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Courts and Conservancy

Article by Ed Quillen

Water Conservancy Districts – April 2001 – Colorado Central Magazine

THE STATE LAW that governs water conservancy districts (CRS 37-45-101 …) sets the procedures for establishing a district — petitions from a specified number of land owners and water users have to be submitted to the district court.

If the petitions are in order, the court issues a decree establishing the district, and within 30 days, the court “shall appoint a board of directors of the district with backgrounds reflecting the agricultural, municipal, industrial, and other interests in the beneficial use of water within the district. Such board shall consist of not more than 15 persons who are residents of the counties in which the water conservancy district is situated, all of whom shall be the owners of real property in said district and knowledgeable in water matters.”

After the district is up and running, board members serve four-year terms. When a director’s term is about to expire, the district publishes a legal notice in a relevant newspaper, soliciting applications for the seat. The judge then makes the appointment.


Colorado believes in local government — lots of local government, often in the form of elected special district boards that no one seems to have time to keep track of: school districts, water and sanitation districts, fire protection districts, metropolitan districts…

But there are exceptions in all this democracy. Although special districts have the right to levy taxes and exercise other governmental functions, not all have elected boards — which seems rather surprising in a nation founded by a revolution based on the principle of “no taxation without representation.”

One example is the library district board — its members are appointed by county commissioners, and this is also true for the state’s three water conservation districts. But the directors of water conservancy districts are almost always appointed by district court judges.

In each water conservancy district, the directors are apportioned geographically, based on divisions specified when the district was organized. Some divisions can get more than one director, on account of population. One or more directors might be “at-large,” and there can be no more than 15 directors all told.

The appointment of conservancy boards raises all sorts of questions that might make for a lively discussion in some political-science class. For starters, there’s the issue of separation of powers. Levying taxes is a legislative function, not a judicial function. So why is the judicial branch appointing people to exercise a legislative function?

Or, one might ask whether any non-elected body should have the right to collect taxes.

Then there’s representation. When it comes to Conservancy Districts, rural areas are better served than urban areas.

The Southeastern Colorado Water Conservancy District, which operates the Fryingpan-Arkansas project, comprises parts of nine counties: Bent, Chaffee, Crowley, El Paso, Frémont, Kiowa, Otero, Prowers, and Pueblo. And each county gets at least one seat on the board (except Kiowa, because less than 1% of its area is in the district). There’s one at-large seat, and the remainder of the 15 seats are apportioned by population.

So even Crowley County, with only 4,406 residents (and less than 1% of the district’s population) gets a seat, and El Paso County, the largest, gets five seats. El Paso County, however, only gets 1/3 of the votes on the board, even though it has nearly 4/5 (78%) of the district’s population. Thus, a Crowley resident gets 25 times as much representation as an El Paso resident.

On the other hand, there is the argument that even if most of Southeastern’s population lives in Colorado Springs and Pueblo, those cities shouldn’t be determining water allocations for the entire region, since most water consumed in Colorado’s Arkansas basin (about 80%) is used for agriculture, and the farm counties are economically much more dependent on that water than the urban counties (which could presumably import more of their food from California or Iowa).

But who knows whether some federal court in the future is going to take note of this major violation of the “one person, one vote” principle, and throw the whole thing out.

Judicial Appointments

That’s speculation. For more speculation, one might ask why the Colorado General Assembly wrote the water conservancy-district law that way in 1937. Why stipulate that directors be appointed by judges, rather than elected by the public, or at least appointed by elected officials like county commissioners?

It should be noted, however, that until 1966, when a constitutional amendment was passed, Colorado judges were directly elected — just like county commissioners. Before that date, judges campaigned and got elected for four-year terms as Republicans or Democrats or independents, and were thus directly accountable to the public.

Nowadays, judges are nominated by a special panel and appointed by the governor. Public involvement is limited to a “retain or not-retain” vote every six years.

While it’s probably a good idea not to have judges soliciting contributions and running partisan campaigns, it means that water conservancy districts are less politically accountable than they were when the law was written.

The role of district judges has changed since 1937, too. Until 1969, when Colorado established a separate system of water courts, water cases were heard in regular district courts, just like divorces, contract disputes and felonies. Thus all district judges, rather than just a few, would have been quite familiar with water issues.

The state legislature first allowed for local “water conservancy districts” in 1922. These were for flood control, and could be established by petition of landowners to the district court, which would appoint the directors.

MODERN WATER CONSERVANCY DISTRICTS date to 1937 when irrigators and cities in northern Colorado (primarily Larimer, Weld, and Boulder counties) wanted to get water from the Colorado River on the Western Slope. The federal Bureau of Reclamation stood ready to build the project, but federal law required a local entity to enter a repayment contract with the Bureau. According to current Colorado Supreme Court Justice Gregory Hobbs, “This required the establishment of a governmental entity with contracting, bonding, and taxing authority to secure the local district’s financial obligation.”

