7940

• UCREFRP Catalog Number: 7940
• Author: Pitts, T.
• Title: Conflict Resolution
• USFW Year: 1988
• USFW - Doc Type: Endangered Species Protecion and Water Development in the Upper Colorado River Basin, The Colorado Water Congress Special Project on Threatened and Endangered Species
• Copyright Material: YES

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Lochhead: Colorado Water Policy. Development
Continued from page 1
by the state. This is a legal "fact of life" that many who urge
the adoption of a "state water plan" ignore.
Colorado water policy has built upon this constitutional foun-
dation. Since, as a practical matter, individual decisions are
.not made in a vacuum, there is ample opportunity for the state,
competing water users, and interest groups to influence project
development. One must look beyond the constitution, to the
body of statutes and case law which have evolved to shape
Colorado's water policy. Although Colorado has taken what
some perceive., to be a cautious and conservative approach to
water development policy,. such a policy does exist. It has
evolved to meet new challenges, and can be adopted to effec-
tively take advantage of and create new opportunities..
State and federal statutes have created numerous agencies
and .districts to formulate and implement water policy. These
entities reflect the state's response to changing conditions in
the water policy arena. As new issues emerge, new agencies
have. evolved. Among these entities: are the Colorado Water
Conservation Board, the State Engineer, the Division of
Wildlife, the Groundwater Commission, the Water Quality Con-
trol Commission, the Colorado Water Resources and Power
ing agreement for the Animas-La Plata Project.
And. the Colorado Water Resources and Power Develop-
ment Authority was created.
Second, overuse of underground aquifers in Eastern Colorado
began to stress limited ground water resources. The state re-
sponded with nation-leading efforts in groundwater-surface
water integration, and the establishment of designated ground-
water basins and the Groundwater Commission.
Third, the state has faced_concurrent environmental aware-
ness and federal environmental regulation. Again, the state re-
sponse has veen varied:
Authority was vested in the Colorado Water Conservation
Board, in consultation with the Division of Wildlife, to
appropriate instream flows to protect the natural environ-
ment.
A state endangered species act was promulgated, and the
state has taken an active role in negotiations with the
Federal Government to recover threatened and endangered
Colorado River species and the whooping crane on the
South Platte without impairing opportunities for water de-
velopment.
The state has articipated in the Colorado Rive Salinity
Therefore, the tax is needed to subsidize project development
for future use. I don't believe this type of a "water plan" is in
Colorado's interests. The state simply has too many other pres-
sing demands for its capital dollars than for water project de-
velopment to meet an undefined future need. Such a "water
plan" is also not justified.by a need to capture Colorado's water
before it is lost to Lower Basin states. The allocations in the
Colorado -and upper Colorado compacts are based upon benefi-
cialconsumptive use. Only by efficiently increasing actual bene-
ficial consumptive uses will Colorado's entitlement be de-
veloped. Merely constructing unneeded storage will go nowhere
toward accomplishing this goal.
Equally important,, it would be imprudent for the state to
invest millions in major water storage projects without careful
consideration of other options and .priorities. Current state
policies emphasize dam safety rehabilitation, enlargement of
existing structures, and small project development. These all
represent alternatives which can increase the actual beneficial
consumptive use of water on a statewide basis, in a more ~€€i-
cient, cost-effective, and environmentally sensitive manner. Ex-
cept for any remaining projects which could be federally funded,
Continued on page 4
Development Authortty, various compact commtssions, the
Colorado Salinity Control Forum, and water conservation and
conservancy districts. Although the state should continually
reassess the relevancy of any particular agency, each entity has
been designed to fulfill a role in state water policy. Surprisingly
enough, they even communicate with each other and attcinpt
to achieve compatible goals.
Up until the mid-1960's, the state developed three basic
policies, through a more Limited set of entities. At that time,
the Colorado Water Conservation Board, the conservation and
conservancy districts, and major project developers such as the
Denver Water Board were the primary generators of state water
policy.
"Certainly, the Colorado system is much more
flexible and accountable. than would be a super
water agency purporting to act in the public in-
terest, or a single plan which would dictate de-
velopment. "
First, Colorado sought to preserve, to the state as much water
as possible for appropriation by its citizens. This was ac-
complished primarily through U.S. Supreme Court litigation
and the negotiation and implementationpf interstate compacts..
~~C~I~, JIY~ state actively encouraged tradtioral water stor-
age project development.:.~'he state pursued the construction of
federal reclamation projects, and state water policy agencies
supported individual project development. The Colorado Su-
preme Court responded in a similar manner. The court adopted
the "great and growing cities doctrine," and generally made it
easy to appropriate and keep alive conditional water rights for
large but then-unneeded water projects.
