Prepared Remarks of Colorado Attorney General Phil Weiser at the 2019 Colorado Water Congress Summer Conference

It is great to be back at the Colorado Water Congress.

As I learned shortly after taking office as Attorney General, the Colorado Water Congress owes its roots, in part, to our office.  In particular, in the 1950s, Colorado’s Attorney General and others brought together a series of leaders from around our state to create the Water Congress as a forum for a “civil society” conversations around how we manage our water in Colorado.  The mandate for the Water Congress then—as now—is to provide a forum for working through critical issues of water law and policy, listening to, learning from, and collaborating with a wide range of users and stakeholders.

From today’s vantage point, we can appreciate the far-sighted leadership of those who came before us to charter this important institution.  In the ensuing years, the Water Congress developed a unique culture—of true listening and learning, collaboration, creativity, and innovation.  And this same type of spirit has allowed Colorado to develop a Water Plan that sets forth a framework for how we manage our water as well as how we should not do so.  That spirit also guides our office, whose work on water issues is led by the wonderful Amy Beatie, who is our Deputy Attorney General for Natural Resources.

To begin my remarks, I would like to outline the role of law, the value of water lawyers, and the role of the Attorney General’s Office in what is one of my top priorities—managing our water future.  First off, it is always worth noting that water rights are property rights, governed by Colorado’s constitutional doctrines of prior appropriation and maximum utilization.  Second, Colorado’s entitlements to its water supplies—as a headwater state—are both constrained and secured by a series of agreements with our surrounding states.  Finally, and the reason that this area is a top priority for me, our water rights enable communities to thrive, give rise to a range of economic activity, and support life itself.  Or, in the boring language of lawyers, there are important “reliance interests” based on how water rights are determined, administered, and protected.

With respect to water lawyers, one might think that all of those lawyers are predominantly focused on litigation.  After all, that’s the popular conception of what lawyers do.  And to be sure, our water court system for confirming, changing, and augmenting water rights necessarily involves judicial proceedings where there are disputes around water rights.  But more importantly, water attorneys, consulting engineers, and water users work to develop solutions so that trials are seldom necessary or appropriate as the best means of resolving water right disputes within Colorado.  Significantly, if we in Colorado were focused primarily on resolving disputes with surrounding states—say, those who are a part of the Colorado River Compact—through litigation, we would almost certainly end up in a far worse situation than through any number of collaborative solutions.  At its best, water law and policy is a search for win-win solutions rather than a zero-sum game.

To be effective in protecting Colorado’s interests, we need to be ready and willing to defend our rights through litigation, but our first and best course of action is to be prepared and effective at collaborative problem solving.  It is important to appreciate that our state’s system of river basin roundtables—master-minded and supported by the great Russ George—are a tremendous model of collaborative problem solving and provide a forum for developing effective strategies for water management.  As a newcomer to this community, I am so grateful to the Colorado Water Congress and those leaders who helped develop the culture of the basin roundtables—and the Colorado Water Conservation Board—as a forum for collaboration, innovation, and funding.

To give an example of the collaboration and innovation that we have among our basins, let me share some of the high points of a recent discussion I had in the San Luis Valley, where the Rio Grande Water Conservation District is doing great work.  The communities in the District face existential challenges around water because of declining groundwater levels in the over-appropriated aquifers of the Rio Grande Basin.   The State Engineer, following direction from the General Assembly, has worked closely with the community as it develops groundwater management plans and seeks to comply with new well use and measurement rules in order to replenish and sustain the Valley’s aquifers.  In the face of this challenge, this community has engaged in bottom-up problem-solving and has used a range of strategies, including creative mechanisms, to manage uses, augment supplies, and manage demands.  The spirit in which the community has worked together to address sustainability issues as well as their development of new, creative approaches to water management is a testament to the Colorado spirit of collaborative problem solving.

