Colorado’s Water for the
21st
Century Act: Democracy and Water in the
“Post-Appropriation” West
The arid and semi-arid West is
entering an era of new political and economic complexity in the
management of
water resources. Domestic demands grow relentlessly for the
fast-growing
cities, suburbs and exurbs of the metropolitan West; but except for
some
scattered and remote non-tributary aquifers, and some large ideas about
desalinization and Canadian rivers, there are no substantial
“new” water
resources to develop.
In the words of Colorado Supreme
Court Justice Greg Hobbs, “We are no longer developing the
resource; we are
learning how to share the developed resource.” Such
“learning” does not always
come easily in the American West, especially between cultural groups
with a
history of tension and sometimes outright antagonism – like the
farmers who
control most of the water, and the urbanites who always need more.
According to
Rita Crumpton, a water manager and educator from Grand Junction, 40
percent of
Colorado’s homicides from the mid-1920s to 1940 were committed
with irrigation
shovels.
But the state of Colorado is now two
years into a serious, legislated effort to address that challenge to
“learn how
to share” – and to address it as democratically as
possible, from the
grassroots.
In most of the West today, the
problem of water supply translates into the challenge of finding more
water for
urban and suburban growth, and the logical – often the only
– place to look is
in irrigated agriculture. Agriculture still uses more than 80 percent
of the
water in many western basins, so doubling the urban-suburban use (a
matter of
20 years in the faster growing areas) only reduces the ag use by around
10 or
15 percent. This isn’t necessarily the emotion-laden
“dry-up of farmland” one
hears about in the popular media; it is often within the range of improved efficiency and conservation measures
like fallowing. Water
Allocation in
historical perspective
But wherever the reallocated water
comes from and goes to, the process requires new political and legal
infrastructure, not to replace the West’s foundational and
somewhat hallowed appropriation
doctrine, but to continue the ongoing process of refining, containing
and in a
sense refocusing that powerful engine for development. This refining
process
began 85 years ago with the Colorado River Compact (1922), which came
into
being to avoid an all-out “appropriation race” among the
seven Colorado River
states, and which became the model for other interstate river compacts
throughout the arid region; that refining process continued in the
1960s and
70s as environmental legislation placed more controls and containments
around
the appropriation process in the interests of water quality and
environmental
sustainability. The transition to a “post-appropriation
era” in water administration
and allocation may have begun in 1990, when the federal government
nixed the
Denver metropolitan area’s Two Forks project on environmental
grounds, despite
the thorough work Denver Water and the suburban utilities had done in
lining up
water rights.
The quest for new processes for water
allocation has engendered a couple of traditional American responses.
The
free-enterprise contingent wants “the market” to rule,
letting the flow of
money in both the public and private sectors move the water toward its
“highest
value”—which of course translates as whoever will pay the
most, a no-brainer
when contrasting municipal users who measure water in gallons and
agriculture
which measures water in acre-feet (325,380 gallons). Appropriation laws
try to
prevent outright market speculation in water, by limiting water rights
to the
amount of water actually put to use by a right holder; but throughout
the arid
West today, large fortunes are being compiled, on paper at least, by
brokers
who are writing complicated lease-purchase options with farmers to gain
control
of water that metropolitan areas may eventually need.
Another resolution to the
reallocation question, favored by most of the region’s water
professionals, is
the traditional historical resolution: leave it in the hands of the
water
professionals. As has been the case ever since the first irrigation
societies
6,000 years ago in the Middle East, large technical and legal
bureaucracies
have grown up around water development and distribution in the arid
West, at
the federal, state and local levels; the engineers, managers, lawyers,
judges
and agency bureaucrats feel they are most qualified to work out the
allocation
of water to its best uses, driven by their knowledge of and commitment
to the
public interest as well as private gain.
Given our political economy and the
size and complexity of our water infrastructure, good arguments can be
made for
both of these approaches, and the market and certainly the water
professionals
will be part of the answer for “learning to share the developed
resource.” But
both strategies run into power issues that make them shaky, alone or
together,
as primary processes for the production and distribution of the
resource most
essential to life. An undirected “free market” is blind,
driven by economic
impulses that are not democratic, equitable or long-term in vision. And
all
bureaucracies are eventually driven by self-preserving political
impulses that,
in the current American political economy at least, put them in the
service of
those same undemocratic and short-term economic forces that have
captured the
American polity at the state and federal levels, as well as having
controlled
the market.
And neither strategy gives
continuity to the truly democratic and equitable impulse at the heart
of the
appropriation doctrine for distributing both land and water in the
American
West (all the way back to when “the West” started at the
Appalachians). Legal
scholar David Schor has done a brilliant job of laying out the agrarian
democratic foundations of the appropriation doctrine for arid-zone
water—the
intent to distribute the scarce resource as broadly and equitably as
possible,
giving initiative and energy an equal footing with established wealth
(Schor
5). This was accomplished, first, through the “beneficial
use” condition, limiting
a claimant to the water that one could actually put to personal or
family use
and no more; and second, the seniority rule—first in time, first
in right—that
protected that use against subsequent private or public claims, even
claims of
some “greater good for a greater number.” The community has
reserved the right
to condemn an individual’s land or water resources when it
becomes essential
for the community’s needs, but only at a fair price. Our basic
political and
economic infrastructures evolved on the assumption that individual
freedom, private
property and the democratic process that Schor (1) called
“distributive
justice” were the tripod on which a free society should stand.
