I get a lot of questions about Colorado water law from clients–anyone from prospective ranch buyers to conscientious developers. Water law is a specialized area of law. This article is the first in a series of introductory articles on Colorado Water law. This first post will cover the basic prior appropriation doctrine, which most western states follow. Colorado is the purest form of prior appropriation.

I. The Prior Appropriation Doctrine

Under the Colorado Constitution, water is a public resource owned by the people. With certain exceptions, mere land ownership does not give the landowner any right to water under his property or flowing through that property. Nonetheless, an individual or other legal entity may acquire a right to divert water for beneficial use. This is a water right.

Under the “doctrine of prior appropriation,” which is embodied in the Colorado Constitution, statutes, and case law, appropriative water rights are created by the intent to place water to beneficial use, action to implement that intent (usually the location or construction of diversion facilities or the filing of a water court application), and actual beneficial use of water. The date of the intent or action, whichever occurs later, is the “appropriation date” of the water right.

The water right does not have to be decreed in the Water Court. It exists as a property right when water has been placed to use. But the adjudication process confirms the existence of the right and is required in order to establish an enforceable priority for the water right. This is because the enforceable priority of a water right against other rights is based, first, upon the court “adjudication date” of the water right and, second, upon the appropriation date. The adjudication date generally is the calendar year in which the water right application was filed. For older decrees (prior to the 1969 Water Right Determination and Administration Act), the adjudication date is the date of the Court’s decree.

Priority of right is important because the owner of the most senior water right is entitled to divert the full decreed amount of that water right for beneficial use before more junior appropriators from the same source are entitled to divert any water. This differs from riparianism (the doctrine followed east of the 100th Meridian), under which all users must reduce their diversions proportionately in times of shortage. The appropriation doctrine has been characterized as the concept of “first in time, first in right.”

This “first in time, first in right” is the basic tenet of the prior appropriation. Please ask your questions in the comment section.

The Fish and Wildlife Service recently proposed the delisting of the Western population segment of wolves, which includes all of Wyoming, Idaho, and Montana, and the eastern third of Oregon and Washington. To “delist” these populations means to take them off the endangered species list, which in turn removes the protections provided by the ESA. The Center for Biological Diversity argues this action is premature and that this area is far too big to be considered a “distinct population segment.”

While Center has a point in crying wolf as only 15 percent of this area is actually populated by wolves, this rare success story under the ESA should be celebrated. Since the enactment of the ESA, just over 1300 species have been listed as threatened or endangered. Only 12 of these species have recovered to the point they could be delisted. Around 40 others have been removed from listing due to extinction or errors in the original listing (including the Tennessee snail darter which prompted the seminal ESA case of TVA v. Hill, 437 U.S. 153 (1978)). Last year, the FWS delisted the Western Great Lakes DPS of the gray wolf. Since the ESA’s enactment, the population of wolves in Minnesota (excluding Isle Royale) has increased threefold.

Key factors in the current delisting were the approval of protective wolf management plans in Montana an Idaho. Wyoming’s plan has yet to be approved because it is “not sufficient to conserve Wyoming’s portion of a recovered northern Rocky Mountain wolf population.” The federal government will continue to oversee wolves in Wyoming until an agreeable wolf management plan is approved.

Under the state plans, wolves will retain many of the protections enjoyed under federal supervision. The difference is that now the states can exercise local control over wolves. Montana and Idaho are well aware of the value of wolves in terms of tourism, healthy ecosystems, and hunting. Now that the ESA and the federal government has done its work, its time for the states to regain control of their valuable resource.

Please comment if you feel strongly one way of the other. Comments can be emailed to: NRMGrayWolf@fws.gov; hand-delivered to USFWS, 585 Shepard Way, Helena, MT 59601; or mailed to U.S. Fish and Wildlife Service, Wolf Delisting, 585 Shepard Way, Helena, MT 59601. All comments must be received within 60 days of the proposed rule’s publication date in the Federal Register. For more information on Northern Rocky Mountain gray wolves, visit http://www.fws.gov/mountain-prairie/species/mammals/wolf/

I knew the mailman delivered my National Geographic this evening when I spied its yellow border and distinctive shape. I was already excited. It’s always the first piece of mail I open and I could tell tonight would be special. As I tore through the shrink wrap I noticed something exciting. The stiffness between the pages meant only one thing - this month must be map month. What cartographic craziness awaited me tonight? A political map of Sub-Saharan Africa? Amphibian distribution of Malaysia? Not quite.

As I separated my “map” from its gooey backing with bated breath, I noticed a logo. The logo of Dow Chemical. My “map,” as it were, turned out to be a publicity stunt by Dow chemical to advertise their “Journey to Save Lives.” I felt like Ralphie and his Little Orphan Annie decoder pen (”Better Drink Your Ovaltine”).

