Justice Greg Hobbs, Colorado Supreme Court**
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Circumference
We gather here to learn and celebrate,
to greet dear friends and meet new ones,
to recognize those among us who have gained
our admiration for the circumference of their views
and the bounty of
their good-natured insight.
In this treasured land of scarcity and opportunity,
we seek the wealth of learning from each other
the strength of understanding what we cannot know alone,
to honor our differences, avoid rancor, bridge difficulties,
welcome one
another’s accomplishments.
And when the prairie morning peeps into the eastern sky
and when the mountain evening breaks a westerly glow,
when unexpected storms crack our certitude and drought
parches our creativity, then may the waters from your
source to our mouths bless, keep, and sustain us.
Colorado’s Winter Snow and Spring Melt Law
In 1861 at the outset of the Civil War, Congress carved Colorado out of four preexisting territories at the headwaters of four great watersheds: the Platte, Arkansas, Rio Grande and Colorado. Today, eighteen states and the Republic of Mexico rely upon spring melt from the snows of Colorado winters. Nine interstate compacts, two equitable apportionment decrees of the U.S. Supreme Court, and two treaties between the United States and Mexico allocate the waters of the Great Divide.[1] As a result, Colorado has two primary duties: to deliver almost two thirds of these waters to places outside of the state and to make the optimal use of the one third the state is entitled to consume.
Justice Hobbs at Lee's Ferry, July 2009
With its roots in the farms needed to feed the miners and the growing communities arising on the plains, Colorado staked its water law upon the framework of open access and opportunity. Drought, the recurring type long experienced by Native Americans and Hispanic peoples of the Southwest, occurred in the 1860s–70s—the same time Colorado formulated its water principles. Supply was scarce, and the potential for monopolization by land speculators was great.
Small farmers feared that corporations would tie up the water supply. This was entirely possible. Under the common law of the eastern United States and England, only riparian landowners along the watercourses were entitled to use the water flowing by their property or lying beneath it. But, much of the potential cropland of Colorado available for settlement under federal land laws lay far away from the rivers.
In 1861, the Territorial Legislature broke from riparian water law in its first water act. Colorado guaranteed farmers two fundamental rights: the right to make an actual beneficial use of water needed for irrigation of their lands and the right to build, maintain, and operate a water ditch across the lands of others lying between them and the river.[2]
The actual beneficial use requirement was anti-speculative and anti-monopolistic in character to stop riparian land holders from blocking access to water. Only those who had proven need for the water could obtain water rights. In light of scarcity, the Territorial Legislature of 1864 directed administration of water rights to occur based on prior appropriation.[3] This requirement simply means that those who have relied on an actual use of the water earlier than others have the better right of access to water in times of short supply.
The Colorado Constitution of 1876 and subsequent acts of the General Assembly embody these enduring water principles: (1) the public always retains ownership of all types of water in Colorado; (2) private persons and public agencies may obtain water rights for actual beneficial use; (3) the water officials must administer water rights to natural stream water, which includes tributary groundwater, in order of decreed priorities determined by the courts; (4) a private right of condemnation exists, with payment of just compensation, to build, operate and maintain the necessary diversion, transport, and storage structures upon the private lands of others; and (5) the streams and aquifers may be used to carry and store water in the exercise of water rights.[4] These principles are collectively known in water law as the “Colorado Doctrine.”
The Farms, the Cities, the Environment
Colorado today is a far different place from both its Civil War origination and when it became a state in 1876, 100 years after the Declaration of Independence. Yet environmentally, it’s virtually the same. Mountains, plains, mesas and canyons make this place a treasured homeland for five million persons now, and more are on the way.
Reflecting a changing population and economy, Colorado water law has fostered the establishment of many uses, far more than the initial agricultural law. The cities have grown out of the farms and environmental and recreational needs now command instream water rights through the state’s instream flow and recreational in-channel diversion laws.[5]
Colorado has learned to share water with Indian tribes, federal agencies and other states, not because it volunteered, but because the law and good practice commands. The Union comprises more than one state, the public owns the water resource and we are part of the public that owes duties and enjoys benefits in relation to each other. Colorado’s anti-monopolistic, anti-speculative water law, together with prior appropriation administration, turns out to be surprisingly flexible, while maintaining stability.
