Every once in a while, somewhere across the U.S., a state legislator will put up a bill, get it passed, that cancels an existing but ancient statute prohibiting shooting turkeys on Main Street, or building stables on Washington Street, both of which are now the locations of six-lane highways. Bizarre situations like these raise interesting legal questions such as: do we have too many laws; are some of our laws outdated; do some of our rules overlap, are some laws so vague they beg loopholes, and should it take a 100 years to catch up and correct obvious imperfections? Nowhere is the picture more clearly clouded than in water.
Would our water laws stand up to the crush test? I referring to the ASTM crush test, one that I met head-on when in the brick business looking for ideas for new products.
The American Society for Testing Materials website proudly explains that the first standard devised by man appears in Genesis: "Make thee an ark of gopher wood, rooms shalt thou make in the ark, and shall pitch it with and without, with pitch." As mankind progressed with tools and machinery he learned to test bricks, woods, steels, plastics, and then titanium, for durability and strength; hence the crush test. Bricks with occlusions, voids, flaws, bodies with poorly mixed clay; will all fail when the heavy weight squeezes it on the test bench. What would happen if we put some of our laws to the crush test? Are there voids, are there duplications, areas of inconsistent composition, and without getting political, has every one read the thousand pages and understood the consequences?
Winston Churchill put it well, when he said," If you have 10,000 regulations, you destroy all respect for the law."
When we read the first few lines of sections 5 and 6 of article XVI of the Colorado Constitution, we are greatly encouraged. "The water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as herein provided."
Before we say, Hurray, for these 42 words, and congratulate ourselves on being owners of water, there are thousands more words of "ifs" and "ands."
Consider the number of acre feet of water that are wasted every fall when farmers and ranchers flood their fields to make sure they don't lose a water right, because the law says, "If you don't use your water right, then you will lose it."
When a simple solution to this situation is available, like inserting into the law, the words, "or sell it, or trade it, or put it in a water bank;" which would obviate the waste, but is continually ignored by political and legal leaders, it makes you wonder if they are really worried about the future and the people of Colorado?
As we enter a three-year period of statewide water planning, we might consider using the crush test on some of our sacred cow water codes, with an eye to possibly making innovative improvements.
Old Honest Abe once said, "He has a right to criticize, who has a heart to help."
I know of many dedicated farmers, ranchers, and water practitioners who have such hearts, and are certainly ready to help.
Jack Flobeck is the founder of Aqua Prima Center, a nonprofit think tank for water research. Readers can contact him at firstname.lastname@example.org.