Column by George Sibley
Water – October 2003 – Colorado Central Magazine
EITHER I AM GETTING PARANOID, or the way we develop and distribute water in Colorado is undergoing an assault. It may not be an intentional assault directed by some shadowy behind-the-scenes Fu Manchu; it may just be a trend compelled by several uncoordinated forces and cultural dustdevils. In which case I’m just being paranoid — but remember: Just because you’re paranoid, it doesn’t mean they’re not out there….
In America, we talk a lot about being “a nation run by laws instead of by men,” which implies that we are not driven by the vagaries of powerful human ambitions and desires but by the rule of laws which even the powerful, supposedly, must obey. That’s what we contend anyway, although recently — at the national level — Congress seems to lay down the law as a doormat for the executive branch to walk on.
Where Colorado water is concerned, however, development and distribution have always been decided under the letter of the law. While water laws are passed by the legislature, the whole adjudication process for water rights is decided in water court, by water judges, on the basis of an evaluation of water supply and water rights already adjudicated against that supply.
It’s a body of law driven by physical quantifications — with nothing about “the greater good,” “wise use,” or “socially redeeming value” and the like. If the court determines that the water is there, a water right is granted whether it is water for an orphanage farm or a hydraulic mining enterprise.
This is not to say that politics never enters into it; politics is like water, seeping into everything at the lowest level.
And sometimes the law doesn’t seem sufficient in covering everything that needs to be covered. For example, I have often been one of the impatient ones, wanting water law to catch up to what I perceive to be the true needs of the people, for conservation, best use, et cetera.
But Colorado water law has in fact changed and evolved, along with the society, although at its own sometimes glacial pace, thereby forcing the society to sit tight and twiddle its thumbs. But that’s not necessarily a bad thing. It’s what “checks and balances” are all about.
We’ve seen, for example, the definition of “beneficial use” expand — however grudgingly — from purely utilitarian out-of-stream uses, to include all manner of non-utilitarian and/or in-stream uses (fish! birds! recreation!), despite loud harrumphings from traditionalists.
But it’s through that kind of bending and expanding that the law retains the limberness to keep from breaking against the challenges of time. And love it or hate it, Colorado water rights are still issued by rule of law, to which the appetites and desires of men have to adapt.
This was shown again a couple of years ago in the Colorado Supreme Court’s decision on the Union Park case — a decision (or rather the upholding of a lower court’s decision) that struck me as a great repudiation of Colorado’s myth about money: “In Colorado water doesn’t flow downhill; it flows toward money.”
The proponents for the Union Park Project — a huge proposed reservoir which would store water up near the Continental Divide between the Gunnison and Arkansas basins — had lots of money. But the opponents had the law, and the law prevailed.
I thought there was a peculiar poetic justice in this. Former Governor John Love was, according to legend, the one who coined the “water flowing to money” myth, and it was his daughter, Justice Rebecca Kourlis, who wrote the Supreme Court’s Union Park decision affirming law over money.
BUT NOW THERE ARE several things going on that seem to challenge the rule of law. Last winter, for example, the Colorado General Assembly passed House Bill 1318, which is now Colorado Revised Statute 37-80.5-104.5, which granted the Colorado State Engineer (an office under the Department of Natural Resources), the power to do a number of things previously considered the purview of the water courts, including: the power to transfer water rights from one user to another; to approve “interruptible water supply agreements” contracted among water-right owners; and approve for longer terms the “substitute supply plans” worked out among water users; and in regard to these things to make administrative decisions about injury to other users which have heretofore been decided by the water courts.
“Referendum A” is another example. It’s a ballot issue for this November that seeks authority for the Colorado Water Conservation Board (CWCB), another division of the executive Department of Natural Resources, to issue revenue bonds for up to $2 billion for water projects over the next few years. The projects involved are not specified, however, and will be determined by the CWCB and approved by the governor.