Western history shows clearly, of
course, how vulnerable to manipulation, exploitation and outright fraud
the principle
of distributive justice underlying the appropriations doctrine was, up
against
the powerful and undemocratic economic forces that drove the American
economy
through the 19th and 20th centuries. History also
shows
how a naïve ignorance about geographic realities, especially
aridity, compromised
even the most well-meant efforts to democratically distribute land and
water in
the West. And today, with precious little land or water left to
appropriate, that
original intention of enabling everyone with initiative and ambition to
create
personal wealth, rather than catering to the wealthy few, is almost
lost in
discussions of the created property that is, as usual, passing into
fewer and
fewer hands under an increasingly oligarchic system.
But, as Schor observes, “Whatever
Colorado water law has become, its origins as a radical, anti-monopoly
law are
instructive” (68). And given that “radical”
democratic origin, however abused it
became—is there now, with virtually no remaining land or water
resources to
appropriate, any way to sustain or revitalize those “instructive
origins” of
the appropriation doctrine? Water
and democracy today
The State of Colorado is currently
two years into trying a strategy that attempts to do that, by giving a
broader
base of people a larger voice in the distribution of the
waters—which the state’s
constitution does define as “the property of the public.”
The idea seemed to
capture at least the Colorado legislature’s imagination; in 2005
the Colorado
General Assembly passed—on the first try, to everyone’s
surprise—House Bill
05-1177, the “Colorado Water for the 21st Century
Act.” “1177” for
short.
This statute tries to address two
sets of problems that have emerged out of the efforts of
Colorado’s burgeoning
metropolitan region to acquire the water it needs to continue growing.
The
first set of problems involves some long-festering interbasin
tensions between the metropolis surrounding Denver on
the “dry side” of the state and the upper tributaries of
the Colorado River on
the state’s “wet” West Slope. Over the course of the
20th century,
federal and municipal projects were built that divert almost half a
million
acre-feet of high-quality “headwaters” water from the wet
side to the dry side.
For a river basin like the Colorado, which has only been running 13 to
15
million acre-feet a year on average, that large a loss from the
headwaters is
felt all the way down the basin.
To those interbasin problems have
been added a new and growing set of intrabasin
problems in the South Platte and Arkansas River basins on the dry side
of the
state, as the growing cities reach out for new water supplies. Overall,
high
plains agriculture has always been a somewhat marginal operation for
reasons of
soil and climate, and there have always been farmers ready and willing
to
“exercise the retirement option” by selling some or all of
their water; and the
cities have been aggressively pursuing those options. In a few places,
primarily
in Colorado’s lower Arkansas River valley, this has had major
impacts on some
ditch companies and their surrounding communities. Colorado water
attorney Lawrence
MacDonnell covered this in his book, From
Reclamation to Sustainability: Water, Agriculture, and the Environment
in the
American West.
In both these inter- and intrabasin
situations, the destination users have acted within the law, which
requires
that any change in water use demonstrate “no injury” to any
other individual holders
of legal water-rights. But there are no provisions in water law for the
less
specific “injuries” that accrue to the larger community
when significant
amounts of water are removed from an area previously using that water.
MacDonnell poses the kinds of questions that water law doesn’t
ask or require
answers for:
“What would it mean to have at least fifty thousand
acre-feet less available for irrigation use? What would it mean...for
the cost
of their water? For the continued care of the canal? For the businesses
in adjacent
communities closely tied to irrigated agriculture (seed companies,
farm-equipment suppliers, processors, shippers)? For the businesses
that
benefit more indirectly (hardware stores, clothes stores,
supermarkets)? For
the schools, roads, and other county services supported by property tax
assessments?” (MacDonnell 65) Because
of these unconsidered concerns, the response throughout the state, from
areas
yielding water to the ever-growing metropolis, has been highly
emotional, with
a lot of hot language about “water grabs,”
“dry-ups” and “theft.”
These inter- and intrabasin situations
are what the “Colorado Water for the 21st
Century” statute was
created to address. The 2005 law begins with a fervent promise that
“nothing in
this article shall be interpreted to repeal or any manner amend the
existing
water rights adjudication system,” as it has evolved for
everything from the
basic “private usufructuary property right” to
“intergovernmental agreements,
contracts, stipulations among parties to water cases, terms and
conditions in
water decrees, or any other similar document related to the allocation
or use
of water” (1177 Sec. 102)
That essential disclaimer observed
up front – the law proceeds to establish nine “Basin
Roundtables” for the state (see map): eight that
follow natural
watershed boundaries, plus the “cultural basin” of the
metropolitan area
surrounding Denver. Each Roundtable is to include representatives from
all
county and municipal governments in the basin, representatives from all
water conservancy
districts within the basin, and a representative agreed on by the
chairs of the
Colorado House and Senate ag committees.