Since the flood-control conservancy districts were already on the books, and the legislature was trying to act quickly so that federal dollars could flow into building the Colorado-Big Thompson project, it’s likely that the legislature just adapted the 1922 law, with its judicial appointments.

In a history of that project (The Last Water Hole in the West), author Dan Tyler wrote that despite the Colorado custom of electing directors of most special districts, the water conservancy district act “opted for the appointment process to keep directors out of politics and to free them from costly campaigning. Thus constituted, water conservancy district boards were theoretically more independent to exercise their responsibilities.”

Justice Hobbs notes that district courts had been in charge of Colorado water since the legislature passed the Adjustment Act of 1879; so “lawyers and legislators interested in such matters would have gravitated to the courts as the forum to handle the matter of formation and appointment of directors for these local districts dealing with water matters. In this context, getting districts formed and projects built might seem like a basically non-political job.”

But even so, soon after conservancy districts were established the appointment method was challenged by a citizen who questioned the right of non-elected officials to levy and collect taxes. It went to the Colorado Supreme Court, which issued a ruling in 1938 in People v. Letford.

The court held that a “water district is not a true municipal corporation having powers of local government, but is an agency of the state with some of the powers and attributes of a municipality.”

Further, “The argument on this point [non-elected officials levying and collecting taxes] is based upon the assumption that every citizen resident within the district should be entitled to vote in the election of the persons by whom the affairs of the district are to be conducted. However democratic this theory, this right is not guaranteed by the Constitution to the electors of municipal corporations.”

In short, a water conservancy district has some municipal powers, but it is not a municipal corporation, and even if it were, the state constitution does not guarantee a right to vote for its officers.

But even if there was no right to vote for water conservancy directors in the 1937 law, the legislature has created and expanded a voting right since then. A 1945 law allowed for elections in districts created after that date, upon petition by 15% of the tax-paying qualified voters (those who owned real-estate in the district).

In 1985, that was expanded to all districts, no matter when they were formed, and in 1996, the petition requirement was reduced to 10% of all voters in the district — they didn’t need to be property owners. It should be remembered, though, that these provisions call for a one-time vote; they do not make district conservancy director an elected position.

So, the legislature has been making it easier to conduct elections in water conservancy districts, but the selection process remains mainly in the hands of district judges.

DISTRICT JUDGE JOHN ANDERSON, based in Cañon City, makes the appointments for the Upper Arkansas Water Conservancy District, even though he is no longer the chief judge — Anderson recently stepped down as chief, a position now filled by District Judge Ken Plotz of Salida.

Anderson was out of town when this article was being written, so the questions went to Plotz, who said that Anderson retained the appointments on the Upper Arkansas because Anderson’s courtroom and chambers are in the Frémont County Courthouse, and that’s where the Upper Arkansas district’s case files are.

“It just makes sense for Judge Anderson to continue making those appointments,” Plotz said. “And he’s still the water judge from this district, so he’s certainly familiar with the issues.”

Before 1969, Colorado water cases were heard in district courts, just like most other civil matters. The state then established a separate system of water courts, which rule on priority dates, changes in use, and the like. But the state does not have a separate system of water judges.

Plotz said each judicial district has one or more judges who sit on water cases, and Anderson is that judge for the 11th Judicial District (Park, Chaffee, Frémont, and Custer counties).

Due to the separation of our water courts, however, when it’s a water case, Anderson is a judge for Colorado Water Division 2 (which is based in Pueblo). Although Park County is in the 11th Judicial District, it isn’t in Division 2; Park County belongs to Water Division 1 (based in Greeley).

“Keeping up with the legislation and court decisions in water law is a lot of work,” Plotz said, “and so I feel more comfortable if Anderson makes the appointments.”

Anderson wasn’t available to explain what his criteria are in making those appointments, but Plotz also appoints water-conservancy district directors — in the Upper South Platte Water Conservancy District. That’s because Plotz hears most of the district court cases in Fairplay, and that’s where the file is. Jonathan Hayes, however, judge for Colorado Water Division 1, hears water cases from Park County.

As for Plotz’s criteria, “I’ve never had more than one applicant for a seat on that conservancy district board, so I’ve never had to come up with reasons to decide between two applicants.”

Water law is a specialty, Plotz said, “and district judges have to deal with so many aspects of the law as it is. On a single day, I might have to preside over a land dispute, an auto accident, a divorce, and part of a felony trial.”

When asked if a district judge — no matter how well versed in civil and criminal laws and procedures — might not have any more water knowledge than any reasonably informed citizen, Plotz replied, “You could make that argument. Appointing people to water conservancy district boards is not something I’m real comfortable with. When that law was written, all district judges were directly elected, and they heard water cases on a routine basis, but it’s not that way now.”

