An Introduction to Colorado’s Water Crisis
Trees Near a Body of Water, Pexel, CC0 License
By Darah Fuller
In 1869, after almost a year of western exploration, geologist John Wesley Powell reported to Congress that there was not enough water in the west to support significant settlement. While Powell’s predictions about settlement proved to be incorrect, his concerns about water availability were prophetic. Increasingly noticeable western U.S. water shortages have inspired the assertion that water is the oil of the 21st century. The value, demand, and scarcity of water in the west are widely understood to be significant issues. However, the antiquated policies and chronic mismanagement of water often go unnoticed.
Colorado only has one source of incoming water: precipitation. Annual total precipitation averages 17 inches statewide. Known as the “Mother of Rivers,” much of Colorado’s mountain water flows out of state and makes its way to the Pacific or Atlantic Oceans, depending on which side of the continental divide the precipitation happens to fall. A series of historic droughts created a water deficit in Colorado, which has been exacerbated by rapid population growth. Denver’s metro population hit 2.7 million in 2013, having tripled since 1960, and is expected to expand by another 56 percent in the next 25 years.
Disputes over water rights frequently lead to litigation in Colorado Water Courts. Each of the seven state water courts serves one of Colorado’s seven major river basins. While these specialized courts are adept at deciding water law cases, the language of the laws and statutes the courts interpret leave room for the widespread ineffective use of water.
The Colorado Doctrine first differentiated Colorado water law from the system of Riparian water law found in the eastern United States where water is more abundant. Nearly a century after the creation of the Colorado Doctrine, the 1965 Ground Water Management Act and 1969 Water Right Determination and Administration Act became the basis of the prior appropriation system, which serves as the legal framework for managing Colorado’s surface and tributary groundwater use. Water is an usufructuary right, meaning that while the ownership of the water itself remains public, right holders are awarded usage. For example, a farmer holding storage rights may retain water for his livestock to drink. While he is able to store the water on his property, the water itself is still publicly owned. In Colorado, water rights are a form of real property, able to be owned and conveyed. However, the water itself cannot be owned outright.
Colorado water rights are allocated through “historical consumptive use,” meaning right holders are penalized for failing to use all of their allotted water. The “use it or lose it” nature of this dynamic is a source of frustration for many as it encourages water waste in an already arid state.
Both the water deficit and “use it or lose it” policies that worsen the situation extend outside the state of Colorado, as well. Water flowing from the Colorado River is divided between Arizona, California, Colorado, New Mexico, Nevada, Utah, Wyoming, and Mexico annually, over-allocating water usage by approximately 1.4 trillion gallons more than actually flows through the Colorado River. Much of this water is allocated to farming “thirsty” crops like cotton, which may spark questions about how farmers can afford to grow a crop that requires massive irrigation efforts in desert states. In reality, many farmers in the west cannot afford not to grow cotton. Cotton farming is heavily subsidized by the Federal government, with incentives stemming from the Depression Era U.S. Farm Bill. Despite cotton prices and demand continuing to fall, government subsidies bankroll cotton cultivation, making it is almost impossible to lose money on the crop.
The Colorado Water Plan takes aim at these issues as the first of its kind statewide water conservation plan. In 2013, Governor Hickenlooper tasked the Colorado Water Conservation Board with drafting the plan through an executive order. The core values of the plan are designed to support a productive economy, create an efficient water infrastructure, and protect the state’s diverse ecosystems. The plan was structured around eight measured objectives, meant to serve as benchmarks for its efficacy. By monitoring the supply-demand gap; conservation; land use; agriculture; water storage; watershed health, environment, and recreation; funding; and education, innovation, and outreach, the Colorado Water Plan seeks to make massive improvements between 2025 and 2050. Critics argue that the plan lacks specificity as to how it will meet its goals and it seems to be more of a “conversation plan” than a silver bullet. While those critiques may have merit, there is an obvious benefit to a collective willingness to begin such conversations.
In order to continue to enjoy a picturesque Colorado, a series of effective changes in water usage and allocation will need to be implemented. Changes in demographics, demands, and climate furthers the dynamism of an already difficult issue. Fortunately, there is evident progress in the form of initiatives from state and municipal governments, non-profits, and technological advancements. Rather than balking at the arcane reputation of water law, it is imperative that individuals take increasing interest in both intrastate and interstate water allocation.