Those members then select, from
nominations submitted, ten at-large members who must include at least
one
representative each from the basin’s environmental interests,
recreational
users, agricultural users, and domestic water providers, industrial
users, and
at least five holders of adjudicated water rights. They also choose
three or
more nonvoting members who represent out-of-basin parties with
water-related
interests within the basin. And Roundtables are empowered to adjust
memberships
to reflect local issues. For example, the Southwest Roundtable added
representatives for Native American nations in their vicinity, and the
Yampa/White
Roundtable invited the oil, gas and shale companies to participate as
non-voting members.
Given the natural and cultural
diversity and size differences of the basins, this has led to
considerable
diversity in the size of Roundtables, from 20-some for the small and
relatively
unpopulated portion of the North Platte in Colorado, to more than 60
for the
complex and diverse Arkansas Basin. The diversity carries over into the
organization and structure of each roundtable, which is left is left up
to the
Roundtables—with differences mostly in how often to meet, and how
close to consensus
decisions should be.
The statute outlines some basic
responsibilities, the most important of which is to develop a
prioritized
basin-wide needs assessment, basically for the foreseeable future. The
needs
assessment is expected to address four things: a) an analysis of
existing
consumptive water needs, b) an analysis of existing non-consumptive
water needs
(environmental, recreational), c) an analysis of available and
unappropriated
water supplies, and d) proposed projects or programs to meet the
Basin’s
identified needs.
The statute also asks the
Roundtables to “serve as a forum for education and debate
regarding methods for
meeting water supply needs.” Beyond that, the focus, objectives
and actions of
the Roundtables are pretty much left up to the Roundtables themselves
(1177
Sec. 104).
The Basin Roundtables are thus an intrabasin
vehicle for inserting a more
representative and more public process into the existing processes of
water
decision-making – and also a more integrated basin-wide process:
it is
important to remember that these watersheds, in Colorado, span a couple
hundred
miles of river, with cultural communities ranging from upstart
high-altitude
resort and recreation towns to traditional Midwestern agricultural
towns. The
Roundtables are the first organized effort to get all parts of the
natural
watersheds talking to each other.
But what about the interbasin
challenges—or opportunities,
depending on your perspective? To address that part of the
“developed resource”
problem, 1177 establishes an “Interbasin Compact Committee”
(IBCC) for dealing
with situations where one Basin Roundtable decides that the only way it
can
meet its assessed needs is by importing unappropriated or purchased
water from
another basin—i.e., a West Slope transfer to the metropolitan
Front Range, or a
Denver suburb’s purchase of ag water from Colorado’s lower
Arkansas Basin.
The Interbasin Compact Committee has
27 members, one of whom is the Director of Compact Negotiations,
appointed by
the governor. To date, this has been another hat for the Director of
the
Department of Natural Resources, but needn’t be—and if the
concept of
negotiation actually takes root in the state, probably shouldn’t
be, given the
amount of work that will be required.
The core of the IBCC is two members
from each of the nine Basin Roundtables, chosen by the Roundtables
themselves.
The governor appoints six at-large members, from “geographically
diverse parts of
the state” and no more than three from the governor’s
political party; they
also have to “include individuals with expertise in
environmental,
recreational, local governmental, industrial, and agricultural
matters.” The
remaining two members are appointed (one each) by the chairs of the
House and
Senate agricultural committees.
The IBCC was charged, when HB
05-1177 passed late in the spring of 2005, with creating a charter to
“govern
and guide all negotiations between basin roundtables,” and they
were charged to
have that done not later than July 1, 2006—but ideally, in time
for the General
Assembly to adopt it in the 2006 January-to-May legislative session.
The
charter was to include “a negotiating framework and foundational
principles to
guide voluntary negotiations between basin roundtables,”
procedures for
ratifying compacts or other agreements between basin
roundtables,” and
procedures for “integrating the [IBCC] processes...with existing
planning,
permitting, and public participation processes related to the
conservation and
development of water within Colorado” (1177 Sec. 105).
And all that had to be done by April
2006 if it was to go through the General Assembly. Considering that
this
charter-drafting process required input and critiques from the nine
Roundtables
every step of the way – and considering that the subject was
water – this
sounded like a Mission Impossible. But it actually happened, despite a
fair
amount of justifiable complaining from the Roundtables, which were
trying to
get their own bylaws and procedures in order and begin their needs
assessments.
The IBCC was able to come to general agreement on their charter draft
on April
5, 2006, and send it to the General Assembly, which adopted it. The
entire Charter
can be found online (see Bibliography).
The IBCC was also charged to develop
a “public education, participation, and outreach working
group” (1177 Sec.
106).
There’s probably a cultural tendency
to think hierarchically about these two structures—to assume,
that is, that the
IBCC has some authority over the Roundtables. But the IBCC has no
authority to
make a Basin Roundtable participate in an interbasin negotiation; it is
entirely voluntary. If a basin of origin were fairly certain that a
destination
basin could not prove the availability of the water it wanted without
injury to
other water right holders, then it might decide there is no reason to
participate in an interbasin negotiation – except to save the
million dollars
or so it would cost to fight the claim through the water court and
appeals.
