when some it had 20 years ago.76 Thus, while many farmers and cities tried it, water courts people lament the loss of agriculture began to rule that farmers could not sell when farmland is dried up by thirsty such “saved water,” because they never cities, it is difficult to blame people for legally owned it—they were “wasting” selling their most valuable asset—their it, which no one has a right to do. The water—when they have no other good difficult political question remains: how choices for carrying on. can anyone expect farmers to be more diligent and conserve more water at Conserved water—why the incentives their own expense, especially if they can actually lose the right either to use or sell are all wrong the saved water? Why would they do that? Colorado leaders have struggled for years How should the legislature eliminate that to find ways to change the incentives. One disincentive and allow saved water to be idea a few years ago was to fix a quirk sold, without upending the still vitally in Colorado water law related to “saved important prohibition against wasting water” (also called “salvaged water”). The water?77 problem is based on a premise as old as statehood, that owners must use their This is a common problem in the West, water as wisely as possible. The public can and in some states an imperfect solution never be expected to pay for additional was found. The legislatures in several projects so water can be wasted. The states (California, Montana, Washington, incentives in Colorado water laws always and Oregon) adopted provisions that had that intent, but not always that result. allowed “saved water” to be sold, without it being considered “wasted”—if it could During the 2001-2004 drought, the law be shown that the previous irrigation was clear, that no one ever has the right practices were the common and accepted to “waste” any water. That means when practices for that region.78 As a result, filing for water rights, the amount of the tens of thousands of farms across the right is determined by how much can West have been able to modernize their be put to beneficial use for the specified water systems and free up vast amounts purpose, and not one drop more. So if of water for growing cities, rather than a farmer’s water right provides enough the worse alternative of cities simply water to irrigate 100 acres, that amount is buying out the farms and eliminating determined at the time of the decree. But agriculture. Colorado has not taken that if a farmer saves water by installing drip step, however, so the problem remains a water systems, he is deemed to have been significant obstacle to agricultural water “wasting” any water that is saved. In other conservation.79 words, he has absolutely no incentive to upgrade water systems, because if he does This is not merely a philosophical he would lose some of his existing water exercise. More than 90% of all water right. in the arid West is used in agriculture,

22 so even a little agricultural savings can properties in Colorado are now preserved provide a great deal of water for cities. as open space in this manner.81 Farmers have several incentives for water conservation, including in some cases There is no good reason the same tool federal funds. Salinity program funds cannot be used to preserve water rights can help finance on-farm improvements on farms and ranches. in the Colorado Basin, for example, and the U.S. Department of Agriculture can In parts of Colorado, water rights are provide economic assistance, through worth at least as much as land, and in the Regional Conservation Partnership many cases much more. It is hard to Program (RCPP), the Environmental second-guess the wisdom of a farmer Quality Incentive Program (EQIP), and who sells his water rights to a thirsty others. There are also programs offering and growing city for more money than incentives at the state level, at CWCB, at he could ever hope to earn farming. As CSU cooperative extension, and others.80 mentioned earlier, it is a particularly But in each case, the money might help difficult choice for farmers whose finance the costs of concrete ditches, children have careers in the cities and no gated pipe, sprinkler systems, drip desire to take over the family farm. Yet systems, and other such improvements— in spite of the desperate need for water but they offer a fraction of what the “saved in many western cities, water” is actually worth, were it sellable most residents think on the open market. Until Colorado drying up farmland to addresses this issue, massive volumes of gain the water is a long- water will continue to be used irrigating term mistake. So, the farms, which might otherwise be available Department of Natural for other demands. Resources began asking, if society wants the Conservation easements—a powerful farmers to hold out and refuse to sell their water tool, but still unused rights to the cities, why Dozens of historic Palisade orchards are One fascinating tool Colorado developed shouldn’t it pay them preserved by conservation easements. in 2003 is the use of conservation for that decision, just as easements on water rights. Conservation they are often paid not to easements are now in common use sell the land itself. Especially where the nationwide as a means to preserve land water is worth even more than the land, against future development. Landowners doing so would help the farmers stay in sell their “development rights” to a business better than anything else. In third party (a non-profit land trust or the case of land, a farmer can either sell a government agency) and their deed a conservation easement for cash, or for is then restricted against the ability to tax credits, and because so many farms do subdivide, build houses, or otherwise not have tax liability problem, Colorado change the essential character of farms, was the first state to allow such tax ranches and natural areas. For the public, credits to be sold for cash.82 the advantage is in preservation of open space everyone values. For the landowner, All the same advantages should apply this tool offers the ability to infuse the to water, if Coloradans really want to operation with the one thing it needs preserve agriculture and open space in most—cash—without having to sell out to the arid West—and keep farm families developers. Over a million acres on 4,000 solvent. Thus, the Colorado legislature

23 agreed in 2003 to explicitly authorize truth about east-west politics inside a the use of conservation easements to state like Colorado: as long as the Front save agricultural water rights, though Range remains short of water, Western seventeen years later land trusts (who Slope water will always be “on the table.” buy most of the conservation easements The only long-term answer is to provide on land in Colorado) still view the idea as the population base with the water it experimental—and none have yet tried it needs, and that can be done without as a means of saving farms and ranches. “taking it away” from anyone. It is an idea whose time is surely coming, however, and should be considered Why not let the market decide? wherever growing cities threaten to dry A Denver newspaper in 2016 highlighted up agriculture. the apparently-shocking new discovery by some investors that in Colorado, “water There are other examples around the is the new gold.” As the article explained, country where incentives can and should water rights may be as valuable to be changed to make sure the law is modern developers and town builders as aligned with public goals for the 21st the mother lode was during the gold rush Century. Water conservation is essential that settled Colorado.83 to the future, and efforts to facilitate system upgrades and efficiency should The story involved the sale of an old be encouraged. Old laws that discourage family farm in northern Colorado, efficiency ought to be updated. expected to fetch millions at auction because it included not only 400 acres of Water conservation ought to be the land, but also 276 shares of Colorado-Big beginning of all water supply discussions Thompson water. In fact, the land’s top in the West, but it can never be the appraised value was said to be about $6.2 end. Growing metropolitan areas need million, but the water was worth at least more water than can be supplied merely $6.9 million, and possible much more.84 through conservation. It remains as crucial as ever to store water during the The story is not uncommon. Such value wet years for use in dry years, and in most places much Colorado farmland out of the West, the current storage capacity of reach for farmers. With Colorado’s is still considerably less than it could be. population expected to double in the next In Colorado, Western Slope residents may three decades, that water is simply too always feel threatened by any discussion valuable to be used on farms. Instead, the of new water storage projects, because land was bought by a developer, probably they know the population and the money for later sale to one of the cities. That’s are mostly centered across the mountains why the auctioneer for this farm sale was on the Front Range. But in fact, the Front quoted saying, “Water is the new gold.” Range also has the capacity to store much more of its own water and use and reuse This is not, however, a phenomenon that water much more productively. limited to intra-state sales and transfers Colorado has made several great strides within Colorado. Water marketing is a in doing so. global trend, leading both Fortune and MarketWatch to consider water the “gold There is nevertheless a need for more of the 21st Century.”85 water storage in every single river basin in the West, including all eight of the major The Atlantic featured a lengthy article basins in Colorado. And here is the blunt

24 in 2016 about wealthy New York hedge Water is different than other fund managers seeking to undo a century of western water law and solve commodities drought problems by creating water The great irony is that westerners, markets.86 Their idea was to allow water possibly more than people in any other to be bought and sold like any other region, are culturally accustomed to commodity. That would have the effect, defending free markets and private long-term, of moving most of the West’s enterprise. That includes a vitally water from farming—by far the largest use important role for governments in of water—to municipal uses. That could protecting the private enterprise solve the problem of major cities with system—sometimes against hedge fund too little water for their ever-increasing speculators. That’s because water is not populations. It would also provide a way like other commodities. It doesn’t belong out for farmers and ranchers who have to individuals or companies or farms; it long struggled against low crop prices, belongs to the people of the State. Water the exodus of their kids, and an aging rights owners don’t own water; they own population. They would have the money the right to use it. That is a property right for a decent retirement if they could just and it can be bought and sold, but only in sell their water for the millions it is often ways consistent with applicable laws. worth, so their argument went. First, water rights cannot generally be That prompted many westerners to sold across State lines, because that wonder—why not let the market decide would effectively transfer a State’s share where water is most needed? of the River, which is carefully allocated under the Interstate Compacts. Second, In a limited way, some have already done water speculation is illegal in Colorado; that, especially in Eastern Colorado that is what keeps people from buying (and in Southern California). That has and owning water they do not really completely dried up several formerly intend to use. Water is too precious in the thriving farming communities, a new West to be denied to people who need it series of ghost towns being slowly created. by people who don’t. Finally, water rights But there are limits to how far that can go granted for one purpose cannot simply under existing laws, and there are good be sold for another purpose in another reasons for those limits. location without going back to water court again. That is the central principle The short version is: If Colorado water can that allows the courts to make sure one be bought and sold on the open market, person’s water deal doesn’t harm another. there will soon be no water, at least in Those protections are more than just rural Colorado. It will all belong to rich symbolic—without them, there would be investors and be used exclusively in Los no water available in rural areas where Angeles, San Diego, Las Vegas, Phoenix, cash is scarce. and perhaps Denver. Western Slope cities like Montrose, Gunnison, Craig, Many observers say the slow but steady Cortez, and even Grand Junction, could transfer of agricultural water rights, never compete with those multi-billion and the resulting death of agriculture, dollar economies. Nor could farming is inevitable. It is true that many farms communities like Rocky Ford, Burlington, can operate more efficiently and with Sterling, or La Junta. Could even Denver less water than they have historically, compete with Los Angeles? and conservation is always a good thing.

25 It is also true that much of the world’s Why water history matters, and why population now eats better quality food, grown by fewer farmers using fewer it is dangerous to ignore acres than ever before. That is at least Roots author Alex Haley wrote, “In all partly because of the elaborate water of us there is a hunger, marrow deep, to system that turned the Colorado River know our heritage—to know who we are Basin into a giant seven-state plumbing and where we came from.”89 Family stories system which, in addition to delivering and childhood memories are more than water to almost 40 million Americans, just a desire to know about the past. They also produces a quarter of the nation’s teach us what we know and make us who crops, including a substantial portion of we are. the fruits and vegetables Americans eat. As of 2017, Colorado itself had about 2.6 That is as true for a community as it is for million acres of irrigated farmland.87 But individuals. Individuals inherit not just the Colorado River Basin, including water hair color, but also values, understanding exported from it into eastern Colorado, of right and wrong, sense of humor, work and especially into southern California, ethic, religion, ideas of duty and fairness, irrigates 5.7 million acres in four states and much more. Just so, communities and Mexico.88 inherit values and character from earlier generations. This is why learning history, People can decide for themselves whether and passing it along, is so vital. they think drying up agriculture in the West is a good idea, but it is hard to deny Colorado was settled by tough pioneers that would be the result of free and open who scratched out a living in some very water marketing. If Wall Street billionaires inhospitable places, where most rivers run can offer farmers and ranchers millions only seasonally. The communities they for their water rights—money they could founded are possible only because they never hope to earn otherwise—one could built systems to store and move water. hardly blame them for selling. And if Modern residents of modern cities with those investors get fabulously wealthy modern technology often forget what by reselling that water to cities and it took—still takes—to live in such arid developers for a healthy profit, one could climes. They take for granted the delivery hardly blame them for seizing such a of water to their homes, and food to their golden opportunity. stores, and don’t take time to teach the children how that happens. No wonder so There is nothing to stop such an many people now view old western water outcome—except Colorado’s old, laws as “outdated.” complex, and cumbersome system of Attendees at almost any water meeting water laws. It is easy for Coloradans to anywhere in the West will hear that view forget how closely tied their lives are expressed by some. They frequently hear to that very delicate system, especially speakers proposing a new free-market if they never learned it. The system system, where water rights could be seems anachronistic to Wall Street. But bought and sold by anyone, for any the history, culture, economy, and way purpose, so the market would determine of life—the very survival—of western the highest and best use of water. communities depends on that system. It is Occasionally, Coloradans must remind worth learning, teaching, and defending. themselves of stark realities. The Colorado, South Platte, North Platte,

26 Arkansas, Rio Grande, Republican, White, The first example, in the West, is water. Yampa, and San Juan Rivers all have one Local communities, of course, do put thing in common. There is not enough a price on water, based on how many water. If water is for sale to the highest gallons individual bidder, there won’t be any for most of households use Colorado. The communities between each month. Denver and Los Angeles survive only But on a through careful enforcement of the prior statewide basis, appropriation system. It is folly to expect and especially a thirsty Los Angeles to care enough between states, about Vail, for example, that it would water is not decline to buy available water. bought and sold in an open Consider the plight of St. George, Utah, market—and Pagosa Springs, Early 1890s. Photo: Colorado continually scrambling to develop new Colorado can Historical Society housing because as one of the nation’s never allow it to fastest growing small towns, it adds 30 be. The careful 90 percent to the population every decade. allocation between states is based on But new developments require new water, delicate agreements that have survived and every water project proposed faces for decades, making prosperity possible in intense opposition from California and Colorado. Nevada. They both need the water, and defending St. George is not their job. Compare three major water providers Whose job is it? who rely on water from the Colorado River Basin. The City of Grand Junction’s A decade ago, when forced to stop using Utilities Department spends about more than its share of the Colorado River $15 million a year and delivers water (see Section 4), California didn’t bat an eye to 25,000 people.91 The Denver Water at drying up farms to supply the growing Department has an annual budget just cities. Smaller communities can never over $500 million, and serves 1.5 million compete with big city money, so they customers.92 The Metropolitan Water must jealously guard the water system District of Southern California has an that enables their survival. annual budget close to $2 billion and serves 19 million people.93 That jealousy is part of the character of Colorado. It is part of the State’s collective All three regions face periodic water “family history,” and must be passed along shortages, and all are constantly looking unhindered to future generations. for better ways to deliver more water to thirsty and growing populations. So are Not for sale—at any price Phoenix, Las Vegas, and dozens of others From a marketing perspective, what in seven states. There is no limit to the exactly is the value of water? In economic amount of money available to buy water, theory, it is simply how much someone were it simply for sale on the open market. will pay—willing seller, willing buyer. More than any other factor, that In fact, the entire State of Colorado has determines the price of almost all goods an annual Gross Domestic Product (GDP) and services. But there may be some of less than $400 billion, the 16th largest things whose value cannot be determined state (economically) in the country. that way, or at least shouldn’t be. California, on the other hand, with an

