A Right

Water, Under Pressure is a five-part narrative podcast series about the increasing demands on water in Colorado. The series is hosted by Kristan Uhlenbrock, Director of the Institute for Science & Policy. For more information and resources from this episode, check out the episode summary page. To listen to the audio version visit waterunderpressure.org.

WATER AS A COMMUNITY ASSET

KRISTAN UHLENBROCK: It’s a windy day in June. Dark clouds loom over the fourteen thousand-foot mountains that ring the San Luis Valley. But rain isn’t falling. Instead, wind kicks up dust from the road, turning it into funnels. The dry air is a strong reminder of why I’m talking to Christine Canaly about water.

CHRISTINE CANALY: Where we are now, which is right in front of the entrance to Rancho Rosado, which is now owned by Renewable Water Resources.

KRISTAN: The ranch gateway is beautiful. And it’s probably not what you would expect to be one of the most controversial pieces of real estate in the valley. Not because of anything it’s got above ground, but because of the water below it.

CHRISTINE: . Because, you know, one of the things I hear sometimes is, “oh, you represent a special interest group,” are you kidding me? My special interest group is the entire planet.

KRISTAN: The valley is a great mix of people and environments that all depend on the water. From farmers and ranchers to National Parks and nature preserves. But there’s not enough water to go around. That’s why there’s such an outcry any time someone proposes to move water away from acres of farms and public lands.

Water is needed for all living things to survive. It can also be controlled and has been by
civilizations for millennia. So how is it decided where the water goes and what it can be
used for? In order to understand this, we have to understand how water rights work.

Theme music
Flowing through San Luis
Water in our veins
The lifeblood of our culture
Aquafers and rains

KRISTAN: This is Water, Under Pressure, a podcast about the increasing demands on water in Colorado. And how the choices we make now could tear us apart or help us to navigate our uncertain future.

Theme music continued
We are all Colorado
Our future to choose
With water on the table
There’s so much to lose

KRISTAN: From the Institute for Science and Policy, this is episode two.

FIRST IN TIME, FIRST IN RIGHT

KRISTAN: To get to the root of today’s water conflicts, we have to go back in history to understand the complicated system that determines who gets water in Colorado and how much. So I reached out to a well-known figure in our state to learn more.

JAMES EKLUND: So my name is James Eklund and I am a water lawyer and a rancher and parent of three kids here in metro Denver. My kids are so sick and tired of me telling them where their water comes from.

KRISTAN: James is a fifth-generation Coloradan. His family immigrated to the US from Norway and moved to Colorado in 1888. All they brought with them was…

JAMES: … a trunk that my family still has, and the trunk made its way to western Colorado. And they homesteaded on a tributary to the Colorado River called Plateau Creek. And they made their living as ranchers from that point forward.

KRISTAN: Growing up in Western Colorado, James remembers some of his first education on water came from his family, his neighbors, and even visiting congressmen.

JAMES: We talked about cubic feet per second like we were talking about, you know, Bible verses. There is not a day that has gone by where somebody on our place hasn't given thanks, for the opportunity to steward land and water that started with people who had stewarded it and managed it for at least 1000 years, we're newcomers.

KRISTAN: For thousands of years, Indigenous peoples and tribes lived throughout Colorado. Starting around the 1600s, Spanish colonists began to expand into the territory, followed by other European explorers, settlers, and miners. The oldest settlement is the town of San Luis, established in 1851. It wasn’t until 1876 that Colorado was granted statehood. And with all that settlement came the need for water and eventually a way to manage it.

JAMES: We developed this doctrine of prior appropriation that allowed miners and agricultural producers to divert water way far away from the stream through big ditches, small ditches, to get that water to their property so that they could do something with it.

KRISTAN: The Doctrine of Prior Appropriation is the bedrock of our water system in the West.

JAMES: It's first in time first and right so if I stick my shovel in the river and in 1888 and start delivering water to my crops, and you come along and 1890 and you put your shovel in the river upstream of me, you can’t take a drop until my water right is completely satisfied.

KRISTAN: First in time, first in right. A simple construct packed with so much meaning. That first user of the water is considered senior, those that come after are considered junior. It’s essentially like “calling dibs” on water. And while no one actually owns the water in a stream, people have been granted the right to use it for more than a hundred years. So how did that get decided?

DECIDING WHO GETS WATER

KRISTAN: I’m back in Heather Dutton’s office at the San Luis Valley Water Conservancy District, we’re looking at an old satellite picture of the Valley.

Sounds: Chatter around the unique properties of the map

KRISTAN: It’s obvious to see where water flows. Waves of green contour against the shades of brown in the topography. Large swaths of the valley are gridded with perfect circles where center-pivot irrigation is taking place.

Heather is responsible for ensuring that when new wells get dug and pumped that they don’t injure senior water right holders. Because in 1972…

HEATHER DUTTON: The state engineer, he's the head honcho, who's in charge of administering water rights in Colorado, the state engineer decided that the Rio Grande basin was over appropriated. And so that means that there are more people that want water both surface and groundwater than there is water available. And so the community came together and they said, well, we can't just shut down growth, we can't just shut down opportunity for people to come here and for there to be new uses of water. And so, our district kind of came out of dormancy and put together the first regional augmentation plan in the state of Colorado. And so we purchased some water rights, we took them through water court and change them to augmentation.

