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Can’t we all just get along?

Ken Neubecker

Colorado has more water lawyers than any other state in the country. Maybe that’s fitting as Colorado is the source of many major rivers in the west. The Green River is the only river that actually flows into the state, before flowing out again to join the Colorado in Canyonlands.Litigation has long been one of the primary avenues for solving water rights disputes. Each of the western states has its own system of water law, with their own quirks and procedures, there own attitudes and history regarding water. Colorado developed its system earlier than most, adopting the doctrine of “Prior Appropriation” in its purest form. This is known as the Colorado Doctrine.The other states neighboring Colorado don’t all adhere to the same system. Most Western states use a form of prior appropriation similar to Colorado, although Colorado is the only state to use water courts rather than permits. California uses a mix of the Riparian System (more common in the East) and the Prior Appropriation system. This created an interesting mix, and basis for litigation between the states early in the twentieth century. Everyone seemed to be suing Colorado over the water left to flow downstream and out of the state. Nebraska, Kansas, Wyoming, New Mexico and Texas were all involved in litigation with Colorado. When one state sues another, the only court they go to is the US Supreme Court. In 1920 it looked like the Supreme Court was going to be making all of the decisions regarding Western water.That didn’t sit too well with Delphus E. Carpenter, a water lawyer from Greeley. Carpenter was a son and grandson of pioneers who had built the Union Colony and the irrigated agricultural framework of northeastern Colorado. He was also a strong supporter of prior appropriations and states rights. He became Colorado’s Interstate Streams Commissioner and was perhaps the most significant figure in creating the legal framework we have today regarding water shared between the western states.Kansas had sued Colorado claiming Colorado was taking too much water and not being equitable to downstream users. Colorado’s argument, and one that Carpenter subscribed to, was that Colorado was sole owner of all water originating within its borders. Needless to say states like Kansas, Nebraska and New Mexico would have a hard time accepting that on rivers like the South Platte, Arkansas and Rio Grand. The Supreme Court agreed with Kansas.Next, Wyoming sued Colorado, and an irrigation company that Carpenter represented, on taking water out of the Laramie River. Wyoming claimed rights by prior appropriation. Again, the Supreme Court ruled against Colorado. Before that ruling, Carpenter realized that if Colorado was going to preserve its water, and its future, it needed to find a way to work out agreements with the other states that didn’t involve the courts. California and Arizona were eyeing the Colorado River and if they got there first with a prior claim, that could really hurt Colorado’s future.Delph Carpenter’s solution became the Colorado River Compact. He was the architect of the agreement, and with the able chairmanship of Herbert Hoover, got all the Colorado Basin States to sign and eventually ratify the Compact.Although there were problems, most noticeably that there isn’t nearly as much water as thought at the time, the Compact has worked well and provided the foundation for the “Law of the River”. The Compact has let Colorado develop and grow at its own pace for the past 80 years without worrying about loosing water to the lower basin states. That more than anything else was Carpenter’s goal.Russell George, the head of Colorado’s Department of Natural resources, has suggested the idea of water compacts between river basins within the state, Intra-State Compacts.The idea is intriguing. Such a compact could define, forever, the amount of water removed from one basin to another. It could establish the conditions under which such water was taken and when. It could provide a framework for cooperative projects that could supply water for both sides of the divide. It could stipulate guarantees that would protect the environmental and economic interests of the “donor” basin. Could such a compact be created between the South Platte basin and the Colorado basin? Or the Arkansas Basin?There are still many complications and considerations to examine before the idea of Intra-State compacts could be realized. Would they even be legal in Colorado? It would also present a situation where, like the Colorado Basin States, the differing parties would have to surrender some aspects of sovereignty, some of their legal rights and prerogatives.In 1922 there seemed to be more water in the river than anybody could ever use. Delph Carpenter made the prediction that it would take 100 years for Colorado to use its full allotment under the Compact. He was pretty close. Now the question is whether we have enough water to go around for everyone, and what or who will be limited in the future.The other question is how we are going to decide. Will it be through litigation or some sort of collective agreement, a ‘Compact’, and who will be at the table when the agreements are made. VTKen Neubecker writes about water and the environment for the Vail Trail. He can be reached for comment at eagleriver@eagleranch.com.


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