27 annual GDP of $3.2 trillion, is the fifth efficiency, but speculators seek profit, not largest economy in the world—compared efficiency. Today, just four individual users to other countries, not states.94 How much control 75% of the water in that basin. would Colorado’s share of the Colorado Nationwide, 14% of Australia’s water River be worth, if it were for sale? licenses are now owned by investors, including a Cayman Islands group paying This is not just idle speculation. There record prices, not by actual water users.97 have been numerous proposals over the years for various forms of “water Ironically, California, Nevada and Arizona marketing.” One plan in the early 1990s have been considering a water-trading would have built a giant reservoir on plan based on that Australian system. Roan Creek to store water for sale to Perhaps there are better models to study, California. A few investors would have but marketing interstate water is likely to become fabulously wealthy, but at the produce similar results, should it ever be expense of any further use of Colorado allowed. River water in Colorado’s future. Coloradans should take stock of the Marc Reisner wrote that “in the West, it is reality that if water is for sale to the said, water flows uphill toward money.”95 highest bidder, so is the State’s future. In Obviously human engineering makes the case of Crowley County mentioned it possible to deliver water outside its earlier, Darla Wyeno, the town clerk, was natural basin. That does not make it a among those who sold her water rights. good idea. The money helped put their son through college, yet she still laments the fate of Some investors claim free markets solve their farm, saying, “When we sold our water shortages, but they merely transfer water, we sold our future.”98 the shortage to the area with the least money. The most current example is Colorado ought to make clear that its in Australia, where a decade-old water water is not for sale—at any price. marketing system has led to a national scandal (referred to by the media as “Watergate”). That’s because big money from elsewhere has completely dried up the Barwon- Darling River Basin, with disastrous consequences for fish, wildlife, agriculture, and communities.96 There has been large-scale corruption and market manipulation. Australia thought a cap-and-trade system for water might create incentives for

28 SECTION 4—JUST BECAUSE WE’RE PARANOID Major Threats to Colorado’s Water ability: federal control, and downstream (especially California) opposition. Water, water, everywhere, And all the boards did shrink; In both cases, Colorado faces the ominous Water, water, everywhere, prospect of not being in control of its Nor any drop to drink. own destiny. Water decisions affecting - Samuel Taylor Coleridge this State’s future ought to be made by the people of this State. They are far In recent years, news reports are filled outnumbered when dealing with either with detailed analyses of the primary California or Washington, D.C., so their threats to the Colorado River Basin, the unity is essential. great American Southwest, the Great Plains, and the quality of life itself in the Weaning California West. The threats focus almost entirely No water issue in the past generation has on two primary issues: population growth, been more difficult—or more important— and climate change. Spoiler alert: most than the effort to wean California from writers are opposed to both, and no writer its over-use of the Colorado River. has any meaningful solution to either. The agreement to do so was a saga involving dozens of water leaders from There have always been activists who all seven states and the federal Interior think the world is overpopulated, and Department, debated for well over a many westerners think that particular decade, which resulted in the most region is overpopulated. Whether one significant water conservation milestone agrees or not, though, water policy cannot since the original Interstate Compact. alter it. A brief background helps explain the Climate change attracts the most difficult situation Colorado faced. Within attention. What people could do, a few years of the settlement of the West according to countless writers, is stop in the mid-19th Century, it became using so much water, because climate obvious that the Colorado River and its change is depleting the water supply, tributaries could not support unlimited and destroying agriculture,99 to the point growth in all seven states that depended that human behavior (i.e. farming and upon it. It took until 1922 for those ranching) is destroying the region’s states to reach an agreement—the first environment. Yet there is no good interstate water compact in America— alternative to the human desire to live, on how to divide the waters “fairly.” The eat, drink, breathe, and travel in the river was split into two halves, Upper Southwest. Basin and Lower Basin, each entitled to half the annual flow of water.100 A later Population and climate are both agreement (1948) divided the Upper legitimate issues for debate, but they Basin waters, half to Colorado and the are decidedly NOT the most important other half to Utah, New Mexico and threats to Colorado water. Colorado’s Wyoming.101 The Lower Basin States of future prosperity depends on the ability Arizona, Nevada and California divided to develop and use its water, and there the water mostly according to population, are two existential threats to that meaning California got the lion’s share, a

29 much smaller portion went to Arizona, was surplus water in the system because and almost none to Nevada (there were of exceptionally wet years. relatively few people in Nevada in 1922).102 But a complex part of the Lower Basin As a result, every proposal to use agreement that would come back to additional water in Colorado became a haunt everyone 80 years later, was the threat to existing uses in California, and definition of California’s entitled share. It for the first time in history, California included a specifically defined amount needed a clear definition of the term of water each year (4.4 million acre feet “surplus.” That was a legal hook the Upper or MAF), PLUS any unused portion of Basin states had never had before, so Arizona and Nevada shares, PLUS any they insisted on a water conservation surplus water in the system during wet plan to limit California’s use of the river years. to its entitled 4.4 MAF share. But after so many years of already existing uses, “Surplus water” had never really been California could not reduce its use of the officially defined, but it did not matter for River without enormous expense and many decades because there was always difficulty. So as a means of accomplishing extra water from the Arizona and Nevada the task, the Upper Basin states agreed allotments. So, to “interim surplus criteria,” literally California continued to declare artificial “surpluses” while to grow unchecked, California ratcheted down its use of water, becoming dependent as long as certain measurable milestones not only on its were reached during the ten-year phase-in entitled share of the period. It was at times difficult, funny, sad, River, but another painful, nasty, statesmanlike, optimistic, 25 percent—over pessimistic, futile, promising, and 800,000 acre feet rewarding—and in the end it worked. each year.103 But by the 1990’s, when It would be difficult to overstate the the Central Arizona difficulty of that effort for California Project completed water leaders. When the process The Colorado River Aqueduct delivers a the huge aqueduct began, southern California agriculture billion gallons a day, through 2 reservoirs, 5 pumping stations, 63 miles of canals, 92 to Phoenix, Arizona was almost entirely based on open- miles of tunnels, 55 miles of concrete pipes, finally grew into furrow irrigation, often in 120-degree and 28 miles of pressurized siphons. its entire allotted desert summers. Almost the entire share of the river. At Imperial Valley had to be retro-fitted the same time, the growth of Las Vegas with gated pipe, concrete ditches, drip had resulted in Nevada using its entire watering systems, and other expensive share, and it was in dire need of more conservation measures. Even more water itself; Las Vegas had about 2,000 difficult, they had to impose on a 100- people in 1922, but over 2 million today. year old system a legal means to quantify Neither state had any unused portion water rights. This problem was especially anymore. However, Colorado had never difficult for Upper Basin residents to grown into its own entitled share and understand, because in most of the West used about a million acre feet less than its a water right can only be decreed after entitlement. That meant California was it is explicitly shown how much water using Colorado water (Lower Basin using will be needed, for what exact purpose, Upper Basin water), a complete violation in what exact location, and for exactly of the Interstate Compact—unless there what duration. But several of the largest

30 and oldest water rights in the California The issue is not settled permanently, system belonged to large irrigation however. California’s largest water users districts (not individual farmers), whose continue to litigate the quantification water rights decreed “such water as they agreement, even in the summer of 2020. in their judgment may require.” That A three-judge gave such districts little legal incentive to appellate court conserve or use water wisely. panel in San Diego heard Forcing a quantification requirement on a dispute century-old systems was an enormous between the burden, requiring foresight, leadership, Imperial and sometimes brutal political battles. Irrigation Several times, California officials asked District (IID) the other states for more time, but and one of the others held firm, with rock-solid its large farm support from Interior Department owners.105 He Open furrow irrigation in the Imperial Valley officials in both the Clinton and Bush had sued to Administrations. The final adoption in overturn an 2003 of the California 4.4 plan, officially apportionment plan within the district the “California Colorado River Water Use that would limit his use of irrigation Plan,” and the “Quantification Settlement water. Surprisingly, he and other growers Agreement,” was hailed as one of the great are still arguing that farmers have a right accomplishments in water conservation to however much water they “reasonably history.104 need,” based on past use (meaning use prior to adoption of the 2003 California For many years, some leaders were Quantification Settlement Agreement). resigned to thinking that once California The case is of tremendous interest to was accustomed to all that water, it would Colorado and the other states, because be impossible for Colorado ever to get it IID is by far the largest Colorado River back. But the final agreement proved once water rights holder in California—it has and for all that the Interstate Compact the right to 3.1 MAF, which is nearly two- was enforceable. The U.S. Supreme Court thirds of California’s entire share of the rulings against Colorado in a string of Colorado—and because farmers use 97 Kansas v. Colorado cases also made clear percent of IID’s water.106 the high court’s willingness to enforce interstate compacts, even at the expense Are California water battles any of of taking water from long-term users. Colorado’s business? As the Colorado River District’s external The IID case is only one of several affairs manager Chris Treese put it, internal California water issues that could “Colorado can celebrate the fact that our significantly impact Colorado. Another negotiators were so far-sighted in 1922 is the effort to address long-term water as to write the compact… Our water shortages for farms in the San Juaquin entitlement is reserved for us to develop Valley, while the giant cities continue to when we want to, if we want to. We don’t grow, and while trying to leave as much have to rush to development because water in the rivers as possible for the someone else is.” endangered “Delta smelt.” As in Southern California, the north and central regions also have very limited water, so how they

31 divvy it up literally determines which Operation Agreement in the 1980s, areas grow and prosper and which areas defining how the two water projects do not. meet water needs, while complying with environmental laws, and with court This case is connected to the long- rulings about the Delta smelt. That term multi-state struggle involving the agreement called for periodic reviews, Colorado River. That settlement was so which began in 2016. expensive and painful within California, that it also focused increased attention on It is difficult to balance those limited northern California. That’s because while supplies among agriculture that supports much of the Los Angeles water supply the entire nation, some of the country’s comes from the Colorado River, the rest largest and most important cities, and comes mostly from the vital habitat for wildlife. Yet it remains “State Water Project.” largely an internal problem for California, and a complex negotiation between that That system of reservoirs, State and the federal government. Except aqueducts, and pumping for one detail that has Colorado water stations extends over leaders on edge. two-thirds the length of California, supplying During his last weeks in office in water to 27 million people, 2018, California Governor Jerry Brown including the Bay Area, negotiated a final deal that seemed likely the San Joaquin Valley, the to get all the competing interests on the Central Coast and Southern California, same page, and incoming Governor Gavin including L.A. and San Diego. It also Newsom endorsed it. It requires an Act of irrigates 750,000 acres of farmland in the Congress, because of it needs hundreds of San Joaquin Valley,107 which is the crux millions of federal dollars for new water of the problem. More water for the cities storage, desalination, and water recycling means less water for irrigation—and more programs.110 That might seem unlikely, water for endangered fish means less except the sponsors include almost the water for either. entire state congressional delegation, which includes both the Speaker of the The primary issue is the management House and Minority Leader.111 In the fine of reservoirs and diversions from the print of the deal, though, the Metropolitan Sacramento-San Joaquin Delta. It is Water District of Southern California, the complicated by the fact that the State most powerful water entity in the West, runs its own elaborate system, essentially quietly gave the federal government a parallel to the federal government’s significant share of its own water, during “Central Valley Project,” owned and extremely dry years.112 That matters to operated by the Interior Department.108 Colorado because if Los Angeles ever The former supplies massive amounts finds itself short of water because of that of water to the big thirsty cities, and the little detail, it has but one other place to latter to most of the agriculture in the turn—the Colorado River. Central Valley—which produces more than half the fruits and vegetables grown Environmental groups have already gone in the United States.109 Both projects off-script, demanding more water for fish, take water from the Sacramento-San and Governor Newsom now waffles, so Joaquin Delta, so the state and federal final implementation is uncertain. But governments negotiated a Coordinated if future water shortages cause L.A. to

32 demand more water from the Colorado drought plan, the Metropolitan Water River, it would reopen the most difficult District of Southern California even and delicate compromise in a century. In offered to cover IID’s contributions, so other words, California’s internal water that California could agree to the deal. battle is none of Colorado’s business— No matter, IID sued anyway, which surely until it is. demonstrates an agenda that is not really related to the purposes of the DCP. The 2019 Drought Contingency Plan At the same time, the Sierra Club, “Save In a larger sense, everything involving the Colorado,” and other environmental the Colorado River is Colorado’s business. groups also opposed the deal.116 They Its leaders were at the forefront of argued that the negotiations that led to 2019’s adoption “hydrology has of new “Drought Contingency Plan” changed,” so that (DCP) for the Colorado River.113 It took the DCP should several years of meetings between the have triggered seven states, various federal agencies, an entire new utilities, and numerous environmental environmental organizations. Yet they have dramatically impact different views of the deal they supposedly statement—to crafted together. replace one done just over a Congress passed legislation ratifying the decade ago. Most DCP agreement and President Trump environmental signed it.114 All of the states, including groups, though, supported the deal.117 Colorado, felt good about the settlement, which protects their water entitlements The DCP is an agreement of states, while preserving important flows. Yet consistent with the original Interstate different people can look at the same facts Compact that regulates which states get and reach entirely different conclusions. how much water. It can be modified by mutual agreement, with congressional The largest water user on the River, consent, as has been done here. The states California’s Imperial Irrigation District have agreed to keep enough water in Lake (IID), filed suit to stop implementation Powell and Lake Mead to keep those vital the same day the President signed it into reservoirs from “crashing” as water levels law, claiming it might further shrink the shrink precipitously during sustained Salton Sea—which has very little to do droughts—without reducing their entitled with the agreement.115 In fact, the Salton shares of the river. Sea’s very existence is the result of a disastrous canal failure in 1905, which Some government scientists raised inundated a town, a railroad, and much concerns about the importance of of an Indian reservation. “Saving” that increased river flows to mosquitoes, man-made catastrophe from drying up caddisflies, and midges—and thus to is not the problem of Upper Basin states fish. The main issue is whether Lake like Colorado. More to the point, it is not Powell and Lake Mead will continue really what IID is upset about—the IID serving their purpose of storing water, has been fighting for decades to preserve to supply the allocations among states an old system that allowed its wasteful consistently. Today’s lower reservoir use of the Colorado River. For the new levels are partly due to drought, but also

33 due to the government releasing water Arizona, and knew distribution of the for fish, rather than storing it for people. Colorado River was a sore subject for his The Drought Contingency Plan is an own constituents, so he relied on a line important step in preserving the balance he had often used on the campaign trail between environmental and human back home. He said it was past time the concerns. outdated and unfair old Colorado River Compact should be renegotiated.118 Colorado has the most to lose McCain had no idea what a hornet’s nest The balance between the interests of he had stepped into in Pueblo, but several Colorado and the downstream states is people immediately told him. National even more delicate and more difficult. party leaders quickly explained to him Colorado frequently faces an ominous that you can never say that in Colorado, issue involving all the Lower Basin and that Colorado leaders would never states, namely, their periodic attempts to stand for renegotiation. Indeed, then- renegotiate the Interstate Compact itself. Senator Ken Salazar said it would Several states have always thought the only happen “over my dead body,” and 1922 agreement unfair, especially Nevada Republican Senate candidate Bob Schaffer and Arizona, both of whom receive agreed, using the phrase “over my cold, significantly less water than California, dead political carcass.” McCain’s campaign based on their relative issued a correction, assuring Colorado populations at the time. voters that he would protect their water None of the other states, against thirsty downstream cities.119 however, have as much to lose as Colorado, In truth, the Interstate Compact does should the agreement create an ongoing problem for Colorado, ever be re-negotiated, specifically because its allocations are because only Colorado based on a higher volume of water than has a significant unused is usually there, as discussed earlier. allocation. Whether that is due to the overgrowth of forests and invasive species, or Historically, when climate change, or any other cause, it any political official remains a serious issue. The specifics has spoken openly of the Compact and related agreements about reopening the illustrate why. discussion, Colorado leaders have reacted swiftly, decisively, The Colorado River’s water is divided and with a united front, to put an end between Upper and Lower Basins, half the to such talk. Candidates have generally water allocated to each. The allocations recognized the delicate nature of the issue are based on an annual flow of about 16.5 throughout the West, with one notable million acre-feet (MAF), approximately exception. During the 2008 presidential the 100-year historical average.120 The campaign, Senator John McCain, the Lower Basin states of California, Nevada, Republican nominee, made a campaign and Arizona were allocated 7.5 MAF of appearance in Pueblo, Colorado. He was water, as were the Upper Basin states asked about western water issues—as of Colorado, Wyoming, Utah, and New national candidates invariably are when Mexico (the remaining 1.5 MAF goes to visiting the Centennial State—and his Mexico under a 1944 treaty).121 California answer baffled the crowd. He was from convinced Congress to distribute the

