French novelist Emile Souvestre famously wrote in 1848 that “There is something more powerful than strength, than courage, than genius itself: it is the idea whose time has come.” It was later paraphrased by Victor Hugo, often quoted as, “More powerful than the tread of an army is an idea whose time has come.”
It is an uplifting thought for people with good ideas that nobody else seems to get. We wonder if the idea’s time is coming soon.
When I headed the Colorado Department of Natural Resources in 2003, we helped convince the legislature to update conservation easement rules to allow easements not only on land, but also on water. A decade later no one had yet tried the novel idea, though Colorado was the first state legally to enable it. I wrote in 2013, “Several years later the idea is still considered experimental, and few people have tried to buy or sell such an easement – yet. It is an idea whose time is surely coming…”
I repeated the hope in one of my earliest Daily Sentinel columns in 2016, because I thought then, as now, that this idea is a potentially powerful tool for saving farms, ranches, and open space against the thirst of growing cities. The concept is simple. Conservation easements are already common for saving land from future development. Landowners sell their “development rights” to a land trust or local government and their deed is then restricted against the ability to subdivide, build houses, or change the essential character of farms and ranches. For the public, valued open space is preserved. For the landowner, the easement can infuse the operation with the one thing it needs most – cash – without having to sell out to developers. So why couldn’t the same tool preserve water rights on farms and ranches?
Water rights are often worth at least as much as the land, sometimes much more. It is hard to blame farmers for selling to a growing city for more money than they could ever hope to earn farming. Yet despite the desperate need for water in many cities, most residents understand that drying up farmland to gain that water is a long-term mistake. So, if society wants the farmers to hold out and refuse to sell their water to the cities, why shouldn’t we pay them for that decision, just as we often pay them to preserve the land itself?
Hope springs eternal, and at long last, the tool has been used successfully in Colorado – not to preserve surface water rights, but groundwater (perhaps even more creative). The nation’s first groundwater conservation easement was negotiated on an 1,800-acre farm in the San Luis Valley a couple years ago, and some of us wondered, “Has the idea’s time finally come?” Unfortunately, few others noticed, but the word is finally getting out about this imaginative, creative approach to conserving water without killing agriculture. That is largely thanks to the research and superb writing of Paul Schwennesen, whose article, “Easy Does It,” appeared in the quarterly “PERC Reports” published by Montana’s Property and Environment Research Center. Schwennesen is an Arizona rancher and director of the Agrarian Freedom Project who regularly contributes to PERC, where he has been a fellow since 2020. He is known for his free-market approach to environmental stewardship, and his work has brought considerable attention to the potential of conservation easements on water.
The recent PERC article chronicles some of the West’s “water wars,” and concludes, “there may be another way – a cooperative pathway defined by voluntary exchanges.” He recounts “the extraordinary degree to which free market transactions operating on cooperative principles can generate environmental surpluses rather than merely more fights over relatively scarce resources.” He is spot-on in writing that “voluntary water conservation efforts like these may do far more for water conservation with far less teeth-gnashing than approaches that rely on regulation or mandates.”
Allowing conservation easements on water has tangibly turned water rights into valuable, sellable, property. Schwennesen succinctly explains, “True property must be definable, defensible, and transferable.” Such easements add that essential third element, making it possible for landowners to stay on the land, and rural communities to remain vibrant and thriving.
Now that conservation easements on water have been demonstrated successfully, and especially now that people are finally hearing about it – not only in Colorado but across the West – I am confident other states will also update their laws to encourage this creative approach. It is an idea whose time has finally come.
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