In Part One, I mentioned a few of the situations where the general public, and their governments, seek a court’s opinion on matters of dispute.
Those matters of dispute sometimes concern water, and water rights. Unlike money — which can be created out of thin air by bankers and the federal government — water is a limited resource, while also being necessary to living things.
When disputes over water arise, we don’t need judges if we can come agreements outside of the courtroom. Such an agreement often requires that each side of the argument make compromises. But when one side of the dispute has dug in their heels, compromise can be impossible, and only a judge’s decision can resolve the impasse.
At the end of the judicial review, we might be able to point to a “winner” and a “loser”. But we might just as well conclude that everyone loses. Except the lawyers, of course. Typically, the lawyers always get paid, no matter who wins or loses.
I also mentioned in Part One, that Colorado water rights are based on what is known as the “Prior Appropriation System”. This system of water allocation controls who uses how much water, where it is used, the types of uses allowed, and when the water can be used.
From the Colorado Department of Natural Resources:
A simplified way to explain this system is often referred to as “first in time, first in right.” An appropriation is made when an individual physically takes water from a stream (or underground aquifer) and places that water to some type of beneficial use. The first person to appropriate water and apply that water to use has the first right to use that water within a particular stream system. This person (after receiving a court decree verifying their priority status) then becomes the senior water right holder on the stream, and that water right must be satisfied before any other water rights can be fulfilled.
In Colorado, water right applications are under the jurisdiction of the water courts. There are seven water courts, one in each of the seven major stream basins in Colorado.
When this system was first being developed, during Colorado’s territorial days back in the 1860s, the state appeared to have enough water for everyone, even if some people would need to wait in line for part of the year. (No one used much water in the winter, for example.) Historically, the water courts were exceedingly generous with handing out water rights, and because water rights have no expiration date, we have now arrived at a point in time when most of the water sources in Colorado are “over-allocated”. In other words, Mother Nature cannot supply enough water to fulfill all the water rights that the courts have decreed.
In fact, the entire Colorado River, as it leaves the state of Colorado, is over-allocated.
One of the only stretches of river within Colorado that’s not over-allocated is the San Juan River as it flows through downtown Pagosa Springs.
Disclosure: I currently serve as a volunteer member of the PAWSD Board of Directors, but this editorial reflects only my own opinions, and not necessarily the opinions of the PAWSD Board and staff.
In 1967, the Southwestern Water Conservation District obtained a water right to, someday, build a reservoir in the Dry Gulch Valley, just northeast of downtown Pagosa. This was only one of the many local water rights affecting the San Juan River, and it was “conditional” — meaning that Southwestern had promised the water court that — someday — they would build the reservoir… if the need presented itself, and if they had the necessary financial means and political support.
The Southwestern reservoir rights allowed for a 6,300 acre-foot reservoir at Dry Gulch — about four times the size of Lake Hatcher. But the valley was located within a private ranch, so the apparent assumption was that Southwestern would one day obtain an easement to build a reservoir on the private ranch — or else, it would purchase the ranch.
On 1987, the taxpayers of Archuleta County voted to create a water conservancy district for Pagosa Springs — the San Juan Water Conservancy District (SJWCD) — to help ensure drinking water supplies far into the future. Southwestern promptly donated the Dry Gulch water rights to SJWCD. (I assume Southwestern no longer wanted the headache of building a reservoir there.)
A better location for a reservoir — for various reasons — was Hidden Valley, north of downtown Pagosa. For one thing, the site would provide gravity-fed water at low cost to the community. Other water sources, such as Dry Gulch, would require an expensive pumping station and ongoing pumping costs.
Working closely with Pagosa Area Water and Sanitation District (PAWSD), SJWCD contracted with a private landowner to build a water reservoir in Hidden Valley.
But SJWCD and PAWSD got themselves sideways with the private landowner and wound up in court. After an expensive lawsuit (aren’t they all expensive?) SJWCD and PAWSD lost access to the new reservoir.
With Hidden Valley now off the table, SJWCD’s quest was now to prove that a Dry Gulch Reservoir was not only feasible… it was absolutely necessary. A respected water engineer, Steve Harris, pointed out that the Dry Gulch Valley could possibly hold 35,000 acre-feet of water. More than 20 times the size of Lake Hatcher.
SJWCD and PAWSD went to the Durango water court and obtained new, more expansive water rights, allowing for a 35,000 acre-foot reservoir.
But sportsmen’s organization Trout Unlimited filed a lawsuit, claiming that this proposed 35,000 acre-foot reservoir had no rational justification, and would harm the San Juan River.
Another trip to court. This time, all the way to the Colorado Supreme Court.
Things were getting kind of expensive, for the taxpayers. Again.
Read Part Three, tomorrow…