These two basic goals remained valid mostly because the
state did not have to consider raising its own capital for project
development. In cases where local support was apparent but
financing was not, the state was pleased to lend political assist-
ance toward obtaining cheap financing from the federal bank-
roll. Therefore, this state policy could be entirely based on
Colorado's decentralized, entrepreneural system. For those local
entities with the financial ability to develop their own systems
- such as Denver, Colorado Springs, and Aurora -the state
did not need to take an active role. Under such a policy, the
state was at neither financial nor political risk.
Third, entities within the state grappled with the issue of
transmountain diversions. Denver, the Colorado River Water
Conservation District and others litigated over the issue, but
the doctrine of compensatory storage was also developed
through negotiation and political compromise, and was im-
plemented in Senate Document No. 80 and in the Water Conser-
vancy District Act.
Since the mid-1960's, Colorado has been confronted with
new realities in the development, use, and allocation of its
water resources. Colorado's system has responded and. will con-
tinue to respond to these new realities.
First, beginning with the Nixon administration deemphasis
on reclamation, to the Carter hit-list, to the Reagan. emphasis
on local cost-sharing, the availability of 'federal financing of
reclamation projects has virtually disappeared. Although not
successful in every. case, the state has responded to this new
reality in a number of'ways:
A construction loan program was established, administered
by the Colorado Water Conservation Board, through which
the state has authorized the expenditure of $I05 million,
representing total project costs in excess of $200 million.
The Colorado Water Conservation Board prepared a paper
addressing the dilemma of water project financing in Col-
orado.
The Governor and the Water Conservation Board led
negotiations to obtain money through power revenues gen-
erated by the Colorado River Storage Project..
The state has continued to pursue traditional avenues to
federal financing, resulting most recently in the cost-shar-
p ~~
Control Forum.
A state water quality control act has been enacted. ,_
And the Division of Wildlife has debated a wildlife mitiga-
tion policy.
Fourth, the state has faced several general planning chal-
lenges, including the impending development of oil shale, the
continued threat of expanding water development in down-
stream states, water export proposals, the impact of expanding
water demands on the Front Range, increased recreational-and
snowmaking requirements, the economic ,decline of irrigated
agriculture, and a general economic recession. Colorado has
developed policies to address. these issues as well:
The Water Conservation Board and the State Engineer have
developed for legislative consideration proposals for the
inventory of the state's groundwater.;resources.
In response to HB 1088 (1985), the Water Conservation
Board presented to the legislature procedures to facilitate
the identification, evaluation, prioritization, scheduling
and funding of water projects.
At the request of Governor Lamm, the Water Conservation
Board has begun a paper discussing state policies and
strategies in water resource development.
The Colorado Water and Powec Resources Development
Authority has undertaken bason inventory- studies, in an
effort fo identify viable water project opportunities.
The state continues to actively pursue a policy of protecting
Colorado's interstate waters.
And the Governor's Metropolitan Water Roundtable re-.
suited in several far-reaching agreements among formerly
opposing interests.
Fifth, The Colorado Supreme Court has responded to these
shifts in state water policy, and has initiated some policies of
its own:
The Court has gradually tightened the due diligence test
for conditional water rights.
Purely speculative appropriations have been declared in-
valid.
The Court has adopted the doctrine of "maximum utiliza-
tion" of Colorado's water resources.
And the Court has refined the doctrines of salvaged and
developed water in a way that reflects environmental aware-
ness.
Sixth, the administration of water rights has changed, again
in response to the evolution of state water policy:
The State Engineer has taken an active role in water adjudi-
cation proceedings.
Abandonment lists have been developed and litigated.
A satellite monitoring system is being implemented.
Record keeping, reporting and administration are being
upgraded.
And rules and regulations for groundwater development
and use have been developed and litigated.
The success and wisdom of any of these programs is subject
to debate. However, the point is that, taken together, they rep-
resent evolving state water policy, developed within Colorado's
unique constitutional framework of water rights ownership. The
development and evolution of these programs is an open, public
process.
It has become politically expedient to state that."Colorado
needs a state water plan." Many of those who express this
position fail to state how they would implement the plan, what
it would do, and why it would be better than the existing system.
For example, traditional water development interests have
advocated a statewide tax for the development of large storage
projects. Clearly, a plan would have to be developed for the
financing and construction of such projects. The problem with
this approach is that there is no current need for big project
development in Colorado, except by the Front Range
municipalities which-can afford to develop their own proiects: