Transbasin Diversions in Colorado: What Have We Done?

Here is a land where life is written in water

The West is where the water was and is

-Thomas Hornsby Ferril

Examining water in the American West is an avenue to exploring every aspect of nature and society. Without human intervention into the hydrologic system, crops cannot grow and cities cannot flourish. But that intervention comes at the cost of aquatic life and the natural state of the West. Having examined the history, science, engineering, economics, politics and law of water through the lens of transbasin diversions in Colorado, I want to close by asking if all of this- taking rivers deep under the mountains, moving water where topography and the climate never sent it, building farms and factories and freeways on the back of imported water- was the right thing to do.

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

Are water projects the cause of undesirable outcomes like this fallowed field, or the solution? Image courtesy Hyoung Chang/ The Denver Post.

This is not a scientific question. The ecologist who reports the destruction of a fishery from a diversion project has not proved that project is wrong unless (s)he also explains why the fishery ought not to be destroyed. Nor is it an economic question. The economist who measures the boon to commerce from a reservoir has not proved it right unless (s)he can prove that such an outcome is one we should pursue as a society. These value judgments are often assumed by voices on both sides of the water debate: society must value the same things I do! If they knew what I knew, they would support my position. But the way we value scarce water is reflective of more than the facts of life. It takes into account all of the perspectives I’ve tried to take over the last several weeks. With that in mind, let us examine the claims against and for transbasin diversions as a category, and see if we can come to some sort of judge’s ruling.

The Prosecution

We have already seen many of the arguments against transbasin diversions. I believe they are made on two levels. The first is a practical one:

  1. These projects are destructive of aquatic habitat or fish life.
  2. (Often implicit) We ought not to destroy aquatic habitat or fish life.
  3. Therefore, we ought not to undertake these projects.

This syllogism might reflect a different but related point of view.

  1. These projects are destructive of aquatic habitat or fish life.
  2. Small rural communities are economically dependent on fishing.
  3. (Often implicit) We ought not to undermine small rural economies.
  4. Therefore, we ought not to pursue these projects.

These are compelling arguments. It is clear that less water in a stream is a bad thing for fish, macroinvertebrates, birds, riparian plants, and the functioning of ecosystems. So let’s assume Premise 1 is true for both claims.

Bluebird powder day at Winter Park. Image courtesy allwinterpark.com

The ski industry’s water rights portfolio has not led them to oppose transbasin diversions. Image courtesy allwinterpark.com

The intermediate Premise 2 in the second claim is more problematic. By all accounts fishing is not the most important industry on the West Slope: the largest component of tourism in the counties most affected by transbasin diversions is skiing, not fishing. Certainly some people will lose their jobs if fishing declines in the Colorado River headwaters. But most of them won’t. Just the same, if transbasin diversions are bad for them, we might grant Premise 2 in the second case.

The implicit premises in both arguments might take any one of a variety of forms but they are consequentialist claims- that is, they seem concerned with outcomes rather than principles or character traits. They argue, in the first case, that the consequences to ecosystems, or nonhuman individuals, or humans on the West Slope, are bad and should be avoided. Drying up a stream might undermine the natural functioning of an aquatic community or provoke economic decline. This action would be wrong if it causes negative consequences for entities we care about (like ecosystems, or fish, or fishing guides).

But there may be negative consequences on both sides of the equation. Suppose a water project is designed to relieve drought in a farming community, but it will dry up a stream in a recreation community. Given the above syllogisms, it seems clear that there are negative consequences for the recreators if the project were built, and this would compel inaction. But there are undesirable outcomes for the farmers if the project is not built, and the exact same logic would compel action. It seems to me that consequences in isolation cannot determine the fate of a water project. Out of context, I believe neither conclusion in the above arguments has been proven.

