Letter from John Mattingly
Water – November 2006 – Colorado Central Magazine
Ed,
Enjoyed your October “A Letter From The Editors.”
Several thoughts and questions.
1. RICDs are an in-stream flow right, and must be filed for and administered by the CWCB (Colorado Water Conservation Board). Most in-stream flow rights are in reaches of the river (usually high on the watershed) where priority issues don’t come into play. Others involve exchanges and timed releases worked out with existing water rights holders. The process of acquiring a RICD is elaborate and intimidating. Just read the authorizing legislation, CRS 37-92-102. Do you know the particulars of the Chaffee County application as to the proposed water sources and exchanges?
Of course, the time-honored strategy for getting water in a particular reach of the river is to spend $500,000 — not on lawyers, but on biologists to find an endangered species downstream from the kayak run, and determine that this endangered species requires water in the time and flow parameters of the kayakers.
2. Authorizing legislation for Colorado conservancy districts charged them with keeping as much water in Colorado as legally possible. It may be that UAWCD sees an in-stream flow right near Salida as insufficiently consumptive, or letting too much water go downstream (possibly even the horror of some of the water reaching Kansas). It depends on the particulars of the exchanges and/or releases, but isn’t it basically true that in-stream flow rights have a greater chance than most other rights of being contrary to the purpose of the UAWCD?
3. Finally, the UAWCD offers the argument that an in-stream flow right would interfere with changes in points of diversion by senior rights holders from lower points to upper points on the Arkansas, where the in-stream flow right is sandwiched in between.
While this is basically true, the fact is that a change in point of diversion is a legal change of water right that must be approved by the court and is subject to opposition by all affected rights holders on the stream, including the Colorado-Kansas Compact. If that Promethian hurdle is cleared, only the proven, historical consumptive use of the water right can then be moved to an alternate point of diversion (APD). Moving a point of diversion upstream causes a disturbance to all the rights holders in between the lower (historical) and upper (alternate) point such that an in-stream flow right would be only one (and a very small one) of many potentially injured and vocal parties.
4. Household wells and municipal water systems are actually non-consumptive uses, though in slower motion than an in-stream flow right. Households and municipalities are notorious importers of water, by way of beer, pop, milk and other liquids that pass from refrigerator to kidneys to sanitation system to river.
It has occurred to me to get the data on how much beer is imported to Boulder, hire a urologist to give convincing testimony as to the percentage of that beer that makes its way back to the stream, and file on it as new water (not subject to the priority regime) which could then be exchanged into an in-stream flow right. But with all the water lawyers in Boulder, I’m sure somebody is already turning one stream into another.
Cheers,
John Mattingly
Moffat
Dear John,
Since Ed kindly offered to share my editorial writing duties this month, and is busy doing that, I thought I’d try to answer your questions.
1)I think I can get you some particulars, but I’m not sure I can convey them to you in writing (at least in any meaningful way). So if you want to know more, say the word, and I’ll see what I can find to send you.
2) One of UAWCD’s founding purposes was to keep water in the Upper Arkansas Valley for the sake of development (economic and real-estate). So it’s not surprising that the district doesn’t like our water going anywhere else.
3) And whoa, I didn’t think anyone was planning on changing points of diversion. Scanga merely told Ed that the RICD could affect them, by which I assumed he meant it might make them even more unchangeable than you so skillfully show they are, (and thus sometime down the line we might not be able to alter them to supply something more important than tourists and fish — like suburbs).
It’s possible, though, that Scanga meant something more, or different. Ed, however, talked to him long ago, when the RICD’s potential impact on senior water users was still being explored by the engineers and lawyers. But now this RICD is close to completion after the court told the UAWCD, the county, and other parties to make some sort of an agreement, and they did.
But with elections pending, the political arguments continue. Now old water arguments are getting dusted off and re-examined, so we’ve duly tried to explain the terms and concepts getting bandied about. But the present talk is more about who should be in charge, than about in-stream diversions. (That, however, is what election-year discussions are usually about — whether the topic be water or war.)
For quite some time now, Ed and I have agreed that one of the major things citizens need to know, is that major water decisions usually involve some conflict. Different entities have different interests. In fact, towns, counties, water conservancy districts, and developers should consult their own water engineers and lawyers. (And when the issue is something truly controversial, like a big dam, citizens’ groups often start putting together a war chest so that “the people” can hire their own experts, too.)
Yet Bev Scanga, the Republican candidate for Chaffee County Commmissioner, insists that the UAWCD alone should determine all local water issues.
That is a notion we find frightening. But perhaps you have a different take on it, in which case we’d certainly be interested in your input. (Or if anyone else has comments or queries, we’d love to hear from you, too.)
Thanks for writing. If you still have questions, Ed should have time to answer his own letters next month.
Martha
P.S. I remember attending a Salida city council meeting some years back where a water engineer explained non-consumptive use and why most towns don’t “consume” much (or sometimes any) water, and he said Salida had a particularly high rate of return. So does that mean we drink too much?
