Photo (above): Water levels at Lake Mead, a reservoir formed by the Hoover Dam that spans Arizona and Nevada, dropped by more than 140 feet between 2000 and 2015, a loss of nearly 6 trillion gallons of water, according to the National Park Service. In the past two years, Lake Mead dropped another 40 feet. The white ring shows the receding water line.

If Wisconsin has too much water, then Colorado must have too little. Wisconsin receives almost 30 inches of total annual precipitation, while Colorado receives a paltry 17 inches. Yet, despite this aridity, Colorado is the headwaters state for seven major rivers that begin their lives as snow in the Rocky Mountains and flow out of the state’s borders and to the Pacific and Atlantic Oceans.

Perhaps the country’s hardest-working river, the Colorado River provides water to approximately 40 million people and 5.7 million irrigated acres, with only 4% of the discharge volume of the Mississippi River. Although a healthy 70% of the Colorado’s flow begins in the centennial state, it has not made Colorado immune to the effects of aridity in agriculture, cities, or law.

Prior Appropriation: First in Time, First in Right

The 100th meridian, an imaginary boundary line that separates the arid western United States and the more humid central and eastern United States, has come to represent a legal demarcation as much as a physical demarcation. East of the line, roughly bisecting North Dakota, South Dakota, Nebraska, and Kansas, 20 or more inches of rainfall annually grace the land, while to the west, less rain means an agricultural reliance on irrigation.

First identified by the 19th-century explorer John Wesley Powell for its geographic importance, the meridian has become a legal demarcation between practitioners of the old Justinian and English riparian law and the relatively young law of prior appropriation.

Miners searching for fortune in California needed water to operate their sluices: large open flumes that separated gravel and sand from precious minerals. Once a miner made the investment in time and money to bring water from the nearest stream, often a considerable distance away from the claim, the miner needed assurance that the water would be protected from other miners who might deplete the stream. There could be no standard of reasonable use. Dividing the stream between all comers would render useless the amount of water available to each individual.

The miners fashioned a water law in the image of their mineral claims: first in time, first in right. So long as a miner was operating the mining claim and using the necessary water with due diligence, others could not interfere with the miner’s right to either the minerals or the water. As Professor Charles Wilkinson said, it was a system “reinforced, no doubt, by the equity and inevitability in the cold-eyed glare of a bearded, pistoled miner already hard at work.”¹

In 1855, in Irwin v. Phillips, the Supreme Court of California elevated the law of the mining camp to the law of the state.² A dispute arose on the South Fork of Poor Man’s Creek, where miners were diverting water that had already been claimed. The court upheld the right of the earlier arriving miners to take water without interference from later claimants and duly solemnized the proceedings by translating the miners’ edict into Latin, qui prior est tempore potior est jure: who is earlier in time seizes the law (or, more colloquially: first in time, first in right). Although California retained a dual riparian-appropriation rights system, miners would bring the appropriative edict with them as they spread throughout the western United States.

The question of riparianism arose in Colorado in the case Coffin v. Left Hand Ditch.³ Coffin dealt with feuding farmers tearing out each other’s diversion works and roving the waterways with guns, ready to breathe life into the maxim that “whiskey is for drinking, water is for fighting over.” Cooler heads prevailed, attorneys were retained, and the Colorado Supreme Court decreed: “Water in the various streams acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructuary estate, or right of property.”⁴ The court reasoned that imperative necessity made riparian law unsuitable and determined that prior appropriation would be the only law for the state.⁵

Since Coffin, many of the western states have adopted what is known as the “Colorado Doctrine.”⁶ Though the details may differ, the key elements of a water right in the western United States are 1) the permitted use or uses of the water right (irrigation, municipal, industrial, and so on); 2) the amount of water associated with the right, normally quantified as cubic feet per second for direct-flow rights and acre-feet (the amount of water required to fill one acre to a depth of one foot, or 325,851 gallons) for storage rights; 3) where owners can use water; 4) restrictions on when owners can use their water right; and 5) what priority on a stream system that right holds, with the most senior rights receiving their water first.⁷ These legal parameters are defined by the state in either a water court or an administrative agency.