As featured prominently in this month’s National Geographic, Dow’s “Blue Planet Run” features 20 runners trotting across the globe 24 hours a day in order to raise awareness for clean water. (It seems Dow has dropped the “Chemical” to appear more environmentally sensitive). What better way to raise awareness for millions of children without water than by parading 20 sweaty and thirsty runners through Northern Europe.

These guys aren’t even running through the countries most afflicted with water shortage or quality issues. These 20 brave souls are trekking through such third world deathzones as the United States. Then they will move onto that hotspot of water pollution-Ireland. Then these runners will raise awareness by running through such warzones of water shortage as England, Germany, Russia, and Japan.

Dow chemical donated $1 Million dollars to raising awareness for water shortage, which is noble. According to my new map, 64,000 people are getting clean water for life. But I bet Dow spends $5 Million talking about this over the next decade. And I bet an overweight accountant in a white shirt and black tie concluded that the benefits of this “project” outweigh the cost, to wit, that the publicity and goodwill generated from this sponsorship are worth more to Dow shareholders that the overhead.

Corporate marketing departments have finally picked up on the green revolution. Three months ago Chevy commercials espoused trucks as tough as a rock. Now car commercials feature yuppies in small packages and brag about the greenness of their 2009 models. It’s all about perception.

The point is, don’t believe everything you see on TV. Just because the environment is finally in vogue doesn’t mean that every company that claims to be environmentally friendly is green. If you purchase based on environmental track record, do your homework. Buy local and buy small. And by all means support water shortage awareness by running as far as you can.

For Colorado River users, there is a public meeting on Reudi Operations Wednesday, May 9 at 7:00 at Basalt High School. Water users, recreationists and others can learn how the water year is shaping up for the Fryingpan, Crystal, Roaring Fork and Colorado Rivers and give feedback on the developing regional watershed plan. Click here for the May 9 Reudi meeting notice.

On another note, fishing on the Pan has been steady, while the Roaring Fork is pretty washed out below Aspen. The Fork is running around 1200 cfs, which is average for this time of year.� If you believe the critics, though, the West is in for a dry summer.

Renewable energy will play a key role in America’s energy security, but efficient use of that energy is the only way to avoid the environmental side effects. Great post on Mayday by the High Country News Goat Blog describing the impact of renewable energy production on western water resources. According to the Christian Science Monitor:

“Already, a power plant uses three times as much water to provide electricity to the average household than the household itself uses through showers, toilets, and the tap. The total water consumed by electric utilities accounts for 20 percent of all the nonfarm water consumed in the United States. By 2030, utilities could account for up to 60 percent of the nonfarm water, because they use water for cooling and to scrub pollutants.”

As our nation struggles to kick its addiction to foreign fossil fuels, we need to be conscious of the impact on natural resources, especially in arid areas like the West where the environmental impact per gallon is higher. We should exploit domestic fossil fuels–but only as a crutch to ween the country of its fossil fuel obsession. Nuclear, wind, solar, and hydrogen need to be power the U.S. of the future.

Other news: Go Here for water use and biofuels.

A major augmentation plan submitted by eastern Colorado irrigators to restore groundwater pumping on the eastern plains is on trial in Division 1. Division 1 is the South Platte River basin in eastern Colorado. The past 5 years has been the worst drought on record for some in the basin. Due to this drought, wells in Div. 1 have been curtailed, or shut down, by the state engineer to avoid injury to senior users of water. To restore a limited portion of their pumping, these groundwater users turned to the Central Colorado Water Conservancy District for water for an augmentation plan.

In most western states, the doctrine of prior appropriation determines an entity’s right to use the state’s water. That is, “First in Time, First in Right.” Under this doctrine, junior water users cannot injure the vested rights of senior water users. However, if junior users can find a way to protect a senior user by providing replacement water, then those junior users are entitled to divert “out of priority.” This is called an augmentation plan and must be approved by a Water Court.

Judge Klein in Division 1 is in the process of ruling on the augmentation plan in the eastern plains. Cities with senior rights, including Boulder and Sterling, have filed opposition to the groundwater users’ augmentation plan. Now, the groundwater users must prove that their plan is bullet proof and does not cause injury to senior users like Boulder and Sterling. Final arguments were Thursday. More details when the ruling becomes available. See Article for more details.

Newsflash: a U.N. report suggests that America must overhaul its energy policy and land use patterns to avoid global warming. The report, released yesterday from the International Panel on Climate Change (IPCC), stated that the world must revamp its energy policy to avoid extensive global warming. IPCC 5-4-2007 Summary. According to the report, global carbon emissions must abate by 50 to 85 percent to avoid a temperature rise of more than 4 degrees Fahrenheit. Scientists believe that 4 degrees is the tipping point at which most of the catastrophic consequences of global warming will occur. A full-out assault on emmissions may result in a 5% reduction of the world GDP. However, most models predict a reduction of less than 1% spread out over decades. The report also cites “substantial economic potential” from such a reduction in emissions.

