Transbasin Diversions in Colorado: Water Wars

The farmer staring across at his neighbor’s abandoned field, the whitewater outfitter hurting for business, and the small town seeing its tourist revenues dry up are tempting to see as victims of the inexorable tide of money swamping community values, Goliath swatting David aside in a ruthless quest for more, always more water.

A drought stricken field in Lamar, Colorado. Image courtesy Hyoung Chang/ The Denver Post.

A drought stricken field in Lamar, Colorado. Image courtesy Hyoung Chang/ The Denver Post.

We know that Colorado water is a scarce resource used most efficiently in big cities and eastern Colorado agriculture. One might expect to see Colorado sending more water from west to east in the Centennial State to ring the cash register bells. In fact, that argument is almost wholly a thing of the past- there are currently only two proposed transbasin diversion projects, both of which explicitly include an expectation that they will be the last of their kind. How can we reject such a profitable water supply strategy? How can we stop the water flowing uphill, as the saying goes, toward money? The answer, as it is so often elsewhere in the water game, is politics.

Whiskey is for Drinking, etc, etc

It is a saying that you will hear over and over again at water-related meetings. It rears its head in newspaper articles, conference reports, blog taglines, you name it. It purports to represent the importance of water in the west. It’s pithy and memorable.

"Whiskey is for drinking, water is for fighting" -Mark Twain (except, not really). Image courtesy NPR.

Whiskey is for drinking, water is for fighting” -Mark Twain (except, not really). Image courtesy NPR.

Whiskey is for drinking, water is for fighting. Supposedly Mark Twain, America’s greatest humorist, said this after a trip through the desert Southwest. (There’s no evidence that he actually ever did.) Origins aside, it’s an attractive summary of the role of water in Western political and social life. We’ve seen how essential water flows are to rivers and the fish and fishermen who depend on them. We’ve seen that irrigation is the sine qua non of enormously profitable dryland agriculture and that diversions and reservoirs made the great cities of the West. There is no greater cause to rally around than a community’s water. Conflict, it seems, is inevitable.

Colorado's Capitol Building before its recent renovation. Image courtesy The Denver Post.

Colorado’s Capitol Building. Image courtesy The Denver Post.

Although California is the paragon of the “water wars” dynamic, Colorado is no exception to fighting over this precious resource. Conflict maps itself neatly onto traditional battlegrounds: rural versus urban lifestyles, development versus conservation, growth vs. open space. With such interests at stake, water in Colorado- especially transbasin diversions which remove water permanently from an entire river system to benefit another- is a political issue before it is an economic one. The war is fought not in the marketplace but under the Golden Dome of the Colorado State Capitol Building, and in county commissions, basin roundtable meetings, water conservancy district board rooms, district and state courtrooms, and innumerable town halls across the state. Development of new transbasin projects, or any new supply projects, for that matter, must navigate a tangled web of entrenched and powerful political interests.

The Players

For the purposes of this post, I’m going to assume that we’re discussing a transbasin diversion from the Colorado River or its tributaries to the Front Range. As a reminder, there are eight different river basins in Colorado (Division 6 on the map below contains two basins), but by far the most transbasin diversions transfer water from the Colorado basin to the Arkansas and South Platte systems supplying Front Range cities.

Map of Colorado's current transbasin diversions

Current transbasin diversions in Colorado grouped according to receiving basin. Image courtesy Colorado Division of Water Resources.

The first actors in this intriguing play are the water providers themselves. Interbasin transfers are currently operated by cities, special government districts (supplying both agriculture and municipalities) and private irrigation companies. Those currently being proposed for expansion are operated by Denver Wateran independent agency of the city of Denver that also serves many Denver suburbs under contract- and the Municipal Subdistrict of the Northern Colorado Water Conservancy District (quite a mouthful), a special government district consisting of eleven northern Front Range cities and towns, better known as simply “Northern Water.”

