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January 1, 2005: Water Law History

Q: When it comes to water, Colorado seems to be winning a few lately with Secretary Gale Norton weaning California from taking more than its share of Colorado riverwater and with Colorado having to pay Kansas only $29 million.

A: We Coloradoans probably should not start singing "Happy Days are Here Again," at least not yet. Let me give you a bit of background and then you decide.

Remember from past columns that the federal water rule is riparian (sharing and reasonable use) as opposed to the priority system. Also, I have said you cannot really pretend to understand water law without knowing history and the cast of characters who framed the law. To the foregoing let me throw in another chestnut – be careful about what you wish for because you might just get it.

We need to go back to the old case of Wyoming vs. Colorado where a group headed by many Greeley residents such as Mr. Canfield attempted to divert water from the Laramie River to turn northern Larimer and Weld Counties into a long ribbon of irrigated land (approximately ten miles wide and 60 miles long).

Wyoming said "No Way!" and took Colorado to the United States Supreme Court. In a shocker of an outcome, it was decided that as between Colorado and Wyoming, since both states recognized prior appropriation, that water concept not riparianism would be applied in the case. [Cynics point out that Wyoming had the senior rights and that the only judge, I believe, ever to serve on the Supreme Court from Wyoming was part of the majority.]

Well some very, very good water attorneys (primarily from Greeley) decided that Colorado had been "sucker punched" (as a number of them thereafter described the outcome) and vowed never again.

So when it came to the next biggest water issue facing Colorado (the Colorado River), lawyers such as Delph Carpenter and "Alphabet Soup" Carlson (a nickname used with respect and affection, not in a demeaning manner) did not want the Colorado-Wyoming Case to rule the negotiations, since California could claim superior use rights (as Wyoming had). Thus, the Colorado group wanted to "equitably divide the water" (a position Colorado has followed more or less in later water compact negotiations). The Californians were not bunch of dummies. Colorado could equitably divide the river but the lower basin states wanted assurances that they would receive their 7.5 million-acre feet of water regardless of how much or how little water was available. The overall allotment plan was more complicated than just this point, but for our review is the key concept to remember.

PROBLEM. The allocations were based on the figure of 16 million–acre feet of available water. But the actual flow seems to be 13 million-acre feet. After taking into consideration the entitlements to the lower basin states and Old Mexico (which seems to have successfully transformed its share into what amounts to an entitlement), only about 3 million-acre feet is available to the upper basin states based upon actual flows.

One of the reasons Lake Meade and Lake Powell were constructed was to catch extra water during wet years to be released during dry years to fulfill the compact commitment to the lower basin states. Those two "lakes" are nearly dry because of the draught, Old Mexico receiving its share from them, and the fact that this is where California was, for the most part, taking much of its extra water. Few feel the reservoirs will ever refill. So weaning California may prove fruitless if there is not enough water available and may force an actual shutdown of existing use in Colorado, or so say a number of water attorneys and engineers who I had review this column.

Starting to get the picture? Briefly Kansas sued Colorado and Colorado residents in two water law suits using the Wyoming precedent but "lost" because Kansas could not prove the extent of the depletion of the Arkansas River by Colorado. To make a long story short, at the urging of the U.S. Supreme Court, in 1947 the two states entered into a compact that gave Kansas the mechanism to measure the depletion.

I must stop but go back and now examine both recent water events and see what you feel will be the next step given the physical constraints of the available water and the legal constraints of interstate compacts. But note many feel that it will be Colorado and in particular the eastern slope that must cut back on actual water use, not California, Nevada, Arizona, Old Mexico, or Kansas.

But Mother Nature may come to the rescue as she has done before. Massive water flows are not uncommon on the Colorado (one blew out cofferdams and formed the Salton Sea). And Elephant Butte Reservoir in New Mexico, did unexpectedly fill and "spill" thereby wiping out Texas, New Mexico and Old Mexico claims against Colorado under the Rio Grande Compact. So anything is possible.

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