34 Lower Basin’s half by population: 4.4 MAF It is highly unlikely that the other states for California, 2.8 MAF for Arizona, and would ever agree to such a solution, but 0.3 MAF for Nevada. The Upper Basin it is the ethical “high ground” position for states agreed on distribution of their half Colorado leaders. Colorado can readily in 1948, allocating percentages of the acknowledge the Compact’s supposedly annual flow, not fixed amounts. Colorado inherent flaw (over-estimation of the got 51.75 percent (of the Upper Basin flow), while still insisting on the essential half), Utah 23%, Wyoming 14%, and New fairness of the allocations. Saunders was Mexico 11.25%.122 right in suggesting that should be the official policy of Colorado, and the entire Today, some hydrologists say the actual Upper Basin. flow of the River is not 16 MAF, but perhaps 13 over the past 20 years.123 Federal water rights—the most Debate rages about how that affects administration of the river, how to serious threat of all operate the main reservoirs (Meade and While the most obvious threat to Powell), and how to deal with a “call,” or Colorado water is the slow steady transfer demand, from the Lower Basin during to California and other downstream drought years.124 Every time the issue is states, the most insidious and perhaps raised, leaders in the other states—and dangerous threat is the ever-expanding sometimes federal officials—assume definition of federal “reserved water Coloradans will just have to “conserve” rights.” It is a potential threat to water (i.e. use less). More to the point, many in both rural and urban areas, similarly leaders oppose new water storage onerous for both farms and growing projects, because they say there just isn’t cities. any more water to develop—entitlement or not.125 The evolution of this issue is a good example of how initially well-meaning Yet through all of these debates, rarely environmental protections became has any water leader seriously suggested twisted to suit the agenda of a national equally adjusting all the allocations, lobby—one that was not primarily based on the lower quantity of water. motivated by concern about Colorado’s Under current law, the Lower Basin economic future. When the public lands is entitled to its 7.5 MAF, in times of were first “reserved” by Congress to surplus or drought. California gets its remain in public ownership forever, the 4.4 MAF, whether or not there is enough intent was clear. These lands were to be water for the other states. So, if there is preserved for the use and enjoyment of not enough water for the entire Lower future generations and managed in a way Basin allocation, Colorado loses. Glenn that allowed fair access to the resources Saunders, who practiced water law for for the current generation. The National 60 years in Colorado, once argued that Forest system, for instance, was created in the Compact could be rewritten without 1897 “to improve and protect the forests” much difficulty, and without a protracted for two specific purposes: “to secure political battle, IF the percentages stayed favorable conditions of water flows, and the same, with every state’s entitlement to furnish a continuous supply of timber.” adjusted to reflect the actual flow.126 That would make the Lower Basin share 6.5 It was well understood that if greedy MAF, not 7.5, and California would get 3.8, people denuded the forests, they would not 4.4. kill the ability to produce wood for future

35 generations, and they would degrade Even today, landowners, municipalities the quality of water flowing from those and water districts across the West often forests. So the federal officials were to find themselves at odds with federal land manage the public lands to guarantee the managers. The managers are intent on availability of wood and water. regulating water for the benefit of the land, not the people—as if the two are Early leaders in the West built reservoirs mutually exclusive. to store the spring runoff in the high country. Many reservoirs, ditches, Though water is owned by the states, and pipelines, millraces, and other water water rights are regulated under state law, supply systems were built on federal the U.S. Supreme Court had to weigh in land—with as early as 1908, in the famous Winters the explicit v. U.S. case.127 The court ruled that when authorization of the U.S. sets aside an Indian reservation, Congress. Congress it is implied that the government had did so for two also reserved enough water to fulfill the important reasons, purposes of the reservation; the water as valid today as right has the same priority date as the ever. First, at higher reservation’s establishment.128 In 1963 elevations closer the court also confirmed the existence to the original of “reserved water rights,” not just snowmelt, the on Indian reservations, but all public quality of water is lands that were explicitly “reserved,” higher, and the cost of water treatment meaning national forests and parks. is lower. The further downstream water On the other hand, the court began to flows, the more minerals and pollutants recognize government’s over-reach when it picks up, increasing treatment costs. agencies insisted on more water than Second, at high elevations considerably was necessary “to satisfy the primary less water is lost to evaporation because purposes” of the law creating the national it is colder. Thus, capturing and storing forest or park. The government lost a water is best accomplished high in the series of such cases, starting with U.S. v. mountains, and in Colorado that generally New Mexico in 1978. The case held that means on federal property. the existence and quantity of federal reserved water rights depends upon the The issue of federal water rights dates reservation’s authorizing legislation, and from that homestead era, when public the specific purpose for which a particular lands were available to be privatized, park or forest was established.129 Reserved and Congress authorized construction water rights could be claimed by a of roads, water systems and other national forest “only where necessary to infrastructure needed for settlement in preserve the timber in the forest or to the new territories. After the turn of the secure favorable water flows for private 20th century, Congress began to “reserve” and public uses under state law…” but certain public lands—removing them not “for aesthetic, recreational, wildlife from availability for homesteading, and preservation,” or other purposes.130 classifying them as national forests, parks, and wildlife refuges. The change In Colorado, several cases further clarified led to a showdown between existing uses that reserved rights precedent. In an of water and the federal government’s early 1980s Denver water case, courts need to maintain those public lands. affirmed the existence of federal reserved

36 water rights, but those rights are junior recreation and power generation. Fishing to any rights that existed at the time of and boating on Blue Mesa Reservoir, and the reservation.131 A similar case awarded rafting through the canyons below it, are reserved water rights to Rocky Mountain big business in that region. National Park, consistent with the purposes for which the park was created. The Black Canyon was made a national But the courts denied U.S. Forest Service monument in 1933. Thirty-eight years (USFS) claims for more general instream later the government clarified its intent flow rights, and a claim for recreational that the monument should also include flows in Dinosaur National Monument; water rights, a flow sufficient to keep because both uses were unrelated to the canyon beautiful, and available for the purposes for which those parks fishing and rafting.135 However, despite and forests were established.132 In the the development in the 1960s of the 1990s the federal government claimed reservoir system just above the canyon, an instream flow right for “channel the rapid growth maintenance” in the South Platte River. of communities The courts denied the claim, mainly on that use water the grounds that the USFS did not need from the same “channel maintenance” rights, because it river, and a huge already had other land use authority to push by the state regulate “and limit” third-party diversions government in the national forests.133 The authority has in the 1980s to been oft-used by federal managers. protect such “instream Black Canyon of the Gunnison flow” rights, the federal The built-in conflict between federal, government state, and private water rights reached never bothered the boiling point over the National Park to quantify its Service’s claim for water rights in the water rights “Chasm View,” Black Canyon of the Gunnison, NPS Black Canyon of the Gunnison River. The for the Black Gunnison River, like most in the West, has Canyon. Remember, under the laws of more users than water, so the seniority most western states, water rights cannot of water rights is enormously important be decreed until the amount, duration, to irrigation districts, ranches, cities and and location are determined. Yet decades towns along the river and its tributaries. after creation of the park, that is what In addition, the largest reservoir in the federal government proposed to do— Colorado sits above the Black Canyon. retroactively. Blue Mesa Reservoir, together with the Crystal and Morrow Point dams that form The struggle began with a 1978 case, the “Aspinall Unit,” is a critical component in which a court said the Park Service in a very complex system for regulating had a reserved water right there, and the flow of water throughout the seven- ordered the agency to quantify and file state Colorado river system, supplying for that right. Two days before the end of downstream irrigators and cities, the Clinton Administration in 2001, the storing several years’ supply of water, government finally did so, insisting that and making it available year-round.134 the rights would have an original 1933 Thousands of people depend on that priority date. That was an immediate water for numerous purposes, including threat, of course, to every water rights

37 owner whose rights were decreed later; used the case to pioneer an important there are hundreds of them, including precedent, showing how federal water virtually all the farms and ranches interests can be protected under state above Gunnison.136 The Colorado Water law.138 There is really no need for a divisive Conservation Board (CWCB), which has state-federal battle if the environmental jurisdiction over “instream flow” water protection agenda is genuine. Colorado rights, had already decided that at least law explicitly allows water rights to be a reasonable argument could be made held for “instream flow” purposes, to on the federal government’s side of the maintain and improve the environment priority question, so instead of fighting “to a reasonable degree” (meaning, trying over the date, the agency focused instead to protect other interests, too). Under on how much water federal officials this important law, only the State can wanted. The Park Service’s answer, in the own such rights because the State can January 18, 2001 filing, was astonishing. also protect other existing interests in a dispassionate way. So CWCB used that The agency proposed, in essence, to own law, filed a claim for instream flow rights the maximum possible historic flow in the Black Canyon on behalf of the during the wettest years on record—not State, in quantities that would reasonably just during the spring runoff season but protect the flows in the canyon, including year-round. That would mean completely large historic springtime flows, without changing the multi-state management causing the major damage the original agreement that runs Blue Mesa Reservoir, federal plan would have caused. The to the detriment of vital electric power agreement was a historic compromise, generation, as well as downstream cities cosigned by Interior Secretary Gale and towns. It would mean drying up Norton, Colorado Attorney General numerous farms and ranches upstream in Ken Salazar, and Natural Resources the Gunnison Valley, flooding a portion of Department Director Greg Walcher.139 the town of Delta, including part of U.S. 50 and a vital railroad. Perhaps worst of all— The deal was a happy ending to a decade- since the government claimed the plan long battle, viewed by many as a way was for the benefit of the environment— forward on similar struggles in other experts at the Colorado Division of states. Several Western states asked for Wildlife said that extreme amount of copies of the agreements, and there was water would destroy a world-famous gold- talk of a similar approach in at least a medal fishery in the Gunnison Gorge, just dozen other major cases. Everybody below the Black Canyon. In all, over 380 won, and everybody was happy—almost. water users across the West had interests The only people involved who were not threatened by the federal plan, filing more happy with the result were a few national objections than in any case in the history environmental organizations, whose of western water law.137 agenda was to stop many existing uses of water. Some would have been happy Stories like this are actually common to see farms and ranches dry up, and in the West, where federal assertions of downstream cities and towns curtailing water rights seem to trump all previous their growth. They clearly did not care local interests, on the theory that federal about the impacts of flooding the town of interests take priority over state and Delta. local interests. In the Black Canyon of the Gunnison case, there are good and As soon as the wave of good publicity bad endings to the story. First, Colorado from the historic deal had blown over,

38 these groups filed the inevitable lawsuit Earlier this year, for example, the House against the federal government for passed a wilderness bill that Rep. Diana “abdicating its responsibility” to take the DeGette has repeatedly introduced for most water it could get, and for allowing over 20 years.142 It would designate as the use of state law to protect federal wilderness some 660,000 acres in 36 interests. They said using state law to areas in Colorado, as well as 478,500 140 protect federal interests was illegal. acres in California and 131,900 acres in Washington (none of which are in A Denver district court judge agreed DeGette’s Denver district). Similarly, with the environmental groups and ruled the House passed a wilderness bill against the historic settlement. That sent the parties back to the negotiating table, last fall sponsored by Rep. Joe Neguse, resulting in a final settlement 5 years designating about 400,000 acres, mainly 143 later, with the reserved flows somewhat on the Western Slope. In both cases, reduced, but no longer relying on State and several others, the bills have virtually law to preserve the instream flow.141 no chance in the Senate, and the primary The agreement that had been touted objection is their silence on federal as a potential solution to hundreds of control of water.144 That controversy has contentious cases throughout the West been at the heart of Colorado wilderness was soon forgotten. The long-term discussions for 40 years. implications for future federal reserved rights cases is uncertain, at best. The last major wilderness bills for Colorado were negotiated by Senators Forty years of wilderness water Bill Armstrong and Gary Hart in 1980, and Senators Tim Wirth, Ben Campbell, debates and Hank Brown in 1993.145 They passed Federal agencies have now asserted because they explicitly protected existing federal water rights on nearly every water rights, as well as preserving national forest, national park, and wildlife Colorado’s right to develop its entitled refuge in the West, along with numerous waters in the future. In the 1993 bill, when BLM parcels. Environmental groups water had become the primary stumbling continually file lawsuits on the issue, block, Congress explicitly disclaimed and agencies use designations such as either an express or implied reserved “Wild and Scenic Rivers,” “Natural Areas,” water right, precluding any future “National Conservation Areas” and others assertion of a wilderness reserve water to stop new uses of water, other than right in Colorado.146 instream flows and recreational rights. In Congress, a great deal of environmental Congress has been all over the map on protection work—especially wilderness the same wilderness-water issue in other legislation—has ground to a halt for 25 states. In the 1980s wilderness bills were years because of the debate about how passed for both Utah and Wyoming, both to handle the water rights. Advocates of which clarified the need for federal for more wilderness, and those seeking water rights to be adjudicated in state to “release” wilderness study areas both courts, and junior to existing water find their efforts frustrated by the lack rights. The Wyoming bill also prevented of consensus on the primary issue in the any federal assertion that would stop a West. The top-down command approach planned water project. However, a 1987 generally taken by federal agencies, and New Mexico wilderness bill (El Malpais) the us-against-them approach of land and and the 1994 California Desert Protection water owners, mostly results in stalemate. Act, both expressly reserved sufficient

39 water to carry out the purposes of the federal land, but because the federal wilderness areas. In a 1990 Arizona BLM government owns all the big mountains.150 wilderness bill, Congress went even Twenty-two ski resorts in Colorado own further, reserving water “sufficient to 112 separate water rights.151 Those include fulfill the purposes of the legislation,” and Aspen, Snowmass, Loveland, Vail, Beaver directing the Interior Department to file Creek, Keystone, Breckenridge, Copper claims to quantify the rights and take Mountain, Crested Butte, Steamboat, steps necessary to enforce them.147 Purgatory, Telluride, and Winter Park (and most of the smaller ones, too). The Why the differences in the way Congress federal government owns the land, but it has approached these issues in Colorado, does not own the snow, the streams, and as compared to other western states? In the water, which belong to the people of a nutshell, because water issues are more the State. That has been a sticking point controversial, more difficult, and more for years with the USFS for years, which wants to own and control all the water important in Colorado than in any other that crosses national forests. Almost no state. western landowners own or control all the water that crosses their land, but federal It might seem obvious that preserving officials think the government should own public land requires protecting the all the water that crosses its land. associated water, too, but that is not where the discussion ends. That would Federal courts dealt the agency a major provide easy agreements in most cases, blow in the ski area case in 2012. The but that is not what the argument is really court sided with the ski industry and said about. It is, put simply, about the use of such a requirement would be a taking of water issues to impede already-existing private property without compensation, businesses, cities and towns, farm and as forbidden by the 5th Amendment. So ranches, and the ability for such human in 2014 the agency floated a proposal for uses to grow in the future. a lesser requirement: ski areas would have to prove there is enough water to operate The government never gives up into the future, as a condition of their permit. Despite all the court cases “clarifying” what rights the USFS has and does not It is somewhat daunting to be asked to have, the agency has continually sought prove how much water might be available to tie up existing uses of water, with an in the future to meet an arbitrary agenda to leave it in the streams, for “sustainability” standard, but at least it environmental values, and coincidentally, stopped short of an actual federal taking for California. In 2015, the agency was of the water right. So that is what the forced to withdraw from a decade- USFS finally decided it must accept, but long attempt to require ski resorts to only because it was clear they could not transfer their water rights to the federal win the legal case. For the time being, 148 government. The USFS announced that ended the ski area threat, with the the major policy shift on December 30, government officially albeit grudgingly perhaps hoping that few would notice.149 acknowledging that water rights, even on national forests, are a matter of State law. All the major Rocky Mountain ski resorts Still, it seems unlikely that the USFS will (122 of them, with over 25 million skier permanently give up on something it has visits annually) are on national forests— wanted for 30 years, just because it lost not because the ski industry prefers one court case.