Simple enough so far, right? Every project needs a proponent. But constructing one is not as simple as buying the relevant water rights (or adjudicating new ones junior in priority to existing ones) and constructing a tunnel. Colorado water law allows water right holders to claim injury from a proposal to change use or location of another right. This principle is writ large in the existence of one of the most powerful and everpresent actors in the Colorado water scene: the Colorado River Water Conservation District, happily shortened to Colorado River District.

A quick note about terminology here. “Water Conservancy Districts,” like Northern Water and many others, are essentially large-scale rural water providers. “Water Conservation Districts,” like the Colorado River District and two others in the Rio Grande and Southwest Basins, serve a more complicated function as “policy and planning agencies” for their respective basins.

The River District is charged with two potentially competing missions: “conservation, protection, use, and development of the water resources of the Colorado River basin for the welfare of the District” is the first and more straightforward one (more on the second later). This mission leads the River District to advocate for conservation and reuse of transbasin water and to vigilantly enforce the operating principles designed to protect basins of origin, and, as a rule, to oppose “new transmountain diversion projects.” While the River District does not issue project permits or authorization, they may act as a significant legal advocate for West Slope interests in the consultation and, if necessary, judicial processes.

Consultation about new supply projects also takes place through the basin roundtable process. The Colorado Water for the 21st Century Act established nine of these roundtables– one in each of Colorado’s river basins and one for Metro Denver. Their membership is broadly representative of the geography and water use within their basin, including representatives of agriculture, county government, municipal government, recreation, and the environmental community. The roundtables are intended to “facilitate discussion” rather than to issue authorization for projects, and they have no legal standing. Nor does the Interbasin Compact Committee, a meeting of representatives from the nine roundtables that serves as a forum rather than a permittor. While some might question the purpose of the roundtables and IBCC given their lack of formal political power, they represent a significant step away from the “water wars” dynamic toward a recognition that shared problems require shared solutions, and a step towards broadening our definition of “affected parties” beyond existing water right holders on a targeted stream. They also function as a unified voice for the interests of a variety of users in a single basin, which makes them particularly effective advocates for or against a transbasin diversion.

A map of Colorado with those listed under the instream flow program in dark blue. Image courtesy CWCB.

A map of Colorado with those listed under the instream flow program in dark blue. Image courtesy CWCB.

Both the roundtables and IBCC work within the framework of the statewide water policy agency, the Colorado Water Conservation Board. The board, like the River District, is a multi-headed hydra of an agency with diverse responsibilities, ranging from representing the state in interstate compact negotiations and court cases to flood protection and drought planning, to holding instream flow (ISF) water rights. This last point is significant. CWCB is the only entity permitted under Colorado law to hold these water rights, which keep water in streams for environmental purposes (private and other public entities are not permitted to do so out of a fear of speculation- buying water rights as an investment and not putting them to use). This means that CWCB may claim injury to instream flows when a new diversion is proposed, if the stream in question is listed under the ISF program. CWCB also guides the overall water supply policy of the state, a policy that favors “new supply” only as one leg of a four-pronged strategy, and emphasizes dialogue and cooperation between basins.

The State's portfolio of water supply strategies. Image courtesy CWCB.

The State’s portfolio of water supply strategies. Image courtesy CWCB.

Nongovernmental actors have a role to play in this water game as well. Nonprofits like Trout Unlimited seek the protection of West Slope rivers for environmental and contingent economic benefits, as I detailed in an earlier post. The threat of litigation over violations of environmental legislation like the Endangered Species Act, the National Environmental Policy Act, or over material injury to West Slope interests, loom large over any proposal to move water out of the Colorado River. The environmental permitting process is also a major delay in the timeline of any proposal: Denver Water, for example, needs permits from the U.S. Army Corps of Engineers (subject to review by the Environmental Protection Agency), Boulder County, Grand County, and the Federal Energy Regulatory Commission in order to proceed with the Moffat Firming Project (one of the current proposals I identified at the top of this post). In order to proceed in these contentious and litigious times, Denver Water has been seeking the necessary permits for over a decade.