KRISTAN: What Heather is doing is providing a plan for new uses of water while protecting the senior water right holders.

HEATHER: There's a lot of shuffling right now and people trying to trying to balance their water use with their water supply. And so it's something I think a lot about is how do we do that in a way where we're happy with what's left? How do we have, you know, conversations with each other and share water and build these really good partnerships so that we don't just wreck this place?

KRISTAN: It’s a big task to figure out how to balance a system: who’s receiving water, how much, and keeping water supplies well-distributed. While also making it all sustainable.

HEATHER: there's a rule in botany, called Liebig’s Law of the minimum, that plants, plant growth is hindered by the thing that they are limited by, so you can look at all you know, the different macro and micronutrients and figure out well, what is this plant lacking? And that's the thing it needs. And in this in this valley, the law of the minimum is water. We just don't have enough. And that's what we all are limited by.

_________________________________________________

KEVIN REIN: The state engineer has a long history, the position was created by our
legislature in 1881.

KRISTAN: This is Kevin Rein. He’s the current head honcho in charge of overseeing water rights.

KEVIN: I'm the state engineer, and I'm the Director of the Division of Water Resources.

KRISTAN: Kevin was appointed to serve as the director about five years ago, but has been with the division for 24.

KEVIN: The purpose of that position in a state where prior appropriation was just this fairly new concept, and an important concept in a state that, for all practical purposes, is a desert. They found that they needed someone to measure the water, because we had various water rights owners competing for water on the same stream.

KRISTAN: Born and raised in Colorado, Kevin is attentive to the responsibility he holds. Objectivity is an important value for him because his job is to understand the ever-changing aspects of a contested system.

KEVIN: I have a very solid basis for every decision I make and that is, what does the law require me to do? Now, it's not as simple as I make it sound. But it is always based on these tenets of prior appropriation. Maximizing beneficial use, not causing injury to other water rights, ensuring that people are able to fairly and reliably get the decision from me that will be grounded in the law and will stand.

KRISTAN: Beneficial use is an important part of prior appropriation.

KEVIN: We have numerous types of beneficial use And it's the usual things that you might expect domestic use, municipal use, industrial use, commercial use, and, agricultural use. So it's that, that usual list, but we also need to include things like recreation, and environmental needs, and instream flow needs that also fall into that category of beneficial use.

KRISTAN: As you can imagine pretty much anything can be considered a beneficial use – the definition is intentionally flexible. It wasn’t until much later that things like conservation and recreation were considered a beneficial use. Another common phrase in the world of prior appropriation – “use it or lose it.” A water right holder must put their water to the beneficial use they said they would. And after a given period of time, if they don’t, they lose it.

These phrases – first in time, first in right; use it or lose it. Might seem simple. But legally, they are very complicated. One reason: Water follows the land, not the law. Colorado is a headwater state for four major rivers – the Colorado (obviously), but also the Arkansas, the South Platte, and the Rio Grande. That means their source begins up in the Rocky Mountains. But eighteen other states and Mexico rely on that water. So according to prior appropriation, first in time is first in line…but determining who came first across all that area is a recipe for conflict.

THE LAW OF THE RIVER - THE COLORADO RIVER COMPACT

KRISTAN: By now, you might be picking up on a theme. The 19th-century settlement of the West began the creation of a legal system that still governs how we allocate a lot of our water today.

In addition to prior appropriation, there’s another key piece to water law. Compacts. Specifically, interstate compacts. One of the more famous ones…

JAMES: The Colorado River Compact of 1922 has been professionally the epicenter of what I've done with my career. And what I intend to do with the rest of it, so I'm excited to talk about it.

KRISTAN: This is James Eklund again. After college, he returned to Colorado to work for former Attorney General Ken Salazar, who at the time in 2002 was running for reelection.

JAMES: I was his driver (laughs). If you were driving around the state with an AG [attorney general] candidate today, they'd be on their cell phone, incessantly trying to get money for their campaign, which is what you have to do. But it was really spotty coverage back then. So he could talk to me or sleep. And so he talked to me. And what he shared was, “here's what you should do with your career.”

KRISTAN: Number one, get into water law, and two, become legal counsel for a governor. James went on to do both. Not only that, he became the state’s chief water official under Gov. Hickenlooper, serving as the architect of Colorado’s first water plan.

JAMES: Let's start at 1888: You've got a decently wet period happening in the Colorado River Basin. We start going into 1900 and it’s getting even better. We're getting pretty good precipitation, I'm going to throw out a term, I'm going to talk in acre-feet.

KRISTAN: An acre-foot is the length of a football field, without the end zones, filled one foot deep. One acre-foot of water is enough for about 2 to 3 households per year.

JAMES: So back in the early 1900's we had a period of of record that was producing on this river, about 18 million acre-feet of water annually.