A further indication of the basic
relationship between the Roundtables and the IBCC comes from following
the
money. When it became apparent
early in
2006 that the new Roundtables and the IBCC were meeting regularly and
seriously, if not always amiably, and would probably meet the
self-imposed
deadline of having a Charter ready for the General Assembly to
consider, the
Assembly decided to put some money behind the idea, and passed Senate
Bill
06-179, creating a “Water Supply Reserve Account” with $10
million a year from
severance tax funds for four years, to add incentive to the Roundtables
to get
their needs assessments done and put some proposals for “water
activities” on
the table. “Water activities” were broadly defined to
include “structural and
nonstructural water projects” for local consumptive or
non-consumptive uses,
environmental compliance programs, and studies for larger projects.
But while all projects seeking “179 money”
from the Water
Supply Reserve Account have to originate in the Roundtables, the
Roundtables
take those projects to the Colorado Water Conservation Board (about
which, more
later) for feasibility analysis and evaluation, rather than to the
IBCC. The
IBCC and the CWCB have worked together to develop some state-level
criteria for
the use of those funds, but the CWCB at least technically holds those
purse
strings on the Roundtables.
So it might be more accurate to
think of the Roundtables and the IBCC as just two similar tools for
dealing
with two different types of water issues: those occurring within
basins, and
those occurring between basins. When things get too protagonistic,
water court
is always the court of last resort, but the chance to save a million
dollars or
two in a negotiating process makes a great deal of sense, and levels
the field
a little for rural entities in a political and legal environment that
has recently
seemed to nurture the saying: In Colorado, water flows toward money.
(More
realistically, a lot of money goes out and builds systems to move a lot
less
water.)
Aside from the economic arguments
for a negotiating stage in the process of water allocation, the 1177
processes also
permit – even encourage – discussion of the kinds of issues
Lawrence MacDonnell
raised: concerns about the local environment and the wellbeing of the
local
community that are not permitted in water court. For either an
interbasin or
intrabasin water-use change or diversion, 1177 offers an equal access
and footing
to all stakeholders in the basins of origin and destination. And as
IBCC member
John Porter, of the Southwest Roundtable, put it: “Anybody that thinks they are a
stakeholder is a
stakeholder.” This may not simplify things, but it certainly
lowers the price
tag on “distributive justice.” 1177’s
origin
“1177” was the vision of a “populist
Republican” from
Colorado’s West Slope, Russell George.*
George is a West Slope native, born and raised on a ranch in the Upper
Colorado
River valley. His public career began in the Colorado House of
Representatives
where he served from 1992 to 2000 and ascended in 1999 to Speaker of
the House
after twice being designated Legislator of the Year by the Colorado
media.
From the legislature he went to the executive branch in
2000, serving four years as Director of the Colorado Division of
Wildlife. In
2004, then-Governor Bill Owens appointed him Executive Director of
Colorado’s
Department of Natural Resources (DNR), which oversees both the State
Division
of Water Resources (the office that keeps track of the complexities of
water administration
in an appropriations state) and the Colorado Water Conservation Board
(the
water development arm of the state government).
“Distributive justice” has always infused
George’s vision
in public life; he tried unsuccessfully as a legislator to get a law
passed
that would have required wealthy “upvalley” resort
communities to distribute
some of their wealth to the “downvalley” service
communities where their
workers had to live. That was a little too populist for Colorado, but
the year
after he took on the Natural Resources directorship, he began to
develop the
idea that materialized as the “Colorado Water for the 21st
Century
Act.”
He was inspired in this by the example of Colorado’s
Delph Carpenter, a leading force in creating and carrying out the
exhaustive
11-month ordeal in 1922 that resulted in the Colorado River Compact.
Those
interested in George’s detailed analysis of Carpenter’s
strategies should
peruse his “Memorandum on Interstate Compacts” (see
Bibliography), but
basically, he focused on two lessons Carpenter drew from his own
experience:
first, attention to the process of negotiation is as important as a
focus on the
desired product of negotiation; and second, real negotiation
doesn’t begin
until both sides realize they must each give up something to get the
results
they most want (George 2, 3).
In all stages of the development of the “1177
processes,”
right up to the present, a second important player has been Eric Hecox,
formerly a Bureau of Land Management Natural Resource Specialist who
was loaned
to George at the Department of Natural Resources under a Presidential
Management Fellowship. Hecox helped George develop the framework for
what
eventually became HB05-1177; and when Harris Sherman took over the
Department
of Natural Resources early in 2007, under a new governor, Hecox was
appointed Manager
of the Office of Interbasin Compact Negotiations – thus providing
some
continuity for the fledgling (and still fragile) idea. Hecox has
Master’s
degrees in both Environmental Science and Public Policy; his graduate
thesis
was on “Collaborative
Water Resource
Management: Stakeholder Participation in the Colorado River
Basin”; on a
Fulbright Scholarship he studied community-based resource management in
Zimbabwe. In effect, Hecox educated himself to be ready for
“1177.”
