Update:  Kudos to Kim Lawrence, despite the below rant.  He successfully negotiated the decree in 02CW335 (the GMS decree) without going to trial.  He have up a lot though – namely, presumed depletion factors and a horribly restrictive projection of augmentation supplies (“Table-2″) – but he got it done.

We’ll be brief tonight.  Back in the 70′s a slew of augmentation plans were taken through court, successfully.  Think:  Upper and Lower Platte and Beaver Canals, Bijou, Western Sugar, Cache la Poudre Water Users, etc.  By today’s standards these plans were crude, but they worked.  Their members were able to pump their wells, and they continue to pump their wells today.

Central could have done the same, but they didn’t.  Their original engineers – namely, Morten Bittengerand associates – advocated for going to Court to obtain a court decree for their annual substitute supply plan.

Kim Lawrence and the Board of Central chose not to.  Until thirty years later when the Court said they had to.  What happened in those thirty some odd years?

Central beat up on other water users. Central was the “Boulder” during the 80′s and 90′s.  Who was their chief outside consultant and engineer?  Forrest Leaf. 

Between Central’s lead attorney Kim Lawrence and their engineer Forrest Leaf (and later manager Tom Cech), Central was today’s Boulder. 

Central left a bad taste in some people’s mouths that lingers today.  Take for exampel Central’s extortion of about 1 cfs out of the City of Arvada for their Church Ditch change of use (something completely irrelevant in every other previous change of use on the Church).  Arvada’s attorney at the time?  Ronni Sperling.

Our point is NOT to lay blame.  But people shoud know that what goes around comes around, and, at least to some exent(certainly not all) Centraldug its own grave in this mess.  To be sure, Boulder/Centennial et al, are digging thier own today. 

Water in Colorado IS NOT about power – or, at least, it shouldn’t be.  Central was the dominant force on the South Platte a decade ago.  Now a single law firm controls the river.  Policy should dictate water use, and themes of equity and maximization of benefical use should dictate policy in the State. 

There is so much wrong with Colorado’s so-called “water law” today…

P. Andrew (Andy) Jones.  Central’s attorney.  Surprised?  Here’s the real story…

Along with everything else that was going on, namely the positioning leading up to the Central WAS trial, Central was working on a relatively straight-forward change of some share on the Jones Ditch – a small, very senior right on the Poudre just upstream of Greeley.  The case was heading towards trial and negotiations on a decree were proceding reltatively smoothly.

Except that Central wouldn’t budge on a couple of provisions in the decree which were somewhat controversial.  Our recollection was that the provisions had to do with Central’s ability to aggregate replacements over the winter. 

Boulder essentially gave Central the change to get their decree: remove the provisions and Boulder would stipulate.  Central refused, and they were headed to trial.

Boulder took the gloves off.  That’s when they went to the attic of the Weld County courthouse and pulled the original testimony given in the adjudication of the Jones Ditch water right.  Though not entirely clear on its face, the testimony indicated that there was an expansion of the Jones Ditch right, and most if not all of Central’s historical acreage was located outside of the intended area (hence, the expansion).

It’s important to note at this point, that the law is fairly clear on this point: illegal expansions are not entitled to credit.  There’s a few nuances that are worth arguing, but any reasonable attorney would see the problem.

Which is why when, in the middle of trial, it was becoming increasingly clear that Central would lose and get virtually nothing out of the case, and a compromise settlement was still available, Andy Jones should have settled.  He didn’t.  Central got virtually nothing from the trial court.

The appeal taken by Andy Jones for Central would be worse.  Justice Eid had only recently been appointed to the Supreme Court and this would be one of her first opinions.  Characteristic of opinions by Justice Hobbs, Justice Eid’s opinion said that shareholders are entitled to a pro-rata portion of the ditch-wide historical consumptive use, and expansions that occurred long ago which no one has complained about are not entitled to any credit. 

We’ll explore the real problems caused by the Jones Ditch decision, but the lesson here is that as an attorney representing a client, you need to evaluate your position and advise and do what’s best for your client. Andy Jones didn’t.  A settlement that would have preserved at least some water for Central he rejected when it was clear he had a losing position. 

Even seen in the most favorable light – that Andy Jones was ‘fighting’ for what he and his client saw as ‘right’ – he did so poorly.  Even before trial, the Court issued a ruling that largely destroyed the case for Central.  The trial was, in effect, a fight for just a few acre-feet of water at that point.  In the end of course, Central got nothing – tens of thousands of dollars of Central’s members’ money wasted tilting at windmills.

It wasn’t Boulder’s fault; Boulder will be Boulder, and Boulder had precedent on its side.  Andy Jones – and perhaps Tom Cech – made a poor decision, and didn’t recognize this.  It was Andy Jones’ fault.

There’s an additional 256,000 acre-feet of senior conditional rights on downstream tributaries which would further reduce the available water supply for Glade.  There also about 1400 cfs of conditional rights downstream of the Poudre on the South Platte mainstem.