40 Federal control over the ski areas’ water are located. The water rights, and the could only serve one purpose, namely, to structures, are private property. Since curtail its use by the ski areas. That would these water systems are vital to the put federal land managers, not ski resort survival of farms and ranches, and will experts, in the position of deciding how not work unless regularly cleaned and and when snowmaking is needed, and maintained, and because the USFS other questions that could literally make remained intransigent on the issue, or break some of the most important Congress finally stepped in. businesses in Colorado. The direction from Congress was clear— the USFS was to acknowledge existing The Colorado Ditch Bill—one attempt ditches by issuing permanent easements, to block federal control allowing maintenance and access as needed for operation; the agency was If further evidence of this long-term given 10 years to work through the federal agenda is required, one need only process once and for all. Specifically, look at the saga of the “Ditch Bill” that the “Ditch Bill,” carried by the late U.S. began in the 1970s and lasted nearly 40 Rep. Mike Strang (R-Carbondale) and years. It evolved from a series of disputes passed in 1986, required the government in which the USFS attempted to require to issue permanent easements for water permits for the owners of existing conveyance systems that existed before reservoirs and ditches on federal land to 1976. The owner had to request the maintain or repair those water systems. easement by 1996, and had to have a valid In many cases, the government even tried water right under state law. to extort from the owners a portion of their private water rights in exchange The Ditch Bill was intended to provide for the permits. Owners argued that the for continued agricultural irrigation reservoirs and ditches had been there notwithstanding other land management for decades—many of them predate the decisions, even wilderness designations.152 existence of the national forests—and To address the wilderness issue, the people have a right to maintain their bill stated that maintenance on ditches property. that cross wilderness areas must be done “consistent with” both wilderness And they were outraged by the agency’s management and maintenance of attempt to take part of their private the private easement. The intent was property, a clever ploy the USFS called ranchers and forest managers should “bypass flows”: the water owners would use common sense, and if possible try to be required to let part of their water maintain ditches without building roads “bypass” the ditch and remain behind or using motorized vehicles. in the stream—in exchange for a permit The environmental lobby opposed that to maintain or repair a dam, headgate, language, saying access for dam repairs weir, or ditch. In other words, the federal would be a “disaster” in wilderness areas. agency in effect was saying, “we’ll allow Ironically, under the Wilderness Act, areas you to repair and maintain your private should never be designated wilderness property—if you give us part of it.” in the first place if they contain dams, reservoirs, ditches, or other structures built by people.153 After all the debate, These were not cases where the though, Congress determined that the government owned any water rights; farmers were right, and provided clear the federal government only owns the direction. land across which the ditches or pipes

41 Ranchers hailed the bill’s passage as a such federal rights. It has taken action victory for private property rights. By the to release some claims, but held fast to 1996 deadline, the USFS received 2,500 others. requests for the easements, but a decade later had “processed” and issued only In the Colorado Ditch Bill, Congress 600 of them. In 2004, under increased instructed the USFS to grant ditch pressure from Congress, the agency easements, and gave it a deadline. But finally got around to issuing direction to Congress did not act when the deadline its local managers on how to deal with passed without the required USFS action. the matter, though they slow-walked the One reason for the delay was pressure process; a decade later only about 60% of from individual Members of Congress the easements for which applications had who did not support the easements. been received had been completed. Some of those were finally issued by 2013, and Congressional reaction to the mishmash some were never issued.154 of conflicting laws is all over the map, too. Angry hearings have been held—on The paralysis of federal land management both sides of these issues—with senators agencies is not necessarily their choice. It alternately berating federal managers is better understood as a creation of the for asserting federal control over water, Congress. Congress alone can be blamed and for not doing so. Congressional for creating the contradictory laws about schizophrenia on the matter has added to who is in charge of water. As shown the resentment and economic disruption earlier, Congress has often made clear across the West. A clearer understanding that water management is a function is badly needed. More than once, of state, not federal law. Yet it has also legislation has been introduced that created federal reserved water rights, would declare all water in the United sometimes without a requirement that States to be federal property. That has not they be filed under state law, and in other yet seen the light of day in any hearing instances Congress has plainly disclaimed room, but perhaps the outcome will the existence of such federal water rights. eventually be the same, with Congress and federal agencies steadily chipping Throughout the homestead period, away at interstate agreements, state water Congress passed a series of laws granting laws, and private water rights. easements across federal lands for roads, rails, and water systems. When Such federal control, and attempts at those laws were repealed by the Federal further federal control, remains the single Land Policy Management Act of 1976 greatest threat to Colorado’s water future. (FLPMA),155 Congress explicitly recognized the continued validity of all easements NWOTUS—the law means exactly already granted under previous laws. Yet over the years since, it has also what it says, but EPA ignores it complicated that simple “grandfather” Perhaps the most onerous recent clause by acknowledging and tolerating threat to private water rights in the bureaucratic delays, competing claims, West is the continuing litigation about and legal action. “WOTUS.” Within two months of his inauguration, President Trump ordered Congress has passed some wilderness the Environmental Protection Agency bills that included federal reserved water (EPA) and Army Corps of Engineers rights, but others specifically disclaiming (USACE) to withdraw their controversial

42 “Waters of the United States” (WOTUS) and USACE’s statutory authority. Colorado regulation, and the agencies did so.156 was one of those states, so the injunction That had the effect of temporarily blocked the Obama Rule’s implementation reverting to the previous uncertainty, with in Colorado. However, several other states constant disputes about which waters litigated in support of the Obama Rule, fall under the agencies’ federal permitting and a different federal court disagreed jurisdiction. with the 6th Circuit, reinstating the 2015 rule in those states. The result was a rule In 2015, the Obama Administration blocked in 26 states, but implemented tried to resolve that long-standing in 24 others. That inconsistency and controversy, in essence by asserting confusion made WOTUS a significant absolute federal jurisdiction over nearly campaign issue in 2016, with Trump all water everywhere.157 Nothing in the publicly promising to repeal the new rule Clean Water Act gives either agency if elected. such overwhelming power, yet the administration nevertheless used its new The legal confusion stemmed from the “interpretation” of WOTUS to establish 2006 Supreme Court case Rapanos v. absolute control. U.S. about the Clean Water Act. Five Justices ruled against the EPA criminal The EPA and USACE said the new rule prosecution of the defendant, but they gave them “broader authority over the were split as to the rationale. Four nation’s waterways.” But it wasn’t just Justices joined in a plurality opinion; the nation’s waterways—it was virtually Justice Anthony Kennedy agreed with the all water. EPA said it would prevent plurality’s result, but wrote a separate the wanton destruction of wetlands by opinion. According to Justice Kennedy’s developers and farmers. They claimed opinion, which most lower courts treated Americans had already drained half of the as the controlling opinion, the EPA could 220 million acres of wetlands that once claim authority wherever there was a existed, mostly to increase farmland. “significant nexus” between navigable waterways and smaller bodies of water.158 In other words, all those levees and dikes But in 2015, the Obama EPA ignored the that permit agriculture throughout much word “significant” and essentially claimed of the Mississippi and Missouri basins (i.e. all water is eventually tributary to some the Great Plains) were a mistake. Never river. The Trump executive order said mind that most of the draining was done EPA should rely instead on the dissenting by the U.S. government, or that the region opinion of Justice Antonin Scalia, who is now the breadbasket of the world. EPA argued that the law specifically applies sought to restrict, regulate, or even stop only to “navigable waters.”159 Critics such activity, by asserting its authority hooted at that interpretation, but in fact over every stock watering pond, ditch, that is what the law says. puddle, and parking lot drain in the U.S. That was a vast expansion, considering The original Clean Water Act of 1972, the Clean Water Act specifically applies to from which the EPA and USACE are America’s “navigable waters.” granted authority, contained the phrase “waters of the United States” in More than half the states sued, and the eleven places. All eleven use the phrase 6th Circuit Court of Appeals enjoined “navigable waters of the United States.”160 implementation in 26 states, ruling that There is also a definitions section in the the new interpretation exceeded EPA’s law, in which “navigable waters” is defined

43 as “waters of the United States,” meaning thriving again. Poisoned and flaming the terms are synonymous. In other rivers are now consigned to the history words, there are no “waters of the United books, thankfully. That doesn’t mean States” that are not navigable. Not in the there are no more water quality issues. plain language of the Clean Water Act. Conservation requires constant vigilance. But it is the nature of all government That landmark anti-pollution law has bodies to grow in scope, to constantly been amended numerous times since become larger, more powerful, and better 1972, including major additions in 1977 funded each year. EPA and USACE are no and 1987.161 Still, in every line where the exceptions. phrase “waters of the United States” appears, it is either preceded by the word Thus, there has been a continuous effort “navigable” or refers clearly to inter- to expand the meaning of “navigable coastal waterways, and to pollution from waterways” and “interstate commerce,” boats, ships, and oil rigs.162 Congress past the point of common sense. For has never changed the plain language years, EPA and USACE have called almost giving the executive branch the authority all flowing water “navigable,” including to require permits only for “navigable ditches and streams nowhere near waters of the United States.” The accurate large enough to float a boat, much less acronym is “NWOTUS,” not “WOTUS.” one involved in interstate commerce. The 2015 WOTUS rule bluntly declared Why it was written that way virtually all water to fit that definition, if it is tributary or connected in any way The issue is not as complicated as many to water that obviously qualifies. The people assume. When Congress adopted problem with that is, virtually all water the Clean Water Act, it sought to end eventually makes its way into streams, pollution of the nation’s waterways.163 It lakes, rivers, and ultimately the ocean. was a long-overdue response to wanton That certainly does not mean that all disregard that caused rivers to catch fire, water is navigable, commerce-supporting, poison drinking supplies, and kill fish and or was ever intended to be regulated by wildlife habitat. The new anti-pollution the EPA. agency (EPA) was tasked with setting acceptable standards and establishing In 2016, candidates openly talked about regulation that would end pollution of the EPA’s regulatory over-reach, and the “navigable waters of the United States.”164 issue rang true for millions of voters. As Because Congress didn’t presume to a candidate, Donald Trump promised control all water in the country (most to address the matter early in his of which was and is regulated by states), Administration.165 It may be one reason the Clean Water Act was written to he did so well in rural counties across the apply only to “navigable waterways” that West. 166 served “interstate commerce”—clearly within Congress’s constitutional powers. The federal government has a legitimate The Clean Water Act asserted no federal role, as Trump’s 2017 Executive Order authority over smaller bodies of non- acknowledged, to “ensure that the navigable state waters. Nation’s navigable waters are kept free from pollution, while at the same time Major rivers and lakes across America promoting economic growth, minimizing have made amazing comebacks since regulatory uncertainty, and showing due 1972, with fish and wildlife populations regard for the roles played by Congress

44 and the states under the Constitution.”167 that touches nearly any body of water, on But that obligation does not extend to public or private land. The West won that asserting federal control over virtually battle, at least temporarily, unless its own all water, and nothing in the law gives leaders decide to surrender. It is not clear either the EPA or USACE such authority. whether the Biden Administration will Such over-reach was not only ill-advised seek to reverse the Trump WOTUS rule, and impossible to enforce, it was also a but if it does, the West should be prepared significant threat to the future growth and to fight the battle again, not surrender. prosperity of western states like Colorado. It is a battle the State can win, as already proven, and Colorado’s economic future Will Colorado surrender—after could be at stake.172 winning the battle? The legislature pushes back against In a move that should seem shocking to Colorado leaders who have generally federal control viewed water issues as non-partisan Attorney General Weiser’s action flies in (because of the need to maintain a united the face of legislation signed in 2016 by front against all threats), newly-elected Governor Hickenlooper. That bill was a Attorney General Phil Weiser, shortly after reaction to the ill-fated Forest Service taking office, withdrew Colorado from the attempt to confiscate ski areas’ water litigation, and expressed support for the rights. This time Colorado pushed back. Obama-era rule.168 In May he went beyond that, and filed suit against the EPA’s newly It isn’t often that legislation on complex rewritten “Navigable Waters Protection water issues passes both houses of the Ru l e .” 169 170 Colorado legislature unanimously. The “Colorado Water Rights Protection Act,” Understandably, several national with unanimous bipartisan support, set environmental groups are opposed to a very important precedent in modern the Trump version of the rule and want water law. to return to the 2015 power grab. But for the State of Colorado officially to The measure re-asserts the constitutional endorse that view, and to spend public principle that waters of Colorado belong funds doing so, is to upend 144 years of to the people of Colorado water law, and more than a Colorado, are century of the leadership of both parties adjudicated by defending Colorado water rights against State water courts, federal control. Since 1952, the federal appropriated under government has waived its sovereign State law, and immunity in deference to state water administered by the laws.171 Through all the cases cited earlier, State engineer. 173 and through the political battles since That was not new, 1952, the “McCarran Amendment” has but it had been made clear that water belongs to the many years since states. A Colorado Attorney General the Legislature has attempting to erode that deference invites said, in essence, we still have no intention federal mischief that could seriously of changing our system just because the endanger future growth and prosperity federal government now wants more for his own State. The federal government power over water. sought control over virtually any activity

45 That restatement of principles reminds the bill requires that office to refuse federal agency landlords that they, too, enforcement of improper federal water serve the public and are expected to claims. Thus, federal agencies like USFS operate under the law. Moreover, it can no longer rely on the State to help signals the State Attorney General, and subjugate its own citizens. Perhaps more State agencies, that they are not only to the point, such federal overreach in authorized, but encouraged, to take legal the future might find serious obstacles— action when Colorado water rights are not just political opposition from ditch threatened by federal overreach. companies and water districts, but legal opposition from the State itself—at The bill was “watered down” (hence least if the Colorado Attorney General is the unanimous support) to the willing defend Colorado rights. It is vital disappointment of some advocates, that Coloradans stick together to defend especially in acknowledging existing their water system against all threats, federal water rights. But when the USFS including federal control. As this law tried to extort actual ownership of the makes clear, that is State policy.175 ski areas’ water rights, as a condition of allowing them to continue operating on the national forests, it was too much for both parties. The Governor and Legislature officially said they would tolerate no more of that.174

The Colorado Water Rights Protection Act makes clear at least the State’s official policy, that if any federal agency wants to own water rights in Colorado, it must apply and go through the same water court process as anyone else. The federal government must get in line and comply with the priority system that applies to all water users. Some observers say the law has no teeth. After all, if federal agencies didn’t care what Colorado wanted in 2015, why would Gov. John Hickenlooper signs Colorado Water Rights they care now? But Protection Act, 4/21/2016, with Sens. Kerry Donovan in fact there are & Jerry Sonnenberg, Reps. Diane Mitsch Bush, Jon some teeth in the Becker & Speaker K.C. Becker law, symbolism aside.

