“A water right is a property right… and that is a dilemma, but we don’t want to impact people’s property rights. So I’m really interested in looking a [what laws] exist, and how these potential changes would, or could, impact existing property rights…”
— Joe Frank, general manager of the Lower South Platte Water Conservancy District, quoted in the Pagosa Daily Post, October 2020
My Toyota van finally gave up the ghost after 200,000 miles of loyal service to humanity. So I went to Durango to shop for a used car. (I have never yet, in my life, purchased a “new” car.) The used car I ended up buying cost much more than I had planned to spend, and looked nothing like what I thought I was looking for, but it came with a 100,000-mile warranty — something I’ve never had before, on any of my previous used cars and trucks.
In other words, I let go of my expectations, and either did something foolish, or something brilliant. Time will tell.
We note that I spent only “my own money” on the car, and it has become my “private property”. I was not subsidized by Archuleta County property tax revenues or government fees. If I’ve made a mistake, there’s no one but myself to blame, and no one but myself to deal with the maintenance costs.
But serving as a volunteer on a government board, like the San Juan Water Conservancy District (SJWCD) board, presents a different situation. All the money the District spends comes from the pockets of our local property owners, and our decisions must, in my opinion, reflect the wishes and desires of our customers — that is to say, the District taxpayers.
Note: This editorial series expresses my own research and opinions, and does not necessarily reflect the opinions of any other SJWCD Board members, nor the decisions and policies of the SJWCD Board as a whole.
As the SJWCD considers the question of the West Fork Water Rights, which it currently holds on behalf of local taxpayers, it’s possible that not a single ordinary taxpayer knew about these particular West Fork water rights, nor formed an opinion about what to do with them in 2021 — the year when they must be moved to a brand new location, or abandoned, or sold. Speaking for myself, I have been paying taxes to the San Juan Water Conservancy District for 28 years, and have been writing Daily Post editorials about local water issues for 17 years… and did not learn about the “West Fork water rights” until I was appointed to the SJWCD board two years ago.
When the people paying the taxes have no idea how their taxes are being used, or how they might be used in the future, it poses a problem for a board of directors — if the board truly wants to make decisions that reflect the wishes and desires of our customers. Without knowing how the taxpayers feel, a board might be prone to follow a plan of action devised long ago by a different board of directors, or by an out-of-town attorney, or even a plan written primarily by water industry experts in Denver, such as the Colorado Water Plan.
Because it was shared with the public earlier this month, I’ve been linking to a draft “West Fork Water Rights” report in this editorial series (you can download it here) created by the Wilson Water Group. Some of the concepts presented in the report, and some of the graphs and charts, will be difficult to grasp if you’re not familiar with Colorado water law — an amazingly complex system of rules governing who can “own” the liquid resource described in the Colorado Constitution as belonging to the taxpayers and citizens.
In a noble attempt to keep Colorado water from becoming a private resource that could be bought and sold for profit, the authors of the Colorado Constitution had written, in 1876:
“The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.” (Colorado Constitution, Article XVI Section 5)
Colorado water rights are thus property rights to the “use” of water under conditions specified by the state, rather than being rights to the “possession” of the water molecules themselves — although the subtle difference between those two concepts is often hazy.
One essential idea, crucial to preventing water from becoming a commodity suitable for trading in a for-profit marketplace, was Colorado’s appropriation process, which grants a water right for a certain particular amount, for a certain particular use, at a certain particular location — with an appropriation date determining the ‘priority’ of the water, whenever a shortage arises.
A certain use. A certain location. A certain amount. A certain date.
Those four criteria apply to the West Fork Reservoir water rights, even if hardly anyone has heard of the proposed reservoir. But as water policy has unfolded and changed since 1876 — through court rulings and legislation — it has become common practice in Colorado to essentially ignore the first two criteria. Water courts have, for the past century, been allowing water rights to be moved from their original location to a completely different location, and have allowed them to be used for entirely different uses than originally decreed — while still maintaining the original appropriation date.
This sleight of hand has long been facilitated by Colorado attorneys. Attorneys don’t come cheap, normally, but their services are generally regarded as essential when engaging in the re-allocation of existing water rights, or for obtaining a new water right.
Exactly how much an attorney costs is not always public knowledge.
Nor do government boards always consider, thoroughly, how much attorneys cost us. In 2017, for example, the San Juan Water Conservancy District had an income of approximately $80,356 from various taxes — mostly property taxes.
I would appear that the District spent approximately $74,976 on attorney fees that year.
What did the public get from those expenditures?
I wasn’t serving on the SJWCD board in 2017… but I do now, and currently serve as Board Treasurer. I can’t rightly say what the public got out of those expenditures.