Can we retire “Water flows uphill toward money”? — John Fleck

Squeezing money
Squeezing money

From InkStain (John Fleck):

I’ve come to the conclusion that the whole “water flows uphill toward money” thing is not only wrong, but that its wrongness is problematic.

It’s one of those intellectual shortcuts that can be dashed off uncritically, and audiences nod knowingly because of course water flows uphill toward money we all know that, and no further analysis is needed. Sometimes this is right. But across a huge range of water allocation decision making, it is utterly wrong. While “water sometimes flows uphill toward money, while at other times it doesn’t, and we should think carefully about why it is or isn’t the case here” might be more analytically useful, it lacks the rhetorical punch.

Why is this?

Rules. We have water allocation rules that frequently create barriers that make it difficult, if not impossible, to move water, even if the move might be hydrologically possible. I’m not arguing here that this is good or bad. I’m merely trying to point out that “water flows uphill to money” is a myth, and that it gets in the way of sane water policy conversations.

More water law coverage here.

#COWaterPlan: Historic effort would craft water policy for next 50 years — The Durango Herald

Dolores River Canyon near Paradox
Dolores River Canyon near Paradox

From The Durango Herald (Peter Marcus):

The July 2 release of the plan marks a critical juncture for Colorado’s Water Plan, which has been hailed by Gov. John Hickenlooper as one of the most important pieces of policy facing Colorado. The draft was actually released about two weeks early…

Local and state water officials will hold a meeting in Durango on July 20 at the Holiday Inn and Suites, where state Sen. Ellen Roberts, R-Durango, James Eklund, director of the Water Conservation Board and Mike Preston, chairman of the Southwest Basin Roundtable, are expected to give an overview.

Preston said the plan represents an opportunity to frame the future of water in Southwest Colorado and throughout the state for the next 50 years.

Included in the water plan are proposals from eight separate water basins, including a roadmap provided by the Southwest Basin Roundtable. Conversations between those roundtables have been taking place for 10 years.

Policy-makers must balance the interests of rural Colorado – where water is precious for agricultural needs – with the needs of the rapidly expanding Front Range and suburban communities. One sticking point could be transmountain water diversions for Front Range communities. Front Range plans call for more trans-mountain water, but Preston questions the viability of such a strategy.

Officials must also preserve the state’s “prior appropriation” system, in which rights are granted to the first person to take water from an aquifer or river, despite residential proximity. Water rights often dominate policy conversations.

The Southwest Basin is complicated, flowing through two Native American reservations and including a series of nine sub-basins, eight of which flow out of state. Complexities exist with agreements with the federal government, which owns large swaths of land in the region.

Goals outlined by the roundtable for Southwest Colorado include pursuing projects that meet the municipal water gap; providing safe drinking water; prioritizing conservation; and promoting water reuse strategies. For example, one strategy outlined would reduce lawn watering. The plan also calls for evaluating storage options.

Overall, the statewide plan outlines $20 billion worth of infrastructure projects to consider through 2050. The Southwest plan includes about 120 projects aimed at addressing agricultural, municipal, industrial, recreational and environmental water supply gaps, according to Preston. Multi-purpose projects are a priority, he said.

Preston said he has a team currently combing through the second draft of the plan to determine what changes occurred from the first draft. He was not immediately able to comment on any updates to the plan.

“We’ve got a lot of substance, really a 50-year strategy in the plan, and then a bunch of unresolved issues on a statewide level,” Preston said. “So, we’re really going to press for broader community education and engagement from here forward.

“This is a living document,” Preston added. “We’re pretty serious about what’s in it, both in terms of trying to develop our own supplies for the future, and how we need to participate in the statewide exercise.”

More Colorado Water Plan coverage here

The Arkansas Basin Roundtable ponies up $10,000 for WISE project


From The Pueblo Chieftain (Chris Woodka):

It didn’t quite amount to paying northern cities to stay out of the Arkansas River basin…but it could help.

The Arkansas Basin Roundtable Wednesday agreed to chip in $10,000 to a multimillion-dollar project by the Water Infrastructure and Supply Efficiency partnership, but only if Aurora promises not to use it to create an artificial trigger for more leases from the Arkansas River basin.

The money is just a show of support for a $6.4 million component that would get the right mix of water into a pipeline that connects Aurora’s $800 million Prairie Waters Project with a $120 million pipeline south of Denver to meet the future needs of 14 water providers who are members of the South Metro Water Authority.