In a conversation with the writer before the 2005 General
Assembly met in Denver, George admitted that he did not expect
“1177” to pass
in its first session. It seemed too innovative, on a topic too
important and
too emotional. But all around the state, events were unfolding that
made “1177”
seem like an idea whose time had come. For example: ·
Front
Range
entities had just spent a decade and millions of dollars pushing a
proposal for
developing whatever water remained in the Upper Gunnison Basin that the
Upper
Gunnison people (with support from both the State and the federal
government)
had spent millions to defeat – successfully – in a bitter
battle that went to
the State Supreme Court twice. ·
The
Denver Water
Board was engaging in negotiations with multiple entities in the Upper
Colorado
Basin to try to work out ways to fairly use water rights they already
owned,
but full use of which would be in conflict with recreational uses and
values
that their own customers embraced. ·
The
City of
Aurora and other suburbs were no longer just “buying and
drying” farms in the
South Platte and Arkansas Basins, but had begun trying to work with ag
users to
fund fallowing programs, efficiency measures and other approaches that
would
gain them some water while still enabling, and even stabilizing, the
agricultural users.
There was, in other words, an extent to which 1177 just
ratified and raised to a more conscious level what was already
beginning to
happen out of a general perception of necessity. That may be why it
surprised
Russell George and nearly everyone by having a relatively easy passage
through
the Assembly on the first try. All that said, however – the level
of respect
George has built up in the state over the years was a factor in that
passage
too. Eric Kuhn, General Manager for the West Slope’s Colorado
River Water
Conservation District, said it for a lot of organizations and
individuals: “Our board
approached the concept with some
questioning and accepted it with deference to Russ George.” Not
everyone is happy, of course
As one would expect when water is the issue, there was,
and is, some opposition and a lot of skepticism – some of which
seemed to be
people shooting themselves in the foot. Despite the fact that 1177
proposed an
entirely voluntary process, and one that gave people the opportunity to
raise important
issues about major projects that had no standing in water court –
not to
mention the fact that it was hatched by a trusted Republican from the
basin
most impacted by out-of-basin diversions – many West Slopers,
according to Bill
Trampe, Gunnison rancher and IBCC member, “thought it was just
another
way to get water for the Front Range.”
Others
believed that it would turn out to be an attack on their property
rights. And a
not insignificant minority in every western state has a vested interest
in expensive
water conflicts laying their paper trail through water court.
Better founded criticisms have since emerged. Despite the
fact that environmental and recreational interests are granted
mandatory
inclusion on both the Roundtables and IBCC, there are still entities at
the
community and state level that feel left out. One important group of
environmentally oriented but impeccably “grassroots”
organizations that were
literally (although perhaps not deliberately) written out of the
statute are
Colorado’s 22 “watershed” organizations. These are
emphatically local
organizations that make a real effort to build a broad base of
community
support for taking on river restoration projects, often with
spectacular
results—as the annual May community float down the North Fork of
the Gunnison
River shows, with signs posted at the projects completed by the North
Fork River
Improvement Association. But because of their local focus, which seems
to fit
the “spirit of 1177,” they do not meet the statute’s
requirement that
environmental representatives on the Roundtables be from
“regionally,
state-wide, or nationally recognized environmental conservation
organizations.”
Other critics point out that, despite a widening of the
circle, the Roundtables are still usually dominated by the same set of
water
professionals—the engineers, utility and conservancy managers,
lawyers,
realtors and others directly involved in water development and
administration.
As one critic put it, “it’s the same old water buffalo
dance,” with the
addition of “token” environmentalists and recreational
operators.
Proponents of 1177 argue that of course “water
buffaloes”
make up the majority of the constituency of the Roundtables and the
IBCC; they
are the ones who know water and are articulate about its use; they have
to be
at the table. “It’s hard to get other citizens up to speed
on all this,” one
West Slope water conservancy director said. “People’s eyes
glaze over fast if
they haven’t already been following the water situation for a
long time.”
Proponents can also point to the way the 1177 structure
does try to decentralize the way Colorado does water, and gives the
local water
professionals a mandate as well as a mechanism for thinking and acting
more
locally, through the charge to develop a needs assessment for their own
basin
and a “wish list” for addressing those needs, rather than
feeling constantly
put in the position of reacting to the Front Range metropolitan
conception of
“the greatest good for the greatest number.”
Developing a needs assessment and project list is, of
course, just an empty exercise if there is no mechanism for funding
projects,
and the General Assembly’s aforementioned SB 07-179 bill did made
a tentative
step in that direction. But while the intent to show support for the
unfolding
process is commendable, the General Assembly may have been premature in
this
allocation. The presence of a little competitive money has distracted
some of
the Roundtables from the basic task of developing good prioritized
needs
analyses for their whole basins; projects are being pushed forward just
because
they are there and ready, not necessarily because they fit high in a
basin’s
priorities of need. And, as Jenny Russell, IBCC member and
environmental
attorney from the Southwest Roundtable, said, “It’s hard to
say no to your
neighbors” – especially when a clearly stated set of basin
priorities and project
criteria are still evolving.
Skeptics also point to the size of some of the
Roundtables – more than 60 for the Arkansas Basin – as
being too large and
diverse to develop a common vision and make effective decisions. Some
of the
Roundtables are having trouble meeting quorums for meetings, due to
having set
a high bar for attendance, especially for organizations depending on
unpaid and
often unreimbursed members.
