51st State Initiative: Whither water rights if secession is successful?

51st State Initiative Map via The Burlington Record
51st State Initiative Map via The Burlington Record

From The Grand Junction Daily Sentinel (Dennis Webb):

Among the questions that surround the idea of Moffat and other Colorado counties seceding from the state, none may be murkier than the one surrounding water rights.

“That would be a tremendous court battle, I’m sure,” said Garfield County Commissioner Mike Samson, also chairman of Associated Governments of Northwest Colorado.

Already, differing opinions abound about what secession might mean when it comes to water. Craig’s City Council unanimously voted against the idea of secession partly after being advised it could create problems for water rights in the county. Moffat County Commissioner John Kinkaid, who led the effort to get the secession question on the county ballot, said those behind the 51st-state movement in Colorado have assured that water rights would remain with their owners even with a change in state.

Said Samson, “You could talk to a dozen different lawyers and get a dozen different opinions as to what would happen.”

Chris Treese, who’s not an attorney but is external affairs director for the Colorado River District, based in Glenwood Springs, warns of significant consequences arising from the Colorado River compact if counties form a new state. Treese said the river compact forbids the use of Colorado River water outside seven basin states and Mexico, the parties to the compact.

Compact concerns led to Rio Blanco County commissioners deciding against pursuing the secession idea even though they share some of the political frustrations that led Moffat commissioners to put the measure on the ballot.

Moffat’s situation is different from eastern Colorado’s, in that Moffat has the Yampa River, part of the Colorado River watershed, flowing through it, Treese said.

“I have no idea how that would have to be handled, but it clearly is something that is not contemplated by the language of the compact,” he said.

Scott Balcomb, a Glenwood Springs water attorney who used to serve as Colorado’s representative to meetings of the seven basin states, isn’t as worried about how such matters would be handled. He said he thinks a new state carved out of Colorado would simply end up with some of Colorado’s water allocation under the compact.

He also thinks existing water rights, including transmountain diversions, would have to be honored if a new state was created, just as existing rights were honored when Colorado and other western states became states.

“(Water) use is a property right and you can’t affect property rights,” he said.

More 51st State Initiative coverage here.

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