Seven of the state’s nine roundtables, including the Colorado River basin, have contributed $85,000 to the project. Two roundtables are set to act on requests for $20,000 in the next two months, and another $800,000 is being sought from a state fund. WISE is ponying up $5.5 million.

The Colorado Water Conservation Board will be asked to approve the grants in September.

WISE would deliver up to 10,000 acre-feet annually of reused water primarily brought into the South Platte River basin by Denver and Aurora. Its backbone would be nearly $1 billion in existing infrastructure.

The $6.4 million would be for a treatment plant that would blend Prairie Waters and well water in the East Cherry Creek Village pipeline. That would relieve demand on Denver Aquifer groundwater and the need for cities to buy farm water — including Arkansas Valley water — said Eric Hecox, executive director of the South Metro group.

“In the big scheme of things, this is important because it meets a need in a big gap area,” Hecox said.

The proposal caused unease for water conservancy districts which have agreements with Aurora, however.

“The city of Aurora transfers water out of the Arkansas basin,” said Terry Scanga, general manager of the Upper Arkansas Water Conservancy District. “This project increases demand on Aurora’s supplies. I’m not OK with this unless there is some sort of amendment that says if (a storage shortfall) is triggered, they won’t come back into the basin.”

Aurora signed agreements with the Upper Ark, Southeastern and Lower Ark districts over the past 12 years that limit new leases from the Arkansas Valley. There are numerous requirements of how Aurora uses and stores water that factor into a complex equation.

The roundtable agreed that the benefits of reducing demand on the Denver Basin aquifer in northern El Paso County would help the Arkansas Valley. The WISE project would also slow, but not necessarily stop, future water raids in the Arkansas Valley.

Jay Winner, general manager of the Lower Ark district, asked Hecox about South Metro’s 2006 master plan that included future Arkansas River projects as options. Hecox said a new master plan is being developed that does not contain those projects.

“So you can come into the Arkansas basin?” Winner asked.

“Legally, yes,” Hecox replied. “But we have no plans to.”

In the end, the roundtable endorsed the $10,000 token support, but only on the condition that Aurora formally assures the three districts and the roundtable that WISE won’t be used as an excuse to take more Arkansas River water.

More WISE project coverage here.

“Coloradans like a good story” — Justice Gregory Hobbs

Greg Hobbs at the 2015 Martz Summer Conference (of course there is a projected image of a map -- this one was the division of Colorado into water divisions by major basin, heeding the advice of John Wesley Powell)
Greg Hobbs at the 2015 Martz Summer Conference (of course there is a projected image of a map — this one was the division of Colorado into water divisions by major basin, heeding the advice of John Wesley Powell)

Here’s a long article about Greg from Marianne Goodland writing for the The Colorado Statesman. Click through and read the whole thing, here’s an excerpt:

When Gov. Roy Romer decided to appoint Hobbs to the state’s highest court in 1996, it was the realization of a career-long goal for the attorney. But Hobbs jokes a little about the day he learned he would be Romer’s pick.

He met with Romer, who had a tall stack of recommendation letters on his desk. Hobbs was one of three nominees for the Supreme Court vacancy, and would be among the seven justices Romer appointed during his 12 years in office.

When Romer asked Hobbs why he should appoint him to the Court, Hobbs says he replied that he holds the institutional knowledge of the various panels that work on natural resources issues. He’d drafted bills for the Legislature, and he’d worked with citizens’ boards and commissions, where he had to work collegially. That’s what Romer wanted: someone who knew how to get along with what was then a fractious group.

“You’re a flawed candidate,” Romer joked with Hobbs, referring to the stack of recommendations. Among those letters were commendations from Jim Martin, now at the Beatty & Wozniak firm and a former director of the Colorado Department of Natural Resources. Hobbs worked with Martin when Martin was on the staff of Sen. Tim Wirth, collaborating on a landmark 1993 wilderness bill. Romer waved Martin’s letter at Hobbs. “That’s the one,” the governor said.

Even with that support, though, Hobbs recalls that environmentalists were a little concerned about his nomination, given some of his past clients. “I’m not saying he exercised a freebie on me, but he put me on my guard,” Hobbs said.

And then the governor asked for two other things: “Don’t put any poetry in your opinions,” as some judges are fond of doing. (Hobbs, a published poet, agreed). Second, Romer said, “Go home and get a tie. A real tie.” (Hobbs usually wears a bolo.)[…]

Asked where his abiding interest in water comes from, Hobbs says, simply, “Luck.”