Because Colorado water law recognizes water use rights as property rights in the courts and enforces them on the ground through water officials, the state has had an active market for water since the early 1890s. Colorado Springs first tested successfully in the Colorado Supreme Court the proposition that senior water right agricultural priorities could be changed to other uses, including cities and instream uses for fish and recreation.[6]
Colorado ensures that injury to other water rights must not occur while changing uses; so the state requires quantification of the actual historical consumptive use of the water based on a representative historical period of time. It also requires maintenance of return flow patterns from first use of native in-basin water that other water rights depend upon for their supply. Water imported from out-of-basin sources or groundwater unconnected to the native basin stream system may be used and reused to extinction.[7]
Anti-Speculation’s Contemporary Application
The anti-speculation legacy of Colorado water law applies not only to agricultural water rights, but to municipal water rights as well. We know this from recent Colorado Supreme Court water cases.
In Fort Lyon Canal Co v. High Plans A&M, LLC, the court prevented a group of investors from changing one third of the mutual ditch shares of the Fort Lyon Canal, a lower Arkansas River ditch and reservoir company, from agricultural to municipal use.[8] The application did not specify where the water would actually be used. In effect, the proposal sought to commoditize the water rights and sell them anywhere along Colorado’s populous Front Range in the future. But, Colorado water law requires a change of water right application to specify where the water will actually be used following the change, in order to verify that this portion of the public’s water resource is entitled to continued recognition of its preferred senior priority status.
In Pagosa Area Water and Sanitation Dist. v. San Juan River Conservancy Dist., the court prevented two water districts from cornering a one-hundred year supply of unappropriated water in the San Juan River. Although municipalities are allowed to plan for reasonably expected population growth, they have only a limited exception from the anti-speculation doctrine that applies to private persons. A governmental entity has the burden of satisfying three elements demonstrating its intent to make a non-speculative conditional appropriation: (1) what is a reasonable water supply planning period; (2) what are the substantiated population projections based on a normal rate of growth for that period; and (3) what amount of available unappropriated water is reasonably necessary to serve the reasonably anticipated needs of the governmental agency for the planning period, above its current water supply. The Colorado Supreme Court relied on a prior case identifying fifty years as a reasonable planning period based on the facts in evidence before the water court for Water Division No. 7 in southwestern Colorado.[9] The state has seven water courts across the state in major watersheds for the purpose of adjudicating water right matters. Direct appeal from a water court is to the Colorado Supreme Court.
The Colorado Supreme Court in Pagosa listed pertinent factors to include in the water court’s analysis: “(1) implementation of reasonable water conservation measures for the planning period; (2) reasonably expected land use mixes during that period; (3) reasonably attainable per capita usage projections for indoor and outdoor use based on the land use mixes for that period; and (4) the amount of consumptive use reasonably necessary for use through the conditional appropriation to serve the increased population.”[10]
Colorado water law provides for broad standing so that members of the public can require water court applicants to meet their burden of proof. The opposer in the Pagosa case, Trout Unlimited, sought to keep unappropriated water in the river, so that other recognized beneficial uses, such as instream flows for environmental preservation and in-channel recreational diversions like rafting and kayaking, could claim and perfect water rights to a portion of the remaining unappropriated water in the San Juan River.[11]
Innovation Compelled by Scarcity, Twenty-First Century Drought
Enduring characteristics of Colorado’s water policy and law include scarcity, competition, and sharing of a precious and limited public resource. Two recent issues of Headwaters magazine focus on contemporary manifestations of these themes: Colorado’s Water Supply Future and Administering Colorado’s Water Resources.[12] The first of these highlights the basin-by-basin and inter-basin roundtable discussion and planning process, coordinated by the Colorado Department of Natural Resources. The second emphasizes the critical role of the State Engineer and local water commissioners in monitoring stream and aquifer conditions, enforcing Colorado’s law of water use rights, and keeping Colorado in compliance with the interstate compacts and equitable apportionment decrees.
