Democracy and Water in the “Post-Appropriation” West
Published in The Water Report, Issue 42, Aug. 15, 2007
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.
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BIBLIOGRAPHY OF CITED SOURCES
“1177”—the “Colorado Water for the 21st Century Act.” Colorado Statutes, Title 37 (Water and Irrigation), Article 75 (Interbasin Compacts). Access through the Colorado General Assembly website: http://www.leg.state.co.us/ (go to “CO Revised Statutes”).
Colorado Water Conservation Board website: http://cwcb.state.co.us/.
“Interbasin Compact Committee (IBCC) Charter.” On the Internet at: http://dnr.state.co.us/Home/ColoradoWaterforthe21stCentury/-Interbasin+Compact+Committee/
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.