Turning back to the Colorado River example, the state of the compact is a topic that is highly relevant to today’s water law and policy challenges—and an important part of our work at the Attorney General’s Office.  In this case, as in water management more generally, we are committed to developing collaborative solutions and avoiding the specter of litigating with our surrounding states.  That commitment also extends to finding ways to maintain compliance with our existing obligations, and avoiding a potential need for involuntary curtailment of water rights that we in Colorado depend on.

To get out ahead of any potential conflicts or non-compliance with compact obligations, our office has an entire subunit dedicated to working on Colorado River matters —led by Karen Kwon.  Among the numerous issues that subunit is dedicated to working on, it helped negotiate the Colorado River Basin Drought Contingency Plans.  I could say a lot about the challenge of negotiating and developing this solution, but suffice it to say that this plan required an act of Congress to be completed.  And that got done.

As most of you know very well, the goal of this plan is to allow us to be better prepared for and responsive to variable hydrology in the Colorado River basin.  In other words, in the face of climate change, we may have less water stored naturally (in the form of snowpack), on average, and that means we have to prepare appropriate responses for a future where there may be less water supply as our population continues to increase or patterns of precipitation and runoff change.  As our Water Plan makes plain, there is a right way and a wrong way to manage our water challenges—and the wrong way is exemplified by what happened in Crowley County, where “buy and dry” plans destroyed the economic life blood of that community.  While we must continue to respect constitutional doctrines, property rights, and the rule of law, we also must continue to explore innovative ideas for achieving optimum use of the state’s waters in a manner that sustains our agricultural communities.

By developing the Drought Contingency Plan, we are better positioned to control our own destiny—as well as avoid unilateral federal action—with respect to our obligations and responsibilities related to the use of water from the Colorado River.  Because of this plan, we have greater certainty and stability in the event of a near term crisis that would result if the water levels at Lake Powell and Lake Mead fell to dangerously low levels.  And given what we have seen over the first 18 years of this century, we should all be worried that the past might well be prologue for future water levels.

As we consider moving water from existing reservoirs to Lake Powell, we also needed to think about what might be appropriate if the existing storage is insufficient to protect Lake Powell and maintain compact compliance.  Let me be clear here that we are talking about an option that we might want to use down the road as a means of avoiding an involuntary curtailment requirement.  We are not close to that situation now and we might not have to face it.  But we are not taking any chances and are preparing for what such a discussion could look like.

Let me say again, as the Water Plan emphasizes, that there is a right way to manage our water, and a wrong way.  The wrong way is to allow what happened in Crowley County to happen elsewhere.  Our agricultural communities depend on their water users and their water rights and we must honor their reliance on water to support their local economies.  But as the experience in the San Luis Valley shows, where some farmers are saving water by moving from alfalfa to hemp, there are lots of possible solutions that can address challenges in ways that work for local communities.  That’s the right way to manage water in Colorado.

Before we can even think about implementing any type of demand management program (like considering a concept of shifting to different crops, emphasizing municipal conservation, or recognizing temporary fallowing), we have lots of questions to answer and work ahead.  At a minimum, we would need to conduct feasibility analyses, develop the relevant regional program(s), go through any necessary Secretarial agreements and Lower Basin consultation, and afford each upper Division State an opportunity to approve the program.  Stated simply, developing and implementing any such program is a long-term proposition, but we need to start examining the plausibility of that process now.

As far as where we are in this process, the Colorado Water Conservation Board (of which I am a member) has directed its staff to implement the 2019 Work Plan for Demand Management Feasibility Investigation.  This plan calls for an investigation of whether the temporary, voluntary, and compensated conservation of water (Demand Management) is something that should be considered within Colorado, and if so, how.   As a core of part of this process, there will be public workgroups, workshops (including one during this conference), and public sessions held by the Colorado Water Conservation Board before any concrete steps are taken.

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It is worth noting that other states who are a part of the Colorado River Compact are moving ahead with their own processes for investigating demand management options. And as this happens, the Upper Colorado River Commission will coordinate leaders from each state, sharing ideas, best practices, and lessons learned.  I am confident that Colorado will be a leader in this area and I envision that we will be an international innovator in the area of water management.  As many of you know, we have new leadership on the Commission, the Colorado Water Conservation Board’s Director, Becky Mitchell, backed up by the veterans David Robbins and John McClow as alternate commissioners.  I want to thank James Eklund for his service to Colorado as the Commissioner and am looking forward to working with Becky and her team as she embraces this important new role.

