Changing the 19th century premise of Prior Appropriation
The existing system has both our rivers and our 21st century values in a 19th century straight jacket, a straight jacket design without the real needs of rivers in mind. Back in 1876 rivers were seen simply as plumbing, a way of delivering water to the points of diversion where it could be put to “beneficial” uses. The fish, wildlife and rivers themselves were of no economic value, or so they thought. Rivers were not seen as rivers, the science of ecology didn’t exist and ecosystems were not understood at all. That ignorance cost us dearly, and still does.
But know we know better. Yet the whole system of how we manage water and rivers is still based on the ignorance and limited values of the 19th century. That needs to change.
Yet trying to throw out the exiting Prior Appropriation would be pretty well impossible, not to mention extremely costly. The right to use water is a private property right and as such cannot be taken without compensation. That doesn’t mean we can’t, or shouldn’t, make changes that would give healthy streams and their economic benefits a better shake.
Prior Appropriation is based on a dry streambed. Senior water rights can divert until there is nothing left but the dry bed. Junior rights, which includes nearly all in-stream flow rights, are out of luck. But rivers need water through natural cycles to stay healthy, to stay alive at all. We have alternatives and a lot more flexibility, both economically and in our daily water habits. Rivers don’t have such a luxury. Forcing rivers and streams to exist under a human use regime of appropriated rights is not right.
We need to change the system in a way that maintains a healthy variable flow regime for rivers as the foundation basis of Prior Appropriation rather than the premise of a dry channel.
Agriculture and Conservation/Efficiency
Colorado water law prohibits the waste and inefficient use of water. Yet the system is still rooted in 19th century engineering. Water then was delivered from a headgate to the fields for flood irrigation through a bare dirt ditch. Often over 70% of the water taken from the stream was only used to get the remaining water, the consumed water, to the crops. The unconsumed water was returned to the river, either directly or months later as ground water seeping back in. This system was what worked with the limited and often primitive technology of the day. These return flows from an inherently inefficient system became another cornerstone of how water rights are managed. More junior rights depend on the returned water for their use.
Today we have technologies that could revolutionize how water is used for agriculture, saving vast amounts for healthy rivers and growing cities and keeping our farms intact and profitable. But once again the outdated existing system is in the way. And those who are most powerful and vested in this existing system, the “Lords of Yesterday” as Charles Wilkerson calls them are quite reluctant to change.
But we have to. The alternative is to lose our rivers and our agriculture. We have to get creative, with engineering, with laws and policy and with our view of rivers. We will also have step up and help the Agricultural community financially. This won’t be cheap, but the longer we delay, the more expensive it will be. The solutions we are being offered are all from deep within the box of the past. They just won’t work. More dams, more diversions and dying rivers flowing past abandoned farms and bankrupt communities are not the result we need or want. We can do better and we must.