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Law Offices of Ronald W. Rutz
Coloradoan Archives

January 4, 2003: Current Water News

Q: I thoroughly enjoyed your last column on water predictions, but could you discuss some of the current water news stories and editorials that seem to be appearing daily?

A: At the beginning of this new year, I just want to take a moment and thank all of you who read the column. Almost always, when I am out and about, I receive a number of compliments. Often complete strangers come up, introduce themselves, and talk about a past favorite column. Apparently a number of you are circulating columns or passing them on to your clients. But I guess I was most flattered when a county employee told me copies of the column on common-law marriage were given as background information to those inquiring about the issue.

So I humbly want to say thank you and I hope that I can maintain and even increase interest in the law and how it impacts our lives locally, nationally, and internationally. (I also want to thank Julie for letting me take up so much space to say thank you.)

The first water news story concerns the widely circulated story involving the Colorado River. The Secretary of Interior has ordered California to stop diverting as much as 800,000 acre feet of water (on an annual basis) above its allotment (its agreed share of water from the Colorado River) after several southern California cities and an irrigation district in the Imperial Valley could not agree on a water shift within California's allotment. By the time you read this, an agreement might have been reached with the irrigation district, for the time being, diverting 200,000 acre-feet to the cities.

I have mixed thoughts about this action by Secretary Norton. On one hand it forces California to honor the interstate compact it signed and to stop a claim by California that it should have the right to use the water since it was first in time to put the water to beneficial use.

But in my view, for political, environmental, and legal reasons, it will be extremely difficult to use the water on the east slope of the Rockies (hence Governor Owens' trial balloon of an idea to catch the water at the Colorado- Utah border and then "pump" it back over the continental divide). And despite observations in several newspaper columns and editorials to the contrary, the west slope does not have (nor will have for a significant period of time) the facilities and the financially responsible economic need for a major part of the water. So the water will continue to roar down slope and out of the state as desired by west slope and environmental interests. West slope interests want "their" water free of east slope legal claims and available if and when they would need it. Environmental interests want to try to preserve and restore Colorado to its historic setting. (Please do not read into these statements any positive or negative implications—I am just trying to state facts.)

Right now Arizona and Nevada (at least up front in public) support the original compact interstate water allocations, but they too are close or over their allocations and could in the future agree to cast their lots with California and try to reopen the Compact, especially if upper basin "unused" water continues to flow in the Colorado River system.

The next water story is a bit closer to home. The Water Court in Greeley, which hears all water related cases for the South Platte drainage basin including the Poudre, has ordered well owners, most of whom are part of the Central Colorado Water Conservancy District, to show that they have supplied enough water to water rights holders senior to them to compensate for the water taken from the seniors by the use of wells (the foregoing is acknowledged to be a very generalized statement of a number of issues). Despite what you may have read, the drought did not "cause" this dispute, but like a boil, it has been festering for decades. Decisions on "proof" of the effect of pumping wells and who is to decide those issues (the water court or the state engineer's office through supervision of water organizations) will have far-reaching effects. If the well users are deemed to take more water than they give back, then additional water must be purchased or leased by the well users or well water pumping must be reduced accordingly.

Many may have missed the story about Nebraska and Kansas reaching agreement on their disputes over their share in the Republican River. Each state has successfully fought Colorado in court but ended up working things out between themselves. But bottom line, Colorado will only be entitled to a bit over 11% of the water in that stream.

Finally, one of the more realistic goals to increase storage has run into trouble. Since run-off water, and I am not clear but apparently part of the floor, of those big flood control reservoirs upstream from Denver might be affecting water quality for human consumption because of old contamination, use of storage in those facilities has been called into question.

The year is just starting and already we have a lot to follow during the 2003 water saga. Be aware that the elements of this "passion play" have been in place for a long time and population growth, environmental concerns, and the continuing economic transition away from agricultural practices in Colorado have been the major causes. The drought is just a supporting character, which has served only to accelerate what is now happening. Just remember that you need a program to tell who the real players are and what the real plot and subplots are. Popcorn and beer anyone?

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