In Elbert County groundwater aquifers, there is no such thing as “our” water. “Our” water is a political myth built on a fantasy. Obviously, this absence-of-foundation gives no pause to politicians who use “our” water to justify all sorts of self aggrandizement to gain office, and all sorts of regulation once in office. Let’s explore the fantasy.
Groundwater rights in Colorado are gifts to landholders from the government that come with restrictions. They are government grants that can take the form of well permits, water court decisions, and various decrees from the Colorado State Engineer.
With them, the State of Colorado conveys limited rights to parties to (a) use defined amounts of water each year for 100 years, from (b) in the case of groundwater, defined depths in the ground known as aquifers, that are (c) in the case of groundwater, underneath specific areas of land, for (d) specific types of uses, on (e) specific surfaces of land. Those elements combine to make a water right, a grant given by the state to a grantee, usually a landowner.
A water right gives the holder a license to put some of Colorado’s water to a beneficial use. Moreover, unless that water is actually put to that beneficial use, the right cannot be defended or protected.
A grant from a state regulatory authority is not a permanent or absolute form of property. For example to contrast, after an owner of a house pays off the mortgage, they own a perfected title to that house. No one can take it away or dispossess the owner of it, unless it’s done through a court action in satisfaction of some other debt or obligation.
Water rights, however may be revoked or modified if the conditions of their usage are violated. Title to them is never “perfected.” It’s always contingent and subject to change. Considering their source — a political authority — this should come as no surprise. But not only are water rights contingent, there’s no guarantee that the water permitted to be extracted will even exist for the life of the water right. This makes them contingent and speculative.
Water rights are given through transactions between surface landholders in Colorado and the State of Colorado. Whether the grant comes directly from the Colorado State Engineer, or through a water court consulting the Colorado State Engineer on how much water to adjudicate, they all come from the same place.
There are no other governing parties such as local and county governments who define a water right, however, Elbert County uses zoning authority to modify and reduce state-granted water rights for property owners through their county subdivision regulations. Subdivision owners have their water rights reduced to a third of the state grant.
The Colorado Legislature has determined that the Colorado State Engineer will use a 100-year aquifer life when it delegates water rights. Elbert County divides those water rights by 3 to translate them into 300 year conveyances, though a recent court decision found that zoning time-frames beyond 50 years were subject to strict scrutiny. I suppose this was the courts way of admitting our inability to see the future.
It is common knowledge to most people in Elbert County that the water produced here comes out of non-renewable aquifers. Once it comes out of the ground, it doesn’t go back in. We consume it, and unless we recycle it in some way, that consumption is a one-way trip to evaporation.
Sidebar: Dr. Ken Carlson discussed water recycling in the context of hydraulic fracturing in a recent talk at an Elbert County Conservative Breakfast.
Scarcity is the soul of economics. Scarcity causes value to exist. The threat of scarcity causes value to go up. So, we have this scarce resource, becoming more scarce because it has a finite supply because most people foresee humans to be around, needing water, much longer than the supply is projected to last. Add a dash of politically motivated emotion, and you have a guaranteed vote-getter made to order for any political race, however tangential to water.
Vote for me, I’ll save “our” water, otherwise you’ll die of thirst. It’s a powerful message and it’s used to some degree every day in Elbert County.
So what’s wrong with this notion of “our” water? Back to the Colorado State Engineer, grantor of all water rights, either directly or through connected water courts, in Colorado.
Denver Basin groundwater aquifer rights are not allocated from a pool of aquifer water. They are allocated based on overlaying surface land.
I’ll say it a different way. When a 100-year water right is calculated by the Colorado State Engineer, the calculation is done according to the amount of overlaying land. It does not take into account how much water might be available in the vicinity as a product of historical nearby withdrawals.
Our individual water rights are not calculated from a model of the aquifer pool. They’re just not. Legally, they don’t connect to each other. The rights are derived as stand-alone, quantity of land, calculations.
So when someone comes along after the fact, mostly for a political purpose, and purports to address “our” water, that person is treating a disconnected set of things as if they were a uniform thing. Yes, those rights all concern water, but that’s where the similarity ends. Legally, in public policies, in private dealings, in what can be enforced in a court, there is simply no pool of “our” water in Elbert County.
A zoning law with a purpose of extending Elbert County’s aquifer lives to 300 years, has no more chance of accomplishing its purpose than the initial grant did based on an overlaying land calculation driving a 100 year aquifer life assumption.
I was very surprised to learn that in this computerized age with our massive computational capacities, that the State Engineer does not model the Denver Basin aquifers in a pool, or use previously granted rights in order to arrive at a water right determination — a pooled calculation that might try to account for adjacent depletions.
Everyone talks about depletion, local politicians build their political lives on the assumption, hundreds of people will come out to occupy a county commissioners meeting and demonstrate about the potential threat of it, but our water rights, and the laws surrounding them, simply don’t anticipate it.
Perhaps it is time for our zoning law and our politics to adapt to this reality — time we use science to address this issue, and leave the parade of shamans screaming about “our” water alone.
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