The Environmental Protection Agency and a host of federal air and water quality laws were in their infancy while he was in law school. “I got in on the ground floor of the environmental decade,” he said.

After San Francisco, Colorado beckoned again, and Hobbs wound up at the EPA, working on air quality issues for three states. What he learned from that experience, he said, was that the “front-line attorneys” on the air quality issues worked in the attorney general’s office. The action for a young attorney was with the attorney general, he said.

That’s where he headed next. The department was in the midst of a big reorganization. Prior to 1975, attorneys for each state agency were based within their agencies. The reorganization brought all the attorneys into the attorney general’s office, and Hobbs was asked to take on the natural resources area, including water quality, water rights, and air quality issues…

After serving at the attorney general’s office, Hobbs’ career as the water law expert got its next big push when he joined Davis, Graham and Stubbs in 1979. His biggest client was the Northern Colorado Water Conservancy District, the largest water district in the state. “I never expected to be working for a public entity,” he said. “How could you want for a better water client?”[…]

His first mentor on the high court was Chief Justice Anthony Vollack. “I really lucked out with that,” Hobbs said. Vollack, a former state senator, and a former “member of the club,” was an expert on getting what he wanted from the General Assembly…

He explained the process for voting on a case. Nothing is voted on until all seven justices are ready to vote. Hobbs said if a justice isn’t ready, and needs more time for thinking, writing and forging the best opinion, that justice can ask for a “pass,” and the vote is delayed.

“I‘ve always tried to write for 7-0 but I’m satisfied with 4-3,” he said with a smile.

What stands out on cases? How hard it is, Hobbs said. It’s the avalanche of reading, the travails of writing to expert colleagues, and vetting the writing with the law clerks.

“We think we have a good draft, propose it and six other people have something they want you to consider,” he said, laughing. “We all see it a little bit differently. We’re working with language. Words are the coin of the realm.”

Hobbs, ever the teacher, said good opinions are written in an active voice. “If you can’t take the rule of law and put it in active sentence how can you expect the General Assembly and the clients or lawyers to understand it?”

Every justice writes in every field, Hobbs said. He stands out on water law because he’s practiced it and knows the nuances. “I write more in-depth when I’m writing an opinion. When you write in someone else’s expert field, like criminal law, you tend to be a little more tentative. You have more resonance in a majority opinion if it’s a field you’ve practiced in.”[…]

“My maturation as a justice came in writing water opinions,” Hobbs said. One of the biggest opinions was the Fort Lyons case, which involved 100 miles of canal, and an investor group that bought one-third of the shares of the canal. They went to the water court for a change of use order, but without specifying what the new use would be. “We rediscovered [through that case] that Colorado water law is anti-speculation,” Hobbs noted…

Hobbs, ever the teacher, said it’s no accident that Colorado’s borders form a trapezoid. It was a decision by the Union Congress during the Civil War to make sure the whole of the Continental Divide, and the four major rivers, was in one state. It served as a barrier against the Confederacy and against Kansas, a pro-Confederacy state. Colorado’s borders ended the wagon train routes for the Confederacy to Colorado’s mineral riches, especially gold, Hobbs said.

What’s next for Hobbs? He said he’s talking with the University of Denver and Colorado States University about teaching advanced seminars in water law.

He also hopes to be more involved with the statewide water plan, which released its second draft earlier this week. Hobbs, a member of the education committee for the plan, wants to work on educational outreach…

What he finds interesting these days: in addition to his duties as a Supreme Court Justice, Hobbs serves as vice-president of the Colorado Foundation for Water Education, working on the Foundation’s quarterly magazine, Headwaters. It’s been a unique situation, Hobbs said, to be able to teach and write in that way under the judicial canon of ethics.

If you walk around the first floor of the Ralph L. Carr Justice Center with Hobbs, you’ll see another sign of his passion for education, an interactive display with state-of-the-art tools to teach children of all ages about the law. Hobbs delights in showing off the education area, pointing out his favorite sections, asking what visitors know about important decisions in Colorado law. He does all of this with a twinkle in his eye, clearly enjoying the experience of sharing his knowledge.

“There’s always something interesting to do, like working on educational outreach for the water plan, if I can help,” Hobbs said. “Coloradans like a good story.”

Coyote Gulch posts referencing Hobbs here and here.