Since the actual administration of water systems and enforcement of water court decrees is done by the State Engineer,

46 SECTION 5—WHAT’S NEXT? A Few Suggestions As Ben Franklin wrote in the 1746 edition of Poor Richard’s Almanack, “When I told my troubles to the river the well’s dry, we know the worth of She shared them with the seas water.” Faced with a complete shut-off She returned them to me doubled of the water to whole communities, The river holds no offer of peace and especially to hundreds of miles and - Tom McRae thousands of acres of farms Conservation and ranches, Because there is not enough storage water officials in any of the state’s main river basins, in those years Colorado water issues can never end with turned every conservation alone—but the discussion stone and must always begin there. Conservation examined every is the essential foundation of all water means for law. Intelligent leadership on the issue saving limited presupposes that Coloradans use water supplies. whatever water they have in the most In Colorado, efficient and responsible manner possible. several new principles were established Public funds should never be spent on that will benefit future generations. water projects that are not needed. Nor should water ever be diverted from its For example, one quirk in western natural stream in order for wasteful water law that irks many homeowners people to squander the precious resource. is the prohibition against capturing That principle seems obvious but water and using rain water that falls on their conservation is subjective, elusive, and roofs, because another water user impossible to define. downstream may own water rights that are senior to an upstream user who Earlier in this century, several western might otherwise save rainwater. Every states endured the worst drought in 800 individual homeowner could capture years.176 Several major cities, including precipitation in that manner, but very Denver and Cheyenne, implemented few of them actually own water rights. water rationing for a time, and the eastern So if an entire city of people did that, plains saw wind and sand reminiscent they could effectively “steal” a substantial of the 1930’s dust bowl. The flow of the amount of water owned by downstream Colorado River was only about a third of farmers or cities. During the drought in its long-term natural flow, less than half 2003, though, several of the cities in the of its flow during the 1930s. Worse, the Denver area found they could capture drought of 2001-2004 resulted in all-time wastewater for use and reuse, without low water levels in many of the major harming downstream farmers by releasing reservoirs used to store water for such other water the cities owned in upstream dry periods. Many of those reservoirs are reservoirs, and letting it pass downstream still not filled to capacity again. Similar to the farms. Such water “exchanges” droughts were experienced in 2013, allowed huge amounts of water to when Denver again implemented water be conserved without the need for 177 restrictions. It is a recurring problem in protracted legal procedures to buy, sell, the arid West.

47 or trade water rights. Today, such water always mean more new dams and exchanges are commonly used all over reservoirs. There are several other the West as a more efficient means for approaches to new storage. moving water from one place to another without harming anyone. Underground storage In California, several of the largest new To many people the idea of water reservoirs funded by a $2.5 billion water conservation means low-flow toilets bond, approved by voters in 2014, are and shower heads, watering lawns less actually not stored behind any dam on often, or even xeriscape landscaping. any stream, but underground.178 There Such measures are second nature to are many underground rock formations many conservation minded Coloradans. that create “bowls” where water can That has not always been the case, and be stored—places where an underlying retrofitting rock layer is impermeable but topped entire cities by a layer of porous rock like sandstone, with such where water can be pumped underground modern and will stay in place until needed. That technology requires a bowl-shaped formation with no is expensive cracks, so water will not flow anywhere, and and there are many such places all over disruptive. It the country. Today’s leaders should took Denver be investigating those locations, using 20 years to resources like the U.S. Geological Survey Recharging aquifers is a fast-growing strategy. Photo: accomplish and its state counterparts to map not Superstition Mountains Recharge Project in Arizona - CAP it, and many just the surface of our lands (most of cities are still which has been done), but its underlying in the process. Despite the difficulty and structure (much of which has not). expense of such measures, they are a mere “drop in the bucket” in terms of saving Consider the economics, by comparison water. Conservation on a larger scale— with dams and reservoirs. In the way beyond shower heads—is needed in California example, the Contra Costa much of the arid West. Water District plans to raise the height of the existing Los Vaqueros Dam by 55 Part of that solution, as covered earlier, feet, which would expand the reservoir’s should include strong incentives for capacity by an additional 115,000 acre- agricultural users to conserve water, such feet, at a cost of $980 million.179 A second as fixing the “saved water rights” issue, project in Santa Clara County would and allowing marketable easements construct a new dam and reservoir at that could finance system upgrades and Pacheco Pass, with a capacity of 140,000 efficiencies. acre-feet, at an estimated cost of $969 million.180 A bigger cistern—storage remains the By contrast, funding was also approved for critical element four underground storage projects totaling In Colorado, partly because of advances in $649. Just one of those projects, the Willow technology, there are actually numerous Springs groundwater bank (50 miles north ways to increase and improve the water of Los Angeles) could add 500,000 acre-feet supply. More water storage is badly of new storage, and the cost is only $95 needed, but that does not necessarily million.

48 Aquifers are often located closer to the left many Coloradans very suspicious of communities they would serve, sometimes any activity at old abandoned mines.185 directly under the city, which greatly reduces pumping and piping costs, But the water in Gold King Mine was not and they can be recharged easier than purposely stored there for future use; reservoirs can be filled.181 The greatest clearly that would not have been a useable advantage for the arid West is avoiding site. It built up over time because of a evaporation. Consider that Lake Powell is poorly designed drain plug installed years estimated to lose over 380,000 acre feet to earlier.186 All mines are different and there evaporation annually (more than Nevada’s are many locations where such risks are entire share of the river), and Lake Mead not present. In many such mines, water almost twice that much.182 Groundwater storage is not only feasible, but potentially aquifers have no evaporation at all. There extensive and cost-effective. are also manmade underground holes, especially abandoned mines, that can be Enlarging existing facilities used for water storage and several states There are also thousands of existing have successfully done that. Colorado has reservoirs that could store more water 23,000 abandoned mines,183 though there than they do, including nearly every is no comprehensive study of which sites single one in the arid west. In many cases might work for water storage. Water stored reservoirs no longer hold their original underground does not require dams, does capacity because they fill with silt over not interrupt stream flow or fish habitat, time, as did the Kenney Reservoir. In and is not lost to evaporation, so the other cases their water level must be State should seriously consider funding lowered or restricted because the dam is such an analysis, perhaps by the Colorado in need of repair. In Colorado, 168 dams Geological Survey, or a private geology are restricted from their full capacity contractor. because of dam safety issues. The South Platte Basin alone has 63 restricted dams, Coloradans are rightfully skeptical after resulting in the loss of 25,000 acre-feet of the 2015 EPA blunder that released storage capacity.187 millions of gallons of toxic orange sludge from the Gold King Mine above Silverton. Nationally, more than 15,000 dams are The waters turned orange for 100 miles, classified as “high hazard potential, and in Cement Creek, then the Animas River, the Association of State Dam Safety the San Juan River, and ultimately Lake Officials estimates that it would cost $65 184 Powell. Colorado and New Mexico had billion to rehabilitate them.188 However, to declare states of emergency. At least considering the additional water storage four counties banned swimming, fishing, that is possible without the need for new or floating on the rivers. The Navajo reservoirs, repairing existing dams may be Reservation had to stop water usage. considerably cheaper than building new Farmers had to close irrigation headgates, ones. And in the case of existing dams, the and ranchers could not water livestock. political fights have already been waged It was a disaster for rafting companies and settled, so repairing and rebuilding (big business in Southwest Colorado) is much easier than starting over in a and others. The subsequent EPA cover- different place. up, congressional investigations, mass media coverage, and government delays in Existing reservoirs can not only be filled providing information or cleanup funding, to capacity, but in many cases can be

49 enlarged considerably cheaper than A fourth of that capacity is at the three the cost of new construction, as with dams that comprise the Aspinall Unit on Denver’s proposed Gross Reservoir the Gunnison River. But there are dozens enlargement. The possibility of a of smaller facilities, and many more statewide program of enlargement should places where they could be added, taking not be underestimated—Colorado is advantage of already existing dams. home to 1,963 dams. Approximately 113 of them are federally owned, and 1,288 are The federal government has added private (mostly agricultural). But 72 dams hydropower generation to existing dams are owned by the State of Colorado, 397 several times in recent years, including by local governments, and 93 by public at Ridgway Dam on the Uncompahgre utilities.189 River and the South Canal project near Montrose.191 Both are roughly 8 megawatt The Gross Reservoir project involves facilities, enough to add considerable adding height to the dam, and there are capacity to the grid in that area (power many dams where that is feasible. In for 5,000 homes). In a State that has many other publicly committed to 100 percent cases, the renewable energy in the next few years, structure can hydropower ought to be closely examined. be enlarged by Installation can be expensive, but systems dredging the last considerably longer than solar bottom deeper. panels or wind turbines, and their annual In thousands maintenance cost is lower.192 of existing reservoirs, The Colorado congressional delegation merely has worked to reduce some of the removing silt barriers to new hydropower construction, Tri-County Water Conservancy District’s 8MW hydropower plant at Ridgway Dam that has been especially the daunting federal permitting deposited since process. Then-Rep. Cory Gardner and the original Rep. Diana DeGette cosponsored the dam construction can return a far greater Hydropower Regulatory Efficiency Act, storage capacity than what is left today. which exempted small hydropower That is as true with giant reservoirs projects from Federal Energy Regulatory like Lake Powell as with small ones like Commission permitting requirements.193 Kenney Reservoir. In some instances, Also, Rep. Scott Tipton carried a bill to even the original floor of the reservoir authorize hydropower installation at can be deepened significantly, depending Bureau of Reclamation facilities.194 Both upon the geology. Leaders should also bills became law, paving the way for be studying these options, to ensure that additional hydropower installations in Colorado is using all the storage capacity Colorado. it has already paid for, conserving water to the maximum extent possible without In 2011 and 2012, the Bureau of new construction. Reclamation identified 37 existing dams and 28 canals in Colorado where new Hydropower as renewable energy hydropower facilities could be installed, estimating that 342,000 megawatt hours Colorado has about 60 hydroelectric of electricity could be generated each power systems that are capable of year by doing so.195 With similar potential producing 1,160 megawatts of power.190 at hundreds of sites owned by the State,

50 local governments, and utilities, it seems and riparian areas. And while tamarisk clear that hydropower has the potential consumes about the same amount of to contribute significantly to Colorado’s water per tree as the native cottonwoods green goal. and willows it has replaced, it grows in far greater density, often in stands of over Environmental restoration—the 3,000 trees per acre. Tamarisk covers nearly 2 million acres of American river largest water project of all and stream banks.196 There are other tools available to increase the supply of water in Colorado’s Simple math shows that if tamarisk could rivers and lakes. At the top of the list be eradicated from American rivers, throughout the West is dealing with the result would be among the largest an invasive, non-native plant species water projects ever built. Consider the variously known as tamarisk, tamarix raw numbers. If there are 3,000 tamarisk or salt cedar. The plants were imported trees per acre, covering almost 2 million into the West by well-meaning settlers acres of river banks, that is 6 billion who liked the attractive color of their tamarisk trees. If they consume 32 wispy spring blooms, and their rapid gallons of water per day each, as is now growth that helps inhibit erosion. No one estimated,197 that is anticipated how effectively they would 192 billion gallons spread across virtually every river system of water every in half the United States, nor was there day. If replaced any understanding of how much water by the native they would consume. These trees grow cottonwood and more like dense shrubs, more than 20 feet willow vegetation tall, and form a dense thicket that chokes (which consume out virtually all other plant life (they also a similar amount poison the ground with salt that kills of water per tree, other plants). Tamarisk spreads both by but occupy only a roots and by seeds, which are borne on quarter as much both wind and water. It sheds so many land, and with Tamarisk along the Colorado River west of Grand leaves and needles that it increases the considerably lower Junction. frequency and intensity of wildfires that density), roughly kill other plants, while tamarisk growth 75 percent of that is actually stimulated by fire. Property water would remain in the rivers—roughly owners today have learned that when 144 billion gallons per day. That is almost a tamarisk tree is cut, it must also be five times as much water as the entire sprayed with deadly herbicide within United States uses domestically each day a few minutes, because it can seal the (88 gallons per person)198—clearly enough wound almost immediately to protect its to supply the needs of thirsty cities and roots, which will quickly sprout again. the environment. More to the point, it Thus, it has become one of the most would put over 400,000 acre-feet of water difficult of all non-native species to back into the river system. control, and is Colorado’s most insidious and least known water problem. Legislation passed in 2003 and 2006 gave over $50 million federal dollars to Tamarisk has tap roots that extend down research universities, and non-profit as much as 100 feet. They can lower water “demonstration projects.” The tamarisk tables and dry up entire springs, wetlands still thrives, despite all the studies.