Still think there’s going to be water available for NISP in the future?

The Arkansas River Compact of 1948 “equitably” divided the waters of the Arkansas River between Colorado and Kansas.  The Compact was intended to preserve the ‘status quo’ on the river, requiring that the flow at the State Line not be “materially depleted in usable quantity or availability for use…” 

Colorado was found to be in violation of the Compact, and ultimately was required to pay millions in damages to Kansas.  For the most part, Colorado’s violation of the Compact was due to unregulated ground water development and use since inception of the Compact.

Now the State is concerned that improvements in efficiencies of surface water use will cause additional depletions to the Arkansas River.  Essentially, increased efficiency will reduce return flows causing additional depletions to the river. 

So in September last year the State Engineer sent out proposed rules which would apply “to any person or entity whatsoever using, claiming or in any manner asserting any right to the use of surface waters of the Arkansas River under the authority of Colorado in whole or in part for agricultural irrigation…”  Basically, any person desiring to increase irrigation efficiency would have to obtain approval from the State Engineer first, and if such improvements would decrease the return flows – that is, increase consumption – there would be a return flow replacement obligation.  In other words, put in a center pivot and you’ll be forced to put additional water back to the river. 

This puts an additional burden on farmers with short water supplies who want to increase their irrigation efficiencies.  First there’s the cost of the improvements themselves, then there’s the cost of hiring an engineer – potentially - to do the return flow evaluation, and then there’s the cost of establishing means to actually make the additional return flows.

There’s a lot of problems on the Arkansas.   Poor water quality, particularly problems with salinity, threaten to destroy agriculture in the Basin.  As CSU is finding a lot of the problems can be solved through increases in efficiency – both on farm, and conveyance efficiency.  So to add an additional layer of necessary approval to address these needs is just a further burden on the livelihood of the Basin.

It seems to us that, while the State did what it could to protect the water users in the context of the Compact litigation, the State is placing the entire burden of its own historical – and maybe historic – misteps on the water users with little or no assistance. 

The State has, essentially, given up.  Instead of coming up with a comprehensive solution – or at least trying to – the State has told the water users it is up to them and the State will simply regulate.  The State is in the best position to develop a solution for the Basin as a whole, not individual water users.  It is almost cowardly how the State, after losing big to Kansas, has come crawling back and is now placing the onerous on the water users. 

The problems on the Arkansas require basin-wide changes in management and administration, not additional burdens on water users.  The folks in the Division 2 Office need to get out of their cubicles, stop staring at their computer screens writing rules and developing models, and do something good for the Basin and its water users.

Updated to allow plays on “First in Time, First in Right”…

From Boulder’s website:

Litigation

When a water right is acquired, the purchaser often wishes to transfer the water represented by the right to some other point or type of use through legal process. Using city and contract legal services, the Utilities Division monitors all local water rights legal cases to ensure that the proposed changes have no detrimental impact on the city’s water operations or local ditch company interests. Legal issues arising from city transfers are also litigated, with emphasis given to ensure that ditch company operations are not impacted by the transfers.

Awe, they’re such a bunch of do-gooders, aren’t they?

The answer is  a little less obvious than it might seem at first.  By reducing future use of a water right back to what was originally intended at the time of the appropriation – in the case of senior ditch rights – additional water does not, contrary to popular belief, end up going to the next downstream senior right.  Instead, as a general rule, it gets allocated upstream.  Here’s why…

Contrary to popular belief, the river is not administered strictly on a senior call basis – i.e., the senior right places its call on the river based on its senior priority date.  Rather, the senior places a call, but the State Engineer administers the call with a date junior to the senior’s priority date.  The effect is to allow upstream junior water rights to divert, but not completely under their own rights, and in essence bypassing water downstream to the senior right.  Hence the use of the “bypass call“. 

So what happens when the downstream senior right is restricted based on a determination of an impermissible expansion?  The amount of water from upstream water rights that must be bypassed to the downstream senior right is reduced.  Thus, the water moves upstream, not downstream.

Take the Jones Ditchcase for instance.  The result was to reduce diversions by the Jones Ditch because of its “illegal” expansion, putting more water in the reach of the Poudre River between New Cache and the Greeley No. 3 Canal.  However, New Cache’s most senior rights are senior to all but the #3′s first about 50 cfs.  So New Cache bypasses just enough water in the reach to satisfy the #3′s first priority (about 50 cfs).  The rest New Cache diverts (at most times of the year).  By reducing diversions by the Jones Ditch, New Cache must bypass less water to satisfy the #3, thus, New Cache – the upstream right – is the direct beneficiary of the Jones Ditch decision under most river conditions.

This may not be the case in every scenario or set of circumstances, but we think it’s worth keeping in mind when evaluating these “illegal” expansions.

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.