During the summer of 1967, I often found myself dressed in a dark blue uniform, making judgement calls.
The Oakland Recreation Department had run me through several Saturday morning classes that provided instruction in the fine art of umpiring Little League baseball, and had then issued me a handheld “balls-and-strikes” counting device, a wire-frame mask, and appropriate clothing — and subsequently turned me loose on baseball diamonds located in various corners of the city.
I couldn’t say how many bad calls I made that summer. More than a couple. But I was only 15 years old, and had no previous experience judging, accurately, the route of a small, fast-moving object… with my view obscured by a squatting, well-padded catcher, and with a wooden baseball bat waving menacingly in the general vicinity.
I ended up with an healthy appreciation for folks who can assertively profess the accuracy of their pronouncements, even when they’re pretty sure they didn’t see exactly what took place. If you’re going to work as an umpire, you can never admit that you’re wrong. To admit to an error could destroy your career.
Nevertheless, bad calls do happen.
By the time the Pagosa Springs SUN published its August 9 story about the “call” on the San Juan River, I’d already exchanged a few emails with local water district officials. I was scheduled to be sworn in as a new board member for the San Juan Water Conservancy District (on August 20) so I was copied on an initial email sent out by SJWCD administrative assistant Denise Rue-Pastin about the call.
The email arrived with the subject line:
BREAKING NEWS: First ever Call on the San Juan River
Ms. Rue-Pastin has been working for the San Juan Water Conservancy District for a number of years, and also worked with the Durango-based ‘Water Information Program’ for about 10 years. Her email read:
On August 2, 2018 the Colorado Water Conservation Board (CWCB) issued a first time Call on the San Juan River between the confluence of the East and West Forks to the confluence of McCabe Creek. The Call is for 50 cfs through the end of August and 30 cfs through February. The purpose of the Call is to help “preserve the natural environment to a reasonable degree” for aquatic and wildlife species. There are currently only 4 other calls this year by the CWCB on Colorado waterways: Crystal River and Hunter Creek (Div. 5), Slate Rive (Div. 4), and Cotton Creek (Div. 2).
In response, SJWCD President John Porco sent out an email:
Interesting. This would be upstream of Pagosa. The river has only been running at about 50 cfs. So, this may mean that anyone upstream can’t take any water out of the river to maintain the flow.
In fact, the CWCB call didn’t mean anything close to that.
Colorado water law developed during the 1800s as a rather dramatic departure from the “riparian water law” common to the eastern US. Basically, riparian water law requires anyone drawing water from a river to return that same water to the river, so that downstream users would not be deprived of its use. But the mining operations and ranches that sprung up in Colorado during the 1800s were often located far from major rivers and streams, making it impractical to return the water to the source.
Thus, we ended up with the “Colorado Doctrine.” Like any governmental doctrine, it attempted to resolve certain issues, but also ended up causing its own problems.
Various Territorial Supreme Court rulings as well as the Colorado Constitution allowed ranchers, miners and communities to draw water without returning it to the source river. The rules also established a “first in time, first in right” doctrine. A water user — a mining operation, say, or a cattle ranch — that began drawing adjudicated water in 1891, has water rights ‘senior’ to a nearby operation that began drawing adjudicated water in 1892.
As I understand it, a “call” by a senior water rights holder legally prohibits anyone with ‘junior’ water rights from extracting even a drop of water from the affected river or stream. Nada.
That’s a simplified description of a very complicated set of water laws. (For a more thorough version, here’s an article by our former Supreme Court Justice Gregory Hobbs Jr.)
The “call” in question, on August 2, 2018, came from the Colorado Water Conservation Board, perhaps the largest water-related organization in the state. In 1980, the CWCB was awarded a legal right to maintain a certain level of water in the San Juan River with the aim of preserving fish and other aquatic life. This is known as an “in stream flow” (ISF) water right, and it’s a relatively recent development in the history of Colorado water law. (Around the same time, CWCB applied for similar ISF rights all over the state.)
As noted, that San Juan River ISF right was granted in 1980. But most of the adjudicated water rights along the San Juan River, in Archuleta County, were established prior to 1980. So the CWCB’s call did not affect most of the largest water rights holders along the river.
We learned a bit more about this awkward situation at the August 20 SJWCD meeting, when we heard a fascinating presentation by Water Commissioner Bob Formwalt. Mr. Formwalt began by handing out a map, showing the current ‘drought’ conditions in much of Colorado.
Mr. Formwalt’s map looked like this:
Archuleta County is near the bottom left. About 80 percent of the county was showing “extreme drought.” The western part of the county was showing “exceptional drought.” Neighboring La Plata and Montezuma counties were completely in the “exceptional drought” category.
“Drought” is generally defined, by water industry experts, as “less than average rainfall for an extended period.” So we might expect our area of the state to experience some level of drought on a regular basis. That’s how “average” works.
During serious drought conditions in Colorado, the folks with ‘junior’ water rights are most likely to feel the impact of a water shortage. And it seems that someone at CWCB was feeling the need to make a statement, by asserting their bureaucratic right to make a ‘call’ on the San Juan River. Even though the water rights were relatively ‘junior.’
A bad call?