I was looking for Ed’s Water Law Glossary online and ran across this column from 2001 that ran in The Denver Post:
Back when I made editorial hiring decisions for various small-town newspapers, I theorized that I could simplify the process by requiring applicants to take a simple essay test: “In 200 words or less, explain the difference between a conditional and an adjudicated water right, and define what role is played by “due diligence’ in this process.”
The main reason that I never used this test is that anyone who could pass it would be someone I’d be in awe of, and that would have ruined office discipline in a workplace where I was supposed to be in charge.
But in recent years, I’ve decided that the best way to approach Colorado water law and administration is to minimize the legal and technical issues, and look at it as though it were a variety of religion.
After all, there’s a “doctrine” of prior appropriation, and old propaganda for various irrigation schemes speaks of “redeeming” land, as though the ter rain had somehow sinned but, with some reservoirs and canals, virtue would triumph and the prophet Isaiah would be right that “The desert shall rejoice, and blossom as the rose.”
The Colowater religion has a priesthood of attorneys and engineers who understand important matters that are beyond the comprehension of mere lay people like us. It has synods, sees and presbyteries in the form of special water courts, conservation districts and conservancy districts.
Like all worthy religions, Colowater has a charismatic prophet, John Wesley Powell, and his utterances are like those of most oracles – subject to interpretation that can support just about any view you want to advance.
You can quote Powell about the scenic glories of the free-flowing Colorado River through its labyrinthian canyons, and you can quote Powell about how the West would become a better place after the last drop had been diverted from the natural channel of the Colorado River and put to beneficial use.
In other religions, people argue about the meanings of words and phrases in the sacred text, and the same is true for our Colowater denomination. The definitions of “diversion” and “beneficial use” are being examined again this week in the Division 1 water court in Greeley, which handles cases in South Platte drainage.
The city of Golden has applied for a water right in Clear Creek for a kayak course.
That raises some doctrinal questions. If the water is flowing through its “natural course” in the creek bed, how is this a diversion? In general, water has to be re moved from its natural course by some artificial means (dam, weir, pump, etc.) in order for there to be a diversion.
There have been some arguments that placing boulders in the stream and otherwise adjusting it for better kayaking does represent a change in the normal course. Thus it’s a diversion. That does seem like a stretch, but such extensions are not unusual in religious discussions. And is floating through the water in a small boat a “beneficial use”? Golden municipal officials point out that kayakers bring about $4 million a year into town, so there are economic benefits to this use of water, just as there are economic benefits to irrigating cornfields or supplying subdivi sions.
But the Colowater scriptures were formed in the late 19th century, and the revelations to the Founders did not include the vision that there was any economic value in leaving water in a stream.
To them, that was wasting a scarce and valuable resource that could be used in sluice boxes, long toms, rockers, stamp mills and potato fields.
But in modern Colorado, water in the banks leads to money in the bank. The most recent numbers at hand are from 1997, and they concern only Chaffee County (which, of course, is where people should go for kayak ing and rafting, assuming that they plan on spending a lot of money in the process).
Most water diverted here from the Arkansas River and its tributaries goes to agriculture, and total agricultural sales were $5.097 million – mostly cattle and calves, hay, and nursery and greenhouse stock.
Tourism, much of it based on fishing and float trips down the river, brought in at least $34 million – nearly seven times as much as agriculture.
Colowater doctrines will adjust. After all, there is one supreme commandment in our hydraulic religion, enunciated by former Gov. John Love: “In Colorado, water flows toward money.”