Colorado Water Law for Non-Lawyers

By P. Andrew Jones and Tom Cech

Why do people fight about water rights? Who decides how much water can be used by a city or irrigator? Does the federal government get involved in state water issues? Why is water in Colorado so controversial? These questions, and others like them, are addressed in Colorado Water Law for Non-Lawyers. This concise and understandable treatment of the complex web of Colorado water laws is the first book of its kind. Legal issues related to water rights in Colorado first surfaced during the gold mining era in the 1800s and continue to be contentious today with the explosive population growth of the twenty-first century. Drawing on geography and history, the authors explore the flashpoints and water wars that have shaped Colorado’s present system of water allocation and management. They also address how this system, developed in the mid-1800s, is standing up to current tests—including the drought of the past decade and the competing interests for scarce water resources—and predict how it will stand up to new demands in the future.

This book will appeal to at students, non-lawyers involved with water issues, and general readers interested in Colorado’s complex water rights law.

• Language: English
• Publisher: University Press of Colorado
• Release date: Apr 30, 2009
• ISBN: 9780870819698

Book preview

Non-Lawyers

Introduction

P. ANDREW JONES

In the summer of 2005, I was approached by Tom Cech, director of the Central Colorado Water Conservancy District, with the idea for a water class targeted at non-lawyers. My Windsor law firm, Lind, Lawrence and Ottenhoff, had represented Central for many years. In the course of this representation, Tom and I had met and interacted with thousands of Central’s constituents and other members of the public. Whether these meetings occurred within the context of large public gatherings or as one-on-one sessions, there seemed to be a consistent common desire to learn more about water rights and water law issues. Tom suggested that I teach a course on water law for non-lawyers, and he promised to help.

We met with representatives of Aims Community College in Greeley, who graciously agreed to host a series of six seminars on water law issues. Although I had never taught in a formal setting, I was to be the host and teacher of the sessions. Each of the six 3.5-hour sessions was designed to stand on its own and to address a distinct topic.

I wrote the curriculum specifically with the goal of making it both understandable to the layperson and useful in practical application. Although I did not include the level of detail one would find in a course designed for legal practitioners, I nevertheless strove to maintain fidelity to legal authority and to reflect all critical aspects of Colorado water law. I also included material on geology, hydrology, history, and economics.

The course proved immensely popular. During the initial session in Greeley, fifty-five students attended each seminar. Many walks of life and professions were represented: realtors, lenders, appraisers, water district personnel, municipal employees, ditch company representatives, agricultural producers, students of all ages, and even lawyers. Since then, I have taught the course in Fort Collins, Fort Lupton, Loveland, and Greeley to hundreds of students, often refining the curriculum. I have frequently been inspired by the diligence, curiosity, creativity, and experience students have brought to the course.

Many students have encouraged me to record the curriculum so they could have it in reference form for further study. Others have suggested that the curriculum be formatted to reach a wider audience. This book is a response to those requests. Tom Cech, who initiated the idea, volunteered to assist me in creating the manuscript. I am indebted to him for his invaluable assistance and encouragement.

Each of the chapters finds its origins in one of the course seminars. My hope is that readers will find the book useful—in the sense that, like the seminars, each chapter is designed to address a specific topic in a self-contained and concise manner. At the same time, each chapter builds on the others, so a complete reading provides additional context and understanding. I was able to go into far greater detail in this book than time allows in the course.

I tell this story for the reader to provide a context for the book. It is not intended to be a legal treatise or even, necessarily, a textbook. Rather, it is an accumulation of materials my students have found useful and interesting—an eclectic mix of history, geology, hydrology, law, and economics designed to serve as a handbook for the non-lawyer seeking a greater understanding of Colorado water issues.

CHAPTER ONE

Colorado Climate, Geology, and Hydrology

CLIMATE AND TOPOGRAPHY

Introduction

The nature of a society is determined, at least in part, by the attributes of the natural setting in which it develops. To understand the story of Colorado water law, one must first explore the windswept peaks, cathedral forests, and sweeping plains that form the state’s landscape. One must meet a mountain stream swollen with snowmelt in a high meadow and follow it down the mountain, through the foothills, and across the broad plain to the horizon. One must look beneath the surface of the earth at the vast, silent formations of rock and sediment, formed in ages past, now holding vast amounts of water suspended in pores and cracks within the rocks. This chapter looks at the constraints and opportunities presented by Colorado’s climate, topography, hydrology, and geology.

1.1 Colorado shaded relief map. Courtesy of the U. S. Geological Survey

Colorado is a very large state—the eighth largest of the fifty U.S. states—with 104,000 square miles within its borders. Many nonresidents have a preconceived vision of Colorado as composed of wall-to-wall mountains, sparkling rivers, and snow-covered ski resorts from Julesburg to Rifle. That vision is abruptly altered as one drives along Interstate 76 in northeastern Colorado, passing vistas of sagebrush, prickly pear cactus, and unending treeless prairie. Approximately 40 percent of Colorado’s land area is located in the relatively flat Eastern High Plains. The remaining landscape is almost equally divided between the Central Mountains and the Western Plateaus. Mountains, plains, mesas, and plateaus all combine to make up Colorado (Figure 1.1).