But the biggest challenge the new 1177 organizations face
in gaining credibility hasn’t yet emerged, and that will be
showing some
constructive and creative initiative in addressing the tough issues of
allocating a finite (and possibly diminishing) resource in an
environment of
expanding demand. Ray Wright, an IBCC member from the San Luis Valley
(Rio
Grande) acknowledged in a meeting that “not
much has come up that has been challenging.” And Melinda Kassen,
IBCC member
who directs Trout Unlimited’s western water project, observed
that “we have a
statutory obligation to do interstate compacts, but I don’t see
any on the
horizon.”
And
when or if that challenge emerges, in the form of an interbasin compact
negotiation request, the shadow behind the challenge will be fitting
the
results of the negotiating process, if results there are, into the
well-established channels and contexts of “the way Colorado does
water” – a
challenge on the home front for the Roundtables where traditional ways
of
handling things are often not easy to change, and a challenge for both
the
Roundtables and the IBCC in dealing with existing state agencies and
other
elements of Colorado’s “water establishment.”
This challenge began to manifest itself in the winter of
2007, with a tension that emerged between the Colorado Water
Conservation Board
and the Gunnison Basin Roundtable, with other West Slope and state
entities,
including the General Assembly, joining in. 1177
and the Colorado Water Conservation Board
For the past 70 years, most of the state-level water
activity
in Colorado, outside of municipal and federal projects, has been
carried out
through the Colorado Water Conservation Board, created in 1937 with a
mission
to “Conserve,
Develop, Protect and Manage Colorado's Water for Present and
Future
Generations.” That mission, according to the CWCB website,
translates into a
wide range of duties: “water project planning and
finance,
stream and lake protection, flood hazard identification and mitigation,
weather
modification, river restoration, water conservation and drought
planning, water
information, and water supply protection” (cwcb.state.co.us).
The governing board of the CWCB, like the IBCC, has
representation from each of the major basins in Colorado –
appointed by the
governor, also like the IBCC. During the two years before the
“Colorado Water
for the 21st Century” act was passed in 2005, the CWCB
undertook a
massive “Statewide Water Supply Initiative” study (SWSI)
that in some respects
laid the groundwork for the 1177 structure. This study tried to work at
the
grassroots level collecting information from advisory
“roundtables” in the same
basins (minus the metro one) as have been set up under HB 05-1177. The
study
worked toward a “bottom line” for each basin – its
dependable and developable
water supply subtracted from its projected demographic needs. Gaps
between predictable
supply and predicted demand were found in most basins – with the
largest,
predictably, in the Front Range metropolitan area: “The
Gap” of around 100,000
acre-feet by 2030. HB 05-1177 mandated that the Basin Roundtables use
the SWSI
information, along with “other appropriate sources.”
But valuable as it is, the SWSI study is
“haunted” for
many Roundtable members – especially outside of the metropolitan
area – by a
difficult history with the CWCB. Across the state, the CWCB is
perceived as
something of a top-down staff-driven agency that has historically been
more focused
on the “develop” part of the mission than “conserve
and protect,” and with an
unbalanced focus on the needs of the Front Range metropolis at the
expense of
the rest of the state. Melinda Kassen observed in an IBCC meeting that
“a number of communities
are still very skeptical
of CWCB as an honest broker.” And one West Slope
conservancy director
was even more blunt in his perception: “The CWCB is focused on
the Front Range
cities, and the rest of the state is just a place to go get
water.”
That history notwithstanding, the relationship between
the CWCB, the IBCC and the Roundtables still requires some definition
and
clarification. But an event early in 2007 indicated how the 1177
organizations might
now be changing the traditional relationships between the CWCB, the
metro area
and the rest of the state.
The CWCB submitted a construction bill to the General
Assembly in 2007 that requested funding for feasibility studies on
several
possible projects to move water from the West Slope to the metro area,
to
address “The Gap” between projected metro needs by 2030 and
dependable
supplies. One of these was a project to pump water from Blue Mesa
Reservoir in
the Upper Gunnison River basin to the metropolitan area. This is a
variation on
an earlier 1980s application for water from the Gunnison basin that
resulted in
a denial in the district water court, eventually affirmed by the State
Supreme
Court, on grounds of insufficient water – a case that cost each
side several
million dollars and more than a decade in court.
Prior to 1177, the 2007 request for funds for the
feasibility study would have resulted in vigorous but ultimately
ignorable
complaints from the Upper Gunnison basin, probably a letter from the
Colorado
River Water Conservation District and possibly concerns expressed from
other
West Slope entities. But this year, the Gunnison Basin Roundtable took
up the
gauntlet, and passed a resolution stating that all water projects
originating
in the Gunnison Basin should be done in the context of the
Basin’s needs
assessment, and that the place for the CWCB to begin was with a
“water
availability” study, not a “project feasibility”
study for a project for which
there might be no water available, once the home basin’s needs
were taken care
of.
This was picked up by West Slope legislators, one of
whom, Rep. Kathleen Curry, chairs the House Agriculture, Livestock and
Natural
Resources Committee, through which the CWCB bill had to pass, and she
indicated
a strong interest in the CWCB’s response to the Gunnison Basin
Roundtable. In
the end, the CWCB backed off and agreed that the first step should and
would be
a Colorado River water availability study. And the legislation
approving that
study – Senate Bill 07-122 – said that CWCB “shall
work in full consultation
with, and with the active involvement of, the basin roundtables”
in conducting
the study.
