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ENLARGE
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The Snake River is just one of many streams that isn't adequately protected by
Colorado's existing water law.
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Last week's enactment of a new law that permits some Coloradans to capture and use rainwater on their property garnered national attention with a lengthy article in the New York Times. The well-reported story explained why the change is newsworthy — authorizing rainwater capture is a small step away from Colorado's fundamental water law, based on the anachronistic “prior-use” doctrine.
Prior use is the fancy term for a simple first-come, first-served schoolyard rule. For decades, the system worked, as miners and ranchers established claims and diverted water to sluice for gold or irrigate crops. The ability of Front Range communities to grow far beyond what their locally available water supplies could sustain was based on the same law. Denver can divert millions of gallons of water from the West Slope simply because the city established its claims to the water before anybody else did.
Along with stagecoach robberies and public lynchings, the law could be considered a quaint relic if it weren't so harmful to Colorado's environment.
As competing demands grew, water barons devised ever-more complicated schemes to divvy up this most precious of resources. Water in various reservoirs is “exchanged” by towns, utilities and ski resorts. In some cases, water rights exist only on paper. In many cases — the Upper Blue, for example — there are more claims then there is water. West Slope water users are even considering a complex water banking system to protect against future shortages.
The latest Rube Goldberg solution involves shunting massive quantities of water back upstream via pipelines. One local plan would take water from near Green Mountain Reservoir and pump it back up to Silverthorne or even back into Dillon Reservoir. Another dormant proposal envisions a similar pumpback system for the Upper Blue, between Farmer's Korner and Breckenridge. Most recently, the U.S. Forest Service took steps to authorize a diversion from a Frisco-area creek upstream to Breckenridge.
The system has grown so complex that it's almost impossible for ordinary citizens to understand what's going on, and that's just the way the water establishment likes it. By design, the goal is to ensure that entrenched interests — a huge conglomeration of lobbyists, lawyers and water managers — maintain ironclad control. State-run public hearings for permits feature dense legal verbiage and bureaucratic proceedings that make it extremely difficult for the public to participate in a meaningful way.
The biggest problem is that the environment has always been an afterthought. Fish and other animals that depend on stream water, wetlands and riparian ecosystems weren't able to make a legal claim on water back in the late 1800s, so they've gotten short-shrift ever since. Hundreds of miles of streams in Colorado experience extreme depletions every year, to levels well below those needed to maintain healthy ecosystems. A couple of times in recent years, the state's namesake river was in danger of running dry upstream of Kremmling, due to a combination of diversions to the Front Range and irrigation demands on the West Slope.
To its credit, the state has tried to protect the environment within the framework of existing water law by establishing “minimum instream flows” and spending millions of dollars to buy water rights. But the instream flow program falls far short of its goals, leaving many streams unprotected and subject to environmentally damaging diversions. In some cases, stream gauges freeze up at critical times, just when trout spawning season and peak ski resort demand for snowmaking water coincide, making it difficult to accurately measure flows. In other cases the state lacks the resources or political will for meaningful enforcement. Many other streams simply don't have any protection at all.
It's time to take a deep breath and acknowledge that the archaic and outmoded 18th century law doesn't meet the needs of the 21st century. Continuing down its current path, Colorado is building a fragile house of cards that will someday collapse, most likely as the result of an extended drought. Before that happens, elected leaders, environmental experts and other stakeholders need to sit down together and develop a statewide water plan that reflects current and future realities, including the need to protect Colorado's environment beyond today's “reasonable” standard that falls far short of achieving its goals.
Bob Berwyn has been reporting from Summit County since 1996 and enjoys dipping his toes and fishing line into local streams and rivers.
bberwyn@summitdaily.com
Prior use is the fancy term for a simple first-come, first-served schoolyard rule. For decades, the system worked, as miners and ranchers established claims and diverted water to sluice for gold or irrigate crops. The ability of Front Range communities to grow far beyond what their locally available water supplies could sustain was based on the same law. Denver can divert millions of gallons of water from the West Slope simply because the city established its claims to the water before anybody else did.
Along with stagecoach robberies and public lynchings, the law could be considered a quaint relic if it weren't so harmful to Colorado's environment.
As competing demands grew, water barons devised ever-more complicated schemes to divvy up this most precious of resources. Water in various reservoirs is “exchanged” by towns, utilities and ski resorts. In some cases, water rights exist only on paper. In many cases — the Upper Blue, for example — there are more claims then there is water. West Slope water users are even considering a complex water banking system to protect against future shortages.
The latest Rube Goldberg solution involves shunting massive quantities of water back upstream via pipelines. One local plan would take water from near Green Mountain Reservoir and pump it back up to Silverthorne or even back into Dillon Reservoir. Another dormant proposal envisions a similar pumpback system for the Upper Blue, between Farmer's Korner and Breckenridge. Most recently, the U.S. Forest Service took steps to authorize a diversion from a Frisco-area creek upstream to Breckenridge.
The system has grown so complex that it's almost impossible for ordinary citizens to understand what's going on, and that's just the way the water establishment likes it. By design, the goal is to ensure that entrenched interests — a huge conglomeration of lobbyists, lawyers and water managers — maintain ironclad control. State-run public hearings for permits feature dense legal verbiage and bureaucratic proceedings that make it extremely difficult for the public to participate in a meaningful way.
The biggest problem is that the environment has always been an afterthought. Fish and other animals that depend on stream water, wetlands and riparian ecosystems weren't able to make a legal claim on water back in the late 1800s, so they've gotten short-shrift ever since. Hundreds of miles of streams in Colorado experience extreme depletions every year, to levels well below those needed to maintain healthy ecosystems. A couple of times in recent years, the state's namesake river was in danger of running dry upstream of Kremmling, due to a combination of diversions to the Front Range and irrigation demands on the West Slope.
To its credit, the state has tried to protect the environment within the framework of existing water law by establishing “minimum instream flows” and spending millions of dollars to buy water rights. But the instream flow program falls far short of its goals, leaving many streams unprotected and subject to environmentally damaging diversions. In some cases, stream gauges freeze up at critical times, just when trout spawning season and peak ski resort demand for snowmaking water coincide, making it difficult to accurately measure flows. In other cases the state lacks the resources or political will for meaningful enforcement. Many other streams simply don't have any protection at all.
It's time to take a deep breath and acknowledge that the archaic and outmoded 18th century law doesn't meet the needs of the 21st century. Continuing down its current path, Colorado is building a fragile house of cards that will someday collapse, most likely as the result of an extended drought. Before that happens, elected leaders, environmental experts and other stakeholders need to sit down together and develop a statewide water plan that reflects current and future realities, including the need to protect Colorado's environment beyond today's “reasonable” standard that falls far short of achieving its goals.
Bob Berwyn has been reporting from Summit County since 1996 and enjoys dipping his toes and fishing line into local streams and rivers.
bberwyn@summitdaily.com
