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Colorado's public lands are faced with new challenges but water and land management depend on working together. Read about the relationship between water and land in Colorado and how Coloradans are converging to restore Colorado's public lands in the Spring 2018 issue of Headwaters magazine.

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Water Education Colorado

Colorado's Water for the 21st Century Act: Finally doing the right thing?

By George Sibley

Americans can always be counted on to do the right thing, after they have exhausted all other possibilities.’

- Winston Churchill

Unbelievably, the 2005 Water for the 21st Century Act sailed through Colorado's General Assembly on the first try. A deeper look at the history of Colorado water in the 20th century makes the fast passage of the Act in the early 21st century look at least as inevitable as unbelievable. On one hand, the state passed the millennial mark confronting a substantial gap between current water supplies and future needs; and on the other, a number of traditional efforts to address that gap had been stalled or shut down. Colorado had hit a stalemate, and, in Winston Churchill's words, other possibilities had been exhausted.

 The stalemate and its roots

Through the first three-quarters of Colorado's 20th century, increasingly ambitious water development projects were constructed on both sides of the Continental Divide. The largest ones were built by the U.S. Bureau of Reclamation, ostensibly to provide water and power for agricultural and rural development. But the bigger story in Colorado was that of a growing metropolis that leveraged population and wealth to import large quantities of water from increasing distances. Water doesn't exactly flow toward money, as the maxim goes, but money is able to engineer water's movement. Denver Water led the way in this, but Aurora, Colorado Springs, Pueblo and the municipal subdistrict of the Northern Colorado Water Conservancy District also reached out into the state for water, and now the South Metro suburbs are stirring and looking around.

Two events circa 1990 seemed to bring Colorado's large-scale urban water development lurching to a halt. In 1988, the Eagle County Board of Commissioners denied a construction permit to Aurora and Colorado Springs for their Homestake II Project, designed to divert water from Eagle River tributaries in the Holy Cross Wilderness Area. The U.S. Forest Service, with oversight of the land, had approved the project. But local concerns about environmental impacts convinced the commissioners to assert their ‘1041 powers’ under the 1974 Areas and Activities of State Interest Act to deny the cities the local permit they needed. The cities sued the commissioners for this impertinence, but the Colorado Supreme Court upheld their action.

Then, in 1990, the U.S. Environmental Protection Agency vetoed the Two Forks Project, which Denver Water and a number of metropolitan suburbs had been planning since the 1970s. The massive reservoir in the foothills southwest of Denver would have collected water from both sides of the divide. Project opponents convinced the EPA the cities had not taken sufficient conservation and efficiency measures to warrant such a high-impact project. Two Forks proponents appealed, but in 1996 the federal district court upheld the decision and Two Forks was shelved.

Attitudes toward large water projects had shifted, and both federal and state legislation reflected the change. Colorado's 1041 powers, imbued by HB 74-1041, gave county governments authority to create developmental regulations in areas of ‘state interest.’ As Homestake II showed, 1041 enabled counties with good land use regulations and unified local support to deliver an enforceable challenge not only to the ‘great and growing cities,’ but also to the federal government in interpretations of its own environmental law. The counties couldn't ‘just say no’ to water projects, but they could deny permits if projects didn't meet reasonable standards for mitigating environmental, social and economic impacts.

On a national level, increasingly pronounced water quality problems sparked passage of environmental legislation like the Clean Water Act and Endangered Species Act in the early 1970s. From the start, such legislation had deep popular support, particularly in mountain communities where protecting the local environment and its water also protects the local economy. Such support is also surprisingly strong in cities themselves where people have a growing perception that constant growth, especially of the sprawling sort, is not that desirable; much of the organized protest against Two Forks was based in the very cities that planned the project.

These environmental laws, combined with the 1041 powers, leveled the field by allowing new players into decision-making about water, players who have historically had little standing in water law. Until recently, water courts themselves generally lacked legislative authority to consider environmental and economic impacts of diversions when reviewing water rights applications. Still today, they are only authorized to consider the impact of agricultural transfers involving more than 1,000 acre feet of water, and to require the in-lieu payment of taxes lost from the dry-up of agricultural lands due to out-of-county water transfers for up to 30 years. Local communities have objected not only to the injury that major out-of-basin diversions cause to local environments and economies, but also to the accompanying insult of not having a chance to raise their concerns in court.