That water availability study looms large in
Colorado’s
water picture. CWCB’s aforementioned SWSI study pulled together a
lot of data
on the Colorado River watersheds within the State of Colorado, but all
of that
data was drawn from the historic record of river flows in the 20th
century – and all of that data showed substantial water available
for
development. West Slopers, on the other hand, want a study that takes
into account
the recent drought, predictions for the future based on global climate
change,
and the 500-year tree-ring studies that show a long-term river flow
substantially less than 20th-century records. It is thus
difficult
to imagine a study that would resolve the question of whether there is
any
unused West Slope water to move to the metropolis; the best result
Coloradoans on
either side of the Continental Divide can expect from the SB 07-122
study is that
it will pull together the maximal clarifying data for all of the
positions
Coloradoans seem ready to go to the mat over.
Ultimately, that one shot across CWCB’s bow does not
resolve who will have the impetus in determining what “water
activities” will
be going on statewide in the future – and “The Gap”
the fast-growing East Slope
metropolis is confronting is real enough, and will probably require
water from
somewhere else. If the 1177 process is to be honored, that will
eventually involve
an “invitation” from the Metro Roundtable to one or more
West Slope basins to a
compact negotiation with the IBCC, and that will be the ultimate test
of the
1177 process.
Anticipating that day, the four Basin Roundtables on the
West Slope have begun holding an annual rendezvous, organized by the
Colorado
River and Southwestern Water Conservation Districts, to consider their
own
strategic situation. This is a step toward reality that is at least
partially due
to the ongoing drought and new knowledge about the long-term history of
Colorado River flows. But the Colorado Water for the 21st
Century
Act has provided a structure for bringing the West Slope basins
together.
Historically, three of the West Slope basins have watched the draining
of what
is now half a million acre-feet of water a year from the Upper Colorado
and
been glad it wasn’t them. Now, however, it becomes more evident
that, given the
Upper Colorado River Basin’s commitment to deliver a fixed amount
of water to
the Lower Basin, any water taken out of any of the four basins
proscribes the
future of all four basins, at least for consumptive uses, given the
downstream
obligation. It is probable that a call to the IBCC for a compact
negotiation to
consider further west-to-east diversions would involve all four West
Slope
Roundtables – a level of regional awareness and cohesiveness that
1177 has
significantly enhanced. It’s
about more than just
water
Is 1177 going to work? Can adding
some genuine grassroots democratic process to issues as legally
convoluted and
technically arcane as western water issues really help move toward
resolution
of the issues?
No one on the Roundtables wants to say
a definitive “yes” or “no” at this point. But
nearly everyone agrees that it
has had some very positive effects so far. Rita Crumpton, Chair of the
IBCC
Education Committee, observes that “people in all the basins are
saying it has
people talking together who have never talked together before. And
people are
at the table who have only been in the audience in the past.”
She also notes that the Roundtables
are developing new levels of awareness of the problems experienced by
people in
the same basin but so far away, physically and culturally, that they
might be in
different countries. From the Grand Junction area herself, she
described a bus
trip the lower basin Colorado River Roundtable members took up the
river to
Grand, Eagle and Summit Counties: “We will all have to learn to
bend a little,
move a little beyond the way we’ve tended to think about our
water.”
Melinda Kassen of Trout Unlimited,
an environmental representative on the IBCC, says she thinks the 1177
process
will be succeeding if, by its third anniversary in 2008, 1) there are
“real”
needs assessments in place in all basins for both consumptive and
non-consumptive uses, 2) a Colorado River water availability study has
been
completed that everyone can live with, and 3) the IBCC has, with the
help of
the State Engineer, an acceptable draft of a statewide plan for
administering a
call from the Colorado River states downstream (Arizona, California and
Nevada). Then, she says, “we can at long last have an informed
discussion about
Colorado’s water future.”
Eric Hecox, Manager of Interbasin Compact
Negotiations, is cautiously optimistic. “We have spent the past
two years
building the foundation of the program on the grassroots philosophy.
However,
if the process is ultimately to succeed, it needs to stimulate
cross-basin
dialogue and understanding and address the statewide contentious
issues.”
He points to the four-basin West
Slope dialogue, and expects some other “cross-basin
dialogue” to happen in the
next year. The South Platte, Metropolitan and Yampa/White Roundtables
are
planning to meet together to discuss ideas that have been proposed for
taking
water from northwestern Colorado to the Front Range. The Arkansas,
South Platte
and Metro Roundtables are planning a joint meeting in October focused
on the
potential for Metro leasing of water from ag land that is being
rotationally
fallowed, which protects and even probably improves the economic base
in the
agricultural areas.
Some of the participants in the
process are standing back from it enough to see a bigger picture. “It isn’t about
water,” said Ray
Wright, IBCC representative from the San Luis Valley and Upper Rio
Grande; “it
is about what water does in terms of the state’s economy. We
can’t deal with
water as if it is simply a commodity. If we don’t allow our
thoughts to broaden
on what water means, this won’t be a very productive
exercise.”
This begins to get at a deeper issue
in political philosophy, where water, and access to it, is just one of
the
fundamental constructs essential to a successful society, and that
deeper issue
has to do with what truly constitutes “the greatest good for the
greatest
number over the longest time.” A first inclination in an alleged
democracy is
to associate that idea with “majority rule”—whatever
works for the majority in
any situation is what is right.