51 The Tamarisk Coalition, now known skewed their figures. It is a convenient as RiversEdge West, based in Grand argument for opposing new water Junction, has raised national awareness of projects; one can simply claim there is the magnitude of the problem, made great no more available water. It is convenient, progress in organizing eradication efforts, but it is wrong. Leaders who negotiated added to the scientific understanding of the interstate water agreements (mostly the species, and is woefully underfunded. between 1920 and 1950) had decades Raising less than $4 million a year, it can of river measurements on which to restore less than 2,000 acres a year. base their assumptions, not just a few unreliable years. Several gaging stations Evapotranspiration and the date from 1906.200 The Colorado River and its tributaries, for example, had been mismanagement of public lands measured regularly for more than 40 years Plants that grow along streams and when the first compact was negotiated, rivers and soak up water are called and some of the best engineers in the “phreatophytes.” Tamarisk and willows country worked on it. They were not are examples of such plants, but they mistaken about the average amount of are not the only plants that keep large water in the system. There simply isn’t as amounts of water from our rivers and much water there today, and there may lakes. In fact, culprits far larger than be several reasons for that. The primary those are the overgrown forests that reason is trees. clog watersheds throughout the Rocky Mountain region.199 So when water leaders Normally, water moves from the land to find themselves discussing the peculiar the atmosphere in two ways. The most question of how much water is supposed commonly understood is evaporation. The to be in the rivers, they should consider second occurs when water moves upward the role of forests. through plants, from roots to leaves or needles, then as they dry that water The compacts that regulate Colorado’s moves into the atmosphere, replaced rivers were negotiated at a specific by more from the roots—that process is moment in time, and allocated the water called transpiration. But there is also a based on the best available information third process, recognized by scientists about how much was normally available, but largely unknown to political leaders and where it was most needed. The until recent years. Snow falling on the latter half of that equation has changed leaves and branches of trees can simply dramatically as population growth has evaporate directly into vapor without ever occurred in unexpected places like Las reaching the ground. In this process, trees Vegas. The amount of water native to the interrupt the normal flow of water from rivers should not have changed much over clouds to streams, rivers, oceans, and time. Yet it has. back to clouds. That interruption is called “evapotranspiration,” and it has reached Today many of the nation’s rivers, crisis levels in the mountain west, where including the Colorado, have considerably overgrown forests are preventing vast less water than was there when the quantities of water from ever reaching the compacts were negotiated. Modern-day rivers. To be clear, evapotranspiration is water leaders often assert that their a natural process. But what is not natural predecessors were simply wrong about is the amount of trees in the national the amount of water available, or that forests, which are often choked with a series of wet years in the early 1900’s 300–900 trees per acre, when there should

52 naturally be 30–50—as well as dense even a public celebration that the drought brush and other “understory” vegetation. was over and the rivers were back. That As a result, the rate of evapotranspiration did not happen. is much greater than it should be.201 Similarly, 2008 was said at the time It is impossible to overstate the to be the wettest year in more than importance of evapotranspiration three decades in Colorado, yet runoff to western water issues, especially levels and reservoir levels did not see a considering the importance of every corresponding rise that year. In short, acre foot of water. All of the Colorado the snow is still falling, but the water River Lower Basin states use their full is disappearing in entitlements every year, but under the alarming quantities agreements, Colorado is still entitled to before it ever gets to develop and use about 1 million acre the ground, because feet more than it does now.202 That much evapotranspiration additional water is simply not there, is at an all-time so any attempt in Colorado to develop unnatural high. that extra water (and thus take it out of And the amount of the river) is a serious potential threat water that can be to the other states, especially in the lost in this manner Lower Basin. Being at the top of the river, is astonishing. Colorado could simply divert and use that The Bureau of water—it has a legal right to do so—but at Reclamation a time when river flows are diminishing, estimates that the that would necessarily take water from Lower Basin loses existing users in other states downstream. almost 4 million acre That is, unless there really were an extra feet per year to evapotranspiration, which million acre feet of unused water in the is nearly as much as California’s entire system. Thus it is vital to find out why allotment. In the Lower Basin there is that water is missing, and if possible, to significant evapotranspiration from farm get it back. crops, whereas in the Upper Basin forests cover more ground than farms. Some activists are quick to claim the water is reduced because of global As many water leaders as there are in warming. However, there is a problem the Upper Basin, you would think there with the theory. Current measurements would be numerous detailed studies of do show that the river flows are exactly how much water is lost to this diminished compared to a century ago. phenomenon in this region, and how But studies of the amount of precipitation that number may have changed over the do not show such drastic reductions in years as the forests became more and snowfall over that same time. In fact, of more overgrown. On the contrary, there the state’s five largest and most famous is almost no such analysis available. snowstorms, one was in 1913 and one Most recent studies have skewed the in 1946. The other three were in the definition between “transpiration” modern era (1982, 1997, and 2003).203 In a and “evapotranspiration,” publishing year like 2003, then, one might expect an statistics about losses from “agricultural immediately noticeable increase in the evapotranspiration.” That suggests spring runoff, accompanied by the rapid blaming farms and ranches for at least rise in reservoir water levels, and possibly part of the water loss, while ignoring

53 the management of national forests— understood clearly that management even though the government itself of forests was directly connected to the readily admits the overgrowth and its amount and quality of water flows, and it effect on water.204 There are also several was the first priority—supplying timber climate change studies pointing out was the second. that significantly higher temperatures would increase evapotranspiration. That The lack of management of the national seems logical enough, but the dearth of forests has contributed to a significant information on the phenomenon that reduction in the availability of water in is already occurring is troubling. State the arid West. So, as leaders discuss ways water leaders should actively seek such to use water more efficiently, they should information from federal land managers, understand that water conservation and from the state Division of Forestry. begins long before water reaches the faucet. It begins with responsible land The federal agency responsible for management. keeping track of water in these rivers is the Bureau of Reclamation, which has all The threat to water quality, as well as but completely removed this discussion from its studies. The Bureau does publish quantity reports on “consumptive uses and losses” Land management has a direct effect of water in the Upper Basin. The charts not only on water supply, but also on track (loosely) the evaporation from water quality. The massive mudslide reservoirs in the Upper Basin, said to that followed the Buffalo Creek fire be between 183,000 and 469,000 acre and filled Strontia Springs Reservoir feet per year during the past few years, with mud in 1996 cost Denver Water but there is no analysis of losses to over $30 million and a took decade to evapotranspiration. There are several repair. The 2002 Hayman Fire threatened good studies available about the effect of Cheesman Reservoir, posing an even forest thinning on water flows, such as greater danger to Denver water supplies.206 those done in the Frasier Experimental For 20 years many experts have warned Forest some years ago. But it has become of the possibility of a catastrophic almost off-limits to discuss the role of fire destroying the State’s most vital national forest management in reducing watershed—the headwaters of the the flow of the Colorado River system, Colorado River. The River originates at which is missing a million acre feet per Grand Lake, on the west side of Rocky year. Mountain National Park; a series of reservoirs store the most pristine water The idea of holding the Forest Service during spring runoff, for use on both sides responsible for adequate water flow is of the Continental Divide and by all the not radical or new. It is the heart of the downstream states. Those reservoirs are agency’s original mission. As mentioned surrounded by mountains on every side, earlier, the “Organic Act of 1897,” which almost completely covered by dead trees created the national forest system, made waiting for the lightning strike that would clear the Forest Service’s dual mission: set off an unprecedented conflagration. “for the purpose of securing favorable The danger was systematically ignored. conditions of water flows, and to furnish a continuous supply of timber for the At a congressional hearing in 2009, use and necessities of citizens of the experts from the USFS and concerned United States.”205 Leaders 100 years ago water district officials testified that in

54 Grand County 90 percent of all trees Kawuneeche Valley, the Porphyry Peaks, above 5 inches in diameter were dead. Big Meadows, over the Continental They told Congress that if a wildfire Divide, and down the Big Thompson River should break out in these dead forests all the way to Estes Park. Colorado’s most (considered probable by nearly every iconic National Park will never be the witness), it would likely be followed by same. And water supplies for 30 million massive erosion during the next rainstorm people in seven states are now at risk. The or the next spring runoff. And that, they mudslides, erosion, and sedimentation are testified, could create a water quality almost certain to follow before long, and disaster like nothing the West has seen.207 the damage at Strontia Springs in 1996 was nothing compared to the threat now Dead forests have surrounded virtually posed by Grand Lake and Lake Granby.210 every important water supply facility in that headwaters region: Grand Lake, Lake Nor is the problem unique to that Granby, Windy Gap, Willow Creek, and watershed. At a similar hearing in 2013, Shadow Mountain Reservoirs. Witnesses Summit County Commissioner Dan Gibbs at the 2009 hearing warned that if a testified about dead and dying forests in catastrophic fire and subsequent erosion his county, and urged Congress to provide were to fill these lakes with mud, it would more funding for be virtually impossible to supply the water restoration. “Over the required from Denver to Fort Collins, past 10 years, we’ve to administer the Interstate Compact seen a transformation with the downstream states, or to supply of our forest in this irrigation water upon which much of county and others the West’s agriculture depends. These around the state,” dire warnings have been sounded by he said. “In Summit water leaders throughout the West, and County alone, 146,000 Congress has stubbornly ignored them. acres of trees are Now, Members of Congress cannot point dead—nearly half of fingers elsewhere and indignantly demand all our pine trees.”211 to know why they were not briefed. They That forest surrounds Grand Lake, headwaters of the Colorado were warned for years, and in 2020 the Dillon Reservoir, River, surrounded by dead trees in Rocky catastrophic fire finally happened. Denver’s largest Mountain National Park – a water quality water supply. Will the disaster waiting to happen All previous Colorado fire records were warning be heeded? shattered in the summer and fall of 2020. The Pine Gulch Fire destroyed 140,000 Cumulative impacts of water acres from the Bookcliffs to Roan Creek.208 The Cameron Peak Fire burned 209,000 diversions acres in three wilderness areas and In the view of many policy makers, water Rocky Mountain National Park, from the quality is all about pollution. But as Mummy Range down the headwaters recent events are teaching us, traditional of the Cache La Poudre River.209 Within pollution—factories dumping waste into weeks, another fire destroyed much of the the river—is only one way water quality is center of the National Park, over 194,000 degraded. That kind of pollution is much acres. It began on East Troublsome Creek easier to regulate, even to stop. Thirty- near the Rabbit Ears Range, burned seven years after the Clean Water Act across Pony Park, through Grand Lake, became law, there are very few examples across Trail Ridge Road, through the of the kind of blatant water pollution

55 that caused the Cuyahoga River to catch example, salt in its various forms (salinity, fire in 1969.212 Toxic sludge cannot simply selenium and others) is dissolved into the be dumped into rivers anymore, and water by agricultural irrigation in many America’s waterways are much cleaner as parts of the West, including Western a result. Technology has also improved Colorado. The salt is a natural component the ability to test water for less visible of the dirt, and very small amounts are pollution. After the CWA was passed in in most rivers. When the water is filtered 1972 the EPA began measuring chemicals through the soil on farms, then drained and elements like lead and mercury in back into a river, the amount of salt in the water supply. Initially able to measure the river increases. Even though salt is a “Parts per thousand,” the agency could natural substance, too much can kill fish later monitor “parts per million” and and vegetation. Yet no specific farmer can today’s scientists be blamed for something that happens can detect some over a massive region of the country. pollutants in Putting an end to farming is obviously “parts per trillion.” no solution. Instead, the government has It is possible to partnered with private landowners in measure to such spending billions to upgrade farms and a minute degree ranches with more water-saving irrigation that cleaning the systems (gated pipe, concrete ditches, and water beyond that drip water systems). These techniques level is impossible. have reduced salinity pollution in the The cleaning of West’s waters, but not eliminated it. Salinity is a serious problem as irrigation is America’s rivers applied to farms in the arid West. Photo: USDA is one of the great Another phenomenon is even more environmental difficult for today’s conservation leaders: successes in world history, and Americans the cumulative effect of diversions over should be proud of it, not looking for a long period of time. This is among the more reasons to regulate. most difficult of all water quality issues, because there is no one entity responsible Today’s challenges are increasingly for it, nor any one place where it can complicated, as scientists learn more be stopped. In most Western states the about the elements that can diminish water laws do not even acknowledge water quality, and as the definition of the existence of the problem. Water is “pollution” and its sources continually cleanest at the highest altitude. As it expands. In dealing with degraded water flows downstream, it picks up more and quality, if the source of pollution can be more dirt, sand, minerals, chemicals, and traced to a single location, regulators other pollutants. Thus, water diversions can stop it (“point source” pollution). upstream invariably take cleaner water But often, pollution occurs throughout out of the stream, leaving dirtier water a river system and the exact source downstream. If you take out the cleaner cannot be pinned down (“non-point water, you are left with the dirtier water. source” pollution). That is more difficult to regulate, since there is no single guilty The oversight in historic water laws is party. that where water rights are property rights, no user is allowed to degrade the Water quality is often impaired by the quality of water so much that it is not presence of natural substances if they are useable by downstream owners. No user in higher concentrations than normal. For may degrade water to the extent that it

56 prevents someone else from using their consider cumulative impacts of such water. But that is a very high standard, diversions on water quality—as long as virtually impossible to prove. Almost all water quantity is protected, and as long uses degrade water, but not that much. as the proposed project does not harm If one user hundreds of miles upstream water quality so severely that another user takes a very small amount of water out cannot use his water. For at least 20 years, of the stream, it is difficult to show that this has been a serious political issue, the water far downstream is degraded especially in considering controversies to the point of uselessness. However, such as Aurora buying agricultural water when hundreds of upstream water users rights in the lower Arkansas River Valley, divert the cleanest water for more than a drying up farms to supply the growing century, it clearly has a significant impact city. on the quality of water downstream. Aside from the long-term implications In the case of the main stream of the for agriculture, the less obvious problem Colorado River, fully half of Colorado’s is that the new diversions to the city share of the water (usually from 450,000- were far upstream from the agricultural 600,000 acre-feet per year) is diverted rights being purchased. As a result, water across the Continental Divide to the quality is degraded for those farmers Front Range cities—half of all the high- and communities that choose not to sell altitude cleanest water in the system.213 their water rights. The General Assembly Virtually all of those diversions are at has long debated ways to consider the the highest altitude possible, near the cumulative impact of all the existing Continental Divide. Water left in the river diversions on water quality before issuing for all downstream users—including more decrees for more upstream diversion millions of people in Western Colorado, rights. The consideration of such Utah, Arizona, New Mexico, Nevada and cumulative impacts cannot supersede the California—is of lower quality than it prior appropriation system established by would otherwise be. That makes water Article XVI of the Colorado Constitution, treatment more expensive for western so despite several legislative attempts cities, degrades fisheries for a thousand over the past 25 years, the issue remains miles, and affects irrigated agriculture largely unresolved. in six states. But what can regulators do about it? No specific water diversion can What can Colorado do? be blamed, and clearly Colorado is not In recent years, both federal and state prepared to shut down the water systems governments (including Colorado) upon which a majority of Coloradans continue to focus more on “non-point have depended for generations. Still, for source” pollution. One reason is that the legal system to pretend these systems point source pollution is now very well have no effect on downstream water controlled. Non-point sources are much quality is unrealistic and outdated. more difficult to regulate effectively, but not impossible. Efforts should focus on A handful of states have just begun to three areas: understand the cumulative impact on water quality of numerous upstream water projects, and a few have tried to 1. Stop pollutants from entering the adjust the laws. In Colorado, for example, system, to the extent possible, water allocations based on the prior 2. Add as much clear water to the appropriation system do not generally

57 system as possible, Colorado has used it instead of punitive 3. Use new methods to treat and clean fines against polluters, as in the case of the water at every opportunity. the Coors spill in Clear Creek in 2001.214 In lieu of punitive measures, the company First, we cannot stop all minerals and financed and constructed a wetlands chemicals from entering the water supply; treatment facility that became a great some occur naturally, and others result success, treating effluent from the plant from activity vital to our survival, such itself, and from the City of Golden, while as agriculture. But to the extent possible, also providing educational experiences for we should continually upgrade irrigation visiting students and classes.215 Wetlands systems, modernize industrial facilities, are the most nearly perfect water filter improve domestic water treatment ever discovered, and Colorado ought plants, and find other ways to prevent to make much greater use of nature’s degradation of water quality. These technology to further enhance the quality processes will never be perfect, but the of its waters. effort must continue. Produced water, from oil and gas

Second, any drilling cleaner and purer Finally, Colorado might also be in water that can a unique position to enhance its be added to river short water supplies through the systems helps. use of “produced water” from energy And as shown, production. Such a program has the the conventional potential to turn an otherwise difficult wisdom that problem into a significant asset. Sediment fences are a common way to keep Colorado cannot pollutants from entering the system, especially at change the construction sites. NOAA Companies drilling for oil and gas usually amount of water encounter water, too. In order to recover in its rivers is the oil and gas, that water must also be plainly untrue. Efforts to properly manage pumped to the surface, and then either public lands, programs to eradicate transported for disposal somewhere else, non-native species like tamarisk, and or left in shallow pools to evaporate. That the addition of more water storage can is referred to as “produced water” and it dramatically increase the amount of has always been a nuisance for oil and gas clean water flowing in the rivers. Those companies. activities ought to be top priority for water leaders. Common sense might suggest that it would be better to put that water to Third, there are a number of ways to beneficial use, either onsite, or at nearby improve water treatment, including a farms, or even by draining it into nearby closer examination (and duplication) streams. At least it could be used by of nature’s own processes. Many states, someone. The trouble is, any of those cities, and companies have constructed “solutions” run afoul of other water wetlands to mimic nature’s cleansing laws. Specifically, some groundwater processes, often with great success. eventually flows into surface streams, so Frequently, this approach turns out to it likely belongs to another water rights be less expensive and more effective owner downstream. On the other hand, than traditional water treatment plants. if that particular groundwater is not

