Review by Ed Quillen
Water history – July 2003 – Colorado Central Magazine
Silver Fox of the Rockies – Delphus E. Carpenter and Western Water Compacts
by Daniel Tyler
Published in 2003 by University of Oklahoma Press
ISBN 0-8061-3515-8
DELPH CARPENTER is not a name familiar to many Coloradans, but I often heard of him when I was growing up in and around Greeley. It had been a center of irrigated agriculture since its founding as the utopian Union Colony in 1870. Colorado’s first water doctrines resulted from conflicts between Greeley and upstream neighbors like Fort Collins, and so it had some of the state’s first attorneys to specialize in water law. One of those pioneer Greeley water lawyers, mentioned whenever we schoolchildren were exposed to local history, was Delph Carpenter, “the father of the Colorado River Compact.”
That 1922 agreement, also known as “the law of the river,” involved seven desert states — from Wyoming and Colorado on the upper end to California at the bottom — all competing for a scarce resource.
Colorado could allocate its own water with “the Doctrine of Prior Appropriation,” also known as “first in time, first in right.” But the state could suffer if that doctrine were extended across state lines.
Suppose that rich and growing California managed to put all of the Colorado River to “beneficial use” before small Colorado got around to developing the water. Colorado would be obliged to deliver the entire flow to California — even though federal legal doctrines, such as they were then, gave Colorado control of any water that fell on its soil. But if Colorado used it all, its downstream neighbors would hate it, and economic and political conflicts would break out.
Carpenter, who was born in 1877 to a farm family, first encountered this problem in 1911 when Wyoming sued Colorado over a diversion from the Laramie River. Carpenter defended the Colorado irrigators, and eventually lost when the U.S. Supreme Court upheld the doctrine of prior appropriation across state lines — since both states followed it.
In other words, since both Wyoming and Colorado allocated water by prior appropriation, then if Wyoming developed the water first, Wyoming was entitled to it, even if the water originated in Colorado.
As a strong believer in state’s rights, Carpenter feared what might happen if Congress or the fledgling U.S. Bureau of Reclamation got more involved with western water. But who besides the federal government could resolve these disputes?
The U.S. Constitution does allow states to make agreements among themselves, providing they are recognized by Congress, and so Carpenter pursued that course — getting Colorado River states to send representatives, arranging for the federal government to be represented by Secretary of Commerce Herbert Hoover, and tirelessly negotiating until they came up with an agreement — one that remains in control of the Colorado River to this day.
It was the most important of the interstate stream compacts, but not the only one. Others cover the Arkansas, the Rio Grande, the South Platte, the Republican, etc., and Carpenter had a hand in many of them.
This book is a detailed and thoroughly researched biography of one of the most important figures in Colorado’s hydrologic his t – ory, and so it should be required reading for the water buff. It’s a fine story of how a significant part of our peculiar water-law system developed, and it explains how Carpenter’s political theories framed the process.
Author Dan Tyler — who also wrote The Last Water Hole in the West, a history of the Colorado-Big Thompson project — seems balanced in his assessments of Carpenter’s strengths (finding compromise positions that antagonists could agree to) and weaknesses (i.e., a tendency to disparage younger men in his field).
But for the general reader, Silver Fox can get too technical at times. And when it focuses on Carpenter, rather than his negotiations and legal theories, it’s not all that interesting.
Carpenter’s rather conventional personal life had no juicy scandals. While that is commendable, and something a biographer must cover, those sections hardly make for riveting reading. You keep wishing for a mistress or a pay-off or even a binge, and none ever appears. Fortunately, those required sections are easy to skim over so you can get back to the water that was the focus of Delph Carpenter’s distinguished career.