Colorado’s climate is one of extremes. For a sportsperson, a good spring day could involve a round of golf in the morning and downhill skiing in the afternoon—both at world-class resorts. What makes this possible is Colorado’s diverse climate, which is shaped by its unique location and topography. According to the Ground Water Atlas of Colorado, five major factors combine to produce different, localized climates in the state: (1) latitude, (2) distance from large bodies of water, (3) elevation, (4) topography, and (5) winter storm track position.¹ Average seasonal temperature and precipitation vary tremendously across Colorado. The mile-high topography varies from a low elevation of 3,315 feet, where the Arikaree River flows out of eastern Colorado into northwestern Kansas, to a high of 14,433 feet on the peak of Mt. Elbert (almost 3 miles above sea level). Average elevation is 6,800 feet above sea level and includes fifty-three mountains with elevations of 14,000 feet or more.² Colorado has more mountains with peaks in excess of 14,000 feet than all other states combined. Mile high indeed!

Although towering mountains are poised to grab passing moisture from the atmosphere, Colorado’s average annual precipitation is only seventeen inches. This is somewhat misleading, however, because elevation and topography create great regional extremes across the state. For example, the San Luis Valley in south-central Colorado is a high mountain desert that receives about seven inches of average annual precipitation, while the nearby San Juan Mountains receive over forty inches of precipitation each year. Extreme variability in rain and snowfall—with occasional droughts thrown in—presents serious challenges to water managers and users and has created the setting for Colorado’s unique and expansive water law system. Figure 1.2 shows the average annual precipitation across Colorado.

1.2 Average annual precipitation. Reprinted from the Ground Water Atlas of Colorado, Special Publication 53, by Ralf Topper and others, ©2003, with permission from the Colorado Geological Survey.

1.3 State’s three major regions (reprinted from J. V. Ward and B. C. Kondratieff’s An Illustrated Guide to the Mountain Stream Insects of Colorado, Niwot: University Press of Colorado, 1992)

Colorado can be divided into three general areas, from east to west: Eastern High Plains, Central Mountains, and Western Plateaus (Figure 1.3).

Eastern High Plains

The Eastern High Plains of Colorado are vast and sometimes brutal. Large regions of rolling grassland extend westward from Kansas and Nebraska, rising gently about 1,000 feet in elevation to meet the foothills of the Rocky Mountains in the central portion of the state.

Precipitation on the semiarid Eastern High Plains averages between 12–16 inches per year. Much of it occurs in a few scattered, violent summer thunderstorms or dangerous spring blizzards. In repayment for this violent weather, the region has abundant sunshine, low relative humidity, wide-ranging daily temperature variations (including relatively cool summer evenings), some wind, and dry spells that last for weeks and sometimes months at a time. Colorado’s Eastern High Plains embrace a raw beauty that is timeless.

Two of eastern Colorado’s major river systems, the South Platte and the Arkansas, originate as coldwater streams high in the Rocky Mountains. From an alpine terrain of spruce and pine, melted snow trickles toward the expanding urban Front Range cities. The Arkansas River proceeds east past Pueblo, while the South Platte River carves a path through Denver. Indirectly, even lazily at times, these two rivers continue for 200 miles across the Eastern High Plains toward the flatlands of Kansas and Nebraska.

The region’s elevation begins at around 5,000 feet along the Front Range foothills and gradually declines to about 3,400 feet above sea level at the Kansas border near Holly and at Julesburg near the Nebraska border. Large areas of rolling flatland dominate the region—which caused the expedition of Stephen Harriman Long to call it the Great American Desert. Long’s cartographer wrote this desolate description on a map published in 1823, perhaps for two reasons: (1) to describe the dry nature of the Eastern High Plains, a barren and uncongenial district; and (2) to discourage the interest of foreign governments in the area.³

1.4 Stephen Harriman Long (© Colorado Historical Society, painting by Juan Menchaca, Scan #20003045).

Colorado pioneers followed Long’s route in the mid-1800s and commented on the dry condition of the South Platte River during July and August. Winter snows melted in the late spring and filled the South Platte with high flows. Remarkably, a few weeks later the riverbed was dry. This is the historical nature of the South Platte River, as well as the Arkansas River.

Historically as well as today, river flows of the South Platte and Arkansas are greatly affected by summer rainstorms and springtime mountain snowmelt. Approximately 70–80 percent of the region’s annual precipitation occurs during the growing season of April through September.⁵ However, precipitation extremes can vary wildly. Average annual precipitation for this region varies between 12–16 inches, but during May 1935, for example, nearly 24 inches of rain fell along the Republican River in northeastern Colorado. Extended droughts in the 1930s, mid-1950s, 1970s, and 2002–2003 are stark reminders of the fickle nature of precipitation on the Eastern High