Presumably these projects will still have to go through the water courts to determine water availability before they go to the governor for approval. But this is putting a pretty heavy kind of pressure on the courts.
And in water cases, the complexity of existing rights on rivers that are mostly over-appropriated makes this judicial process more than a simple matter of adding up quantifications and subtracting them from supply figures; it is a matter of interpretations that — even though “the law is the law” — are always vulnerable to political winds.
Another development is the CWCB’s Statewide Water Supply Initiative, also known as SWSI but pronounced “Swazi.” The objective of Swazi, to quote from a lovely four-color brochure passed out at a Swazi meeting I attended last week, is “to help Colorado maintain an adequate water supply for its citizens and the environment.”
SWSI spokesmen spend a fair amount of time explaining what it does not want to do. It is, for instance, “not intended to take the place of local water planning initiatives.” It is just an innocuous forum to “develop a common understanding of existing water supplies and future water supply needs and demands throughout Colorado, and possible means for meeting those needs.”
THIS INNOCUOUSNESS WAS AFFIRMED at the above-mentioned Swazi “public information meeting” in Gunnison, which was one of the all-time great yawners. The CWCB hired a firm to run these meetings that must have been chosen for its lack of knowledge about water matters. But the presenters had a thorough knowledge of tedious public process, and hosted a session replete with flip charts (with sheets taped on the wall behind the charts where no one could see them) and with that bane of the intelligent public meeting, the PowerPoint presentation, which allowed the speaker to read his text off the wall while everyone else was reading it rather than listening.
CWCB had its handpicked people sitting in the front of the room — good respectable people who have done their time in the ditches of local water development. But people like Steve Glazer and Butch Clark, local environmentalists who know more about Gunnison Basin water than anyone else, weren’t included.
From the audience, Steve Glazer suggested that the title of the “Statewide Water Supply Initiative” carried a pro-development bias into the meetings, and that a true fact-finding initiative would be named something like the “Statewide Water Resources Management Initiative.” Whereupon his comment was duly recorded and sucked into the black hole of proper public process.
The paranoid concern on the West Slope, of course, is that Swazi in tandem with Referendum A is the emerging rootmass of a State Water Plan that would be worked out by the legislature, and administered by the governor and his minions, with a “greatest good for the greatest number for the longest time” mandate. (Except in this framework, the “longest time” probably means the amount of time until the next election.)
Then the courts would gradually be eased into some kind of a supporting role (like the Supremes in the last presidential election), and this might come to mean that individual property rights could be trumped by the needs of “the greatest number.”
Maybe this is the way it should be. But it is certainly a step away from “the rule of law” toward the dominance of political majorities, which James Madison called a malignant form of “the violence of faction” (Federalist No. 10). And by truly conservative, individualistic, market-oriented standards, it is downright un-American.
THE PARALLEL HERE is the “USAPATRIOT” act that was rushed through Congress after 9-11. Most of these water proposals were rushed through the Colorado General Assembly last year under the same general perception of a state of emergency — the most severe drought in recorded history.
And just as the PATRIOT act has been used to subvert inconvenient aspects of the Constitution and its amendments, Referendum A sounds — to a lot of people — like an emergency-driven act designed to undermine the basic water law of the land, which protects individuals and small communities against potentially tyrannical majorities.
And then there’s the agreement that the Colorado Department of Natural Resources and the Department of Interior worked out about the Black Canyon National Park’s reserved water right. This agreement was made without any local input on the eve of what would probably have been an immensely expensive but ultimately illuminating water court adjudication process about the issue of federal reserved water rights — which are something that eventually need to be worked out (unless the federal government is just going to walk away from all of its reserved rights, as it did with the Black Canyon).
These are interesting times — especially if you tend toward paranoia. Has anyone else noted that the Colorado Department of Natural Resources seems to be everywhere in all of this activity? And so does our governor, who doesn’t know much about water, but who does know a lot about being an upwardly mobile Republican.
George Sibley teaches, organizes conferences, and writes in Gunnison.