In the midst of the early twenty-first century drought, one of the most severe in the history of the Southwest, innovation proves to be a hallmark. New statutes adopted by the Colorado General Assembly allow for these significant innovations, among others: in-channel recreational water rights; crop rotational management plans for lease of water to cities and the environment as an alternative to permanent dry-up of agricultural lands; temporary change of water right and substitute supply plan approval by the State Engineer while change of water right and augmentation plan applications are pending in water court; review of water quality impacts and in lieu payment for thirty years of lost tax revenues in connection with permanent water transfers of more than 1000 acre feet out of a county; tax credits for donating senior priority water rights for enhancement of the Colorado Water Conservation Board's instream flow program; and coordination of land use decision making with water supply availability.
Regulation of Tributary Groundwater Pumping
The integration of tributary groundwater and surface water, required by Colorado’s prior appropriation system under the State’s constitution and the 1969 Colorado Water Right and Administration Act, continues to measure our commitment to stable, principled, and resilient decision making. Colorado leads the nation in recognizing the natural law of stream and aquifer interconnection in the creation and enforcement of water rights. Persons with junior well rights cannot simply pump and cut off the supply of water upon which senior rights for traditional as well as the new instream flow rights depend. They must replace their injurious depletions with a like amount of water at the time, place, and in the amount and quality necessary for the senior’s use.
The development of real time stream monitoring, river basin regulations, and publicly accessible and useable hydrologic models—an effort underway, but strapped by funding problems—deserves the immediate attention of local, state, and federal governments, along with water supply and environmental interests at all levels. Studies show climate change may reduce the availability of Colorado River water by 10 to 40 percent.[13] Colorado depends upon its remaining undeveloped allocations under the 1922 and 1948 Colorado River Compacts to meet future water demands.[14]
Knowing what the water resource actually is can only lead to more informed decision making. Contempt and ignorance make for manifest injustice. The rights protected by the First Amendment guarantee a plethora of voices. In recent years, the voices of many Coloradans working in the state’s watersheds have resounded loud and clear. Colorado jointly settled the water rights of the Southern Ute and Ute Mountain Ute tribes and the filling of the Animas-La Plata Project for them and the Navajo Nation.[15] A decree for the federal reserved water right of the Black Canyon of the Gunnison National Park is also now in place, due to another settlement.[16]
Reform in Water Court Rules and Role of Experts
For the timely, fair, and effective disposition of water cases, the Colorado Supreme Court has adopted a revised set of rules, effective July 1, 2009. New water court forms and a guidebook to assist non-lawyers are now readily available on the Colorado Judicial Branch website.[17] Under the new rules, experts will meet without attorneys and clients to review the facts and expert testimony. They will submit a confidential report to the parties stating what the experts agree upon and what remains for trial. Each expert will sign and submit to the water court a declaration that the report and opinion is the expert’s own. These rule changes are intended to emphasize an expert’s duty to the court and inhibit alterations in expert reports and opinions shaped by a battle of the expert advocacy milieu.
A multitude of local governmental entities exist to supply Colorado citizens and businesses with the water they need. Conservation and demand reduction measures of all types will be required, along with good planning, shared infrastructure investment, and new water works. Important and crucial decisions are pending. Because water is short and the need great, Coloradans have and always will depend on each other.
