CTU Presentation to Grand Junction Public Water Forum

2005

Jo Evans

Colorado currently transfers a great deal of water from one river basin to another. It is thus not surprising that between 1988 and 2002 the Colorado General Assembly looked at 18 "basin of origin" proposals. Some were compensation/mitigation approaches; some focused on additional requirements before diversion, and some required voter authorization in the sending areas. Some applied to transfers from one basin to another. Others applied to transfers across jurisdictional boundaries.

The concerns that prompted bringing these proposals forward are easily identified. Water does more than keep fish wet. It is the building block of the entire riparian ecosystem and the lifeblood of local economies. When water is used within its natural basin, most eventually returns and is used again and again. When water is taken out of its basin it is simply gone. There is no return flow either to the streams or recharge to the ground waters. Moreover often it is taken at the top of the system. This, of course, severely impacts quality and flow regimes for the rest of the stream’s course.

Less water in a stream changes the stream. Assimilative capacity is reduced. The flow is altered. The temperature may change. Sedimentation patterns alter. Water quality is affected. Fish and wildlife habitats are influenced. The change in river habitat can be dramatic. Riparian ecosystems are fragile. Changes in the canopy cover over a stream due to the loss of phreatophytes can actually alter the microclimate. Temperature increases can eliminate a stream as a trout fishery.

Out of basin transfers have broad socioeconomic consequences as well. Quality and quantity of streams affect both recreational opportunities and a clearly dependent tourism industry. Agriculture may be deeply and adversely affected. Municipal dischargers may face prohibitively expensive treatment costs due to the reduction of assimilative capacity. Sometimes a community's ability to continue to defray general obligation bonds on schools and local infrastructure is imperiled. Quite simply, out of basin transfers have the potential to affect life style, economy, ecology, and the capacity for continued growth in the area of origin.

Out of basin transfers are unique in their implications for the sending basin. Normally, the "no harm" rule protects other appropriators in change cases. However, since the "no harm" rule under the appropriation doctrine does not consider harm to the ecology, economy, lifestyle, and potential future growth, many other western states provide some form of statutory oversight to protect the basin of origin from the lasting and potentially severe impacts of out of basin transfers.

• Some states (Mt, Tx, Okla, New Mex for example) set aside a portion of water for the exclusive use for the basin of origin or only allow the transport if it is surplus to reasonable needs in basin for some specified period of time.

• Some, like Az, give quasi or virtual veto power to the originating basin

• Some, like Neb, have a public interest test and or specific state oversight and conditions

• Some actually allow a right of recapture

While other states have enacted measures to address economic, environmental, and societal consequences inherent in out of basin transfers, here in Colorado we have only the Conservancy District Act. It is limited both in scope and applicability. It applies only to protection of water rights, not the ecological and social impacts we were just discussing and applies only to projects constructed by water conservancy districts, not cities or other water developers.

Ultimately I suggest there are 4 basic components that need to be addressed with respect to basin of origin issues.

1. The full range of both ecological and economic impacts must be adequately addressed before any out of basin transfers proceed.
2. Anyone seeking to divert out of basin must enter into some sort of process that leaves the sending basin whole.
3. The receiving basin ought to have first instituted all reasonable efficiency measures.
4. The process by which out of basin transfers are agreed upon is open and comprehensive with all affected parties at the decision table.

To translate these principles into legislation requires a few basic rules.

• To prevail it is imperative to know specifically what problem you’re trying to solve.

Focus on the damage you are trying to prevent Listen carefully. Folks may be trying to solve entirely different problems. If your problem is that we don’t have enough dams, compensatory storage may have merit. If the problem is attempting, where possible, to maintain free flowing streams and the ecology and economies they support, compensatory storage is not a very good answer. To me that’s the 2 wrongs make a right doctrine. If you harm a stream by taking out one bucket of water, you’re not helping it if you take out 2. It’s a lot like ordering 100 bottles of aspirin because you need cotton balls.

• In seeking solutions ask the right question

or you may wind up like the girl’s father who said to the young man, "If you can add 6 and 4, you may marry my daughter." Thinking fast, the young man replied "11."

• Be sure that the answer you get is really to the question you asked.

Recently we’ve seen legislation that only addresses absolute rights, not conditional water rights. What’s the difference? All water rights in Colorado are rights to use water. Conditional rights are rights you are going to use. Absolute rights are rights you have used. The project is built. Conditional rights become absolute when they are perfected by diversion to beneficial use

• And finally, the people trying to solve the problem need to be really trying to solve the problem, not just there to make sure that their ox isn’t gored.

One thing is certain. We must seek cooperative problem resolution. We can’t be looking for winners and losers because as we grow, we are best served if we grow as a state, sacrificing no region's tomorrows for another region's todays.