I also want to underscore—and if I am sounding like a broken record here, it’s because I want this point to be crystal clear—that we are committed to exploring ways to avoid the need for any involuntary curtailment for compact compliance in a way that respects the rights and interests of the water users throughout the state.  I am well aware that, recognizing this possible risk, the Joint West Slope roundtables have commissioned a study to identify possible risks associated with an involuntary curtailment of water uses for compact compliance purposes.  I am not in a position to evaluate this study or comment on it, but I can say that we should be aware of and motivated by this risk.

It should be noted that the projections for reservoir operations at Lakes Powell and Mead for Water Year 2020 will trigger implementation of the Lower Basin Drought Contingency Plan.  As such Lower Basin entities are in the process of planning on how to make the required Drought Contingency Plan contributions to Lake Mead.  I’m relieved to say that conditions in the Upper Basin have not triggered any Drought Contingency Plan implementation at this time.  However, that does not suggest that we should ease our focus on how to prepare for managing uncertain water supplies in a manner that will maximize Colorado’s opportunities going forward.

At the same time as we continue to take the steps described above related to exploring and developing options on the demand management front, we also must evaluate how to best approach the 2007 Interim Guidelines for Lower Basin Shortages and Coordinated Operations of Lake Powell and Lake Mead.  Notably, the reexamination of these Guidelines must begin no later than December of 2020.  That means that time is of the essence for us to develop our negotiating strategy and position.  To that end, we are currently evaluating the pros and cons of the existing Guidelines and working with the CWCB and Upper Colorado River Commission to identify legal considerations and options going forward.

Finally, let me take a point of professional privilege and acknowledge the tremendous lawyers who work in our office on water law matters.  In many states, such expertise does not exist inside of state government and states are forced to rack up expensive bills from outside counsel.  In Colorado, and this goes back to the vision and leadership of early Assistant Attorney Generals like Dave Robbins, Justice Gregory Hobbs, and Dennis Montgomery, we have developed a tremendous in-house team that enables us to better manage our water, develop effective legal frameworks, build essential working relationships, and solve challenges effectively.  We should not take that for granted and I appreciate the recent support at the Legislature to help us acknowledge and compensate our lawyers appropriately so that we can better retain them and pay them a higher fraction of their value on the open market.

To underscore the importance of the work done by lawyers in our office as well as by others in state and local government, consider the recent response to very real threats to the citizens in Hinsdale County, specifically in Lake City, posed by conditions created by last winter’s large and unstable snowpack and avalanche debris in and along Henson Creek above Lake City.  In response to the threat of flooding, we saw a partnering of Hinsdale County officials, the dam owners, the Governor’s office, the Natural Resources Conservation Service, the U.S. Bureau of Reclamation, staff of Colorado’s Department of Local Affairs, staff of the Division of Homeland Security and Emergency Management, and Director Dan Gibbs and his great staff of the Department of Natural Resources, especially the Dam Safety Section of the State Engineer’s office, who worked together to address this emergency on Henson Creek.  The local officials and citizens worked quickly and collaboratively with the state and federal agencies to develop a plan for partial removal of one of the dams that would effectively eliminate the risk posed to Lake City by the avalanche debris and the anticipated runoff.  This solution was not directed by anyone party in the process, but rather reflected the common understanding of the risks and the best solution by all those involved, aided by the counseling and hard work of our lawyers.

In short, collaborative problem solving is how we work here in Colorado, particularly in the area of water law.   We should never take this work for granted and, indeed, we need to champion it as a model for public policymaking more broadly.  I can tell you that, as I take on the work of collaborative problem solving in a range of areas, from addressing the opioid epidemic to improving our criminal justice system, I look to our model of water law and policy as an inspiration.  Thank you all for the important work you do.