Does Colorado need a better safety net for rivers, creeks?

The Yampa River flowing through Steamboat Springs during June was a perfect example of what many people think is entirely wrong about Colorado’s system of water allocation.

In this year of extraordinary drought, the valley floor had the theme of St. Patrick’s Day. The horse pastures were well watered, the meadows an emerald carpet, the infrastructure created to serve an agriculture empire achieving its purpose.

The river itself was suffering. Flows were anemic, finally dropping to about 40 cubic feet per second in late June, compared to an average of nearly 1,000 cfs during the last 102 years. Rafting was out of the question. City officials even issued a call for a voluntary end to inner tubing, because of the risk to fish.

All of this was legal, and some would say it’s proper. Under the doctrine of prior appropriation, a legal system of water allocation that was arguably perfected in Colorado, senior water users had exercised their water rights and held back or diverted water from the rivers to the specified purposes, mostly agriculture.

Across Colorado, somewhere around 85 to 90 percent of water is used for irrigation of some sort, but especially to grow low-value crops like hay and the corn used to feed cattle. The same proportion prevails broadly in the West, if in Arizona, the water also grows cotton.

Roots of prior appropriation

For decades, people have been saying that the prior appropriation system used in Colorado and other Western states needs to be substantially modified or scrapped altogether. Colorado’s system was based on a similar system of water allocation developed to meet needs of hydraulic mining of the gold rush in California. The law, at its most basic level, says first in time, first in right. But you lose your place in line if you do not use it. Most of the oldest water rights in Breckenridge, one of the first gold-mining camps, were abandoned when mining was abandoned.

With this system of prior appropriation designed to meet the needs of industry, agriculture and municipalities, water in several of Colorado’s major rivers long ago was fully appropriated in all but the snowiest and wettest of years.

In the last half-century, prior appropriation law has been modified in response to shifting needs and values. The modifications recognize the benefit of leaving water in rivers, instead of diverting it. In 1973, the state adopted legislation allowing state water authorities to file for in-stream water rights as needed to provide for minimum needs of insects, fish and other aquatic and riparian life. Some 9,000 miles of rivers and creeks now have such instream rights. Colorado now recognizes the water rights for kayak parks in Golden, Breckenridge and Vail, among other places. It has been adjusted to recognize snowmaking.

The drought of 2002 induced yet more changes. One new law permits water to be shared on short-term basis, such as a city that gets a farmer’s water 3 years out of 10.

But many think the prior appropriation doctrine is being modified too slowly. A different, but parallel discussion, is whether water markets can best meet evolving needs of scarcity, not just in Colorado, but more broadly among the seven states in the Colorado River Basin. (More about that in the next issue of MTN).

Chewing over the changes

All of these many ideas were sorted out, if in very terse, conference-style fashion at the Water Workshop held in mid-July at Western State College in Gunnison, Colo. There were, as usual, no firm conclusions, just an indication of new edges to the conversation.

Worrying the water establishment this year has been a pair of proposals that, had they gone to the November ballot and succeeded, would have created a public trust doctrine governing Colorado law. A public trust assures a minimum flow in streams and rivers over and above Colorado’s priority system. This is different from the minimum streamflows, which are all relatively junior, dating mostly to the 1970s and 1980s.

If the public trust doctrine were adopted, more junior users would lose their water rights in years such as this in the Yampa Valley were the trust doctrine to go forward.

“We’re out of water, folks,” said one of the proponents, Phil Doe. “It (the public trust doctrine) makes us accountable in how we use things. It’s not the end of the world.”

He cited an example of the South Platte River in Denver, at the Franklin Street bridge, where the river bed this summer has been essentially dry. “Public trust doctrine only says you cannot do that,” said Doe.

While there is a minimum streamflow on that and other rivers, it’s adjudicated within Colorado’s pecking order of senior and junior users. Mostly these “minimum” flows have very junior appropriations. Their rights come junior to those of a century of appropriations.

In trying to do what’s right for the environment, Doe said, Colorado’s voluntary organizations cannot compete with oil and gas interests. “It will be like Owens Valley and Los Angeles—except that in this case it will be the oil and gas industry instead of LA.”

The Colorado Water Trust works within the existing prior appropriation system and has no position, for or against, on the public-trust doctrine. Rather, the non-profit organization seeks to use the existing tools embedded within prior appropriation to restore rivers. The organization is not only led by a water attorney, Amy Beatie, but the board of directors include several of the state’s best-recognized water attorneys.

