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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

Whose plan is it anyway?

by Allen Best

When it comes to water, Colorado has a long tradition of local planning. Communities, working individually and sometimes regionally, have managed to secure adequate water supplies—for the most part. But the state's system of prior appropriation has also led communities into competition with one another. And not everyone feels like a winner. Those who are new to the game or have interests in the non-traditional uses of water bear a hefty handicap. How can they eke their way into a system where most of the water is already allocated.

Other questions, too, beg for answers. How can the state ensure water for its growing population centers while protecting basins of origin? Who should take the reins?

Circumstances today are much different than when Front Range purveyors first began importing West Slope water. There are no ‘easy’ projects. Little water remains unallocated in the Colorado River Basin; by some estimates no more than 300,000 to 500,000 acre feet, if that. Most of that is near the Utah border, hundreds of miles from the eastern foot of the Rocky Mountains, where demand is highest. The state's remaining river basins—the North Platte, South Platte, Arkansas and Rio Grande—are over-appropriated. And, based on the State Demography Office's model, Colorado's population may double in 40 years.

For decades there have been calls for something definitive, a clear route forward, maybe even a comprehensive, statewide plan for water allocation. In 1974, the U.S. Bureau of Reclamation published such a document, ‘Water for Tomorrow: Colorado State Water Plan.’ But the USBR was talking about water planning as if the state's executive branch had the authority to make decisions about who gets water, remembers Bill McDonald, currently USBR's acting commissioner but director of the Colorado Water Conservation Board from 1979 to 1990.

Instead, Colorado's executive branch has no such power. According to McDonald, Colorado already had a plan—for better or worse—and that was the prior appropriation doctrine in tandem with the public and private sectors' activity seeking federally-funded projects through the USBR and U.S. Army Corps of Engineers. The CWCB's role, at least during McDonald's tenure, was to take the feasible USBR projects and get them built. Because there was never enough money to go around, it was a matter of the state agency deciding where to throw its weight.

Immediately prior to becoming the CWCB's director, McDonald worked with Denver Water's Chips Barry—at the time, from inside the Department of Natural Resources, during Harris Sherman's first post as director—on a state plan that was never completed. Their Colorado Water Study's draft report, dated 1981, sketched a picture of the economics tied to different water uses and explored legal and institutional changes to Colorado water law's existing framework that might accommodate public interest values yet unaddressed by the prior appropriation doctrine. The report quietly died on the shelf due to lack of ‘traction,’ recalls McDonald. Barry says the state wasn't ready for it at the time. Coloradans then, as today, were fractured over visions for the future.

Russell George grew up on the western side of the Continental Divide, one of those clearly defined fracture lines. His family's farm was along the Colorado River, near Rifle. He learned early about the abstractions of water. ‘About the first lesson I got from my father was about water rights,’ says George, who later became a water lawyer. As a legislator for eight years, George hoped to leave a lasting mark in the realm of water, but failed. In 2004, he saw his chance. By then DNR director, he had been reading ‘Silver Fox of the Rockies,’ Daniel Tyler's biography of Delph Carpenter, the father of the Colorado River Compact. Carpenter, George believed, had been prescient. California by the 1920s was starting to grow rapidly. Carpenter thought Colorado and the other upper basin states—Wyoming, Utah and New Mexico—needed time to develop their water resources. To protect themselves, they needed interstate compacts that would apportion some water for future development outside the prior appropriation system.

George began to wonder: What if Colorado's major basins did something similar? He envisioned negotiations like those of the seven states in the Colorado River Basin who met in 1922 in Santa Fe, N.M., to hammer out the terms of the Colorado River Compact. In essence, he foresaw the mechanism to achieve what amounts to a statewide water planning process, if not a state water plan per se.

‘It's a necessity,’ says George of statewide planning. ‘We have areas of Colorado, heavily populated areas, that are running out of water, and all of us—all of us—have everything to lose by not solving that. We need to recognize that all are adversely affected when any other part fails.’