Long-simmering frustrations have engendered feelings of hatred — not too strong a term — in both eastern and western Colorado toward the ‘water grabs’ and ‘water steals’ by Front Range cities despite the fact that the cities have never ‘stolen’ any water. Chips Barry, Denver Water's manager, observed that ‘under Colorado water law, there is no legal basis for complaint,’ but he acknowledged that ‘there may be a moral basis for complaint from those in basins of origin.’

The cities fueled basin-of-origin communities' anger by making West Slope residents feel like ‘a nuisance, a chigger or something,’ says Barbara Green, general counsel for the Northwest Colorado Council of Governments, a group of five counties in the Upper Colorado River watershed. City utilities tended to show the same disrespect to their own neighbors. In a remarkably frank presentation on ‘The Maturing Metropolis’ at the Colorado Water Workshop in 2005, Barry laid out the pre-Two Forks paradigm for urban water development: 1) File on as many water rights as possible in as many places as possible, and keep all that as secret as possible; 2) design storage projects for those rights but don't let anyone else know what you are doing; 3) be prepared to defend your projects against all attackers in court and to attack in court any projects which might threaten your yield.

The sunny side of the appropriations doctrine is the democratic access it gives equitably to anyone irrespective of wealth to file on a water right; but its dark side is the adversarial and litigious ‘every man, or city, for himself’ culture it spawned.

Beginning to do the right thing

With the one-two punches of Homestake II and Two Forks, things had changed. It now appeared relatively small communities on the West Slope, with the support of environmental organizations, could significantly delay or stop water projects. Those charged with providing water to a growing Front Range were forced to seek alternatives. After Two Forks' veto, Gov. Roy Romer directed the metropolitan water managers who had collaborated on Two Forks to continue meeting but to focus on alternatives to mega-projects involving West Slope water. The group, which became the Front Range Water Forum, took its charge seriously. In 1999, members outlined strategies to maximize use of existing water in a report titled ‘Metropolitan Water Supply Investigation.’ The Front Range districts have been working diligently on these strategies over the past decade, with a new breed of ‘mega-projects’ underway, like Denver's huge wastewater recycling program and Aurora's Prairie Waters reuse program.

Everyone on both sides of the divide realized, however, that conservation, efficiency and reuse would not eliminate the need to import new water from other basins for the growing cities of the Front Range, and people on the West Slope had no reason to rejoice that the cities were beginning to act as one — a really Big One.

So in 1991, led by the NWCCOG, public officials in the upper reaches of the Colorado River invited Front Range water leaders and officials to ‘come talk,’ presumably to discuss a requisite update of the state's Water Quality Plan. It took a certain amount of coaxing to get enough big players from the Front Range to make the meeting worthwhile. In early November 1991, a year after the Two Forks' veto, 48 Upper Colorado and urban water leaders gathered in Winter Park. A cocktail party broke the ice; the following day was spent making each other's acquaintance. The facilitators maintained a firm focus ‘on common ground, not old wounds.’ By the end, everyone agreed to collaborate on water quality solutions, essentially abdicating the old paradigm of egocentric aim. Most significantly, they decided to continue meeting in what came to be called the Headwaters Forum. The forum, still in existence, has enabled a number of improvements or expansions to existing projects in the Upper Colorado tributaries to proceed, with benefits to both sides of the divide.

This paradigm shift didn't occur overnight. Rather, it took a critical mass of stakeholders frustrated by their experience with the litigious culture nurtured by Colorado's water law to choose the alternative. Doug Kemper, executive director of the Colorado Water Congress but manager of water resources for Aurora Utilities before that, suggests others like himself in metro area water management wondered, ‘Have we forgotten about sitting down and talking about problems?’ Somewhat suddenly — in relation to the previous century — that had become the logical thing to do.

Evolution of a statewide approach

By the late 1990s an old idea re-emerged -- that Colorado might develop a more formal process for statewide water planning. A state water plan had been partially drafted in the 1970s but abandoned. The effort was led by two young Colorado Department of Natural Resources employees: Chips Barry and Bill McDonald, who is now acting USBR commissioner. The report, ‘The Colorado Water Study, Directions for the Future,’ discussed public interest values related to water use including fish and wildlife; recreation; wild and scenic rivers; water and land preservation trusts; and water banking. But the study never got legs. It did, however, illustrate an underlying principle of statewide water planning: percolate ideas and then let the political and local initiative process run its course. Several years following the study's completion, the General Assembly established authority for the Colorado Water Conservation Board to manage a fish and wildlife resources fund that recognizes the role of instream flows and river restoration projects in mitigating water projects.