Priority is generally considered the most crucial element because it determines how often that paper right will produce wet water. The older, and thus more senior, a right, the more water the right holder will receive in a year. The younger, and thus more junior, a right, the more uncertain receiving water becomes. That difference in dependability makes senior water rights, generally held by agriculture, extremely valuable and coveted by growing municipalities and industries in the western United States.

In our warming climate, each degree of temperature drives up rates of evaporation from the soil and evapotranspiration from plants, and farms and irrigation companies are finding it harder to split the waters. Meanwhile, growing populations increase competition among municipalities to find senior water rights necessary to supply their customers.

Water providers, whatever their end use, often go hundreds of miles afield to move water through complex infrastructure and stream accounting mechanisms to move from the source to the tap. Understanding this backdrop of scarcity, the emotion and perceived stability surrounding property rights, and the value of water in a dry land will help readers understand the perspective on water in the western United States.

The Glen Canyon Dam allows Colorado River water storage in the Lake Powell reservoir, serving millions of people in the western U.S. Lake Powell, which straddles Utah and Arizona, has lost 160 feet of vertical capacity since 1999. Photo: Gregor MacGregor

Courts and City Councils: Local Issues

Day-to-day operation of Colorado’s water system is enforced by water commissioners, who are responsible for opening and closing headgates as water rights come in and out of priority with the ebb and flow of streams. Renegade water users who take water out of priority or otherwise affect the flow of water to other users likely will find themselves contending with the commissioner, the division engineer, and the state engineer in water court. Normally, warnings are enough to ward off would-be interlopers, but not always.

One such (in)famous water user who couldn’t keep his shovel out of the creek was Denver businessman and hobby-rancher Gregg Sease. While on his ranch on Sheep Creek in Saguache County, Sease accumulated 17 separate state and federal violations for dredging stream channels, digging new ditches and ponds, and laying pipes without permission.⁸

Between 2003 and 2017, these violations garnered Sease a multitude of cease-and-desist orders, as well as seven contempt motions from the state, making him the Colorado record holder for contempt-of-court violations. The water court eventually sentenced Sease to 90 days in the county jail, in addition to the cumulative $390,000 in state and federal fines and mandated remedial actions for other water users harmed by his actions. The Colorado Supreme Court described the history of the case as “tortuous” before upholding his conviction.⁹

Other disputes are more local and go beyond the scope of the water commissioners’ authority. An example is the call Montezuma County sheriff’s deputy Dave Huhn received when two neighbors were fighting with shovels on their shared irrigation ditch.¹⁰

For more than 10 years, Huhn has been responding to water disputes, issuing citations for such offenses as stealing water, lacking measuring devices in ditches, tampering with others’ headgates, brawls, and drawn guns.

As the western United States gets drier, it seems inevitable that more law enforcement agencies will turn their attention to water disputes, recognizing that water theft is a serious crime in an arid climate and that sometimes law enforcement officers should carry measuring flumes in their trunks.

Population growth and aridity are also proving to be a problem for the generally sober and measured world of municipal and special-district water planning. One of the most high-profile locations is Fountain, Colo., a small community just south of Colorado Springs and the U.S. Army’s Fort Carson. The town currently has fewer than 9,000 taps in its system, a number dwarfed by the 30,000 new tap applications the city received from developers eager to cash in on the housing boom along Colorado’s front range.¹¹

Unlike in wetter areas of the United States, though, the city can’t just build larger diversion and treatment structures, rolling those costs into tap fees and utility rates. Instead, it must find and purchase water rights from increasingly distant sources. For now, the city doesn’t have the water. “The bottom line is, we can’t give you something that we don’t have,” says Fountain’s utilities director, Dan Blankenship, and developers must either bring water rights with them or pony up for the costs incurred by the city to bring in more water.

Water providers often go hundreds of miles afield to move water through complex infrastructure and stream accounting mechanisms to move from the source to the tap.

Cash In Lieu

While the development community has expressed frustration with Fountain’s requirement, the issue of cash in lieu has also caused controversy among residents in other cities who are becoming aware of this additional cost of growth.

Some people in Lafayette, Colo., were outraged about what the current city administrator called a “smoking deal” struck with developers in 2016. A new ordinance gave developers the choice to bring water with them, as they had been required to before, or pay the city $18,900 per acre-foot of water necessary to supply their new developments, an acre-foot being enough water to supply two single-family homes. In 2021, the actual cost per acre-foot was $85,714.

