Water analysts refute Maes’ claim: ‘If it starts in Colorado, it’s our water’

If elected governor in November, Republican Dan Maes said that he might be inclined to turn his back on a century of water law.

The Colorado River cuts through a mesa. (Photo/Wolfgang Staudt, Flickr)
He told the Colorado Water Congress Saturday, speaking of water rights, “If it starts in Colorado, it’s our water.”

What he may mot know is that in Colorado, water is property and it is divvied up based on what is called “prior appropriation.” It doesn’t matter where water falls, or where snow melts because it probably belongs to someone else. You could own land on both sides of the Colorado River for miles on end, for instance, and not have the right to take a single drop from the river — unless you owned the water rights to do so. In theory those rights could be owned by a city 50 miles from the river and a thousand miles downstream.

Essentially, water belongs to whoever claimed it first.

One water attorney, who asked not to be named, said that what Maes apparently wants to do “amounts to a taking of private property.”

The Colorado River Compact, signed by seven states in 1922, governs who gets water and in what amounts, from the Colorado River. If, as governor, Maes took the stance that it was all Colorado’s, he and the state would end up in no small amount of trouble.

“We have all these compacts that require us to deliver water to all these downstream states,” said water lawyer Peggy Montano, partner and president of the law firm Trout, Raley, Montano, Witwer and Freeman. She then named nine different compacts governing various rivers and watersheds and named 11 states that have a legal right to water that comes from Colorado.

Asked if a governor could unilaterally change any of these compacts and keep the water in Colorado, she said no and added that if a governor tried he or she would probably end up as a defendant in the United States Supreme Court.

“It’s amazing that he said that,” she said.

Mike Saccone, communications director for the Colorado Attorney General’s Office, confirmed everything Montano said. “There are nine interstate compacts and agreements that dictate how much water stays in Colorado and how much water flows to other states.” He said any governor that tried to keep more water in Colorado than allowed by these agreements would probably be sued by the aggrieved state and that such litigation would be heard by the United States Supreme Court.

Maes also said, as quoted in the Cortez Journal, “There is not a head of cattle or a field of crops that will want for water because of a green yard in Denver on my watch, I promise you that.”

Again, it comes back to a question of law, and Denver owns some very senior water rights, giving the Denver Water Board the right to deliver water to people who want green yards. Absent agreement by Denver, Denver’s water cannot simply be allocated to other users.

The Denver Water Board preaches conservation and Denver Mayor and Democratic gubernatorial candidate John Hickenlooper, speaking to the same group said that even though Denver may have the water rights, he believes that on some level the water belongs to everyone.

“In the end, maybe it’s not Denver’s water. Maybe it’s all of our water,” he said.

A phone call to Maes was not returned.

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Scot Kersgaard has been managing editor of a political newspaper, editor and co-owner of a ski town newspaper, executive editor of eight high-tech magazines (where he worked with current Apple CEO Tim Cook), deputy press secretary to a U.S. Senator, and an outdoors columnist at the Rocky Mountain News. He has an English degree from the University of Washington. He was awarded a fellowship to study internet journalism at the University of Maryland's Knight Center for Specialized Journalism. He was student body president in college. He spends his free time hiking and skiing.

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