Two-thirds of the water that originates in the Colorado mountains must go to downstream states and Mexico, recently retired State Supreme Court Justice Gregory Hobbs noted at the Water 101 seminar on Sept. 25 at the Pine River Library in Bayfield.
This includes Kansas, Nebraska, and New Mecico as well as Arizona, Utah, Nevada, and California.
"The legal doctrine is equitable sharing of interstate waters," Hobbs said. This is governed by an assortment of interstate compacts, starting with the 1922 compact with three upper basin (Western Colorado and parts of Wyoming and New Mexico) and four lower basin states. Compacts are between states, but they become federal law when approved by Congress.
The 1922 compact dictates that 75 million acre feet, averaged over 10 years, must be delivered to the lower basin states. That's measured at Lee's Ferry in the Grand Canyon below Glen Canyon dam and Lake Powell. Seventy percent of that water comes from Colorado, Hobbs said.
There are nine interstate compacts governing Colorado water, he said.
Lawsuits over interstate waters can be filed directly to the U.S. Supreme Court, but "There are no real Westerners on the court," he said. "They didn't grow up with the water rights regime. It's better if you've been dry for a while and understand how all living things are dependent on this resource."
Within Colorado, the hot issue for many years, at least on the Western Slope, has been trans-mountain water diversions to the Front Range. "We are one Colorado. Isn't that the problem?" Hobbs asked. Before his 19 years on the State Supreme Court, he represented the Northern Colorado Water Conservancy District (northern Front Range) for 17 years.
"The water in these rivers is available to Colorado. There's an overlay of federal supremacy," he said. There are trans-basin diversions within the Colorado River Basin and around 24 diversions that go from Colorado headwaters to the east, he said.
Colorado water law is based on prior appropriation (first in time, first in right) and putting the water to beneficial use. A water right is conditional until it's put to beneficial use.
The problem is, "If you can't get your structure permitted by the Corps (of Engineers) or permits to cross federal land, you can't put the water to beneficial use," he said. "Getting the right is one thing; getting the permit to build the project is something else."
Hobbs also listed a progression of federal laws - the 1862 Homestead Act to promote Western settlement, the 1866 Mining Law that severed water from federal lands and turned it over to states, and the 1902 Reclamation Act that opened the way for Western dam construction projects.
Colorado became a territory in 1861, he said. That year the territoriaal legislature created the right for settlers to build ditches to get water to their land that wasn't next to the stream. It prevented corporations, railroads and land barons from buying up the river banks to control the water. In 1864, the legislature made prior appropriation the basis for water diversion and use.
The earliest ditch right was the 1852 People's Ditch near San Luis. Ute water rights date to 1868, the basis for constructing the Animas/La Plata Project.
"Our (state) constitution from 1876 says the public owns the water. You get a right to use it by prior appropriation," Hobbs said. "The most valuable rights in the state are water and ditch rights."
He showed pictures of several historical hand drawn maps of rivers in the mountain region. One from 1841 showed a big blank space of unknown land. The land was considered vacant, at least to settlers coming from back East, he said, noting that Native Americans already lived "from sea to shining sea."
Before all those maps, Hobbs showed a picture of Far View Village on Chapin Mesa at Mesa Verde and a nearby structure that he said was a water reservoir. There are four reservoirs at Mesa Verde and one at Hovenweep, Hobbs said. Paleohydrology is one of his interests. "I can't teach about water law without talking about history, culture, governance. There are enduring problems that go way back," he said.
"Everywhere across this country there are water features, because water is the basis of life," he added
Hobbs was just appointed as Jurist in Residence at Denver University. He also serves on the Colorado Commission for Water Education that publishes the quarterly Headwaters magazine and the Citizens' Guide to Colorado Water Law.