In response to residents’ comments driven by an online campaign, the Lafayette City Council voted to increase cash-in-lieu payments to market rates. Officials were not convinced by developers’ prediction that growth would halt entirely.

The decision may recoup the actual costs of development in the future, but current residents are still left holding the bag on past growth. The public works director disclosed that the city’s account for water infrastructure, which is limited in both its use and funding, has a gap of $12-$13 million per year, equal to what the fund generates annually.

The situations in Fountain and Lafayette speak to the difficulties governments face as they attempt to balance growth, land use, and budgets.

The cost of acquiring local water supplies from other uses, such as agriculture, is also increasing as competition for all water supplies and aridity bring more meticulous examination of every water court proceeding. One estimate at a recent continuing legal education event put the legal and engineering costs to change water, beyond the purchase price, at $200,000 and several years in water court.

Assured Water Supply Laws

Pressure on local governments and developers to balance the books comes from “assured water supply laws,” which many western states have adopted in an attempt to bring land use and water supply planning closer together. Attorneys Monica Green and Anne Castle provided a detailed accounting and comparison of these laws across the western United States in their article Assured Water Supply Laws in the Western States.¹² Green and Castle evaluated these laws on five primary criteria: the universality of their application, whether they require uniform expert review, the minimum size of development necessary to trigger, integration of local decision-making with regional and statewide considerations and goals, and the inclusion or absence of conservation mandates.

The nine western states examined – Arizona, California, Colorado, Montana, Nevada, New Mexico, Oregon, Washington, and Wyoming – show a near uniformity in the universality and uniform expert review required under their assured water supply laws, as well as a relatively small minimum size of development that triggers the review.

However, only Arizona includes both integration and conservation in its law. California is the only additional state to consider integration, and New Mexico is the only additional state to consider conservation.¹³ As noted by Green and Castle, each western state is anticipating water shortages and share the risk that local decisions and effects could overwhelm the careful planning of regional and state water agencies.¹⁴

Assured water supply laws are a prospective tool for dealing with the water effects of future development, but governments have many options for addressing current problems. Local water-use ordinances can have a substantial effect on a community’s water use.

While appliance improvements have helped to drive down per-capita water use in urban areas, outdoor water use is where the greatest savings can be realized because 50% of the water used by a household is for outside the residence.¹⁵ At a rate of 0.5 acre-foot per single-family residence, using water for gardening, washing cars, and watering lawns accounts for 75,000 gallons of water per household per year.

Despite the potential realization of a 40% reduction in peak summer water demand, a recent report found that only 54% of Colorado municipalities use permanent watering restrictions.¹⁶ These restrictions can include alternating days of watering based on street address; limiting watering to low-evaporation times of day, so as to ensure the water coming out of the sprinkler is used by the grass; or limiting the amount of turf allowed per residence.

In a bid to conform urban expectations to western arid reality, the Denver Water Utility pioneered “xeriscape landscaping,” frequently referred to as xeriscaping, in 1981. Xeros is a Greek word meaning “dry,” and serves as the basis for landscaping with fewer water-intensive plants in built-up environments. A longtime drive to conserve water has helped Denver to use less water today than it did in the 1970s, despite a burgeoning population.¹⁷

Las Vegas, peering into the physical and metaphorical abyss of Lake Mead, is taking even more drastic measures to reduce its water consumption. Nevada Assembly Bill No. 356¹⁸ made headlines by outlawing “non-functional turf” within the boundaries of the Southern Nevada Water Authority. This turf is the kind often used in road medians, highway on-off ramps, and around shopping centers. The effect will be the removal of 31% of the grass in the Las Vegas area, an area of 6 square miles, and 9.3 billion gallons of water saved annually, all without touching lawns or golf courses.¹⁹

Nevada’s efforts might seem striking, but they are likely the first of many such steps that attempt to bring U.S. residents’ predilection for lawns in line with arid reality. The love of decorative turf has its roots in the aristocratic pretensions of 17th-century England, the result of which is more than 63,000 square miles of lawn in the United States.²⁰

This is an area larger than the state of Georgia and surpasses the irrigated acreage of corn and wheat combined in the United States. Western agriculture is often criticized for watering alfalfa “just to feed cows.” Nevada decided it wasn’t worth 10% of its Colorado River allocation just to feed lawn mowers.