58 “tributary” to any other water right, then However, that also opened the door to a it is essentially “new” water. In that case, new discussion about the potential value the federal Clean Water Act prohibits of produced water, because it “legalized” discharging it into the “waters of the putting that water to “beneficial” use.219 United States” without a permit from the EPA.216 Because such water is so valuable, Colorado has addressed it more directly No wonder produced water has been than many other states. In 2016, the considered a nuisance, with no good Colorado General Assembly finally options either for using it, or disposing of changed the law, authorizing energy it. Producers felt “damned if they do, and operators to use non-tributary produced damned if they don’t.” For many years, water—without a water well permit—for they had little choice but to put produced specific drilling operations, including water into surface ponds and allow it to fracking, well maintenance, dust control, evaporate, or to pump it back into the and pumping operations.220 ground, either way at great expense with no return on the investment.217 That is That does not mean all the issues related wasteful anywhere, but especially in a to produced water have been solved—far state so desperate for more water. from it. The Ground Water Protection Council (GWPC), which represents state In Colorado, the State Engineer has oil and gas regulators and environmental carefully classified all groundwater as protection agencies, has issued a report either tributary or non-tributary. If the raising caution about the need for water water is clean and non-tributary, as is treatment, and warning that states should common, that opens various possibilities understand all the potential dangers of for use of this “new” water. One helpful reusing produced water before allowing aspect of the EPA regulation is that it.221 Predictably, the group also sees a produced water is not considered a need for additional regulation—by its pollutant if it is used onsite by the oil members, of course. and gas operators, or if it is re-injected into the ground at the same location. The GWPC is right that produced The latter, however, normally requires a water often contains compounds like water well permit from the State, further radionuclides that could impact wildlife complicating any potential uses of and other aspects of ecosystems. produced water. Apparently an accumulation of strontium in the shells of freshwater mussels in The permit problem applies not just to Pennsylvania was traced to the discharge oil and gas drilling, but also to coal bed of produced water from oil and gas methane production. That also produces operations.222 The report also suggests water, and in 2009 a case called Vance v. that radium levels are higher at discharge Wolfe reached the state Supreme Court. points in Wyoming, so clearly there is a The Court confirmed the requirement, need to understand the various potential ruling that “dewatering” a coal bed to impacts. produce methane gas was, in fact, a beneficial use of groundwater under If technical issues can be overcome, there Colorado law.218 That meant coal bed is tremendous potential for additional methane producers needed a water well water in Colorado from produced water. permit and an augmentation plan, in Understandably, many environmental order to protect other vested water rights. groups are opposed to relaxing federal

59 or state rules, partly because they are land’s productivity, and make Colorado an concerned about water quality impacts, even better place to live, work and raise but mostly because they oppose oil and families. gas drilling, so they resist any positive outcome.223 That is a legitimate debate The stigma attached to water projects about which reasonable people may is outdated, especially as new and disagree, but in the context of water creative ways to store water are found: supply, it is an issue worth examining underground, off-stream, in existing much more closely. reservoirs, and occasionally in new ones built to modern standards. Some activists Our legacy—will future generations may continue to demonize virtually any use of water for any purpose other honor ours? than watching it flow to the ocean. But Like other contentious environmental leadership requires doing things right, not issues, clean water presents stark choices stopping everything. Inaction will leave for today’s leaders. They can take the future generations with no good choices. punitive route and use the power of government to stop everything they Doing nothing is a poor option. The think is harmful. There is certainly a future will bring significant droughts place for government in protecting the again; those cycles are a part of nature. environment, and citizens should not If nothing is done to improve water let down their guard on the impressive supplies, then future generations would improvements already achieved. be right to blame today’s leaders for a lack of foresight. Infrastructure will cost more People clearly have the ability to leave in the future than it does today. Leaders Colorado’s water cleaner and healthier ought to muster the political will to than ever, and can do so in all the ways protect the environment, and to provide discussed. With the right policies, today’s for the needs of their descendants. leaders also have the ability not only to True conservation leaders must begin preserve, but to improve the environment to talk about water projects again, and the standard of living by ensuring unapologetically promoting conservation, greater supplies of water. They should do storage, and utilization as a positive that, too. way to provide for inevitable growth, and especially as a way to improve the Communities environment. cannot thrive and prosper without Otherwise, future Coloradans will remain enough water to short of precious water, catastrophic supply the growing wildfires will continue, watersheds will needs of a growing fill with silt and debris, and nothing will population and a have been done to mitigate the disasters growing economy. that will result. Today’s leaders have the Adding more water chance to leave behind a much more “The only limit to Colorado’s future is the availability of storage need not honorable legacy. water.” - Governor John Love be a threat to the environment, but is actually one of the ways people can improve their surroundings, add more habitat for more species, enhance the

60 Copyright ©2021, Independence Institute ADDITIONAL RESOURCES on this subject can be found at: https://i2i.org. INDEPENDENCE INSTITUTE is a non-profit, non- partisan Colorado think tank. It is governed by a NOTHING WRITTEN here is to be construed as statewide board of trustees and holds a 501(c)(3) tax necessarily representing the views of the Independence exemption from the IRS. Its public policy research Institute or as an attempt to influence any election or focuses on economic growth, education reform, local legislative action. government effectiveness, and constitutional rights. PERMISSION TO REPRINT this paper in whole or in JON CALDARA is President of the Independence part is hereby granted provided full credit is given to the Institute. Independence Institute.

DAVID KOPEL is Research Director of the Independence Institute.

ENDNOTES

1 Reisner, Marc, Water Wars in Colorado, Analysis of the Federal 19 Wilhusen, Richard H., Melissa J. Churchill, & James M. Potter, Government’s Water Resources Policies, Alicia Patterson Prehistoric Reservoirs and Water Basins in the Mesa Verde Region, Foundation, 1979. American Antiquity 62(4): 664-81. 2 Osborn, Liz, United States’ Rainiest Cities, Weather and Science 20 Ibid. Facts, CurrentResults.com, 2020. 21 Rohn, A. H., Prehistoric Soil and Water Conservation on Chapin Mesa, Southwestern Colorado. American Antiquity 28:441–455 3 Colo. Const. Art. XVI, § 6. (1963). 4 Ibid. 22 Ibid. 5 Colorado Foundation for Water Education. Citizens Guide to 23 Colorado Water Center,. People’s Ditch in the San Luis Valley, Colorado Water Law, 2004, p. 5. Colorado State University/Colorado Water Knowledge. 6 How Much Water is There on Earth? U.S. Geological Survey. 24 Michener, James A., Centennial, N.Y.: Random House, 1974, p. 591. 7 Ibid. 25 Kopel, Jerry, How Tom Ferril poetry came to the statehouse rotunda, 8 Ibid. Colo. Statesman, 10/22/1999. 26 9 The Little Snake River rises in Routt National Forest, but Gargarin, M. & E. Fantham (editors), The Oxford Encyclopedia of meanders across the Wyoming border eight times before its Ancient Greece and Rome vol. 1, Oxford University Press 2010. pp. confluence with the Yampa in Moffat County. Little Snake River, 144–145. Wikipedia. 27 Taylor and Aspinall were long-serving West Slope Congressmen. 10 Colorado Division of Water Resources, Interstate Compacts; Governor Eaton pioneered South Platte irrigation. Cameron Water Education Colorado, Citizen’s Guide to Colorado’s Interstate founded Ft. Collins and helped bring water to Colorado Springs. Compacts. Goslin was Director of the Upper Colo. River Commission. Adams served as Senator and Governor. Carpenter negotiated 11 Grace, Stephen, Water in Colorado, Colorado Encyclopedia. the Colorado River Interstate Compact. Delaney founded the

12 Colorado River District and pioneered compensatory storage Sauter, Michael B., These 5 Cities Have Lost Half or More of Their (storing water in the basin of origin to “compensate” for water Populations Since 1950. USA Today, 6/11/2019. lost to diversion). Saunders and Maynes were legendary water 13 Richardson, Brenda, Census Reveals the Fastest Growing Cities in lawyers. Sparks was long-time director of CWCB. Hinderlinder the U.S., Forbes, 5/28/2019. was State Engineer for 30 years. Miller and Barry were Denver 14 Associated Press, via KNAU Radio, Census Bureau: St. George, Utah Water leaders. The others were vital regional water leaders: 5th Fastest Growing Metro Area in US., 3/29/1990. Thompson in Southeast Colorado, Hansen and Farr in the 15 Northeast, Fetcher in the Yampa Valley, and Kroeger in Durango. Cremony, John C. Life Among the Apaches. San Francisco: A Roman 28 & Co., 1868. Associated Press, Babbitt: I Only Meant to Remove Elwha, Glines Dams. Lewiston Tribune, 11/3/1994; Babbitt, Bruce. Cities in the 16 John C. Cremony, Wikipedia. Wilderness. Washington: Island Press, 2005, p. 137; Berlau, John. 17 Cremony, Life, op. cit. Eco-Freaks. Nashville: Nelson Current, 2006, p. 192. 18 Mays, Larry W., Ancient Water Technologies in North America. 29 Kessler, Rebecca. Mimicking Nature, New Designs Ease Fish Passage Around Dams, Yale Environment 360, Yale School of Forestry & Environmental Studies, 5/6/2014.

61 30 O’Gieblyn, Meghan, Interior States: Essays, N.Y.: Anchor Books, 61 Brennan, Charlie, op. cit. 2018, p. 171. 62 England, Dan, The Evolving Process of Permitting, Water Education 31 Stebbins, Jan, Search for Water Continues. Summit Daily News, Colorado, 7/16/2019. 11/7/2003. 63 Roaring Fork Conservancy, Frying Pan Valley and Ruedi Reservoir, 32 Udall, Rep. Mark, testimony, Colorado: Options to Increase Water Ruedi Water and Power Authority brochure, 2020. Supply and Improve Efficiencies. U.S. Congress, House Resources 64 Green Mountain Reservoir, Wikipedia. Committee, Subcommittee on Water and Power Resources, 65 Committee on Western Water Management, Water Transfers in 12/12/2003. the West, Washington, D.C.: National Academy Press, 1992, p. 78. 33 Sullivan, Sharon, Hydropower in Colorado. Water Education 66 Getches, David H., Interbasin Water Transfers in the Western United Colorado, 10/1/2013. States, in Water Conservation, Reuse, and Recycling. Washington, 34 NOAA Fisheries, Successful Fish Passage Efforts Across the D.C.: National Academies Press, 2005, pp. 241-42. Nation, 4/16/2018. 67 Ibid., p. 240. 35 Interstate 470 Colorado, Interstate Guide.com. 68 Colorado River Cooperative Agreement, op. cit. 36 Carey, Susan, C-470’s Long and Winding History, Denver Business 69 City of Loveland, Executive Summary, Legislative Policy Agenda, Journal, 8/9/1998. 2018. 37 Background and History, Central Arizona Project (2020). 70 Club 20, New Water Projects resolution, adopted 1998, 2006, 2012. 38 Phoenix Metro Area Population 1950-2020, Macrotrends (2020). 71 Lens, Jim, Referendum A Makes Sense for Us All, Denver Business 39 Denver Metro Area Population 1950-2020, Macrotrends (2020). Journal, 9/21/2003. 40 Eccles. 1:9. 72 Gardner-Smith, Brent, For Colorado Candidates, New Water 41 Goodland, Marianne, Water Legacy: Hickenlooper’s Tenure, The Storage a Key Political Identifier, News Deeply, 9/12/2018. Gazette, 6/21/2018. 73 Colorado Foundation for Water Education, op. cit. p.20. 42 Ibid. 74 Goodland, Marianne, Buying and Drying: Water Lessons from 43 Colorado Water Conservation Board, Analysis and Technical Crowley County, Colo. Independent, 7/9/2015. Update to the Colorado Water Plan, 9/23/2019. 75 Abbott, Chuck, On Average, U.S. Farmers are Aging, FERN Ag 44 Colorado Water Conservation Board, Colorado Water Plan, Insider, 4/11/2019. Chapter 4: Water Supply, 2015. 76 The Future of Irrigated Agriculture in Colorado: Great potential, 45 Thompson, Amy, The Plan to Strengthen Denver’s Water Supply, great vulnerability, The Fencepost, 9/29/2017. 5280, 8/11/2016. 77 Nichols, Peter D., Megan K. Murphy & Douglas S. Kenney, Water 46 Yachnin, Jennifer, Ambitious Colo. Plan Focuses on Conservation, and Growth in Colorado: A Review of Legal and Policy Issues, Costs Billions, E&E News, 11/20/2015. Natural Resources Law Center, University of Colorado School of Law, 47 Colorado Water Plan, op. cit. 2001. 78 48 Reuter Hess Reservoir, History (2020). Woodard, Cassidy, A Look at Laws Authorizing Uses of Conserved and Saved Water in California, Montana, Oregon, and Washington, 49 Rio Blanco Water Conservation District, Taylor Draw Dam and Colorado State University, Apr. 2016. Reservoir (2020). 79 Colorado Water Education Foundation, Citizens Guide to Water 50 Rio Blanco Water Conservation District, White River Storage Law, 2d ed., 2016, p. 24. Project (2020). 80 Ibid. p.30. 51 Northern Colorado Water Conservancy District. Overview, 81 Northern Integrated Supply Project (2020). What is a Conservation Easement? Great Outdoors Colorado (blog), 1/17/2017. 52 Thompson, Amy, op. cit.; Martin, Jeff, Lessons Learned from Two 82 Forks Applied to Expansion of Gross Reservoir, Colorado Realtor, Income Tax Credits, Conservation Easement, Wikipedia. 7/19/2020. 83 Worthington, Danika, Farm near Mead hits auction block, but it’s 53 Marmaduke, Jacy, Huge Poudre River water project back in the the water everyone has their eyes on, Denver Post, 7/17/2016. spotlight, The Coloradoan, 6/24/2018; Brennan, Charlie, Denver 84 Ibid. Water appeals judge’s finding, Denver Post, 2/9/2020. 85 Farrell, Paul B., Water is the new gold, a big commodity bet, Market 54 Denver Water, Summit County & Grand County, Colorado River Watch 7/24/2012. District. Colorado River Cooperative Agreement. 86 Lustgarden, Arbrahm, A Free-Market Plan to Save the American 55 Benson, Emily, The tiny power plant that shapes the Colorado West From Drought, The Atlantic, Mar. 2016. River—merely by existing, High Country News, 1/2/2018. 87 The Future of Irrigated Agriculture in Colorado, op. cit. 56 Best, Alan, Shoshone ‘call’ runs upstream valleys, Vail Daily, 88 Cohen, Michael et.al., Water to Supply the Land: Irrigated 7/17/2002. Agriculture in the Colorado River Basin, Pacific Institute, 2013, p. v. 57 Shoshone call agreement may benefit West Slope, Granby Ski-Hi 89 Haley, Alex, Roots: The Sage of an American Family, N.Y.: News, 4/13/2013. Doubleday, 1976. 58 Ibid. 90 Associated Press, Census Bureau: St. George, Utah 5th Fastest 59 Hickenlooper, John, Colorado River Cooperative Agreement, Press Growing Metro Area In U.S., 3/27/10. Conference, 5/29/2012. 91 City of Grand Junction, 2021 Line Item Budget by Department, 60 Colorado River Cooperative Agreement, op. cit. 12/2/20.

