With 80% of the water in Colorado falling West of the Continental divide where less than 20% of the population live, water is the source of longstanding tensions between the East and West slope communities. This tension is very real for the residents of Grand County, as around 70% of the water that flows through the upper headwaters of the Colorado and Fraser Rivers are pipped across the Divide to the ever growing Front Range communities. Since the water rights are not held within the County, there is no legal basis to oppose these water diversions under Colorado water law. This leaves Grand County Commissioners and local government with few options other than to work with the Front Range water managers to negotiate the best possible outcome even if they can’t get the water back.
Before getting into the new agreement, first some background on Colorado water law. Apparently there are more water lawyers in Colorado than the rest of the US states combined – whether this is urban myth or truth it makes some sense to me as I’ve been trying to grapple with this complex system of water rights, transmountain and transbasin diversions. Water in Colorado is governed by the law of prior appropriation: water rights belong to whoever first diverted the water and put it to a beneficial use. Senior water rights belong to those who came first, and the Colorado Constitution declares that the right to appropriate unappropriated water “shall never be denied”. This means that water rights and land rights are separate, creating the opportunity for water rights to be owned by people who don’t live where the water falls. And because the majority of the people of Colorado happen to not live where the water falls, taking water between basins (transbasin diversions) or across the Continental Divide (transmountain diversions) has been a feature of Colorado history since the mid 1800s.
Construction of the Grand River Ditch began in the 1880s since then there have been three major diversion tunnels constructed in Grand County: the Moffat Tunnel, the Colorado-Big Thompson and the Windy Gap project. When these schemes were put into place Grand County had a very small population so beyond agricultural producers there was a lot of water to be put to ‘beneficial’ use. Beyond the first in first served appropriation, Denver water purchasing substantial water rights from ranching families in the Upper Fraser Valley in the first half of the 20th century. So provided the water diversions don’t infringe on downstream users rights, this water legally belongs to water managers on the Front Range. Without these transmountain diversions, growth of agriculture and urban centers of Denver, Colorado Springs and Fort Collins would not have been possible. However these projects and water diversions have created longstanding conflict (which in the US tends to lead to litigation) between West slope communities and Front Range water managers. After attempts to resolve these conflicts were met with more litigation it became clear that a new approach was needed.
Enter the Colorado River Cooperative Agreement, intended to end decades of litigation and fighting over Colorado’s most precious resource. After five years of negotiation, the agreement was finalised in May 2012 and has been heralded as a ‘landmark deal’ in the history of Colorado water management. There are 43 parties involved in the agreement that promises to sure up water supply for Front Range communities while providing much needed funding for stream restoration projects on the West slope. There are provisions in the agreement that require Denver Water to undertake conservation measures, to ensure supply of water for the West slope communities, and boundaries have been set around the future water development projects in Denver. Most importantly, under the agreement, Summit and Grand counties commit not to oppose planned enlargements of critical water reservoirs and diversion tunnels. Seems that this is one of the key features of the agreement, because the majority of the provisions don’t come online until Denver Water has approval for these enlargements. So now that there is significant funding for mitigation tied to Denver Water getting these permit to enlarge the Moffat and Gross reservoirs, West slope communities now have an interest in the permitting going ahead. But… if these enlargements go ahead, water diversions from Grand County will go from 73% of pre-diversion flows to around 80%. That is a lot of water to be taking out of the headwaters of any river, let a lone one as over allocated as the Colorado.
When I asked if this is a good deal for the West slope communities, I was told that they are better of with this deal than without. Denver Water didn’t have to come to the table and apparently they have gone above and beyond what they were legally required to do in terms of the amount of water and money they put on the table. I heard lots of people in academic circles talk about water being an issue for Colorado to deal with as a whole – but the people I interviewed in Grand County didn’t see it this way. From their perspective they have been “defeated”. “It is our water and they are taking it to water their lawns.” But when water demand outstrips supply, and the water rights and the voting population are on the Front Range it is hard to see any alternative. More conflict and lengthy litigation is not going to make it rain more, so coming to some kind of collective arrangement seems to be the only way to go.