Our “programer” – there really isn’t much to “program” here but he’s the only one who knows how to do it – is heading out this weekend so there will be no posting, or light at best, or the rest of us will destroy the site trying.
Anyway, email us at waterlaw2010@hotmail.com with your thoughts etc. We’re looking for good essays on the real impact of Colorado’s “model” water law, and what the real “model” water law might look like and how it might function.
[...] Jon Caldara wrote an interesting post today onHere’s a quick excerpt [...]
How would someone from Colorado describe our states water law? Is it a courtocracy? Is it a feudal empire with the Water Court as monarch? Maybe, it’s simply mismanagement of a public trust by litigation, for the benefit of attorneys. Colorado water law truly is hard to describe to a native born American, I know I’ve tried. In America we always assume that we are guaranteed certain fundamental rights, inalienable rights you might say. It came as quite a shock that our very own state would use an old federal mining law to circumvent the rights of its own citizens, but that is exactly what they did.
I find it easiest to explain in terms that everyone understands. The supposed “doctrine of prior appropriation” doesn’t have much to do with actual appropriation; it’s really about dibs, the system kids use to determine who gets the front seat. There are a couple of variations, one being in Colorado someone can dibs for all time, unless the rich want it then they take it and just outspend anyone who complains.
The second variation is kings ex, when most folks hear the word “law” they think of there being legal and illegal, in relation to that law. Not so with Colorado water law, some users are evidently on kings ex and don’t have to comply ever. If for example if The City of Boulder was storing a 1860’s direct run right in a lake that has a 1963 decree that would be illegal, right. Wrong, Boulder is wealthy in terms of water and dollars, and because there is no sheriff, no one to force an accounting, Boulder is on kings ex. For Boulder to be caught, another user would have to complain to the court and hope to be able to keep up with Boulder’s willingness to outspend anyone in court, the State doesn’t enforce the law for the law’s sake, Boulder is on kings ex. Boulder County has a farm on the Leggett Ditch, in the 60’s water was pumped up out of the Leggett on to dry farmland that Boulder County eventually bought. It’s clearly illegal, but Boulder County, being in the dark kingdom has the kings ex, compliance to the law is optional. In the most recent tribulations of Colorado water law, loose alliances have sprung up and many have taken advantage of Boulder’s kings ex; Ft. Morgan Ditch Co. may have as much illegal use as anyone in Colorado. Harmony Ditch doesn’t have to hand over the same accounting they demand from others, illegal use on the Bijou Irrigation District, all these and more fall under the wing of Boulder, the Dark Kingdom.
Colorado water law is like a stop sign in Mexico, it’s a way to ticket the poor and barely a suggestion to the rich. The State pulled out all the stops and ordered legally permitted and decreed wells to cease and desist while looking the other way around Boulder County Open Space. A couple thousand well owners as individuals, had no money to comply with the new rules, and no money to fight, in a system that runs on money the poor are lost.
Another aspect of Colorado water law is “over’s”, for many years ground water in Colorado was considered separate, apart from the surface flows. Fifty years after the first wells the state started to change its mind, in the late 50s the State called “over’s” and said they wanted to control ground water use by a permitting process, this didn’t satisfy some of the surface users so the State called “over’s” again and wrote the 1965 Water Conservation Act. To try and spell out a relationship between surface flows and ground water, there was some language in the act that actually protected the wells, again the surface users complained and the State called “over’s” again. That gave us the “1969 Water Use and Determination Act”. By calling “over’s” the court can treat wells as though they have been pumping illegally all these years, of course they haven’t.
So what is Colorado Water Law, nothing, there is no law there is only a court and it’s sycophants doing anything they want with no guidance whatever from the law itself. Colorado Water Law can be summed up by the golden rule “He who has the gold, makes the rules”