62 92 Denver Water, 2020 Amended Budget, pp.5, 54 (Accessed 118 Romm, Joseph, McCain suggests renegotiating Colorado River 7/7/2020). compact to benefit Ariz., Nev., and Calif., Grist, 8/19/2008. 93 Metropolitan Water District of Southern California, Realizing 119 Associated Press, McCain now says Western water pact should the Benefits of Sound Investments: Biennial Budget, Fiscal Years stand, Vail Daily, 8/20/2008. 2018/19 and 2019/20 (2019), p. 29; Metropolitan Water District of 120 U.S. Bureau of Reclamation, Colorado River Basin Water Supply Southern California, Wikipedia. and Demand Study, Executive Summary, Dec. 2012, p. 3. 94 Comparison between U.S. states and sovereign states by GDP, 121 Colorado River Compact, op. cit. Wikipedia. 122 Upper Colorado River Basin Compact, op. cit. 95 Reisner, Marc, Cadillac Desert: The American West and Its 123 Kukn, Eric, Hydrology, Science and Policy: Future Scenarios for the Disappearing Water, N.Y.: Viking, 1986. Colorado River, 23rd Annual Water Law Conference, San Diego, CA 96 Lewis, David & John Langford, Why Has the Darling Dried Up? February 24-25, 2005, p. 16. Inside Story, 5/8/2019. 124 Finley, Bruce, West wrestles with Colorado River ‘grand bargain’ as 97 Triskele, Watergate: An ecosystem cultivated for sharks won’t changing climate depletes water governed by 1922 compact, Denver support goldfish, Michael West Media, 5/9/2019. Post, 8/25/19. 98 Goodland, op. cit. 125 Kuhn, op. cit. 99 Thiel, Aaron, Climate Change Impacts on Agriculture in the 126 Saunders, Glenn, Reflections on Sixty Years of Water Law Practice, Colorado River Basin, University of Wisconsin Milwaukee, School of Natural Res. Law Center, Univ. of Colo. School of Law, 1989, pp. Freshwater Sciences, Center for Water Policy (undated). 49-50. 100 Colorado River Compact, 11/24/1922. 127 Winters v. United States, 207 U.S. 564 (1908). 101 Upper Colorado River Basin Compact, 1948. 128 U.S. Dept. of Justice, Federal Reserved Water Rights and State Law 102 Boulder Canyon Project Act, Pub. L. No. 642, 43 U.S.C. 617 Claims. (1928). 129 Ibid. 103 Colorado River Water Use 4.4 Plan, Water Education Foundation. 130 United States v. New Mexico, 438 U.S. 696 (1978). 104 Quantification Settlement Agreement and Related Agreements and 131 United States v. Denver, 656 P.2d 1 (Colo. 1982). Documents, to Which Southern California Agencies are Signatories, 132 Ibid. Imperial Irrigation District, Metropolitan Water District of 133 Southern California, Coachella Valley Water District, 10/10/2003; Gordon, Nancy, Summary of Technical Testimony in the Colorado Water Education Foundation, op. cit. Water Division 1 Trial, U.S. Forest Service General Technical 105 Report RM-GTR-270, Sept. 1995, p. 2. Michael Abatti, et al. v. Imperial Irrigation District, California Court 134 of Appeal, Fourth Appellate District Division One, (Super. Ct. No. Redmond, Zachary, Wayne Aspinall Unit, Colorado River Storage ECU07980) 7/16/2020. Project, U.S. Bureau of Reclamation History Project, 2000. 135 106 Roth, Sammy, A Long-Simmering Water Battle Comes To A Boil In Walston, Roderick E., The Reserved Rights Doctrine: Case Study Southern California, L.A. Times, 6/18/2020. Involving Black Canyon of the Gunnison National Park, Journal of Contemporary Water Research & Education, Issue 133, 5/2006, pp. 107 State Water Project, California Department of Water Resources 31-33. (2020). 136 Shea, James, Black Canyon Water Case Largest In State’s History, 108 Hanak, Ellen, Jay Lund et.al., Managing California’s Water: From Montrose Press, 7/15/2006. Conflict to Reconciliation, Public Policy Institute of California, 2011, 137 pp. 19-55. Jaffe, Mark, Black Canyon Awash in Water Rights Victory, Denver Post, 5/14/09; Benson, Reed D., A Bright Idea from the 109 California’s Central Valley: Producing America’s Fruits and Black Canyon: Federal Judicial Review of Reserved Water Right Vegetables, House Committee on Natural Resources, 2/5/2014. Settlements, 13 University of Denver Water Law Review 229, 2009.. 110 Cadei, Emily & Dale Kasler, Huge Delta water deal backed by 138 Walston, Roderick E. op. cit. Dianne Feinstein, Jerry Brown, Kevin McCarthy, Fresno Bee, 139 11/30/2018. Joint DOI/DNR Press Release, Historic Settlement Agreement Reached On Black Canyon Of The Gunnison Water Rights, 111 Ibid. 3/31/2003. 112 Kasler, Dale & Ryan Sabalow, Newsom Inherits A ‘Whole Bunch 140 Shea, James, op. cit. Of Headaches’ Despite Last-Minute Water Deals By Brown, 141 Sacramento Bee, 1/9/2019. Walston, Roderick, op. cit. 142 113Colorado River Basin Drought Contingency Plans, U.S. Bureau of Blevins, Jason, U.S. House Approves Largest Colorado Wilderness Reclamation (2019). Bill In 40 Years, Colorado Sun, 2/14/2020. 143 114 Trump Signs Colorado River Drought Contingency Plan, Arizona Paul, Jesse, The CORE Act Has Passed The U.S. House, Colorado Public Media, 4/16/2019. Sun, 1/31/2019. 144 115 Ritter, Kayla, California Water District Sues to Stop Colorado Ibid. Drought Plan, HotSpots H2O, 4/22/2019. 145 Special Use Provisions in Wilderness Legislation. Natural Resources 116 James, Ian, Here’s What the Colorado River Deal Will Do, AZ Law Center, University of Colorado School of Law, 2004. Central, 3/27/2019. 146 Ibid. p. 2-3. 117 Nyczepir, Dave, Congress Could Move Quickly on Drought 147 Ibid. Contingency Plan for Colorado River, RouteFifty.com, 3/28/2019.

63 148 Blevins, Jason, Ski Industry Sues The Forest Service Over Water 176 Oregon State University, Chronic 2000-2004 drought, worst in 800 Rights, Denver Post, 1/10/2012; Ski Area Water Clause, 80 Fed. years, may be the ‘new normal’: study, Phys.org 7/29/2012. Reg. 81508–81527 (12/20/2015). 177 Denver Water approves mandatory watering restrictions because of 149 Blevins, Jason, Forest Service Buries Plan on Transfer of Ski Area drought, Denver Post, 3/27/2013. Water Rights, Denver Post, 12/30/2015. 178 Rogers, Paul, California Oks $2.5 Billion To Build New Dams, Water 150 Peters, Greg, The Future Of Ski Resorts On Public Lands, Your Storage Projects, Santa Cruz Sentinel, 9/11/2018. National Forests, Winter/Spring, 2014. 179 bid. 151 Ski Area Water Clause, op. cit. 180 Ibid. 152 Browning, Michael F., The Ditch Bill Deadline Approaches” 181 Leslie, Jacques, The Best Place For California’s Water Is Colorado Lawyer, Vol. 24, No. 7, July 1995, p. 1569. Underground, LA. Times, 7/5/2018. 153 Wilderness Act of 1964, Pub. L. 88-577, 16 U.S.C. §§ 1131-1136 182 Associated Press, Researchers Study Reservoir Evaporation For (1964). Better Budgeting of Colorado River Water, CPR News, 4/7/2019. 154 Colorado Ditch Bill, Pub. L. 99-545, 100 Stat. 3047, 1986; 183 Abandoned Mine Lands, Colorado Geological Survey (2020). Evaluating Applications and Issuing Easements for Certain Water 184 2015 Gold King Mine waste water spill, Wikipedia (2020). Development Facilities on National Forest System Lands That 185 Qualify Under the Act of October 27, 1986, 69 Fed. Reg. 39404, Gordon, Rob, Exposing the EPA’s Gold King Mine Cover-Up, Daily pp. 39404-39405; Colorado Ditch Bill Act, U.S. Forest Service. Signal, 6/14/2017; Debunking the EPA’s Fake Accounts of the Gold 155 King Mine Disaster, The Daily Signal, 6/26/2017. Federal Land Policy and Management Act. Pub. L. 94-579, 43 186 U.S.C. Chapter 35. Gold King Mine Release: Inspector General Response to Congressional Requests. EPA, Inspector General, Report 17-P- 156 USACE and EPA. Intention To Review and Rescind or Revise the 0250, 6/12/2017. Clean Water Rule, 82 Fed. Reg. 12532, 3/6/2017. 187 Report to the Colorado Legislature: HB12‐1278 Study of the South 157 Clean Water Rule: Definition of ‘Waters of the United States, 80 Platte River Alluvial Aquifer, Colorado Water Institute, Colorado Fed. Reg. 37053, 6/6/2015. State University, 12/31/2013, Appendix VIII. 158 Rapanos v. United States, 547 US 715 (2006). 188 Silva, Raul et.al., The Cost of Rehabilitating Our Nation’s Dams: A 159 Exec. Order No. 13778, 82 Fed. Reg. 12497 (Mar. 3, 2017). Methodology, Estimate & Proposed Funding Mechanisms, Lexington, 160 Federal Water Pollution Control Act Amendments of 1972, P.L. Ky.: Association of State Dam Safety Officials, 2017. 92-500, 86 Stat. 816: Sec. 311(a)(11), Sec. 311(b)(1), Sec. 311(b) 189 American Society of Civil Engineers. 2020 Report Card for (2)(A), Sec. 311 (b)(3), Sec. 311 (c)(1), Sec. 311 (e), Sec. 311 (m) Colorado’s Infrastructure, Colorado Section ASCE, 2020, p. 27. (A), Sec. 311 (p)(1), Sec. 311 (p)(6), Sec. 312 (h)(4), Sec. 312 (l) 190 Sullivan, Sharon. Hydropower in Colorado, Water Education (1). Colorado, 1/1/2013. 161 Copeland, Claudia, Clean Water Act: A Summary of the Law, 191 Ibid. Congressional Research Service, 10/18/2016. 192 Ibid. 162 33 U.S.C. § 1251. 193 Hydropower Regulatory Efficiency Act of 2013, H.R.267, 113th 163 EPA. History of the Clean Water Act. 164 Congress (2013). Federal Water Pollution Control Act Amendments of 1972, Sec. 194 311, op. cit. Bureau of Reclamation Small Conduit Hydropower Development th 165 and Rural Jobs Act, H.R.678 ,113 Congress (2013). Stecker, Tiffany, WOTUS ‘Ultimately Doomed.’ What Happens Next? 195 E&E News, 11/16/2016. Sullivan, Sharon, op. cit. 196 166 Jordan, Mary & Kevin Sullivan, ‘Smothered’ and ‘Shoved Aside’ In Nissen, Scott, Anna Sher & Andrew Norton (eds.) Tamarisk: Best Rural America, Washington Post, 12/29/2017. Management Practices in Colorado Watersheds, Colorado State 167 University, 2009. Exec. Order No. 13778, op. cit. 197 168 Song, Lisa, A Water Hog Redeemed, High Country News, 5/4/2010. Smith, Jerd, Colorado executes about-face on Clean Water Act, but 198 not everyone agrees, Water Education Colorado, 4/24/2019. Water Sense: Statistics and Facts, EPA (2020). 199 169 Weiser says State of Colorado will take legal action to protect the National Science Foundation, Billions of gallons of water saved by state’s waters from weaker federal protections, Colorado Attorney thinning forests, Press Release 18-029, 4/23/2018. General’s office, 4/21/2020. 200 Lee, Taesam & Jose D. Salas, Record Extension of Monthly Flows 170 State files lawsuit defending Colorado streams and wetlands from for the Colorado River System, U.S. Bureau of Reclamation, flawed federal rule, Colorado Attorney General’s office, 4/22/2020. 12/2006. 201 171 43 U.S. Code § 666: Suits for adjudication of water rights. See also National Science Foundation, op. cit. U.S. Dept., of Justice, The McCarran Amendment. 202 Upper Colorado River Basin Compact, op. cit. 172 Hannah Northey, Biden Would Face Slog to ditch Trump’s WOTUS, 203 Dermody, K.C., The 5 Most Epic Snow Storms in Colorado’s History, E&E News, 8/20/2020. Out There Colorado, 1/5/2018. 173 Gov. Hickenlooper Signs Colorado Water Rights Protection Act, 204 National Science Foundation, op. cit. Eagle River Water and Sanitation District, 4/27/2016. 205 16 U.S. Code ch. 2: National Forests. U.S. Forest Service, Organic 174 Ibid. Administration Act of 1897 (emphasis added). 175 Colo. Rev. Stat. § 37-92-310 (2016).

64 206 Joint Oversight Hearing, Mountain Pine Beetle: Strategies for Protecting The West. Subcommittee on Water and Power, Subcommittee on National Parks, Forests and Public Lands, House Committee on Natural Resources, 6/16/2009. 207 Ibid. Wilkinson testimony. 208 Pine Gulch Fire Information, Incident Information System. 209 Cameron Peak Fire Information, Incident Information System. 210 East Troublesome Fire Information, Incident Information System. 211 Laughlin, Breeana, County Commissioner Rallies Congress For Forest Assistance, Summit Daily, 5/5/2013. 212 Adler, Jonathan. The fable of the burning river, 45 years later, Washington Post, 6/22/2014. 213 Roesmann, Peter, Colorado River District, Transmountain Diversions Create Political Divide In State, Glenwood Post Independent, 10/19/2003. 214 Coors Settles With Colorado Authorities After Beer Spill, Water World, 12/27/2001. 215 Colorado and Coors Build Test Wetland for Wastewater Treatment, Greenbiz, 9/9/2003. 216 EPA NPDES Permit Basics; 48 Fed. Reg. 14153, 4/1/1983, as amended at 49 Fed. Reg. 38048, 9/26/1984; 50 Fed. Reg. 4514, 1/31/1985; 50 Fed. Reg. 6941, 2/19/1985; 65 Fed. Reg. 30908, 5/15/2000. 217 EPA, Study of Oil and Gas Extraction Wastewater Management Under the Clean Water Act, EPA-821-R19-001, May 2019, pp. 2, 7, 21. 218 Vance v. Wolfe, 205 P.3d 1165, 1173 (Colo. 2009). 219 Kelley, Dalton, The Other Black Gold, University of Denver Water Law Review, Sturm College of Law, 3/23/2017. 220 Colo. Rev. Stat. § 37-90-137. 221 States Seek Data to Enhance Produced Water Reuse As EPA Eyes New Rules, Inside EPA, 7/12/2019. 222 Ibid. 223 Ibid. 727 East 16th Avenue | Denver, Colorado 80203 | 303.279.6536

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