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, Colorado Central Magazine November 1999 Page 13 Page 2 of 10 dry by nature -- either semi-arid (10-20 inches of precipitation a year) or just plain arid (less than 10 inches a year). That aridity is just the nature of a lot of what we call the West. But the dominant culture of the West, this past 150 years, has been to deny that nature in any way we can. How else to explain the existence in the deserts of the Southwest of great cities like Phoenix and Los Angeles, tens of millions of people living with lawns and swimming pools in places with less than 10 inches of rain a year? Deserts are antithetical to American culture, so we have wanted America's deserts to "bloom like the rose," and as a result of that desire, and a lot of technological wherewithal, and a little water, a modest but significant part of the West that was dry by nature is now "wet by culture." What has enabled the (partial) realization of that cultural dream is the fact that only most of the American West is dry by nature. Arrayed across the West are north-south ranges of mountains that push the prevailing westerlies off the Pacific up into cooler parts of the atmosphere, condensing out moisture that falls on the mountains -- rain in the summer, and (usually) lots of snow in the winter. Thus there are, in these mountains rising out of deserts, valleys that have abundant water -- valleys gouged out by lots of water (and once upon another time, lots of ice) gnawing away at the mountains; valleys where, in the spring, meandering streams overflow and turn their floodplains into shimmering wetlands half a mile wide and three inches deep; higher valleys so soggy with snowmelt and summer rain that only cold and a short growing season keep them from turning into jungles. These mountain valleys are oases, waterholes in the arid and semi-arid West, and the West's "desert empire" -- those great desert cities and the systems that nurture them -- is built on a foundation of political, economic, and technological systems for tapping into, storing, and moving around the water from these mountain oases. All that is woven into the core of the Upper Gunnison Knot. BY THE STANDARD 19th-century utilitarian theology of the past two centuries in the West, natural streams and rivers have been considered just incomplete delivery systems for water. To complete the systems, it was necessary to build storage structures to keep all of the snowmelt water from running off in a useless two-month flood, and diversion structures to get the water out of the streams, onto the land, and into some human enterprise where it could serve a"beneficial use." Due to this utilitarian viewpoint, the legal term "beneficial use" is devoid of any evaluative criteria beyond human economic gain. Beneficial uses range from the creation of agricultural land through simple irrigation, to the destruction of whole mountainsides through hydraulic mining. A whole body of water law -- the appropriations doctrine -- grew up around this process of storing and diverting water from streams, a system of law that has its own specialized lawyers, courts and judges. It was basically the kind of law you might expect of an empire; its volumes of cases fill many running feet of the water judge's shelves. But its essence can be summarized in four basic rules: 1) the water belongs to everyone -- until anyone claims it, then it belongs to that one; 2) first come, first served; 3) use what you claim, or lose it; and 4) beneficial uses are those that divert water out of the stream (because humans don't live in water). Changes in the western economy, and hence in our perception of what is "beneficial," have modified the fourth rule. Now some in-stream uses for water are recognized (so long as the humans claiming the water have some way of "controlling" it). But everything else on the water lawyer's shelves consists of refinements of the basic four, designed either to protect the status quo or to encourage any entity big http://www.cozine.com/archive/ccl999/00690133.htm 7/9/2003