01.22.02 Editorial: ‘Use it or lose it’ has lost beneficial use

 For most of Colorado’s history, there was an obvious public interest served by strict adherence to the old western water ethos of “use it or lost it.” But no more. What made sense in frontier Colorado and most of the 20th century doesn’t necessarily make sense in the 21st.

 As we understand it, the opposition of the Owens administration to a bill by Denver state Sen. Ken Gordon that would allow owners of water rights to dedicate all or a portion of their water rights for instream flow protections without running afoul of the state’s historic use-it-or-lose-it operational dictum is based on a couple of premises.

 For starters, Colorado Natural Resource Director Greg Walcher maintains that Gordon’s bill isn’t particularly necessary because important instream environmental values already are protected by the Colorado Water Conservation Board (CWCB), the sole agency assigned the statutory charge of holding minimum streamflow rights on thousands of miles of Colorado rivers and streams.

 A second concern, and perhaps the overriding concern in the eyes of Walcher, is the potential negative effect that any widespread conversion of traditional diversion rights to instream rights occasioned by Gordon’s bill would have on irrigated agriculture.

 Both of the preceding points are debatable but, at least in our view, don’t outweigh the inherent persuasiveness of Gordon’s bill.

 The CWCB does indeed serve a highly valuable purpose in holding rights to minimum streamflows on thousands of miles of the state’s waterways.

However, in most cases, the minimum streamflow rights maintained by the CWCB have a relatively junior priority date and are often insufficient for maintaining adequate instream protections. After all, the legislative charge to the CWCB with respect to holding instream flow rights is for “the minimum amount necessary to preserve the environment to a reasonable degree.”

 As for worries that Gordon’s bill might lead to a wholescale conversion of irrigation rights to instream rights, well, we doubt it. And even if that unlikely scenario actually materialized, so what?

 If, let’s say, a Gunnison rancher who owns rights to 5 cfs of water that historically have been used to irrigate his mountain alfalfa fields chooses to sell that right to, let’s say, the Nature Conservancy which, in turn, chooses to use that historic diversion right for instream protections, why should the state object to such a transaction?

 In such a case, there are two competing values at stake — irrigated hay fields that result in a depleted streamflow vs. augmented streamflows that result in fewer acres of irrigated agriculture. In the old Soviet Union, a bureaucratic apparatchik would assign the highest value to one of those competing values. In 21st-century America, there is absolutely no reason for the Colorado water establishment to follow the old Soviet model.

 The Legislature should consider the significance of this short news blurb culled Sunday from The Daily Sentinel’s outdoor page:

 “A private landowner along Montana’s Madison River has agreed to lease 220 cubic feet of water per second to the Montana Water Project, a joint initiative of Trout Unlimited and WaterWatch of Oregon.

“This decision by the Sun Ranch is the largest lease of its kind for a private, not-for-profit conservation group in the West.”

 Unfortunately, when it comes to water, Colorado’s antediluvian obeisance to the old “use-it-or-lose-it” philosophy prohibits a similar lease arrangement from ever being made in this state. Gordon’s bill would change that. And that’s why it deserves passage.

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