Then-Gov. Bill Owens supported the idea. ‘I think it has always bothered him that we had these wars, especially across the Continental Divide, and he was very much a one-state governor,’ says George, now executive director of the Colorado Department of Transportation. In 2005, the Legislature also approved the concept.

The law he helped devise, the Colorado Water for the 21st Century Act, or HB 05-1177, created nine roundtables organized by river basins. Crucial to the success of these roundtables, as George saw it, was broad representation. ‘You can't just start from the top and do statewide water planning, because there are too many suspicions. The power is spread unevenly,’ says George. ‘But when you do it our way, by starting from the ground up, you at least have the prospect of being able to come to the table where everyone is equal.’

The legislation also established a statewide group, the Interbasin Compact Committee, which has created some confusion. After all, the state already has a statewide water-planning agency, the CWCB. Although that board is smaller, representation is also intended to be diverse. The difference from the IBCC, say agency staff members, is that the CWCB's powers are more technical and advisory. Their ability to execute water projects is tightly circumscribed. The IBCC, on the other hand, is meant to facilitate conversations between basins and help the roundtables negotiate interbasin compacts.

Some old perceptions about the CWCB's priorities have resurfaced. ‘People think we have an agenda somewhere,’ says Jennifer Gimbel, director of the CWCB. That is not the case, insists Dan McAuliffe, the agency's deputy director. ‘Please remember, we can't force anyone. If you want real authority, you have to look elsewhere.’

The CWCB's job, they say, is to assist with local projects, but not to prioritize them. There is money, yes, allocated through the Legislature to be distributed by the CWCB for projects, but allocation depends upon local consensus. The state's only real power, says Gimbel, is in ‘forcing the conversation.’

Nearly four years into the process and reports are mixed. Certainly much has been accomplished in the basin roundtables, although the IBCC has been a bit sluggish in some people's view. Rep. Kathleen Curry from Gunnison County was skeptical and still is. ‘I voted no on the legislation, because I felt that we didn't need another bureaucracy and another bunch of meetings, and the people involved in the process don't have authority to do much,’ she says. She does, however, see some value in what they're doing: ‘It doesn't hurt to understand your own basin.’ This, she believes, can lead to a more informed discussion both within the basin, but also in basin-to-basin conversations.

The roundtables have not yet parted the waters. Skepticism remains. So does defensiveness. Attendance has dropped off in places. To the annoyance of those waiting for silver bullets, particularly major reservoirs or perhaps one of the big straws from the West Slope, nothing of the sort has emerged. George concedes that the roundtables have yet to achieve any significant cross-basin conversations. ‘Some,’ he adds, ‘but it's only been three or four years at most. Not much time in the water business. But they're still working at it. That's a measure of success right there.’

However slowly they're occurring, the conversations could not come at a more critical time. A current study by the CWCB will get a firmer thumb on how much water, if any, Colorado even has available for further development under the Colorado River Compact. (See A Numbers Game, page 11.) Climate change may further reduce water availability. And a scaled-up oil shale industry on the West Slope—should a host of maybes become sure things—could conceivably use up the potential balance of Colorado River water.

All the moving parts—continued population growth, ramped-up energy production and climate change—point toward accelerated shifts of water from agricultural to urban allocations. ‘Business as usual means a continued dry-up of agriculture, and that's not a future anybody desires,’ says Peter Nichols, attorney and member of the Metro Roundtable.
‘It's inevitable,’ says George. ‘It's the free market. It isn't best to be sacrificing one of our primary industries, especially our food production. But in the end, it is what will happen.’

Forestalling that inevitable future may be possible if decisive actions are taken now. Sherman, successor to George at DNR as well as predecessor from 1974 to 1980, points to the need for creativity in reducing the impact of water transfers through alternative methods such as rotational fallowing. Sherman also sees demand-side management as a valuable tool. ‘We need to be mindful that the way we grow along the Front Range will affect agriculture. The way we grow will affect transbasin diversions. We're all in this together,’ he says. What is needed, he believes, is improved dialogue between water providers and land-use decision-makers to promote higher-density development, which is associated with lower per capita water use.

