Will Colorado Transform its Water Law to Prioritize the Public Good?
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The initiatives acknowledge that, especially as supplies decline, there needs to be a public interest standard which limits diversions and consumptive uses that endanger the public interest. Currently, roughly 88 percent of Colorado’s water flows to agriculture; 7 percent is used for toward industrial and recreational pursuits, including snowmaking; and the rest is put to municipal uses.
Efforts to recast the priorities currently supported by Colorado law need to be part of our public dialogue and lead, ultimately, to legislative reform. While the Colorado Supreme Court has ruled that our state constitution lacks language requiring consideration of the public interest, there are concepts that lay the groundwork for reform. Article XVI, Section 5 emphasizes the importance of public ownership of stream water and says it should “be dedicated to the use of the people of the state,” although it concludes with the phrase “subject to appropriation.” Section 6 says: “The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.” Accounting for the robustness of waterways to support fish and wildlife, or rafting and kayaking, and even power generation, all amount to “beneficial uses” in the “public interest.”
There has been a promising agreement penned recently that may set a precedent for collaboration. The proposed Colorado River Cooperative Agreement, which brings together 40 entities including Denver Water and Grand and Summit counties, took years of negotiations and addresses decades-old conflicts from both sides of the Divide over water in the Colorado River basin. The so-called “historic” agreement provides for, “Additional water supply for those who live, work and play on the West Slope and for customers of Denver Water.” It also focuses on improving the environmental health of our rivers and streams.
In that email I got from Udall, he refers to the weathered adage, “Whiskey is for drinking, water is for fighting.” Water is our deliverance in the West, but it can also imprison us. Establishing a new give-and-take that considers the public foremost will not be easy, but it is possible.
Essays in the Range blog are not written by High Country News. The authors are solely responsible for their content.
Heather Hansen is an environmental journalist working with the Red Lodge Clearinghouse /Natural Resources Law Center at CU Boulder, to help raise awareness of natural resource issues.