The second form this argument might take is a more constitutive one based on the rightness or wrongness of water projects, ignorant of their consequences. They are deontological claims- that is, they are concerned with the principles embodied by an action. This is a common claim made on the West Slope:

  1. The principles underlying transbasin diversions (in Colorado water law) unfairly distribute benefits to the Front Range and burdens to the West Slope.
  2. (Often implicit) Unfair principles ought not to be followed.
  3. Therefore, we ought not to pursue such water projects.
Orange states generally use appropriative law; blue states and green states use some form of riparian law; grey indicates hybrids. Note the correlation with aridity. Image courtesy Ridenbaugh Press.

Orange states generally use appropriative law; blue states and green states use some form of riparian law; grey indicates hybrids. Note the correlation with aridity. Image courtesy Ridenbaugh Press.

I’ll assume that Premise 2 is uncontroversial and focus on Premise 1. This sort of claim relies on a distributive definition of “fair” where benefits and burdens ought to be shared among moral equals. The relevant principle of Colorado water law, as discussed in my post on the subject, is appropriation for beneficial use across geography– in other words, water use belongs to whomever can put water to use, regardless of their location relative to the stream. Premise 1 argues that this principle is unfair because it gives benefits to those capable of developing water supplies and assigns burdens to those (financially, politically, physically) incapable who live in or on a stream. If this were true, the Conclusion of this argument would be certainly true.

But the burden of developing the water for use falls to he who develops it- by paying the enormous financial and political cost of the project, including compensating basins of origin, and even small “incapable” rural areas benefit from agricultural production on the East Slope, the state’s economic growth and tourist visits from Metro Denver- all of which are supported by transbasin water. Furthermore, an inherent component of the “Colorado Doctrine” is the right of water users to challenge changes in water rights (such as diverting it into a transmountain tunnel) if they believe it will cause their rights material injury (see pages 24-25). This alone indicates a strong current of fairness exists in the principle as a whole.

I believe the principles of Colorado water law do not fail on equity grounds, and in fact are supported by a commitment to equity- one that prevents the monopolization of water rights and allows for development that distributes benefits to all Coloradans. This counterargument begins the justification of transbasin diversions.

The Defense

The principle of boundless appropriation is the right to put water to beneficial use across geography. We all share in that right, and in theory we all benefit from it. I have already begun to illustrate why this principle is seen as just- no users may monopolize the scarce waters of the state simply because of where they live. The argument for prior appropriation on a constitutive level looks something like this:

  1. Water falling in Colorado does not inherently belong to any private party (such as a riparian landowner) and is therefore the property of all.
  2. Rights to use resources held in common ought to be shared by all members of society.
  3. Banning transbasin diversions would deny the sharing of water among all.
  4. Therefore, banning transbasin diversions would abrogate the rights of some members of society.
  5. Abrogations of rights are wrong and ought to be avoided.
  6. Therefore, we ought to permit transbasin diversions.

Once again, I think most of the above statements are relatively uncontroversial. The key premise is Premise 1, which I think is relatively easy to support with a counterfactual. Suppose a landowner were to buy up all the land above, say, 9000 feet in Colorado. Let’s further suppose that this landowner built a reservoir on every stream flowing out of his property and used the water to irrigate his own lands exclusively. The rest of the state, dry as a bone, lags behind economically and culturally. If Premise 1 is false, and water is naturally the property of the person lucky enough to live where it falls or flows, then this monopoly scenario is deemed ethical. It seems clear that this possibility is unjust, and indeed more unjust than the deprivation of water from those who live next to a stream but put the water to no beneficial use. We might say that location of a water use is morally arbitrary– that is, it should carry no weight in our moral decision-making. This was recognized by the Colorado Supreme Court as early as 1882.

The West under riparian law? Water use limited to a stream corridor. Image courtesy Alan Loral.

The West under riparian law? Water use limited to a stream corridor. Image courtesy Alan Loral.

