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<br />000716
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<br />the early water laws of Colorado, those of the Territorial legislature in 1861 and 1862, prohibited the
<br />diversion of the water of any stream "from its original channel to the detriment of any[ one 1 along the litle
<br />of [the J stream" and it required that "there shall be at all times left sufficient water in said stream for the
<br />use of [those] along said stream."
<br />
<br />
<br />AIl these ideas are back with us as elements of what today is called watershed management. 'fhey:::<
<br />. do not, of course, take their original fonn, but they are clearly recognizable. Perhaps the most interesting<'~'
<br />version, and certainly the most intensely felt, is the notion of a water as an entitlement of the riparian' . .~.~~
<br />community. Area-of-origin entitlements led to the requirement of compensating reservoirs on the wesfunt~,(;i
<br />slope in Colorado as a condition of transmountain diversions across the continental divide. Area-of-origm ~~:
<br />laws are the sleeping dogs of Cali fomi a water law, and we see that they are beginning to be roused. The'"
<br />people of the Great Lakes States are (to put it mildly) ardently opposed to water export plans, however. .
<br />smaIl. Similarly, tribal claims to what are in effect riparian rights on Reservation rivers, as on the TrinitY
<br />in Northern California, have moved dramaticaIly to center stage in recent years.
<br />
<br />The old idea that a river is not just a commodity, and cannot be treated as ordinary property, has .
<br />been with us in various ways. We are reversing Justice Holmes famous statement that a river is not just an
<br />amenity, it is a treasure, and reading it to say rivers are not just treasures (i.e. commodities), they are also
<br />amenities (they must be protected as habitat). This idea is also an old one, most' familiar in concepts like'
<br />the navigation servitude which extends beyond commerce to fishing and fowling; the public trust
<br />doctrine; and the sometimes mystifYing provisions about ownership that one finds in most western state
<br />laws. California's Water Code provides that "aU water within the State is the property ofthe people of the
<br />State." (Water Code ~ 102). While a century and a half of virtually unlimited commodification had
<br />seemingly left little of this notion in its path, it has come back in recent years as yet another version of
<br />what one might call the indomitable riparian sensibility. The de-development being produced by laws
<br />such as the Clean Water Act3 and the Endangered Species Act,4 by case law like National Auduhon5 in
<br />California and more recently the Waiahole Ditch case in Hawaii6, as well as by the increasingly broad-
<br />based acknowledgment that a debt is owed, even by fully appropriated rivers such as the Colorado, to
<br />place's li~e the Mexican Delta, is illustrative of the revival of watershed consciousness in our own time.
<br />
<br />,gur era, however, presents difficulties of a sort that no earlier time had to face. We are neither
<br />pre;.itld~sp-i~l (natural flow, the river as an amenity for the gentry), nor merely industrial (leaving water in
<br />tlt.~,r~y.ensWaste),but in the fullest sense post-industrial. We have built our farms, cities, and industries
<br />oJi':a~f~1!tiht9tdecommodification of our waterways, and have developed them in a way that can only be
<br />. <:I~$~t!tl~~,~~'~<<e trillmpb of engineering over nature. Now we hear again the voice of the riparian calling
<br />f()t~'n~'o/~~l~~(l~ Weare asked to see the watershed as the setting and to think and act about rivers in
<br />that(!:~nf~~t;We~eabout to learn about some of the challenges that such re-orientation presents. The
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