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Law Offices of Ronald W. Rutz
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July 19, 2003: Water News

Q: (From a number of readers.) Water news seems to have sunk out of sight lately. What has happened?

A: Actually one very significant matter has occurred in the federal court system. Our 10th Circuit Court of Appeals located in Denver ruled in a New Mexico case that water must be released from a New Mexico reservoir to support stream flows and to protect an endangered fish species, even though the water released was "owned" by a municipality and by a number of private individuals. The decision is being appealed to the United Sates Supreme Court.

Why is this so important? Here is the problem. If a federal issue is involved, the "property" rights that we Coloradans gave ourselves when we wrote our laws rest on a federal foundation. Even though the Colorado Constitution states that ownership of water rests in the public, federal riparian common law and the constitutionally supported supremacy of federal law is the ultimate foundation of water rights, with the next legal layer being our state- enabling act from the federal government that brought Colorado into the Union, our Constitution, and Colorado water statutes and court rulings. In a gross generalization but to spotlight the difference, think of riparianism as sharing of water and prior appropriation as exclusive-exclusionary use. Thus, in a fundamental conflict, federal law is the starting point.

This whole area constitutes a legal course by itself and is beyond the confines of this column. Yes, there have been attempts to define the federal rights (Senator Allard has led that effort). But just when the issue seems to go away, it springs back to life much like a water Phoenix, putting uncertainty into our prior appropriation system. [Editorial note: It's too bad we have not had lawyers and administrators in charge with the skill and knowledge to turn federal riparianism, "reserved rights," and other federal legal precepts into buttresses protecting Colorado law instead of a soft and mushy bog on which to stand.]

The second most important event during the last few months also involves the federal government. Currently it appears that agreement is near with the federal government to use 20,000 acre-feet of storage in Chatfield Reservoir. This structure is "high" enough to permit water distribution for most of the Denver suburbs and also for farmers such as those in the Central Colorado Conservancy District. (Twenty thousand acre-feet can provide water for 20,000 to 40,000 families.) During the next three to five years, after studies and reviews, and for a cost of $15,000 an acre-foot, this increase in available storage capacity directly meets some of the most pressing water demand.

Next the recently unexpected wet spring had mixed blessings. I have been told unofficially (and I hope that I am wrong) that a significant amount of the flood water in the northern part of the South Platte Basin went unused by farmers and somewhat "unstored." With maybe two or three exceptions, the major reservoirs in position to store the runoff were basically at capacity and unable to catch significant late flood flow.

In the past from a purely economic outlook, this was not always a negative. Back then much of the "free water" (flood water) was diverted onto fields using flood irrigation for hay and barley. But farming techniques have changed since I was a boy. The kind of irrigation I did 45 years ago has been replaced with pivots and pipes, along with different flood irrigation methods. Thus, the water could not just be turned onto fields as in the past.

In my opinion, the only Colorado Supreme Court case that really made a difference (there have been three major decisions this year) held that a water right can be obtained for in-stream recreational use. Remember to gain a water right there must be diversion of water and an application for a beneficiary use. Now for the Court to recognize this kind of beneficial use is not that much of a stretch, and over the years, diversion is becoming a legal fiction. So why is this case such a concern for those with senior water rights? The first commandment of water law is that the first one to use water has the right of use against everyone else. However, if the point of use or diversion is moved, junior right holders have the right not to lose their water. Thus these "junior rights" could make senior rights less "liquid" (movable), at least to the amount of water transferred. Thus, the real impact is not about new vested uses of water necessarily but reducing the transferability of water.

As to another Colorado Supreme Court case and subsequent legislative action, I am told it really has not had much of a practical effect. (Remember the Water Court in Greeley "shut down" certain irrigation wells. Actually, about 1/3 could pump because supplemental plans were filed and water provided, another 1/3 could partially pump because plans were filed but the owners had not acquired all of the surface water needed for replacement, and 1/3 could not because no plan was filed). The lateness of the Supreme Court decision and legislative action, along with the lack of, at that time, water at a reasonable price, caused irrevocable planting decisions to have been made. Thus many well users had already committed to crops or not to plant and did not change horses in midstream. From a practical point of view, some adjustment did occur, but the original 1/3, 1/3, 1/3 ratio seems to have held, or so I have been told by several people both inside the government and in private organizations.

Much of the other water news (reducing California diversion of the Colorado River, the "big straw" study, the upcoming bonds for water project referendum, etc.) still needs to play out to see what happens, if anything.

Well, I have probably muddied the waters but the foregoing was one grumpy old water buffalo's perspective of the last few water months, even though you feel that water related stories have slipped below the surface.

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