However, it may take the Legislature to step in and pave the way for some of these changes. Key problems moving forward, many people feel, are certain statutes in water law, coupled with the IBCC's lack of authority. The true authority lies not in the roundtables, but in the Legislature and governor and, even more fundamentally, in the Colorado Constitution.

‘A statewide plan on top of the appropriation system is not a good fit, and we would have to change how we do business, which is entrenched in the law and in the [state] Constitution,’ says Curry. And just what is meant in House Bill 1177 about creating compacts between basins, she says, ‘hasn't been fully vetted and discussed.’

John McClow, general counsel for the Upper Gunnison River Water Conservancy District, challenges whether Carpenter's Colorado River Compact can ever serve as a model within Colorado. ‘There is a fatal flaw in that reasoning, in that no roundtable, or in fact, no person who sits on these roundtables, has any authority to bind anybody to anything.’

Denver-based water attorney David Robbins further questions the utility of intrastate compacts. ‘Fundamentally, I can't figure out what people think they're going to do under these theoretical compacts, because in almost every instance there is no more unappropriated water.’ If the Legislature wants to see intrastate compacts, he says, it must provide the framework and explain how existing water rights are to be constrained.

History shows the Colorado Legislature will make changes—such as the 1973 instream flow law and 2001 provision for recreational in-channel diversions — to accommodate greater public utility of the water when the people demand it. Still, how far the state's arm should extend in implementing water supply solutions is debatable.

Bart Miller, water program director for Western Resource Advocates, sees an expanded role by the state in recognizing the value of water left in lakes, streams, and wetlands. ‘It's imperative that the state further find a way to recognize those non-consumptive uses of water,’ he says. Private enterprise does not easily fill that role, he adds. And while the state for three decades has been filing for instream flows, Miller sees the need for more than just enough water to keep the backs of the fish wet. Spring flushing flows, in particular, are necessary, he says.

Miller also sees a place for state government in stepped-up funding to assist in the voluntary donation of water rights for instream flows. And he believes the state should engage in the federal environmental review of water storage projects to speak on behalf of protecting instream flows.

Melinda Kassen, managing director of Trout Unlimited's Western Water Project, is leery of the state building and controlling water projects. She cites the public lashing during the 2003 election against Referendum A, which would have provided $2 billion for unspecified water projects, but also points to the broad objection to a proposal called Policy 18, which would give the CWCB the ability to own water rights in projects it finances. Currently, the agency can only own instream flow rights.

It's true that sometimes change can occur in a hurry, and some wondered whether the drought of 2002 would provide that spur in Colorado water matters. But a state water plan would essentially have to overturn 148 years of water law dating back to territorial days and, just as importantly, the principle of water rights as private property. And it would have to be flexible enough to anticipate changes. After all, a plan adopted in 2000 would already look dramatically old-fashioned today. Much less was known then about climate change, let alone accepted.

Tying land-use decisions much more closely to water planning as recommended by Sherman could be extremely difficult. Though the Colorado Legislature has made a start in this direction, it has traditionally been reluctant to infringe upon local autonomy. In matters of both land and water, there is always a delicate balance between individual and community rights. Changes usually come in increments.

But those changes do occur, and the greatest power of the state is, as Gimbel says, that of ‘forcing the conversation.’ Such conversations can at times seem exceedingly slow. The first calls for an Interstate 70—type of highway dissolving the barrier of the Continental Divide came in the 1920s. The first bore at the Eisenhower Memorial Tunnel wasn't completed until 1973. Similarly, with light rail in metropolitan Denver, the process of approval for what is now FasTracks took the better part of 20 years—with the pudding still not delivered even yet.

So it is with the Interbasin Compact Process. The conversations take a while. But without extended conversations, there can be nothing resembling a consensus. Call that what you want. Some might call it a plan.

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