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Trust the experts?

Essay by Martha And Ed Quillen

Water -April 2006 -Colorado Central Magazine

TALK ABOUT TAXATION without representation: Colorado’s non-elected water conservancy district boards spend your money to promote expensive dams and reservoirs so that we can keep sprawling. Conservancy districts help real-estate developers find water; and sell cheap well augmentations so that every Tom, Dick and Harry can build his own private mini-ranchette on our ridges.

Of course, water conservancy districts do some good things, too.

But no matter what they’re doing, it’s generally without much oversight by the public, because water conservancy boards are usually not elected.

Some background is in order. Although water conservancy districts collect property taxes and have the power of eminent domain, their directors are generally appointed by district judges. The law authorizing conservancy districts dates back to 1937, the height of the New Deal, when scientific progressivism — that is, decision-making by appointed experts — was at its apogee.

Note that it’s a “water conservancy” district, not a “water conservation” district (Colorado has those, too, but they’re not relevant at the moment).

In legal terms, a conservancy is something operated by a “conservator,” which Webster’s Second International Dictionary defines as “a person, official, or institution designated, as by a court, to take over and protect the interests of an incompetent, as a minor child, insane person, a convict, etc.”

For instance, suppose a 16-year-old boy inherits a big estate. Without some supervision, he might fritter it all away on fast cars and faster girls. So the court might appoint a conservator to manage the inheritance in the boy’s long-term interests.

Now note that Colorado’s water conservancy districts are organized under district courts, and you see the legal theory behind those districts: We are incompetent to manage such an important thing as water, so the court appoints some wise conservators to look after our interests (because surely we’re too stupid to know what is best for us).

Conservancy district directors are not always appointed, however. It is possible to elect directors to a conservancy district.

But it’s certainly not easy. Petitions have to be circulated and signatures collected from the relevant division of the district. Then, after all that work, it’s a one-shot election. Unless all that work is repeated, that seat goes back to judicial appointment when that term runs out.

But whether it be difficult or not, various people in Chaffee County formed Citizens for Water Integrity; then back in 2001 they proceeded to petition for an election.

At that point, Upper Ark challenged the petitions, and spent over twenty thousand of your dollars and mine in the process.

BUT THE PETITIONS were duly accepted by the district court, an election was scheduled, two candidates ran, and Jeff Ollinger of Buena Vista was elected.

As Citizens for Water Integrity soon learned, the process of arranging for an election was expensive and time-consuming, so in early 2002, the group reached a compromise with the Upper Arkansas Water Conservancy District. Rather than petition and run for office, future candidates for board seats could submit applications, and the district judge would appoint applicants (as he always had in the absence of an election). But there would be a new step in between. The applicants would be interviewed by a board consisting of one commissioner from each of the four counties; and that board of commissioners would make recommendations to the appointing judge, who could follow those recommendations — or not.

This would give the public an opportunity to have some input on who represented them, since they had easy access to their commissioners and could vote them out of office.

The proposed compromise also saved money, energy and required no change in the law, since the county commissioners’ panel was strictly advisory. But it also encouraged input by elected officials who are directly responsible to the public.

MOST OF OUR LOCAL BOARDS — school boards, hospital boards, sanitation boards — are directly elected. But we have other bodies that operate at one remove from direct elections, in that members are chosen by elected officials. For instance, we don’t elect people to library boards.

And I figure that’s for the best, since I don’t want elections where candidates promise to “keep all humanistic literature away from our impressionable youth” or to “remove all religious content from our public institution.”

Thus, in my view, the compromise of 2002 seemed reasonable. Elected officials, accountable to the public, would make recommendations for the directors’ seats on the UAWCD board.

As I saw it, that wasn’t as good as direct elections, but it did provide for some political accountability.

Many on the UAWCD Board, however, apparently disagreed. So earlier this month, they nullified the compromise. On March 9, the board voted to change the rules so that the committee which makes recommendations regarding board members will be manned by water district managers rather than county commissioners.

There were, of course, numerous protests. One board member called the action “unethical.” Jeff Ollinger, called the timing “bogus,” and charged that the district had deliberately failed to give proper notification of the proposed action before the meeting. Water attorney Julianne Woldridge questioned whether the board’s action was in compliance with open records law, and board members Pat Alderton and Bill Donley joined Ollinger in voting against the change.

So what was the proponents reason for that action?

Well, board member Bob Senderhauf contended that Chaffee County representatives were more motivated by politics than by the good of the district. “I personally disagree with the commissioners being in the position to decide who should be on this board,” he was quoted in The Mountain Mail, “I think we have to take politics out of this.”

Well talk about bogus. The UAWCD is a political entity, a government board, a tax-spending, publicly funded district. What could be more political than that?

According to the dictionary, political means of, related to, or dealing with government; so if Senderhauf doesn’t like decisions motivated by politics, perhaps he should serve on the board of a “private” enterprise.

Senderhauf, however, is certainly not the only one to question whether political actions taken to make the UAWCD more accountable to the public are appropriate.

Merle Baranczyk, editor and publisher of The Mountain Mail, has repeatedly urged his readers to leave water decisions to “those wise old water buffaloes” who’ve long dominated our local water conservancy district. Clearly, some people believe that citizens really do need a “conservator” to safeguard their water.

WHICH BEGS THE QUESTION: Do any of us have enough knowledge, sense, and legal understanding to determine the future of our water, which is almost certainly our most precious public resource?

Well, probably not.

But Arkansas Valley residents haven’t been the only citizens to challenge duly appointed water boards. The Upper Gunnison River Water Conservancy District held several elections before Chaffee County Citizens for Water Integrity called for one.