Created 10 years ago, it relies on donations and so far has had several successes, the most notable on a tributary to the Blue River, north of Silverthorne, along with other actions in the Aspen area and near Eagle. It is also involved in work on the San Miguel River near Telluride and other locations.

Bandaging the Yampa

This year, the Colorado Water Trust scrambled to bandage rivers hammered by drought-induced low flows. One of those rivers is the Yampa.

In late June, the trust leased 4,000 acre-feet of storage water in Stagecoach Reservoir, located near Oak Creek and upstream from Steamboat. Owned by the Upper Yampa Water Conservancy District, the waters being released over augment the Yampa River 26 cfs if released steadily over a 75-day period. As a practical l matter, the water is released more selectively: less after a big rain, but more during extended dryness.

That simple water acquisition, which cost the non-profit $150,000, was leveraged through an additional deal. Instead of augmenting the Yampa River for just 4 or 5 miles through Steamboat, the additional deal effectively “made whole again” a 50-mile stretch of the Yampa River, to Craig.

It was the first time that such short-term leasing provisions have been used since they were authorized by the Legislature in 2003, said Beatie. She says that there are other instances where, through careful leveraging, very junior rights can be used to act like very senior water rights. She cited this as an example of how collaboration can produce out-sized benefits.

In the last few days, the Colorado Water Trust also completed a deal to augment flows of the Colorado River between Windy Gap, near Granby, and Kremmling, a segment of about 25 miles that has suffered mightily in recent years, even without drought.

In late July, proponents of the public-trust doctrine withdrew efforts to get their proposals on the Colorado ballot this year. Nobody expects the issue to go away, least of all Ken Neubecker. Long associated with Trout Unlimited, he has his own non-profit, called Western Rivers Institute, and he aligns firmly with those who want to modify prior appropriation. But he did not support the public trust initiatives this year.

“If you’re going to establish a public trust doctrine, it’s going to be a lot more complicated than taking a bulldozer to the edifice of prior appropriation,” he says.

And biologists, too

But Neubecker does perceive a public mandate. “The vast majority of Colorado residents have little understanding of water law,” he said in Gunnison. “But a significant majority of these same residents believe strongly that it would be, or at least should be, illegal to dry up or otherwise harm a stream by diverting too much water.”

Neubecker compares the state of Colorado rivers to its forests. “The collapse of the forests was due to drought and pine beetles, both endemic conditions exacerbated by climate change. Collapsing river ecosystems will be due mostly to our actions, actions based on past values and institutional resistance to accommodate new ones. When this happens, the public will be no less outraged than they are about what has happened to the dying forests they came to see as ‘pristine,’” said Neubecker.

Evidence of the atrophying of rivers can be found along their banks, where stately cottonwoods are often found in lower elevations. But that, said Neubecker, is like going to a town and finding nothing but silver-haired people. The big cottonwoods, and lack of saplings, speak to the effects of long-term decline in water along river banks.

One of the problems with our prior appropriation system, he adds, is that it was built by engineer and lawyers. Biologists were on the sidelines. “They need to be involved,” he says.

The longer Colorado’s institutions resist “real accommodation of the legitimate public interest, the changed paradigm, the more likely it is that proposals such as these (public trust doctrine initiatives) will eventually succeed,” he said.

Others will present the case differently. The Colorado Water Congress, the pre-eminent non-profit representing established water interests, repeatedly sounded the alarm over the public trust doctrine.

A legal nuclear bomb

Among the most able defenders of prior appropriation is Colorado Supreme Court Justice Greg Hobbs, a water attorney by background and a poet by avocation. In a minority opinion involving the public trust doctrine in April, he laid out clearly why he doesn’t think the measures should be allowed to go before voters, as it was constituted and hinted at why voters should reject it if it did.

“These three subject matters separately and together propose to drop what amounts to a nuclear bomb on Colorado water rights and land rights,” he wrote in his dissenting opinion. Masquerading as a measure to protect the public, Initiative 2011-12 #3, contains surreptitious measures that would strip members of the public, cities, farms, and families throughout this state of their most valuable economic interests.”

Chris Treese, director of external affairs for the Colorado River Water Conservation District, noted that while advocates have promised to return with similar public-trust proposals to submit to voters in 2014, he’s not holding this breath. “I have heard this before,” he says.

The challenge for the established water community that he sees is to make the case to the public that prior appropriation has proven flexibility and adaptable in reflecting changing public values.

“Whatever its failings, it does work,” he says. “It’s a little bit like Churchill’s comment about democracy. It’s messy, but it’s better than all of the alternatives.”

Mountain Town News
Allen Best
Original article