200 years of Colorado history behind one water decision
By Forrest Whitman
A couple of years ago Gilpin County and the Dory Lakes Homeowners Association were busily sparring over who did what with the water in Dory Lake. That dispute was covered in this paper. This was no idle discussion. Both sides spent a lot of money on lawyers and engaged in years of debate. Several members of the homeowners association accused the County of taking too much water out of the lake and inevitably killing the fish. The County countered that it was basically County water and needed to be used for the common good and welfare of Gilpin County. As the negotiations continued no one gave Colorado history much thought. In fact, this water court case carried a lot of history with it. It seemed to me that the whole history of Colorado water law was wrapped up in that one dispute.
200 years of water democracy
Both sides in the case had some water rights in Dory Lake. The question was whether or not the homeowner’s group had enough rights to force the County to keep more water in the lake, especially in dry years. When the water court finally signed on to the agreement, some years of negotiation had happened. In a historic sense, 150 years of negotiation had happened. The basic principles of Colorado water have a least that long a history. The ghosts of men like John Wesley Powell, Edward Taylor, Delphus Carpenter, and Wayne Aspinall were looking over that negotiation table.
Colorado water law has from the beginning upheld the principle that those who first used any water had first rights to the water. However from the beginning local water bodies have had a say in how water was parceled out and which sources needed to be protected. Water conservancy districts have long given out permits to use water which was then replaced from other sources. This is called augmentation and has been a somewhat democratic process. Water boards have held contested elections and local water policy has long been a staple of cafe debate. Water has, in that sense, been democratic in Colorado.
Water fights of 150 Years
Early water barons bought up water in many a western state and assumed it was theirs to sell. We saw one of those “plays” just recently done by Mr. Million. He’s been buying rights to move water from Flaming Gorge in Wyoming to the Denver market. Unlikely as it sounds, this “play” has been getting lots of press. Ideas like his have long been fought by those who believed in rural hydraulic democracies. The 1854 acequias (water ditches) in counties like San Luis were set up under the old Spanish system 200 years ago. These were direct democracies. The local group decided who needed the water the most. To some degree, local water conservancies follow that pattern today. Augmentation permits are generally given out with an eye towards the general welfare of all on the system. All of that history was hovering over the table as the county and the homeowners group negotiated.
John Wesley Powell and rural hydraulic democracies
When John Wesley Powell first made the incredible journey down the Colorado River in the 1860s he found plenty to speculate about. He realized that the resource of water in the west would be limited. His hope was that it could be shared in a democratic manner in a sort of hydraulic democracy. In a way Powell’s idea was present in the Dory Lakes case. Gilpin County could have simply gone in and declared that since the existing senior water right was with the County, no more discussion need happen. But, there was plenty of discussion. The County agreed to install a new pipe system to allow for the water to be exchanged downstream. The County agreed to only take water from the lake to be used on roads in Dory Lakes, and several other concessions were made. Included in those was an aeration system to keep the fish alive.
The principle of “first in use, first in right” was present at the table. The County held a very old water right. That meant that, in all years so far, Gilpin could use the water flowing into the lake. That could be for road work, to augment water used at the community center, and for many other uses. The homeowners had a very small water right and that filed only in the 1970s. Chances of their getting any water were slim to none in the over-appropriated Ralston Creek drainage. Still, the fish were considered as were the concerns of home owners. Once the settlement reached water court, the “first in use” principle was upheld, but also the democratic use of water, as negotiated, was upheld.
1902 at the table along with 1939 and 1973
The needs of the entire state were also represented at the table. Unlikely as it is, under the 1902 reclamation agreements, all water in the state can be diverted to meet interstate reclamation needs. Recently that has included the existing “Winter’s Decision” water rights of tribal groups. When Delphus Carpenter, “the silver fox of the Rockies,” negotiated the Colorado River Compact with all the contiguous states and California, it was stated that all water could come into play to meet compact requirements. That’s not likely to happen to Dory Lake, but it could. Then in 1939 the “great and growing cities” doctrine became another factor in the water debate. Water storage for the Denver metroplex could now figure in. Congressmen like Edward Taylor and Wayne Aspinall got legislation guaranteeing water for the western slope. Not only that, in 1973 the “guaranteed in-stream flow” came along. Now no one can completely dry up a stream. This all means that all users state wide are sharing in the water resource. Today water is a completely “developed resource.” All of that is in the background as water courts make decisions. Precedents for at least 150 years are at the table. All of that could, someday, influence the wet water flow into Dory Lake and out again.
Working it out back and forth
Water law is a strange beast. The legislature makes water law, but then the water courts interpret it. The state water engineer has a great deal of authority over what actually happens. Then local agreements, like the one in Dory Lake, happen and often are renegotiated all over again. Colorado water history is one of working it all out. That’s what happened at Dory Lake. Few noticed it, but over 200 years of history was present at the table.