Sustainable Development

The report considers sustainable development as a key concept in the fight against emissions. Items that fall under the umbrella of “sustainable development” may surprise most people. For example:

“There is growing evidence that decisions about macroeconomic policy, agricultural policy, multilateral development bank lending, insurance practices, electricity market reform, energy security and forest conservation, for example, which are often treated as being apart from climate policy, can significantly reduce emissions.”

Social and Economic Feasibility

The report also stresses that implementation of sustainable development can occur in a socially and economically feasible manner.

“Reducing both loss of natural habitat and deforestation can have significant biodiversity, soil and water conservation benefits, and can be implemented in a socially and economically sustainable manner. Forestation and bioenergy plantations can lead to restoration of degraded land, manage water runoff, retain soil carbon and benefit rural economies, but could compete with land for food production and may be negative for biodiversity, if not properly designed.”

American Energy Use

But the United States has a long way to go. It must dig out of the hole it dug for itself over the past 50 years. Over that period, the U.S. thinned its mass-transit infrastructure for the benefit of the auto industry and become heavily dependant on cheap imported fossil fuels. The U.S. is now heavily auto-dependant compared to other countries. Thanks to urban sprawl and cheap gasoline, the average commute for Americans is now 16 miles, or 26 minutes. Luckily the government is no longer in denial of America’s dangerous land use patterns and recognizes not only the environmental implications of gluttonous energy use, but also the national security implications.

According to the Annual Energy Overview published by the Department of Energy, in 2005 renewable energy use (which includes hydro-power) comprised a measly 6% of the total U.S. consumption. 2005 DOE Energy Overview. Nuclear accounted for 8%. Finally 84% of America’s energy needs were satisfied via fossil fuels.

Nuclear: the New Green

Nuclear energy is making a comeback. The IPCC report characterized nuclear as a “key mitigation technology.” The Bush Administration is already on board. Although nuclear’s image suffered due to bad P.R. in the 70’s and 80’s, nuclear technology is now safer, cleaner, and more environmentally friendly than ever before. American must embrace it in order to reduce its reliance on foreign energy sources. Most environmentalists have recently bought tickets on the nuclear express.

Do Something

Regardless of your position on global warming, there are many good reasons for America to reduce its dependence on fossil and foreign fuels. You can help. Try to reduce your carbon footprint by using less energy at home, moving closer to your work, taking mass transit, buying local, and supporting nuclear energy. All of America must support energy efficiency to achieve energy and environmental security.

In a welcome shift in policy, the House recently approved the Wild Sky Wilderness Bill setting aside 106,000 acres of low elevation, old-growth forest in Washington’s Mount Baker-Snoqualmie National Forest as wilderness. H.R. 886 also protects 25 valuable miles of salmon streams in western Washington.

Whereas most wilderness areas cover high elevation “rock and ice” country, Wild Sky covers an area of very productive old growth forest at low elevation. Wild Sky is located northeast of Seattle in rugged country where pacific northwest old growth forests thrive. The Bill’s authors are confident it will breeze through the Senate.

This was a carefully crafted piece of legislation. It is a good example of compromise within the environmental community. For example, an exception was made for helicopter and machine access to build a trail system within the area. This will appeal to recreationists. It also allows float plane access to a preexisting fishing camp, which will please sportsmen. Land exchanges were also negotiated showing local compromise.

Fourth time is the charm. The Senate approved this wilderness area in three previous sessions but it was blocked in the House by Richard Pombo (R-California), former Chairman of the House Natural Resources Committee. Pombo alleged that a portion of the area did not meet the requirements of the 1964 Wilderness Act because that portion had been impacted. Current House Natural Resources Committee Chairman Nick Rahall (D-W.Va.) has indicated a friendlier attitude towards wilderness bills. Rahal stated “As we move forward, the Congress is reminded of our duty to ensure that this area and other wilderness regions across America are preserved for our enjoyment and the future enjoyment of generations to come.”

This is a welcome shift in policy from the House. The Wilderness Bill, passed in 1964, was a revolutionary idea in land management. It was the first legislation in the world to recognize the value of wilderness by suggesting a hands-off approach to land management. Section 2(c) of the Act defines wilderness as: “[a] wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” With a little help from the Senate, Washington state can secure a jewel for Americans to enjoy and appreciated ad infinitum.

For more information on the wilderness movement see The Wilderness Society.

A horrific tragedy befell the campus of Virginia Tech today taking dozens of innocent lives. It’s time for a gutcheck America. We all need to recognize the controversy surrounding the Second Amendment. The Second Amendment states:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”


What Does the Second Amendment Guarantee?

