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Colorado water belongs to the people of Colorado

Letter from Phil Doe

Water – June 2002 – Colorado Central Magazine


While our state’s Constitution declares in clear language that the water in our rivers belongs to the people, that declaration has been pushed aside over the years to serve the unfettered appetite of the state’s water development interests. Perhaps most telling is the language that has been devised to devalue rivers. The mantra is that we must “develop” our water, or we will lose it to those nasty folks down in Nevada, California, or Mexico. Implicit in this statement is a reckless denial of the obvious: first, that water runs downstream, usually to an ocean, and second, that rivers are themselves a development, albeit natural, that all our engineering science can only wonder at. We can destroy our rivers, but we cannot create them.

Let us consider the Dolores River, and the drought situation in southwest Colorado where snow pack is apparently about 10 percent of normal. Because of the drought and the way water resources are allocated in the state, there is dawning recognition, even among local and state politicians, that we will almost certainly destroy the aquatic environment in the Dolores River below McPhee Reservoir.

McPhee is the major feature of the federally constructed Dolores Project. The project is managed by the U.S. Department of Interior primarily to serve irrigated agricultural interests in Montezuma County. It is the federal government’s present decision to allocate shortages equally across all uses during this drought year. The result, albeit not purposeful, will be the destruction of the Dolores River while water deliveries continue to Interior’s client irrigators. Were a public trust doctrine in place the decision tree would look radically different, for the first priority would be to satisfy the minimum needs of the river.

This may sound draconian and elitist to those who cling to what is generally called traditional western values, but some facts that are usually overlooked or avoided need to become part of our intelligence.

First of all, according to the Department of Interior’s records, only 30 farms in the Dolores Project area are of a size that could even remotely be considered commercial farms, or operations that might provide the primary source of family income. The other 1,100 agricultural water users average holdings of about 20 acres in size. These are not commercial farms by any reasonable definition and probably shouldn’t even be eligible for the huge irrigation subsidy that the Dolores Project constitutes. Were a public trust doctrine in place, these 1,100 “hobby farmers” might see a reduction in their water allocations, and a severe reduction during critically short water years.

The Dolores Project cost the American taxpayer over $800 million to develop. Hardly any of that money will be repaid to the Treasury by the project’s water users. Thus, the $800 million represents a huge subsidy to a very small and select special interest group. Yet, the public which has paid for the project has basically no say in how the water should be used in difficult times. A public trust doctrine would revalidate the public’s ownership of the river’s water and its right to determine the limits of its use.

The Dolores River saga is not unusual in Colorado water politics. We, the people of Colorado, paid the Denver law firm of Hill and Robbins about $6 million to defend the water “use” rights of a few people on the lower Arkansas River to over appropriate that river. The state of Kansas sued for damages and restitution of the water that had been stolen in Colorado, going all the way to the U.S. Supreme Court.

The Court, in awarding $40 million in punitive damages to Kansas, said Colorado knew or should have known about the theft for over 30 years. This outcome Attorney General Ken Salazar, in an amazing corruption of language, has termed a “significant victory” for the taxpayers of Colorado.

A similar case is brewing on the Republican River in eastern Colorado.

We will be expected to pick up the tab, including legal fees, once again for water over appropriated by a few Colorado farmers. Similarly, the Closed Basin Project in Colorado’s San Luis Valley was built to augment the flows of the Rio Grande so that resident Colorado farmers and ranchers can continue to “steal” water belonging to New Mexico. This project cost almost $100 million to build. It has an annual operating budget of over $3 million. The taxpaying public has paid all construction costs and is paying all the annual operating costs.

Clearly, reassertion of the public’s ownership of the water in Colorado’s rivers through a public trust initiative is needed. It is not a silver bullet, there are still many other battles to be waged if we are to restore sanity and balance to the way the public’s resources are used. But one thing is for sure, the public trust initiative will ensure that our rivers actually carry water out of the state to the sea, that they remain rivers. Wonder of wonders!

Phillip T. Doe

Citizens’ Progressive Alliance