Not all legislation was successful. Though West Slope legislators regularly introduced basin-of-origin protection bills, they were voted down by a unified Front Range, leaving the West Slope feeling vulnerable. But in 1998, Rep. Matt Smith from western Colorado's Grand Valley introduced a more comprehensive bill. Smith's idea was to create ‘local, voluntary basin planning groups established to identify the present and future water needs, both consumptive and non-consumptive’ in each of the state's major river basins. These planning groups were to develop a credible water supply history for their basin and assemble a list of alternatives, ‘including processes or facilities required to address the identified water needs’ and all ‘economic, technical, or regulatory impediments’ to the development of those projects. The bill contained further instructions for the State Engineer and the CWCB to evaluate each basin's list of projects and mitigation needs ‘from a statewide perspective.’

The idea of basin planning groups was a step in the direction taken by the two existing forums, but the absence of instructions about who — what interests, entities, stakeholders — should participate in those groups proved, in retrospect, to be an oversight. This was partially addressed in the next evolution of the idea, the CWCB's Statewide Water Supply Initiative, or SWSI, which the legislature approved in 2003.

Clearly, significant water development was needed statewide, some of it intrabasin, some of it interbasin. If solutions were to be sought through a process of democratic transparency and inclusion, then something like the Colorado Water for the 21 Century Act might be considered inevitable — the right thing to be doing, after having exhausted many other possibilities.

Colorado water for the 21st century

The driving force behind the Act was Russell George. A West Sloper by birth and inclination, he has spent most of his adult life in Denver in public service, first as a respected member of the legislature where he became speaker of the House of Representatives, then as director of Colorado's Division of Wildlife and later executive director of its Department of Natural Resources under Gov. Bill Owens; currently, he is executive director of the state's Department of Transportation.It was during his tenure at DNR that George began talking with people on both sides of the aisle and both sides of the divide about the possibility of an intrastate negotiating process like the interstate negotiations that led to Colorado's river compacts with downstream states in all directions. In September 2004, in a keynote speech at the Colorado River Water Conservation District's fall seminar, he launched the idea that became the Colorado Water for the 21st Century Act. Rep. Josh Penry from the Grand Valley and Sen. Jim Isgar from the San Juan River Basin carried HB 05-1177 and its Senate counterpart in the legislature that year — but not before it underwent many revisions in an attempt to address concerns that had been bubbling to the surface for decades. Eric Hecox, now chief of the CWCB's Intrastate Water Management and Development section, took a leave of absence from the Bureau of Land Management to work full time with George on getting it right.

The Act used the idea of roundtables from the SWSI process, but was careful to detail the makeup of the ‘1177 roundtables’ to ensure all stakeholders were represented. It improved on the SWSI division of the state by watersheds by creating a Metro Roundtable, the state's ‘moneyshed,’ separate from the South Platte Basin Roundtable. And it wisely — or maybe just necessarily — left many details of exactly what the roundtables and the statewide group, the Interbasin Compact Committee, could or should do to be worked out through the process itself.

Ultimately, the Colorado Water for the 21st Century Act may be as much a challenge as a solution — a challenge that will test our commitment to democratic process as things get noisy and messy down the road. The Act will do little to make life easier for urban water providers; but if they can honor, or at least tolerate, the legislated mandate for the democratic values of inclusion, access and transparency, the process might enable them to get some water projects underway again. Colorado water law being what it is -- with the constitutional trump given to domestic use over all other uses including agriculture — it makes sense for Colorado's smaller communities to remember the cities have problems too, problems they could be forced to resolve by condemning water rights if no alternative is negotiated.

Moving forward, a couple of words from the wise might be kept in mind. One is Justice Greg Hobbs' observation that ‘we are no longer developing a water resource; we are learning how to share a developed resource.’ And the other is from Chips Barry, who has been walking his own talk since Two Forks' demise: ‘Like it or not, we are all in this together.’

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