Not Quite Under the Bridge: State Cooperation and Strife

Litigation between Colorado and Wyoming in the early 20th century spurred a rash of interstate compacts to split the waters in the western United States. In Wyoming v. Colorado, the U.S. Supreme Court announced that if two states practiced prior appropriation, any dispute between them would be governed by “first in time, first in right” rather than equitable apportionment.²¹ The ruling had a profound effect on states in the Colorado River basin as Colorado, Wyoming, New Mexico, Utah, Nevada, and Arizona eyed the rapid and massive development of agriculture in southern California.

What the states saw in the Imperial Valley wasn’t only winter vegetables but also a future in which their populations and industry would be cut off from growth in the future.²²

The resulting 1922 Colorado River Compact is as notable for what it says as what it doesn’t. Its core is an agreement between the two basins of the Colorado River, not the states, to distribute the river’s flow. The upper basin states of Wyoming, Colorado, Utah, and a portion of New Mexico have the right to put 7.5 million acre-feet (hereinafter “maf”) of water to beneficial use in perpetuity.²³ The lower basin states of California, Arizona, Nevada, and a portion of New Mexico are allowed 7.5 maf a year, plus an additional 1 maf.²⁴ Surpluses would go toward a contemplated future Mexican treaty and be split between the other users.²⁵

Absent from the compact are allocations to individual states, an allocation for the future treaty with Mexico, or an allocation for the many Native American tribes in the basin – none of whom were invited to the bargaining table. The compact also lacks definitions for key terms such as “beneficial use” or the nature of obligations between the basins in times of shortage. Ambiguity was the path to political expediency; the compact commissioners examined overly optimistic data and pushed more concrete decisions to a later date.

It is received wisdom that the Colorado River had some of its wettest years leading up to the compact negotiations. This often is spoken of as a stroke of terrible luck: the negotiators did the best with what they had, even as they made allocations the Colorado could never deliver. The mistake could be forgiven if the narrative were true, but it isn’t.

In the book Science Be Dammed, authors John Fleck and Eric Kuhn instead show that much more accurate reports were available, in terms of both the reports’ technical rigor and their inclusion of the very dry mid-19th century.²⁶ A failure to seriously interrogate the science led to an agreement based on a presumed 17.3 maf of flow, instead of the more realistic 11.3-13 maf figures of which the commissioners should have been aware.²⁷

This initial overestimation is the root of the current woes on the Colorado River. The structural deficit, the difference between the amount of water allocated and the amount of water available, has been waiting in the wings for the last 100 years as the U.S. Supreme Court decisions, federal legislation, and operating agreements that comprise the “Law of the River” were created.²⁸

Compacts on other rivers are simpler, either setting the amount of water an upstream state must deliver to the border each year or splitting streamflow between the states on a percentage basis. These compacts provide a baseline of expectations and a baseline from which to pursue litigation. But even when deliveries are promptly made in full, controversy between states is still liable to crop up. This happened in January when Nebraska Governor Pete Ricketts made a surprise announcement that the state would pursue a $500 million canal from northeast Colorado to western Nebraska.²⁹ The plan arises under the states’ 1923 compact over the South Platte River, which would allow Nebraska to take water out of the Platte in the non-irrigation season, an enforceable right the state lacks without the canal.

The project raises complex questions surrounding the condemnation authority, using federal stimulus funds in a neighboring state that opposes the plan, the possible involvement of Colorado’s water courts, and whether the canal is even technically feasible. Still, the Nebraska Legislature seems committed to appropriating $50 million to study the proposal, betting that a major investment today will pay dividends in a drier future.

Conclusion

The chess match that is water law in the western United States is an ongoing saga for states facing increasing drought. “As Drought Grips American West, Irrigation becomes a Selling Point for Michigan” was the headline in a recent article about Michigan’s history with water management and the economic pressures brought to bear on natural resources.³⁰ “The line marking the start of the boundary of the arid West used to lie in central Nebraska. With the region’s mega-drought, now 20 years in the making, that line has migrated east. It is now a little closer to Nebraska’s border with Iowa,” the article notes. These water law fights may spill over the 100th meridian sooner rather than later, leading to higher stakes for states such as Wisconsin.