And there are myriad — and excellent — reasons why ordinary citizens are getting more involved in water issues. Today, water demands are escalating, but supplies are limited. Thus conflicts over water policy are escalating.

Furthermore, water needs, users, and usage have changed considerably as tourism, real estate development, and home construction have by-passed mining, railroading and ranching in economic importance hereabouts.

Yet, the UAWCD Board has resisted any and all changes on its board. According to the conservancy board and its supporters, the new applicants are not “experts.”

“Expertise,” however, is actually a matter of definition. Traditionally, conservancy district boards have been dominated by ranchers, irrigators, and real estate developers — and many still are. Therefore, there’s a real tendency to presume that knowledge of ditches, diversions, flumes, augmentations, and water rights constitute expertise. But such knowledge is less about water than about developing water for agricultural and rural usage.

Furthermore, such knowledge is not necessarily as pertinent as it used to be. There’s a new primary user on the landscape, and our economic future may well depend on pleasing him.

Who is he?

The recreationist. And he is rapidly changing our region, by making tourism our number one industry, and fueling growth in related enterprises such as: rafting, kayaking, fishing, lodging, golfing, climbing, hiking, second homes, etc.

SO TODAY there’s a growing recognition of the intrinsic value of undeveloped water kept in the stream. And that recognition is slowly making its way into law (in the form of environmental protection, minimum stream flows, in-stream recreational rights, etc.).

But the UAWCD is considerably more resistant to change.

The majority of members on the UAWCD Board cling to an old-fashioned concept of what makes a water expert. Time and again, they’ve contended that the real water experts are irrigators and ranchers who have bought and sold water and know the difference between an acre and an acre-foot.

And they’re right; such people are water experts. And so are people who understand how much water a kayaker, a fish, an otter, and a duck need in terms of in-stream flow in order to thrive. And so are boatmen, water engineers, park personnel, treatment plant employees, hydrologists, water lawyers, conservationists, biologists…. The list goes on and on.

BUT THE FOCUS of the UAWCD has been extremely narrow.

Patricia Alderton, the town administrator of Poncha Springs, was one of the candidates that county commissioners recommended for the UAWCD Board, because they felt that municipal water interests should be better represented.

Jerry Mallett, a Chaffee County commissioner, who sat on the interview board recently told me, “We wanted someone with municipal water experience on the district board.” For one thing, state law encourages it, and for another, UAWCD has been at odds with some municipal water suppliers, like the City of Salida and Custer County’s Round Mountain District that serves Westcliffe and Silver Cliff. Some municipal representation on the UAWCD board might reduce those conflicts, and hence the amount of public money going to water attorneys.

But as it turned out, the UAWCD wasn’t pleased with Alderton, and they didn’t even want Mallett, or either of the other two Chaffee County commissioners on the interview board. But is that really because Mallett and his ilk brought politics into play?

Probably not. It’s probably because Chaffee County filed for an in-stream recreational flow right on the Arkansas River, and the UAWCD voted to oppose that filing.

Thus it could be argued that having county commissioners recommend UAWCD board members was a “conflict of interest,” since the county and the water district have been on opposite sides in a court case. Furthermore, the UAWCD and its supporters have criticized the commissioners for allocating money for legal proceedings to defend that filing.

The county commissioners, however, acted in what they perceived to be the best interests of local municipalities, residents and businesses.

WHEREAS, the UAWCD Board apparently believed that water could be put to better use, perhaps for development, sales, augmentation, or reservoir storage — the possibilities are multitudinous.

It is not necessarily the duty of a conservancy district, however, to oppose instream recreational flows. In fact, there’s an instream flow right for the water park west of Gunnison, and the Upper Gunnison River Water Conservancy District filed for that right and defended it in court.

So who’s right?

Well, that’s the whole point.

This isn’t a matter of whether the conservancy district is right or wrong about in-stream flows, expansion into Frémont County, or its disputes with Round Mountain, Salida, and the Chaffee County commissioners. It’s a matter of whether the district is concerned about the diverse needs of its constituency, and can thereby serve them.

Water conservancy boards around the state are being challenged because they’re perceived as serving limited interests (which are often summed up as real-estate development). Yet water sports, town parks, river trails, scenic beauty, and fish may soon be as important a factor in selling real estate as irrigation ditches.

So clearly, water conservancy boards should include more people who know about recreational water needs, municipal water usage, riparian habitat, in-stream flows, and what have you.

In short, we need more diversity on the UAWCD board because our region is changing, and our water needs are, too. Over the years, farmers, ranchers, and miners have been outnumbered by rafters, kayakers, tourists, environmentalists, retirees, artists, poets, baristas, and second-home owners, and we need to recognize that.

But that doesn’t mean that traditional water users must suffer. It merely means that new uses should be considered, explored, quantified, and understood. And for that we need more expert viewpoints on our boards.

But that isn’t happening at UAWCD. Instead, we have a conservancy district that can operate as it will, without worrying about the public that it is supposed to be serving.

One thing to consider here is that we can recall county commissioners who ignore our needs. Or we can vote in a new commissioner this November. But if we don’t think that Upper Arkansas is acting in our best interests, can we recall its board members? No lawyer I know has found a way to do that.

SO CAN WE VOTE them out of office and replace them with people more mindful of the public? Not without a lot of work, money and time, since conservancy-district elections are anything but automatic.

In the end, expertise really does count for a lot; representation isn’t everything; and every government board and committee doesn’t need to be elected.

But it’s just plain wrong to contend that boards which ignore public needs, concerns, factions, and demographics are experts on anything other than serving themselves.