The Colorado Experience and Lessons Learned
Each state has developed its own set of water laws to allocate and administer the public’s water resource. Colorado utilizes water courts to adjudicate every application for a decree confirming a new water right, changing an existing water right, or putting into place an augmentation plan that allows an out of priority diversion to occur without injury to other water rights. Applicants include Indian tribes and U.S. agencies. Each application proceeds separately on its merits. Appeals proceed directly from the water court to the Colorado Supreme Court. This accelerates obtaining a final judgment in the case. The final judgment controls administration of the water right vis-à-vis all other state and federal decreed water rights.[18]
This system does not give deference to administrative agencies, except for temporary decisions pending application to the water court. Standing to appear and oppose an application is freely available to interested persons, administrative agencies, and members of the public. Colorado has had this system since 1879. The result has been a large body of water law decisions available to the public and the legislature. The Colorado General Assembly has adopted many statutes that clarify and amend the water law, and it continues to fund State Engineer enforcement of the adjudicated water rights. Depending on its complexity, taking an application to a successful conclusion can be expensive. Nevertheless, the existence of Colorado’s referee system results in settlement of the vast majority of cases without trial. Involving the courts provides a neutral forum. The primary lessons learned from this experience are that water law evolves with the customs and values of the people and there is no resource more valuable than the public’s water resource.
* This article has been adapted from an earlier piece published in the August 2009 issue of Colorado Municipalities. It has been reprinted with permission of the Colorado Municipal League.
** Gregory J. Hobbs, Jr. is a Justice on
the Colorado Supreme Court. Hobbs studied history at Notre Dame, where he
graduated in 1966. He went on to graduate school at Columbia University, and
taught sixth grade for a semester at St. Paul's Catholic School in Manhattan.
After a year in the Peace Corps in Latin America, Hobbs came back to the United
States to study law at Berkeley in the fall of 1968. He clerked for Judge
William Doyle on the 10th Circuit and worked for the Environmental Protection
Agency and the Colorado Attorney General's Office. In 1996 Hobbs was appointed
to the Colorado Supreme Court by former Governor Roy Romer. Hobbs has been
writing poetry for over 40 years, focusing on the West, its mountains, plains
and rivers. Extended biography.
[1] See Gregory J. Hobbs Jr., Citizen’s Guide to Colorado Water Law 22 (Kristin Maharg ed., Colorado Foundation for Water Education 3d ed. 2004), hereinafter Citizen’s Guide.
[2] Citizen’s Guide, supra note 1, at 28.
[3] Id. at 4–5.
[4] Id.
[5] See Gregory J. Hobbs Jr., A Decade of Colorado Supreme Court Water Decisions 1996-2006, Headwaters (Fall 2006).
[6] Citizen’s Guide, supra note 1, at 28.
[7] Id. at 29 (citing Denver v. Fulton Irrigating Ditch Co., 506 P.2d 144 (Colo. 1972)).
[8] High Plains A&M, LLC v. Se. Colo. Water Conservancy Dist., 120 P.3d 710 (Colo. 2005).
[9] Pagosa Area Water & Sanitation Dist. v. San Juan River Conservancy Dist.,170 P.3d 307 (Colo. 2007).
[10] Id.
[11] Id.
[12] See Colorado Foundation for Water Education Headwaters Spring 2009 and Summer 2009.
[13] See Brad Udall, Presentation at the 2007 Regional Water Symposium: Colorado River Basin Climate: What Lies Ahead, CU-NOAA Western Water Assessment 2007 (August 29, 2007).
[14] See Allen Best, Whose plan is it anyway?, Cooperation vs. Competition, Headwaters (Spring 2009).
[15] Citizen’s Guide, supra note 1, at 25.
[16] Id. at 25.
[17] Colorado State Judicial Branch (last visited Sept.5, 2009) (follow “forms” and “water courts” hyperlinks).
[18] Citizen’s Guide, supra note 1, at 12-16.
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Thank you for this interesting summary of Colorado water law and administration. As a California citizen and student of water law, it is interesting to compare Colorado's system to California's, as both states struggle with similar drought conditions and water constraints. I particularly appreciated the summary of the Colorado anti-speculation rule and its special application to municipalities. I am interested in how these ideas interact with both the smart growth movement and water efficiency efforts in the West, and would be curious to hear your thoughts.
Posted by: Erica Schroeder | February 10, 2010 at 02:36 PM