Finally I wish to defend transbasin diversions on more practical, consequentialist grounds. These are the sorts of arguments made by Front Range water providers in support of their transbasin diversion projects. Again there are two forms this argument might take, the first being economic:

  1. Transbasin water is necessary for economic growth on the East Slope, where water is more useful than on the West Slope.
  2. (Often implicit) Economic growth is a good outcome and ought to be promoted.
  3. Therefore, we ought to pursue further transbasin diversions to the East Slope.

The second form is on human-health grounds:

  1. Transbasin water is necessary to improve reliability of supply for the human needs of East Slope residents in case of drought, climate change, wildland fire, etc.
  2. (Often implicit) Reliability of supply for human needs is a good outcome and ought to be promoted.
  3. Therefore, we ought to pursue further transbasin diversions to the East Slope.

Again, I’ll assume that Premise 2 in either case is uncontroversial and focus on Premise 1. There can be no doubt that the Colorado we know and love today- the vitality of Denver, the production of Northeast Colorado agriculture, the skiing, the rafting, the fishing, the serenity of small towns and ranches, East Slope and West- would not be possible without reliable water supplies. Therefore, as above, it seems that consequences in isolation provokes both inaction- to benefit the growth and current needs of western Colorado- and action, to provide the same benefits to the east. There must be a comparison of consequences.

Have You Reached a Verdict?

I would argue that the above cases for and against transbasin diversions point us toward a case-by-case comparison of benefits and burdens. The argument against them generally, from a standpoint of fairness, cannot survive strict philosophical scrutiny. The alternative to appropriative water rights in a state as arid as Colorado would be far worse, and if location is morally arbitrary then it is arbitrary across scales- within a single watershed, within an entire river basin, or across the Continental Divide.

The arguments from consequentialist viewpoints lead us to examine, given all that we know about water in Colorado, exactly how we value the resource. Is it true that consequences to fish and wildlife are irrelevant in the face of benefits to humans? Certainly this was the prevailing attitude in the West during the construction of the great water projects. Is it true that all benefits to humans are irrelevant if there are consequences to ecosystems? How should we compare economic and ecosystem values? These are weighty questions beyond the scope of this post. I merely wish to suggest an ethical standard that must be met for a transbasin diversion to succeed:

  1. Some water projects cause irreparable harm to ecosystems and to human communities, while others do not.
  2. We ought to avoid irreparable harm to both ecosystems and to human communities.
  3. Therefore, we ought not to pursue water projects of the first variety.

In other words, I’m saying that there is a sort of water project that dewaters entire rivers, closes
fishing and rafting industries, and destroys the fabric of small communities (see this story on Crowley County, which was substantially dewatered by agriculture-to-municipal transfer, though not a transbasin one). Those sorts of projects are wrong and ought not to be permitted. The other sort- those that transfer unused water or do not injure existing water uses, that support thriving cities and counties, that put water to use that benefits the most people- those ought to be permitted, and indeed encouraged.

This involves a tradeoff of ecological and economic valuations of water. I would suggest that rather than a single scientific standard of “irreparable harm” or the vagaries of economic cost-benefit analysis, the verdict comes down on the side of politics. As I explored last week, there is a wealth of institutions representing water users all over the state with the power to intervene in, or at least rally support for or against, water projects. It takes years of negotiation and compensation to establish a proposal that satisfies the relevant parties and moves a project into construction.

It may disappoint some that there is no scientific or economic standard that can be applied to all transbasin diversions to determine if they are on just ground. But a political solution to our water problems is both the only fair way of balancing competing demands on a scarce resource, and the only way to ensure that everyone’s point of view gets heard. An ethical democratic political process is the recipe for taking all the ingredients I’ve looked at- climate, ecology, economics, engineering, legal principles, distributive justice- and turns them into a finished product. If the West is where water was and is, as Ferril said, then it is a democratic process that must determine where it will be.

This is the final post in a six-part series examining transbasin diversions in Colorado from a variety of perspectives, and fulfilling requirements for ENVS 5000, Policy, Science and the Environment, at the University of Colorado Boulder. I hope you have enjoyed this exploration and come back for more looks into how we Part the Waters.

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