FLOBECK: Ancient mining laws affect current water use

March 8, 2013

As we already learned; water is simple, complex; and now we’ll see it’s also mysterious and mind numbing. Most readers know the Colorado River; 1,450 miles long; draining 248,000 acres in seven states; starting at 9,000 feet above sea level near Estes Park; the very lifeblood for farmers and ranchers throughout the West. Most readers don’t know that, in truth, it isn’t the Colorado River at all; it’s The Grand River. When the politicians and lawyers realized its importance; they changed the name from Grand to Colorado to emphasize the attachment of our state to all that water. Look at the map. The stream drops from north of Estes Park into Grand Lake, alongside of the Village of Grand Lake, in Grand County; then meanders for miles to its juncture with the Gunnison and the Frying Pan, at an aptly named spot, The Grand Junction. Then this river hammers and thunders its way through a canyon in Arizona, aptly christened, The Grand Canyon. Grand Lake, Grand Junction, and Grand County all soldier on, while Arizona also refuses to change the name of its world renowned tourist mecca, “The Grand Canyon.”

As far as mind numbing is concerned, consider these words: “The borders of states are nonsensical. They followed rivers for convenience, then struck out in a straight line, bisecting mountain ranges, cutting watersheds in half. Boxing out landscapes, sneering at natural reality, they were wholly arbitrary and, therefore, stupid. In the West, where the one thing that mattered was water, states should logically be formed around watersheds. Each major river, from the glacial drip at its headwaters to the delta at its mouth, should be a state or semi-state. To divide the West any other way was to sow the future with rivalries, jealousies, and bitter squabbles whose fruits would contribute solely to the enrichment of lawyers.”

Are these the maniacal rants of a conservative talk show host? Are these the alcoholic ravings of a Bolshevik anarchist? No, they are the common sense thoughts of a patriot, words of wisdom written over 135 years ago, by a decorated veteran of the Civil War. Was he ever a prophet? Major John Wesley Powell wrote a long report for the Congress, entitled “Lands of the arid region of the United States; correctly predicting that agriculture would be a stretch without more water; ranching would be futile and doomed enterprise without more water; and that cities built in this desert would someday fail from an inadequate supply of water. How prescient. He rowed and explored the Grand River from high in Colorado to the bay of Cortez, with one arm.

When the gold seekers started panning in Colorado, it became obvious that water was the key and if someone ‘cut your sluice,’ you were out of luck. So, these early miners quickly turned to the old Connecticut law firm of Winchester & Colt, and after much shouting and banging; the bodies began to stack to the ceiling and smell to high heaven. This was no proper environment for growing communities with churches, schools, wives and children, so the protests proliferated and the clamor for law heated; eventually resulting in the water/mining laws we have today.

One interesting aspect of the Law of Prior Appropriation, often overlooked, is that the statute clearly states that if you ‘own a water right; and don’t use it each year; you will lose it.’ Often, on the West Slope, in November and December, you will find some mighty confused cattle, wandering around fields in knee high water. When the river court told the rancher that he hadn’t used up his full water right, he solved the dilemma of losing something valuable; by wasting something valuable — flooding his fields. A plausible and simple solution would be to insert some words into the law to say that ‘if you don’t use it, or sell it, or lease it, or put it in a community reservoir, you will lose it.” Wow, you have become a conservationist, how hard was that? This will not change the law, but simply adjust the law. Some of us remember a 45 mph speed limit, which eventually went to 75 mph. When that happened, the highway department news release said, “improvements in brakes, safety devices, tires, and road construction now allow the increase to 75 mph, but the rules about drunk driving, crossing double lines, etc., will all remain in effect. It was simply an adjustment.

Faced as we are with a significant drought, should we make a simple adjustment in our 1880s mining laws to save thousands of acre feet of water? Readers, you are the decision makers and you are the voters. It’s up to you, and along the way, don’t forget Major Powell.

Jack Flobeck is the founder of Aqua Prima Center, a nonprofit think tank for water research. Readers can contact him at colojackf@msn.com.

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