Essay by Jim Dyer
Water – June 2003 – Colorado Central Magazine
BY WAY OF INTRODUCTION, I’m not a water lawyer and have not spent the kind of time that employees at the Department of Natural Resources or some of the other water agencies have spent getting educated about water policy, so when it comes to technical questions about the jurisdictional differences between federal and state agencies, I am not qualified to comment.
I am, however, qualified to speak as a State Senator representing a major Front Range suburban district about how important it is to deal with water allocation as a statewide problem with the goal of serving the best interests of all Coloradans.
In this case, the problem is the disparity in naturally occurring supplies of water in the State. Some areas have abundant water and few people, while other areas have abundant people and scarce water supplies.
Our forebears knew that if an enterprise was to prosper in this State and if the State was to be settled and cultivated, water would play a key role. It is for this reason that they chose a system of allocation based on a claim of “first in time, first in right,” known as the “doctrine of prior appropriation.” One of the major tenets of that system was that people could not “hoard” or “speculate” in water.
Historically, we can only imagine how horrifying it would be to have a wagon master hit a watering hole with a caravan dying of thirst, only to find a speculator with a shotgun at the only watering hole for miles around, charging an exorbitant fee for the use of the water.
The doctrine of prior appropriation provided, and continues to provide, critical legal protection to newcomers ensuring that a person can claim only the water he can put to beneficial use, otherwise the claim would be “speculative” and not enforceable. As a matter of public policy, the system was based on a requirement that people beneficially “use” the water and only claim as much as they can demonstrably use. In this way, the newcomers also had a right to use some of the State’s water.
Today, ironically, we are faced with a similar situation. Approximately 500,000 to 1,000,000 acre-feet of water in an average year is leaving the State on the western side of the Continental Divide while communities on the eastern side suffer water shortages. In the last decade we have added an estimated one million “newcomers” to the State, mostly on the Eastern Slope. After the people on the Eastern Slope squeeze the most use out of their existing water supply, it makes no sense from a policy standpoint to not use and store the surplus on the western side that is leaving the State.
I believe that recently passed Senate Bill 03-236, (the Dyer-Entz-Hoppe water bonding Bill), takes an important step in encouraging regional cooperation. For the first time, a state funding mechanism is tied to providing basin of origin mitigation.
THAT DOES NOT MEAN that as a matter of public policy any one portion of the State should have a veto on the use of any natural resource by persons in another part of the State.
Rather, what we must do is ensure a thoughtful dialogue about how different needs in different parts of the State can be met on a fair and equitable basis and enforce that dialogue with a funding mechanism that allows the cost of compromise to be paid for by the users.
I view this situation as similar to the allocation of other resources in the public policy arena. For instance, once again this year, we passed a school finance bill for the entire State which, among other things, directed that funds that were raised through tax dollars on the Eastern Slope be used to equalize opportunity in schools on the Western Slope.
There was no attempt to boycott the utilization of Eastern Slope money for Western Slope purposes. Similarly, everyone knows that there is a great disparity between the amount of gasoline taxes raised on the Eastern Slope and the amount of money spent on highways west of the continental divide. Yet in both cases, we have insured that as public policy the “have nots” won’t be stymied by the “haves.”
In both these instances, we have a State Board of Education and a State Transportation Commission that are apportioned roughly by population and yet the decisions still favor the allocation of scarce resources in a disproportionate way so as not to disadvantage the Western Slope. The guarantee of making a scarce resource available to all citizens in the State is good public policy and I support it.
YET, I FIND IT IRONIC that the primary agency charged with planning the future allocation of water, the Colorado Water Conservation Board, has a very disproportionate representation with five out of the eight appointed districts coming from the Western Slope. Board representation is not apportioned by population. Less than 20% of the population controls a majority of the Board and the interests of the Western Slope are carefully protected. Under the Dyer-Entz- Hoppe Bill, this Board will still set public policy on which water projects are funded.
People will tolerate this disproportionate representation, in my opinion, only so long as the Western Slope acts responsibly and does not try to prevent the movement of water it is not using to places where it can be used for the benefit of the State as a whole.
I know there will be all kinds of arguments about whether “use” is the proper measure of the allocation of scarce resources. And we can have the debate about whether compensatory storage can be of “use” to the Western Slope to ensure minimum stream flows for fish, for recreation, and for future endeavors — even if those “uses”, in the traditional sense weren’t guaranteed.
But, the fundamental public policy consideration in the end, is always a debate that revolves around the “use” that one special interest group wants to make of a natural resource vs. another. Once Coloradans understand each other on that point, then I am confident that the debate in the next couple of years will be the kind of constructive debate we all need in Colorado: discussing what options do the most good for the most people, most of the time.
However, I think we will all agree that it is not good public policy to let the minority control the fate of the majority — that isn’t what democracy is all about.
Jim Dyer is a Republican state senator from Littleton. He wrote this at the solicitation of Sen. John Andrews (R-Centennial), who was in turn solicited by Colorado Central to provide a Front Range perspective on the Gunnison River water settlement.