Most discussions involving water supply or quality require a good examination of the historical perspective of water development. For this reason, understanding the system by which water is and has been allocated in Colorado since statehood, is a good starting point.
Water in Colorado is allocated as a private property right through a system referred to as the Appropriation Doctrine. It is the only arid Western state that utilizes a pure form of this doctrine called the “Colorado Doctrine.” This doctrine is enshrined in the state’s constitution. It is a constitutional right for the citizens of Colorado to an appropriation of water based on its beneficial use. Although many legislative statutes deal with water appropriation and use, these all rely upon, and must comport with, the basic constitutional right granted the citizens of the state.
This article is not intended to delve into the Appropriation Doctrine, except to point out that water rights and decrees are granted as a private property right. In fact, this system is automatically designed to apportion available water supply without undue interference from the government, except for the administration of the existing water decrees or through the water court.
In 2005 legislation was passed creating the inter-basin compact committee and the nine basin roundtables. The basins utilized the Statewide Water Supply Initiative (a project to calculate the available water supply compared to demand, or a needs assessment) to identify the projects and processes needed to address any water supply gap out to the year 2050; for all uses including municipal, industrial, irrigation (agricultural), environmental and recreational. Water entities and individuals were involved in each basin throughout the state to develop these plans.
Projects were identified and some were funded in part with grants from the state’s Colorado Water Conservation Board. The Colorado Water Plan was developed from these plans and processes. These projects have gone a long way to make available the necessary water supplies for the future. Many of the projects are ongoing and more will be needed to meet future needs.
Colorado is an arid state with future shortages forecast in the higher growth regions. In the Arkansas Basin, many junior water rights were established during high precipitation periods. Due to this, the Arkansas Basin today is considered an over-appropriated basin, meaning that on average there are more decreed water rights than water available. Most of these junior water rights are decreed for irrigation use in agriculture. In the Arkansas Basin shortages are forecast for all water uses.
The Colorado Water Plan is a collection of the ideas and projects on how we can meet future water demands. Meeting future needs revolves around developing new Colorado River Supplies and Alternative Agricultural Transfers coupled with storage. The Colorado River normally has water that is unused and could be utilized to fill the gaps in the higher growth regions. Presently Colorado is well ahead in meeting its compact obligations on the Colorado River, despite unsubstantiated claims from some state politicians and the administration that Colorado may be unable to meet its obligations.
Agricultural irrigation uses 80 percent or more of the available supply statewide. Some of these uses could be temporarily interrupted through court-approved Lease-Fallowing agreements, and the water owner compensated, to meet shortages in drier years. In wet years existing storage and new storage could be utilized to save the excess for drier times. Storage projects, including alluvial storage, need to be built to meet future needs. Water storage operations could be adapted to meet multiple uses for stream management, to meet increased demands for the environment and recreation.
Through the existing Appropriation System, the above plans and others are underway to meet this future need. All this can, and should, be completed through the Colorado Doctrine of Appropriation, a strong legal framework to guarantee the security, reliability and flexibility in the development and protection of water resources.
In terms of water supply, the greatest threat for the future would be a loss or erosion, through legislative or administrative action, of the time-tested Colorado Doctrine of prior appropriation. Actions are underway to use the water plan as a framework to advocate for the use of policy to appropriate water. Using policy for water appropriation would give the administration and legislature a pathway or initiative to utilize legislation, in lieu of the more deliberate Appropriation system that is designed to protect existing water rights from injury. This strongly suggests that the legislature and administration may attempt to act upon perceived crises to garner support to move future appropriations or changes of current water use through legislation instead of the water court system.
Already underway is a Demand Management Plan that will allow administrative policies to transfer water rights from agriculture through Deficit Irrigation, or by utilizing an undefined process termed “Conserved Consumptive Use,” to Lake Powell, or to municipal use. In the Arkansas Basin, most irrigation is already in a deficit so there is no water to be saved. Under Colorado’s pure form of prior appropriation, in low flow periods, water rights are curtailed automatically to force reductions in use. There is no need to use state policy to create conservation.
The frightening part of these actions is that, if successful, the only way for water right owners to protect themselves from injury will be expensive court action. If legislation is successful in adopting the concept of “Conserved Consumptive Use” it is possible we will see lower flows in the Arkansas River due to a reduction in trans-mountain diversions. These diversions support all uses in the river, such as the voluntary flow management program. Instead of water flowing to the Arkansas River, some may flow down the Colorado River to Lake Powell for storage and eventual evaporation there, under a plan called Demand Management.
In the Upper Arkansas Basin water quality has been addressed in various ways. The Arkansas River was polluted by mining runoff and is normally affected by natural geologic formations. Most of this pollution has been cleaned up, and today there are large sections of gold medal fishing. Studies conducted by the U.S. Geologic Survey have concluded that most of our groundwater is of good quality. These are good things.
But the threat to water quality from sediment runoff from burn areas in our forests are real. Due to the beetle infestations and decimation of the forest stands in the U.S. Forest lands, fire is more likely and has occurred.
The after effects of fire is larger than normal storm runoff. This will, and has already caused, heavy sediment loading on our streams and the Arkansas River. The Upper Arkansas Water Conservancy District (UAWCD) and the Arkansas Basin Roundtable is working with the forest service and local entities to address some of these areas. Locally, the UAWCD is working with the forest service on a pilot project to remove beetle-killed forest stands and make it a commercially viable resource. If successful, this may be part of the solution.
In the lower part of the Upper Arkansas River Basin, in Eastern Fremont County, there is a geologic formation that contains selenium that contributes to contamination in this part of the Arkansas River. At this time simply identifying these areas is a challenge, but it is being worked on by the geologic survey. Most of this type of contamination primarily affects the Lower Arkansas Basin. Delivery of good municipal drinking water supplies is being undertaken by the South Eastern Colorado Water Conservancy District, with the construction of a pipeline from Pueblo Reservoir to the Lower Basin communities.
By: Ralph “Terry” Scanga
General Manager, Upper Arkansas Water Conservancy District