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It All Comes Down to Water: Justice Hobbs Meanders Through Water Law — the Watch

Land Office Map of Colorado (1902) via Greg Hobbs
Land Office Map of Colorado (1902) via Greg Hobbs

From the Watch (Samantha Wright):

Colorado Supreme Court Justice Gregory Hobbs’ favorite tool for teaching about the history of water law in Colorado is the Land Office Map of 1902. All of the forces at play that shaped Colorado’s water-scape today are there to see, from Indian reservations to homesteads to growing cities and vast forested watersheds out of which plummet the headwaters of great rivers that flow on journeys toward the sea.

Some pink blobby areas near the bottom of the map signify the Mexican Land Grants. The Treaty of Guadalupe Hidalgo required the United States to recognize the rights of the settlers on those lands – including their age-old water rights.

The town of San Luis, one of the oldest communities in Colorado, lies within one of these pink blobs in the heart of the Sangre De Cristo Grant. And here, at the south end of town, Hobbs said reverently, “You can see the 1852 People’s Ditch.”

San Luis People's Ditch via The Pueblo Chieftain
San Luis People’s Ditch via The Pueblo Chieftain

Serving the village of San Luis de la Culebra before Colorado was even a territory, let along a state, the People’s Ditch began as a hand-dug irrigation channel and was later widened by oxen pulling a plow. It was one of many acequias (gravity-fed ditches) in the San Luis Valley, allowing agriculture to flourish through a water-sharing network originally based on equitable allocation, rather than priority.

This “beautiful ditch” that delivers water from the west side of the towering Sangre de Cristo range to the dry lands of the San Luis Valley holds a special place in Hobbs’ heart. That’s because it holds the very first adjudicated water rights in Colorado – rights that Hobbs has been sworn to uphold through his role as a Colorado Supreme Court Justice.

The People’s Ditch still serves water users today, irrigating approximately 2100 acres of hay and other row crops.

It was only one stop in Hobbs’ romp through Colorado’s water history and law, delivered as a keynote address at the Annual Water 101 Seminar hosted in Telluride on Monday, Sept. 21. The annual seminar is an outreach program coordinated by the Durango-based Water Information Program.

Other stops along the way ranged from an ancient (long dried-up) ditch-fed reservoir near Mesa Verde that is believed to be one of the oldest water supply structures in North America (“This just proves the Mormons and miners invented water law,” Hobbs quipped); to utopian agricultural communities along the Poudre River where the doctrine of public ownership subject to allocation for beneficial use (basically “We were here first – put the water back!”) was first hashed out; to Glorieta Pass in northern New Mexico, where in 1862 a ragtag bunch of Colorado farmers and miners “made the Texans go back to Texas.”

This decisive western battle of the Civil War thwarted the dreams of a Confederate stronghold in the southwest, and paved the path for continued settlement of the region under Union terms via the Railroad Act, Homestead Act, and various land grants.

It all fits into Hobbs’ intricate and nuanced understanding of the complexities of Colorado water law, which evolved alongside the evolution of Colorado as a territory carved out of surrounding states, “to hold against confederates the whole area where gold might be found.”

While Colorado’s headwaters, along with its gold, are high in the mountains, the roots of its system of prior appropriation and the beneficial use of water can be traced to the Eastern Plains, Hobbs said.

Simply put, the system evolved out of the need of Front Range farmers to have the assurance they could raise crops on intermittently arid lands to feed the miners and residents of growing cities, on a landscape where water must be conveyed great distances via rivers and ditches across other peoples’ property, to reach one’s crops.

Thus, as irrigators in an arid land, the foundation of Colorado’s water law is the right to cross intervening private and public lands to build a ditch to get water where you need it, “because if an intervening land owner could block your ditch you could not perfect a water use right,” Hobbs explained.

As Hobbs wrote in his “Colorado Water Law Summary,” the water provisions of the state’s 1876 Constitution laid out four key principals that are still in place today, that together comprise the Prior Appropriation Doctrine:

  • All surface and groundwater within Colorado is owned by the public and dedicated to the use of the people through water rights established as prescribed by laws of Colorado and the United States;
  • Court decrees and groundwater permits enforced by state water officials define the right of water use for a wide variety of agricultural, municipal, commercial, recreational and instream flow purposes (together described as “beneficial uses”);
  • Water users paying just compensation may obtain a right-of-way across the lands of others for the construction and operation of needed diversion, conveyance and storage structures;
  • The streams and aquifers can be used to transport and store water without interference by riparian landowners.
  • “It’s a doctrine of scarcity, not of plenty,” Hobbs said, and it has held up well over the years, largely thanks to Colorado’s groundbreaking 1881 legislation that set up an administrative and judicial system to enforce priority rights.

    Hobbs will be turning 70 this December, and is retiring from the court in Aug. 2015. As a Colo. Supreme Court Justice, he has fully embraced his role as final arbiter in water disputes, which in Colorado bypass the Court of Appeals and ascend straight from the state’s seven water courts to the Supreme Court level…

    Greg Hobbs, Dick Bratton, Jim Pokrandt
    Greg Hobbs, Dick Bratton, Jim Pokrandt

    A poet, author and historian who has taught water history and culture throughout the country as well as in the Netherlands and France, Hobbs is particularly well-versed in the bipolar nature of Colorado, and its “80 percent problem” – stemming from the fact that 80 percent of Colorado’s water is on the Western Slope, and (almost) 80 percent of its population on the Front Range.

    Adding to the complexity of this problem, Colorado’s waters spill off the Continental Divide and flow to the Gulf of Mexico and (sometimes) the Sea of Cortez, with 19 states including Colorado dependent upon this snowmelt.

    Nine interstate compacts ensure equitable apportionment of water among the states that share the system; Colorado is only permitted to consume about one third of the water that arises in the state and must ensure that the remainder stays in the rivers for downstate water users.

    These compacts will be tested in the years to come, with the predicted gap between demand and supply, and some states like California already in crisis.

    As Hobbs said, “It all comes down to water.”

    More water law coverage here.