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Interstate Compacts

How Drought Shapes Colorado Water Law and Policy

By Justice Greg Hobbs, Jr.

As tree-ring and archeological evidence shows, extended droughts are frequent visitors to the Rocky Mountain region. In the short term, Coloradans are confronted with withered crops and dry stream channels. Yet in the long term, drought's lasting legacy is written in the history of Colorado's water laws and institutions.

New Settlers in an Arid Climate
Life in Colorado's arid environment quickly necessitated a new set of laws governing water use. In 1872, the Territorial Supreme Court moved Colorado water law in an entirely new direction, allowing diversions from the river and construction of ditches across public and private land. Water in Colorado became a public resource available for use by all private individuals and public agencies.

Reclamation Era
The years 1893-1905 witnessed multi-year cycles of severe drought in many areas of the West. In southwestern Colorado, 1899-1902 saw four consecutive years with less than 80 percent of average precipitation. Faced with an unreliable water supply, the West's largely agrarian society struggled to remain productive. In 1897 and 1899, Colorado adopted its first statutes allowing exchanges of water and changes of water rights between agricultural, municipal and other users.

To promote continued settlement and development of the western United States, Congress passed the 1902 Reclamation Act, creating the Bureau of Reclamation. Today, the Bureau of Reclamation is best known for its construction of more than 600 dams, power plants, and canals across the 17 western states.

One of the first authorized Bureau projects in Colorado was the Gunnison (Uncompahgre) Project in western Colorado. The Uncompahgre Project, opened in 1909, now irrigates some 80,000 acres from Montrose to Delta. The Gunnison Tunnel made the project possible, diverting Gunnison River water through 5.8 miles of solid rock into the Uncompahgre Valley.

Roosevelt's New Deal And Water Supply Projects to Soothe the Parched West
In October 1929, the Wall Street crash launched the nation into the worst depression in American history. Further intensifying the economic crisis, the most widespread and longest lasting drought in Colorado's recorded history dragged on from 1930-1940, famously known as the ‘Dust Bowl Years.’ Severe drought peaked in 1934 and 1935, culminating in 1939 with one of the driest years in recorded history, especially along the Front Range.

By March 1933, desperate to bolster the failing economy, Franklin D. Roosevelt called a special session of Congress to develop a series of programs known as the ‘New Deal.’ As part of these efforts, Congress gave the newly-created Public Works Administration $3.3 billion for construction of public works projects, including reservoirs.

By 1937, Colorado Senator Alva B. Adams and Congressman Ed Taylor helped secure reclamation funding from the Interior Department to construct, among others, the Colorado-Big Thompson (CB-T) Project. One of the first of its kind to provide both agricultural and municipal water, this project tapped the headwaters of the Colorado River by boring a hole through the Continental Divide. Presently, the C-BT Project delivers more than 200,000 acre-feet of water each year to northeastern Colorado for agricultural, municipal, and industrial uses, with Green Mountain Reservoir providing some 100,000 acre-feet of water annually for western slope use.

Creation of Local and Statewide Water Management Agencies
The Dust Bowl years motivated the Colorado State Legislature to find better ways to manage water locally. The 1937 Conservancy Law created a network of local and statewide water management agencies known as conservancy districts. Created to construct, finance, and manage water projects, today 51 conservancy districts operate in Colorado.

At the same time, the Legislature established the Colorado River Water Conservation District, later followed by the Rio Grande, and Southwestern water conservation districts, to assist in the development of water policy. Finally, on a statewide level, the Colorado Water Conservation Board was established in 1937 to coordinate the protection and development of the state's waters.

Drought in the 1950s
From 1950 to 1956 another drought hit the West, with some areas reporting conditions more severe than the Dust Bowl. In response, in 1956 the U.S. Congress enacted the Colorado River Storage Project Act to establish a savings account of reservoirs designed to help the Upper Colorado River Basin states (Colorado, New Mexico, Utah and Wyoming) meet their Colorado River Compact entitlements. The resulting projects — the Aspinall Unit, Navajo, Glen Canyon, Fontenelle and Flaming Gorge dams — today also provide substantial hydropower and recreational benefits. In 1962, Congress authorized the Frying Pan-Arkansas Project for southeastern Colorado water deliveries.

During the dry years of the fifties, farmers faced with dwindling surface water supplies looked to newly-improved groundwater well-pumping technologies to keep their crops from failing. Well use blossomed. Particularly in the lower reaches of the South Platte River Basin, wells provided some farmers with what may have seemed like insurance against further drought. But many of these wells tapped groundwater tributary to surface water. This meant that in some years, pumping of these wells diminished the water available to senior surface water rights.

Not until 1965 did the Colorado Legislature pass the Groundwater Management Act, which attempted to regulate groundwater use and well construction by requiring every new well in the state diverting tributary, nontributary, Denver Basin groundwater, or geothermal resources to have a permit.

The 1950s drought also served as the worst-case scenario for municipal water supply planning in Colorado. However, the ongoing 1999-2003 drought has called into question whether this benchmark is still appropriate.

Planning for the Future

Coinciding with a sustained multi-year drought from 1974 to 1978, state lawmakers started to put efforts into planning for prolonged dry cycles. By 1981, Colorado initiated drought planning efforts at the state and local level incorporating monitoring, impact assessment, response, and mitigation systems. Colorado's ‘Drought Response Plan’ came out of this dry cycle, as well as the formation of the ‘Water Availability Task Force’ which continues to meet quarterly. These plans and organizations became particularly important in the year 2002, as stream flows hit record low levels.

It is still too early to say when the current drought will end, or how it will impact Colorado's current water law and policy. Significant new water legislation in 2003 has already developed some responses. Yet looking at historical trends reminds us that we do not operate in a vacuum, and that our ancestors wrestled with some of the same unknowns and challenges. Understanding what they did well and what they did poorly can serve as a useful tool for informing ourselves for the future.

Compacts Resources

Guide to Interstate Compacts explore how our water-sharing compact agreements were first created, how they succeed and fail, and how they have fostered enduring relationships among bordering states. Read or purchase the Citizen's Guide to Colorado's Interstate Compacts.

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