For example, when President
Roosevelt weighed in on the deceit by a federal employee that underlay
the
acquisition of Owens Valley water in California for the Los Angeles
Aqueduct in
the early 1900s, he deplored the deceit but said that the project
should go
ahead, because it would serve “the greatest good for the greatest
number.” But
that project basically triggered the enormous and explosive growth of
the
Southern California megalopolis, allowing great and growing cities to
reach out
as far into their hinterlands as they could afford to keep growing, and
there
are now growing reasons to doubt the sustainability of such a place,
grounded in
such practices – a place now outgrowing two other even larger
aqueducts, bringing
water even greater distances, with no real acknowledgement of ultimate
limits.
Over the currently unknowable course
of the 21st century, it may become increasingly apparent
that “the
greatest number” that can experience even a reasonably good life
over a
reasonably long time is not an infinitely expanding number. And we may
decide,
in the “sadder but wiser” way, that it would have better to
have followed John
Wesley Powell’s advice and not allowed water to be taken away
from its basin of
origin – a policy that would have resulted in many small cities
in many
watersheds, rather than a few huge cities draining many watersheds.
That would
probably be a more flexible and resilient social structure to be taking
into
the coming age of limits, in which the “can do” engineering
attitude of the
water professionals will need to be moderated and guided by a
“should and
shouldn’t do” approach to resource allocation, especially
water.
From the grassroots perspective of
Eastern Colorado’s High Plains farmers or Western
Colorado’s ranching and
resort towns, “the greatest good for the greatest number for the
longest time”
can morph quickly into what James Madison and the other founding
brothers
feared as “the tyranny of the majority” (Federalist Paper
10), and become about
nothing other than demographics. What Madison and others felt essential
to
protect in a democratic republic was an open and accessible discourse
not about
numbers but about ideas for how life should be lived, and for the
maintenance
of the diversity in systems (cultural systems as well as ecosystems)
that biology
suggests is essential to success in dynamic and changing environments.
When the metropolis comes into an
agricultural community seeking water, cultural reasons beyond just
decent
respect for others’ lives and communities should decree a public
discourse
about the impact of water manipulation on the whole fabric of a region
(including the metropolis). Madison and Jefferson were deeply concerned
about
the “violence of faction” that enabled majorities to
overrun minorities who
might in fact have good and essential ideas and customs—certainly
a concern
that should be expressed on behalf of the small minority of Americans
who
produce all our food.
At the heart of it—all flaws and
suspicions and historical antagonisms notwithstanding—that is the
kind of
situation the “Colorado Water for the 21st
Century” act tries to
address, as democratically as Coloradans are willing to let it: a
discourse not
just about water, but about the kinds of ideas and lifeways that get
watered in
the arid West.
*** BIBLIOGRAPHY
OF CITED SOURCES Colorado Water Conservation
Board website: http://cwcb.state.co.us/. George, Russell. “Memorandum
on Interbasin Compacts.” 30th
Colorado Water Workshop Conference Proceedings, Western State
College of
Colorado, July 27-29, accessible on the Western State College website
at http://www.western.edu/water/archives
(go to “30th Water Workshop”). MacDonnell, Lawrence. From
Reclamation to Sustainability: Water,
Agriculture, and the Environment in the American West. Univ. Press
of
Colorado, 1999. Schor, David B., J.S.D.
“Appropriation as Agrarianism: Distributive Justice in the
Creation of Property
Rights.” Ecology Law Quarterly, Vol.
32:3. (Also available on the Western State College of Colorado website
at
http://www.western.edu/water/archives
(go to “31st Water Workshop”). * “Populist Republican” is not a usual political designation, but it fits some of Colorado’s more visionary politicians. In modern times, the prototype was Congressman Wayne Aspinall, who served in the House of Representatives from 1949 to 1973, much of that as Chair of the powerful House Committee on Interior and Insular Affairs, after a decade in the State General Assembly. He did all this as a Democrat, from an overwhelming Republican district dominated by conservative Grand Junction, but he was not a typical Democrat—he was, in fact, eventually defeated in the 1972 Democrat primary, by Democrats, after a Democrat-driven gerrymandering of his Western Colorado district; his Republican friends could not save him. To call Aspinall a “centrist” does no justice to him—or to others in his mold, including Russell George (a Republican) and current Colorado Senator Ken Salazar (a Democrat); Aspinall had a faith in individual virtue and initiative, family values, small business values and other Main Street community values that we usually associate with a certain kind of non-corporate Republican. But he also believed in the need for, and potential of, government, even “Big Government,” to truly realize the potential of the people and their communities. For Aspinall, this often took the form of public investment in water development to “make the desert bloom,” and that eventually alienated him from a Democrat party leaning toward environmental and recreational interests in the West. For today’s “Populist Republicans and Democrats” like Russ George (R) and Ken Salazar (D), the juxtaposing of Republican personal values and Democrat public values tends to take the form of trying to restore a political balance of power among stakeholders of the most inclusive definition that might help restore at least political equity to a nation increasingly out of balance economically.
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