The seven basin states' allocations. Each circle represents 7.5 million acre-feet. Mexico is entitled to an additional 1.5 million acre-feet. Image courtesy On the Colorado.

The seven basin states’ allocations. Each circle represents 7.5 million acre-feet. Mexico is entitled to an additional 1.5 million. Image courtesy On the Colorado.

The final players I want to mention when it comes to new transbasin diversions are not in Colorado at all. Colorado’s downstream states depend on flows originating in the Colorado Rockies and each of the rivers leaving Colorado is subject to interstate compact regulations. These guarantee a certain amount of water for each state and prohibit Colorado from simply damming up every river at the state line and using 100% of the water that just happens to have fallen here as snow. Significantly, Colorado uses less than its entitlement of Colorado River water- an average of 2.2 million acre-feet (see page 7 of this link) out of its supposed 3.8 million acre-feet entitlement from 2006-2010 (our allocation is actually more complicated than this; I hope to tackle the vagaries of the Colorado River Compact in a future post). All parties in the “Colorado Water Wars,” including CRD, CWCB and the water providers, agree that it is in their mutual interest to strengthen Colorado’s claim to that undeveloped water. The fear is that more-developed states like California and Arizona will claim in a court that, in a drought, there can be no entitlement on paper that trumps the actual developed needs of, say, Los Angeles, during a drought. Therefore, entities like CWCB and the River District, simultaneously with their protection of instream flows and West Slope interests, must cast something of a favorable eye on new transbasin diversions, as they would firm up additional water that is otherwise “wasted” to lower Colorado River states.

Beyond Chinatown

We’ve seen now that building a new transbasin diversion involves considerable political maneuvering to enable water to flow uphill toward money. Out here there are plenty of whiskeys to drink and plenty of water issues to fight over. Is the future one of pure conflict, big-money seizing all the water rights in Colorado in backroom deals and trampling their opponents in court, and irate small farmers taking to their locked headgates with power tools and shotguns? Or can all of these diverse actors- water providers, the River District, agriculture, industry, recreation, the State itself- recognize that they share a future and need mutually beneficial solutions? What will our water politics look like? It’s unclear, but there’s definitely light at the end of the tunnel.

Not a lot of fighting- or whiskey, for that matter- in this photo. The Eagle County signing ceremony of the Colorado River Cooperative Agreement. Image courtesy CFWE.

Not a lot of fighting- or whiskey, for that matter- in this photo. The Eagle County signing ceremony of the Colorado River Cooperative Agreement. Image courtesy CFWE.

Just this year Denver Water, the 300-pound gorilla in many a West Slope room, completed a historic agreement regarding their use of West Slope water resources. The Colorado River Cooperative Agreement, signed by all 18 parties as of September, fosters a spirit of “cooperation not litigation” over Colorado River resources and removes the signatories’ objections to the controversial Moffat Firming Project in exchange for compensation in the form of water flows and, you guessed it, money. Most notably, the agreement stipulates that Denver Water will pursue no further transbasin diversions from the Colorado River basin without the prior approval of the relevant county and the Colorado River District. Given their stated opposition, this effectively ends transbasin diversions to the city of Denver from the West Slope. This agreement doesn’t end conflict over the river by any means, or even over the Moffat Firming Project, which is still opposed by Trout Unlimited, but it is indicative that the time of “water wars,” if it ever existed at all, is fading into the past. Even Denver Water and TU have committed to a peaceful resolution of their disagreement.

Water in Colorado will always be a political question; too much is at stake for issues to be settled in the marketplace alone. Rather than “water flows uphill toward money,” perhaps we should endorse a new phrase: “water flows just where it does until enough money and enough politics, and enough engineers, and enough attorneys, and enough environmental impact statements, and enough permits, and enough planning and consultation at enough levels of government come together to move it somewhere else; in fact, it’s a wonder that water goes anywhere at all.”

This is the fifth post in a six-part series examining the policy, science and values of transbasin diversions in Colorado, and fulfilling requirements for ENVS 5000 at the University of Colorado Boulder.

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