Richard P. Doucette, a judge in the 14th judicial district in northwestern Colorado (Grand, Routt, and Moffat counties), has said that he sees no good reason for judges to make conservancy district appointments. The boards make political decisions about taxes and constructing and operating public facilities, and they should be selected by a political process — elections.

Proposed Elections

Any widespread agitation to elect Colorado water conservancy district boards might be traced to a 1985 gathering of agitators and trouble-makers in Salida, or more properly, to one of the organizers of that Water Rendezvous, Jeanne W. Englert of Lafayette (also a frequent contributor to this magazine).

Englert used to live in Durango, where she fought the proposed Animas-La Plata project (successfully — it was authorized in 1968, and construction hasn’t started yet).

Her struggles with conservancy districts — some of them have a rather constricted view of the Colorado Open Meetings Law and the Colorado Open Records Law — led her to believe that public accountability was a solution to secretive bodies that collected taxes while pursuing projects that the public might not want.

About a dozen years ago, she promoted a “Tea Party” scheduled for Dec. 16, the anniversary of that day in 1773 when tea was dumped into Boston Harbor by people who were upset about “taxation without representation.” Water conservancy districts also inflict taxation without representation, Englert argued, so Coloradans should go toss some tea into the nearest river, especially if they could get some media attention in the process.

Every so often, she and her colleagues would get a state legislator to propose a bill to require conservancy district elections. One time, about ten years ago, Northern Colorado brought in its lobbyist, former Senate President Fred Anderson of Loveland. He warned the legislature that “the wrong people might get elected.”

WHILE THAT’S A VERY REAL RISK — especially when you look at the General Assembly — the legislature apparently agreed with Anderson that it was a threat. Such bills never get out of committee, although the legislature did ease the process for elections in 1985 and 1996.

And that has produced some elections.

The High Country Citizens Alliance, an environmental group based in Crested Butte, was less than pleased with the operation of the Upper Gunnison River Water Conservancy District, which seemed more interested in finding a project to build, and in irrigating hayfields, than in the bigger picture of a county whose economy increasingly relies on there being water in the river for anglers, rafters, and sightseers.

That district’s geographic divisions are based on drainages, and when the East River seat came up a few years ago, Steve Glazer of Crested Butte sent an application to Judge Steve Patrick. Glazer, a retired investment banker and an active Sierra Club member, knows his water — he publishes an informative monthly “Western Water Report” on the Internet.

Although Glazer had been endorsed by the town boards of both Crested Butte and Mt. Crested Butte, the judge appointed someone else. Local activists figured that if the judge wouldn’t appoint a qualified person like Glazer, they needed to circumvent the judge with an election.

So in February and March of 1999, volunteers circulated petitions for elections in two division seats — the one Glazer wanted, and the Tomichi Valley seat held for two terms by Ramon Reed, a rancher and environmentalist who believed that Judge Patrick would not appoint him to another term.

To sign a petition, one must be a registered voter within that division. Petitions must have valid signatures from at least 10% of the registered voters in the division. People eligible to sign are also the people eligible to vote, but non-resident property owners can also vote in a conservancy district election if they are registered to vote elsewhere in Colorado.

Once the election was set in Gunnison in 1999, Glazer was the only candidate in his division, so the election was moot. In the other division, Reed was defeated 276-73 by rancher Greg Peterson — the person whom Patrick probably would have appointed to replace Reed.

Judge Patrick’s view is that a water conservancy board should be harmonious, rather than contentious — a single, united voice is important in fighting various schemes (like Union Park) that propose taking water away from the Upper Gunnison valley. On that account, he refused to re-appoint Butch Clark of Gunnison — Clark knows water well, but he’s not exactly an “agree for the sake of agreement” sort of person.

In the late winter of 2000, petitions were circulated again, for two seats in Division 8, which is essentially the city of Gunnison. The elections were held on June 20, and the incumbents — Diane Lothamer and Bob Drexel — defeated challengers Jim Gelwicks and George Sibley (a name that should be familiar to readers of this magazine).

Electoral Mechanics

Kathleen Curry is the manager of the Upper Gunnison River Water Conservancy District, which extends from the Continental Divide to Blue Mesa Dam, and the job of organizing an extremely rare kind of election fell to her.

“Before 1999, there had been only one other water conservancy district election in Colorado [Central Colorado in Weld County],” she said, “and their records had been lost. So basically, we were starting from scratch.”

The board did try to simplify its part of the process by voting to challenge the signatures on the petitions — if enough signatures could thereby be thrown out, then there wouldn’t be an election.

“But on account of the deadlines in the law,” Curry said, “we also had to proceed on the assumption that there would be an election.”