• A personal right to bear arms
• A state's right to arm its milita

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I. Statutory Interpretation

There are three basic interpretations of the Second Amendment: (U.S. v. Emerson 270 F.3d 203 (5th Cir. 2001))

(1) Collective Right: The Second Amendment does not confer a personal right to bear arms, instead it recognizes a right of a state to arm its militia.

(2) Sophisticated Collective Rights Theory: The Second Amendment recognizes a limited individual right to bear arms but the “individual” bearing those arms must be an active member of a functioning, organized state militia.

(3) Individual Model: The Second Amendment recognizes a right of individuals to keep and bear arms.

II. Historical Context

With all due respect to the Framers, this Amendment should have been a lot clearer. Nonetheless, any Constitutional Provision must be interpreted against the backdrop of the timeframe during which it was passed. The Second Amendment came into effect in 1791. In those days of muzzle loaders and hatchet marksmen, the States were wary to cede too much power to a centralized government fully capable of tyranny. For this reason, the states wrote their militias into the Constitution.

The situation has changed. Firearms in 1791 were much less sophisticated than they are now. Today, any crazed teen can come strapped to the classroom and summarily execute a mass-murder. It happens once a quarter. Our neighbors should not wield this level of power.

Ambiguities aside, there must be tougher gun control in this country. I am not advocating for a wholesale disarmament of the people, but I do suggest that we start to take guns seriously. Parents must be held responsible for the actions of their children; assault weapons should be banned; and felony background checks must be taken seriously. Above all, we must instill in our children a strong sense of tolerance and a firm respect for life.

A giant sucking sound was heard last Friday in southern California as the 9th Circuit lifted an injunction and allowed the Bureau of Reclamation to line the All-American Canal. This project will dramatically reduce seepage to the desert sands, much to the chagrin of Mexican farmers who have relied on the seepage for decades.

Background

Water is the lifeblood of the West, though you wouldn’t know it driving through Hollywood. California imports most of its water from the deserts of the western United States. (See Marc Reisner’s classic, Cadillac Desert). The All-American Canal is an 82-mile ditch which conveys water from the Colorado River to California’s Imperial and Coachella Valleys. This canal runs, as the name implies, in the United States - over the porous sandy soils just north of the Mexican border. It loses 700,00 acre-feet of water per year to the desert.

But that water is not lost. Thirty miles south of the canal, water percolates through the soils of Mexicali, Mexico, the breadbasket of Baja. For decades, Mexican farmers have built an industry around the seepage from the canal. The environment has also benefitted. The Colorado River Delta, once one of the biological jewels of this hemisphere, received the leftovers which resulted in a much needed boost in flows. But nationalist interests trumped in the U.S. as the legislature passed a bill in December effectively ending the litigaiton and approving the lining.

The Bureau will line 23 porous miles of the canal to reduce California’s obligation to reduce its dependence on the Colorado River. The project is expected to salvage 67,000 acre-feet and provide San Diego county with enough water for at least 134,000 normal families or about 4 golf courses. A small chunk of the water will also go to the San Luis Rey Indian Settlement Parties, providing Native Americans a rare piece of the american pie. The plaintiffs in the case were a mexican business group and two California-based environmental groups, who challenged the project on equitable grounds. But on Friday, their challenges were summarily rebuffed.

Western Water Law

California has the legal high ground. Prior appropriation is the law of water in the West. California has played this game for more than a century. The basis of this system, prior appropriation, is first in time first in right. California first “developed” the water and is entitled to the water under several agreements. It is only due to California’s actions in procuring this water that the mexican irrigators had the opportunity to build their livelihoods around the seepage from the canal. Under prior appropriation doctrine, there are no vested rights in seepage. Therefore, in the eyes of the law, Mexican farmers lose and California wins.

Mexico Loses This Battle

Equitably, this is another story. Mexican farmers have built their lives for decades around the seepage. Orchards have sprouted from the desert. Families were raised in pastoral communities. Produce was shipped to local markets. However, there is now little hope for these farmers. Nonetheless, Mexico City is not throwing in the towel and refusing to give up.

California’s Slake

Though California does a great job on other environmental hotbuttons, like renewable energy and carbon emissions, it needs to exercise a more propriety when it comes to water in the West. California must learn efficiency the way Denver has in the past 10 years. (Xeriscaping, anyone?). It may also want to check its growth.

Unfortunately, the western culture may run dry before the rivers do. Cities like Las Vegas and Los Angeles will continue to buy agricultural water rights until farmers and ranchers in the West become dinosaurs. For the sake of the West, its citizens must fight for sustainable water use and practices, not only in California, but all across the West. Get involved. Go to a town meeting. Comment on federal proposals. Let the government know the West demands smart growth and sustainability.