KRISTAN: Colorado was experiencing one of its wettest periods of the century. People downstream in other states were concerned.

JAMES: They needed the ability to control this, wild 18 million acre foot river that was ripping out of its banks all the time, and destroying infrastructure and crops and all this stuff. And they also wanted to produce hydropower at scale to feed this huge population of Southern California.

KRISTAN: The west was growing rapidly and as the need to harness water started to really take off, so too did the legal battles. Deciding things through the courts didn’t appeal to everyone.

JAMES: And we got around a table and signed the Colorado River Compact the first water apportionment compact in US history in 1922.

KRISTAN: This was the first time more than three states negotiated an agreement around water. It came to be called The Law of the River, and it’s invoked as the governing agreement for water management in the west. While the negotiations were a breakthrough at the time, they were set up to fail. And only now do we really understand why. First, it left out many people.

JAMES: We have to share it with the tribes that were not at that negotiating table when the compact was signed in 1922 in Bishop's Lodge, so even though they have stewarded the river longer than anybody else, they were not invited to the conversation. And in 1944, we got a treaty in place with Mexico that gives them 1.5 million acre feet.

KRISTAN It also was created during a very wet period… well that abundance didn’t last. And water was apportioned as an amount rather than a percentage.

JAMES: You flash forward to 2022 and our last 20-year period of record has been almost the opposite. We've had, instead of more water than we knew what to know what to do with we have a lot less, and we're closer to the 11 or 12 million acre foot River, that on an annual basis, we all have to share. And we have to share it with an environment that we're now more knowledgeable about.

KRISTAN (narration): Less water, more people, a changing climate, and how do we all
share? Eight other interstate compacts were formed after the Colorado River Compact,
including in 1938 the one for the Rio Grande, the main river flowing through the San
Luis Valley. Many other key laws, provisions, and agreements shape how we manage
our present-day water rights.

JAMES: At statehood, we said, we're not going to treat water like air, everybody has to have it for human life, but we're going to create an asset class out of water. And you can own it, you can own a water right. You can’t own the molecules of water that's owned by the people of the state. But you can have a legal right to use those molecules. And, you can lease it, you can sell it, you can buy it. So it's just very similar to real estate in that in that context.

KRISTAN: Water rights are like a piece of property or a house. And also more than that.

JAMES: It's on Maslow's hierarchy of needs. Three days without it, you're done. So it's not like real estate. And I fully appreciate that. In a lot of ways, it's a life-giving substance, but it's also, it's a dichotomy. It's got both attributes of a public good and a private right attached to it. And that's incredibly important to understand because the West grew up around that concept.

And if you go to the 16th Street Mall, and you interview 100 people, and asked them, should water be capable of being owned by private citizens? I would bet the vast majority would say “No way. No way, should we do that? Private citizens can't own air, so we shouldn't allow them to own water. “And when you explain to them, alright, here's how we've done it for the last, you know, for a long time, last 150 years. They will say, Oh, I didn't know that. I don't want to take you know, somebody's livelihood away from them or an asset that they consider in a lot of instances in agriculture, at least their most productive asset, their most valuable
asset.

We don't want to just take their property right away from them any more than I want somebody coming in and telling me that I have to get out of my house. You know, that's, that's not right. And that's not the capitalist market-based system that we've grown up with in American democracy.

KRISTAN: I decided to take James up on his idea, so I went to downtown Denver and started asking people on the street what they thought about water, AND what they thought about the idea that water being owned by private citizens:

“No, I think it should be a public resource. I guess, because we all need it and owning it would make it like there’s a price on it. It should be distributed amongst everyone equally.”

“No, of course not. No. Water belongs to everyone.”

“I think, yeah. It’s a natural resource. You should definitely have ownership of it. If you can collect it, it should be yours.”

“If it’s your own land and you drill you own well – within limits, obviously – like you shouldn’t be selling it. But if you can use it for your own family…”

KRISTAN: We didn’t run into any water lawyers downtown, but many people had strong opinions about owning water.

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KRISTAN  Water is personal, it’s economic, it’s cultural. It’s a recipe for conflict. We have a system for managing all this. But as we’ve learned, this system isn’t perfect. It’s strained under growing populations and a changing climate. So we’re constantly moving water, trying to balance it among competing demands and uses. And one of the biggest uses is agriculture. And now, because of the 20-year drought and the increasing costs of farming, the pressure is even greater.

Next Episode: Finding Balance

CREDITS

Water, Under Pressure is a production of the Institute of Science and Policy at the Denver Museum of Nature and Science, and House of Pod.

Episodes are hosted and written by Kristan Uhlenbrock and producer Cat Jaffee, with the
help of producer Ann Marie Awad, Nicole Delaney, and Kate Long.

Our theme music is by Alex Paul of Birds of Play. Our episode composition is by Jesse Boynton with tracks from Epidemic Sounds. Our sound design and audio editing is by Ameeta Ganatra.

To listen to the audio version, or for more information and additional resources on water in the San Luis Valley and greater Colorado, please visit waterunderpressure.org.