The organization of the water district complicated the process of figuring out who could sign petitions and who could vote. Its divisions do not follow political subdivisions, but are based on drainages. Thus every address had to be checked to see where it fell on a map of Gunnison River tributaries.

In the Upper Arkansas, the divisions are the same as the school districts, and a voter’s registration shows that — so it’s simple to determine which water division a voter resides in.

Another difference lies in the county clerk’s office. The Gunnison clerk conducts only the elections that the clerk’s office is required to conduct — primary and general elections.

Chaffee County Clerk Joyce Reno will conduct any election in the county, providing her office is repaid direct costs.

Thus the Gunnison water elections cost from $10,000 to $15,000, Curry said, not counting staff time. Reno said conducting an election for the Buena Vista division seat in Chaffee would run from $3,000 to $5,000.

Curry, who holds a master’s degree from Colorado State University in water resource management, said she is no fan of water-conservancy district elections, and cited two major reasons.

— “Water conservancy district boards should be thinking for the long-term interests of the area, and political campaigns, which focus on current issues, don’t encourage that.”

— “There are people with vast water expertise and experience who just wouldn’t run for office. It’s a thankless job. And if we lost them, we’d lose much of our institutional memory.”

TERRY SCANGA of Salida has done most of the recent talking for the Upper Arkansas Water Conservancy District. He was an at-large director until Jan. 1, when he resigned to become the district’s part-time assistant manager.

He is also no supporter of elections, for reasons like Curry’s, and for a few others.

He noted that special-district elections typically have low turn-outs, “and so the person who’s elected may not be all that representative.”

Further, with the low-turnout, it would simplify matters for a group to mobilize its supporters to vote, and “that group could have a hidden agenda.”

And there’s the cost, which Scanga initially estimated at up to $30,000, though he has since reduced that.

In Scanga’s view, “the public is represented on water conservancy district boards. It’s just that the judge picks the representatives, rather than having an election, and it’s a system that has served the public pretty well.”

But there will be more conservancy-district elections in Colorado, Curry said, whether the boards want them or not. She’s become the authority, since she’s conducted two-thirds of all the water-conservancy district elections ever held in Colorado. “When I talk to other water-district managers, I tell them to get ready, because it’s a coming trend.”

Given that, Curry would like to see some changes in the law. As it is, the petitions have to be filed at least 90 days before the director’s term expires, “and that deadline is too tight. You could get derailed if the judge is out of town. It should be extended to 120 days.”

There are also questions about electoral procedures, such as campaign contributions and reporting. “We’ve asked the Colorado secretary of state to clarify those procedures.”

In general, she said, “we need to make the process clear and efficient, so that it doesn’t take so much staff time.” She added that there are only two paid UGRWCD staff members — herself and a secretary — “and we already have too much to do. We have to hire temporary staff for every election.”

Upper Arkansas

In January of this year, a group called Upper Arkansas Citizens for Water Integrity began circulating petitions that called for an election in one division of the Upper Arkansas Water Conservancy District.

That seat, one representing the Buena Vista School District area, is held by Gary Merrifield (a write-in candidate for county commissioner in 2000). The term expires on June 1, 2001. If an election happens, only citizens of the Buena Vista School District will be eligible to vote.

Two other seats also expire then: Thomas Young of Cotopaxi, and Tom French of Howard, the director at large who was appointed to replace Scanga after he resigned from the board to serve as assistant general manager.

Citizens for Water Integrity focused on the Merrifield seat because most of the group’s members are in Chaffee County, and there wasn’t time to organize across the district to get the signatures that would be needed to force elections on the other seats.

There are 4,929 registered voters in the Buena Vista School District, and on Feb. 20, petitions with 615 signatures — well over the required 10% — were filed with District Judge John Anderson in Cañon City.

Unless about a fifth of those signatures are invalidated — it’s a certainty that Upper Arkansas, like Upper Gunnison, will challenge the petitions — then there will be an election, only the fourth water conservancy district election in Colorado history.

MARK EMMER, a computer programmer who lives near Salida, is one of the main movers in Citizens for Water Integrity.

“The main issue is taxation without representation,” he said. The Citizens’ formal position is like that of High Country Citizens Alliance on the Gunnison watershed: supporting elections but not supporting any specific candidates.

But there are other reasons for conducting elections to water district boards, Emmer said. “The law says the board should be representative of the agricultural, municipal, industrial, and other water users, and yet this board is basically agricultural — there aren’t any municipal people on it.” That contrasts with Southeastern’s Board, which has members from the Colorado Springs and Pueblo municipal water departments.

And in Emmer’s view, an election provides a forum, so that there’s a time when area water issues are on the table for public discussion. “The decisions the water conservancy district makes can affect all of us, so there are matters we need to think about and talk about — and elections are a way to make that happen.” ¤