A Little Push-Back

by Greg Walcher on June 26, 2016

In May, Colorado Governor John Hickenlooper signed into law a bill designed to give the federal government something it has needed for a very long time, a shot across the bow. Federal attempts to own and control the water in western states have been a raspberry seed in our wisdom tooth for years, but when the Forest Service actually tried last year to confiscate ski areas’ water rights, they pushed too far. This time Colorado pushed back.

Mountain streamIt isn’t often that legislation on subjects as complex as water pass both Houses of the Legislature unanimously (actually never before). Until now. The Colorado Water Rights Protection Act, as is normal in complex legislative situations, was somewhat “watered down” in order to gain such unanimous bi-partisan support. Nevertheless, it sets a very important precedent in modern water law.

First, the measure re-asserts basic Colorado law, enshrined in the State’s Constitution. Namely, that waters of Colorado belong to the people of Colorado, that they are adjudicated by State water courts, appropriated under State law, and administered by the State engineer. That may seem unimportant because it isn’t new, but it has been many years since the Legislature has said, in essence, we still have no intention of changing our system just because the federal government now considers itself all powerful.

That is more than symbolic. The restatement of principles reminds federal agency landlords that they, too, serve the public and must operate under the law. Moreover, it signals the State Attorney General, and State agencies, that they are not only cleared, but encouraged, to take legal action when Colorado water rights are threatened by federal overreach.

The “watered down” part was a little disappointing to many of us who for years have fought these power plays from the Forest Service, BLM, and Park Service. Specifically, the legislation acknowledges that there is such a thing as federal “reserved water rights,” something Colorado and other western states have never really officially agreed to. It just means that when Congress “reserved” federal lands for specific purposes (like national forests or parks), it implicitly reserved the appurtenant water, as much as needed for the purposes of the forest or park. That may seem innocuous, but the Forest Service has tried to use reserved water rights as a tool to take water from long-standing uses, so our history makes us skeptical of the idea. Worse, the bill disclaims any effect on something the feds call “bypass flow” requirements. That refers to national forest rules requiring water rights owners (like ditch companies) to leave some portion of their water in the stream for environmental purposes, which were not part of the original court decrees. That is a taking of private property for public purposes, without the “just compensation” required by the Bill of Rights.

That’s all water under the bridge, battles westerners have fought with these federal agencies for 30 years. But when the Forest Service tried to extort actual ownership of the ski areas’ water rights, as a condition of allowing them to continue operating on the national forests, it was too much. The ski areas sued, the Forest Service lost, tried again, but backed down over the Christmas holiday last year (because the agency knew it would lose again). Now the State has officially said “no more of that.”

This new law makes clear that if any federal agency wants to own water rights in Colorado, it must apply and go through the same water court process as anyone else. It can certainly do so, but in line and with the priority system that applies to all water users. That can be a time-consuming and expensive process, so this is meant to be a financial incentive for the feds to work with us, not against us.

Some observers already say there are no teeth to this. After all, if the feds didn’t care what Colorado wanted last year, why would they care now? Why not just ignore State law, generally considered subordinate to federal law anyway? But in fact there are some teeth in the new law, symbolism aside.

Since the actual administration of water systems and enforcement of water court decrees is done by the State Engineer, this bill requires that office to refuse enforcement of improper federal water claims. So the feds can no longer rely on the State to help subjugate its own citizens. Perhaps more to the point, such federal overreach in the future might find serious obstacles – not just political opposition from ditch companies and water districts, but legal opposition from the State itself.


(A version of this column originally appeared in the Grand Junction Daily Sentinel May 6, 2016)

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