Endnotes

1 Charles Wilkinson, Crossing the Next Meridian 232 (1992).

2 Irwinv. Phillips, 5 Cal. 140 (1855).

3 Coffinv. Left Hand Ditch Co., 6 Colo. 443, 447 (1882).

4 Id. at 446.

5 Id. at 448.

6 For an excellent legal history of prior appropriation, see David Schorr, The Colorado Doctrine (2012).

7 See Colo. Rev. Stat. § 37-92-304(7).

8 Valley Publishing, Saguache County Man Ordered to Serve Time for Contempt, Center Post Dispatch (Feb. 28, 2019), https://centerpostdispatch.com/article/saguache-county-man-ordered-to-serve-time-for-contempt.

9 Coloradoex rel. State Engineer & Division Engineer v. Sease, 429 P.3d 1205, 1207 (Colo. 2018).

10 Luke Runyon, Water Thieves of the West Take Notice: This Sheriff’s Deputy is Watching, KUNC (Sep. 20, 2018), www.kunc.org/environment/2018-09-20/water-thieves-of-the-west-take-notice-this-sheriffs-deputy-is-watching.

11 Michael Elizabeth Sakas, In Fountain, Colorado, There’s Plenty of Room for New Homes. But There Isn’t Enough Water, Colorado Public Radio (Jun. 9, 2021), www.cpr.org/2021/06/09/fountain-colorado-springs-housing-low-water-supply/.

12 Colo. Nat. Resources, Energy & Envtl. L. Rev., 67 Vol. 28:1 2017.

13 Id. at 81-82.

14 Id. at 145

15 Colo. State Univ., Fact Sheet: Water Conservation In and Around the Home (Oct. 2014), https://tinyurl.com/ybp225kh.

16 Sarah Kuta, Special Report: Just 53% of Colorado Cities Use Permanent Watering Restrictions, Despite Proven Savings, Water Education Colorado (Jun. 30, 2021), https://tinyurl.com/3sn5vvzz .

17 Denver Water, Water Supply & Planning: Water Use, www.denverwater.org/your-water/water-supply-and-planning/water-use (last visited May 10, 2022).

18 Assembly Bill 356, full text and history available at www.leg.state.nv.us/App/NELIS/REL/81st2021/Bill/7910/Text.

19 Sam Metz, Drought Stricken Nevada Enacts Ban on ‘Non-Functional’ Grass, Pub. Broad. System (Jun. 7, 2021), www.pbs.org/newshour/nation/drought-stricken-nevada-enacts-ban-on-non-functional-grass.

20 Elvidge Milesi et al., A Strategy for Mapping and Modeling the Ecological Effects of US Lawns (2005), www.isprs.org/proceedings/XXXVI/8-W27/milesi.pdf.

21 259 U.S. 419 (1922).

22 For an exploration of the circumstances around the decision and state motivations to strike compacts, see Daniel Tyler, Silver Fox of the Rockies (2003).

23 Colorado River Compact art. III(a).

24 Colorado River Compact art. III(b).

25 Colorado River Compact art. III(c), (g).

26 Eric Kuhn & John Fleck, Science Be Dammed: How Ignoring Inconvenient Science Drained the Colorado River (2019).

27 Id.

28 Gregor MacGregor, The Law of the Colorado River: Emerald Mile Edition (2022),www.youtube.com/watch?v=7lpxQIW0f4Q.

29 Michael Booth, Nebraska Wants to Build a $500 Million Canal Over the Border. Can Colorado Stop It?, Colo. Sun (Mar. 27, 2022), https://coloradosun.com/2022/03/27/can-colorado-stop-nebraska-canal/.

30 Keith Schneider, As Drought Grips American West, Irrigation becomes a Selling Point for Michigan, Great Lakes Now, PBS (Sept. 127, 2021), www.greatlakesnow.org/2021/09/drought-irrigation-michigan/.

» Cite this article: 95 Wis. Law. 32-37 (July/August 2022).