Waiting for Chapter 10: What’s the plan in the state water plan?

It has taken 12 years, 344 pages and input from tens of thousands of people to put together what officials are touting as Colorado’s first statewide water plan.

Yet, as Gov. John Hickenlooper’s Natural Resources Department finishes its long-awaited second draft in the coming week, both critics and supporters doubt it’ll put forth many durable solutions to Colorado’s snowballing water shortages.

The plan’s first draft has a gaping hole. The heart of it, Chapter 10 – entitled “Legislative Recommendations” – is where the proposed fixes are supposed to be. So far, it has been left blank.

The administration promises to write the second draft “as an action plan that will include legislative recommendations as well as a variety of administration actions” the agency can take on its own.

But “action” can be a subjective term.

The plan is expected to list conceptual goals rather than requirements. It’s likely, for example, to recommend cutting water usage by 400,000 acre-feet a year – roughly enough for about 800,000 families – through conservation. But there would be no teeth if, as expected, it doesn’t specify how and among which water users such ambitious conservation would be gleaned

John Stulp, the Governor’s water policy advisor, says the non-prescriptive approach is consistent with Hickenlooper’s style of governing.

“Colorado’s very big on local control. Mandates just don’t do very well in this state,” he said this week from his wheat field near Lamar. “The Governor isn’t going to say ‘Do this. Do that.’ He likes to develop consensus about concepts amongst folks who haven’t gotten along so well in the past.”

In the meantime, several water experts say the plan is shaping up to be less of a plan than hoped.

Committing only to theoretical frameworks and so-called “no and low regret actions” in the short-term, some say, won’t solve shortages that will increase with long-term population growth and climate change. The state’s shortfall is expected to spike to 500,000 acre-feet – the amount of water it would take to supply more than 2 million people – by 2050. If there’s no pain now, some warn, there won’t be much gain moving forward, and Colorado runs the risk of a water crisis like California’s, or bigger.

“I’d say the word ‘plan‘ is misused here,” said Pat Mulroy, a Nevada-based water expert with the Brookings Institution, after reading the first draft.

“It’s a nice compendium of issues and subject matters of all things water in Colorado, but it’s not an action plan,” added Jim Lochhead, head of Denver Water, the big water-rights holder on the Front Range. “It doesn’t set an agenda for what Colorado needs to do in order to meet the challenges facing the state.”

Russ George, former speaker of Colorado’s House and Gov. Bill Owens’ natural resources chief, defends the grassroots statewide planning process he has helped lead for more than a decade. But, he says, if you’re looking for specifics on how to make up for water shortfalls, you won’t find them in the state water plan.

“Would we have liked all of this work and information to have produced really fantastic solutions? Yes. But nothing like that is going to occur,” he told The Independent..

“You’ve got to realize that sometimes the plan is the process. I don’t feel the need for any of us to get hung up on the plan piece of this thing.”

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George, 69, grew up on his family’s farm near Rifle. A water lawyer by trade, he says he has been in the business since age 10 when his dad taught him how to irrigate their 160 acres of barley.

A longtime critic of the havoc Colorado’s “first-in-time, first-in-right” water laws can play on water policy, George has championed a collaborative approach that brings together senior and junior water-rights holders to discuss how to live within the state’s dwindling groundwater and river supplies.

After the drought of 2002 and 2003, he set up a series of roundtable discussions in each of Colorado’s nine river basins. The urgency water interests felt about those years’ dustbowl conditions convinced them to try a new form of conversation.

“There’s a recognition in the water community that when things are done in desperation you come up with very bad solutions that could be much worse than if you had planned to begin with,” said Denver water lawyer Alan Curtis. “You can’t kick the can down the road because suddenly there’s a wall waiting and they’re going to start taking water away from people who are going to sue.”

From the start of the roundtable talks, George asked all participants to come up with two lists: what they need, and what they’re willing to give up so somebody else can have what they need.

“We tried to move the decision-making away from the old places of ‘I have the money and the right and the power, so I can do what I want,’ to, ‘We all need to be at the table together’,” he said.

A decade and hundreds of roundtable meetings later, the approach has succeeded in garnering grassroots involvement in one of the state’s most pressing public policy issues. It also has managed to bring together adversaries within river basins who used to communicate with each other only in water court.

In the Colorado River basin, for example, cattle people, irrigators, municipal planners, anglers and conservationists have for years now been meeting once a month on Mondays, mid-day, at the recreation center in Glenwood Springs. Players in the Yampa/White basin meet quarterly on Wednesdays in a community center in Craig.

It’s a measure of the roundtables’ success that, despite participants’ competing views on water use, they sometimes share donuts, coffee and pictures of their grandkids before or after meetings.

But the approach has a key flaw: Participants have been far more amenable to answering the first part of George’s question – what water they need – than the second part – what they’re willing to give up. It’s no surprise. Water wars and an ethos of “not one more drop” date back to before statehood when the “Colorado doctrine” of prior appropriation was set in the 1860s. The doctrine holds that the first person to use or divert water for a “beneficial” use gets first rights to it.

State planners are scrambling to pull together input from ten years of roundtable discussions, plus scores of emails and letters from the general public, before releasing the second draft of the water plan next week. It’s a lofty task, given that most input has been heavy on problems and light on solutions.

“So far, the plan is more of a description of what is rather than what will be,” said Colorado Water Congress chief Doug Kemper.

The issue of what Chapter 10 will and won’t include is a touchy one.

Kemper paused when asked if he expects it to list any meaty solutions.

“I don’t have an expectation about that. I just don’t have an expectation about that,” he said.

Later, he elaborated.

“Look, I don’t think it’s a realistic expectation to come up with a grandiose water plan that’s a blueprint that everybody’s going to follow,” he said. “As a member of the public, what I would want to know is that the document reflects public input and values, and that the state took that into account.”

Putting forth solutions amounts to political fire juggling in a state whose Western Slope has 70 percent of the surface water and 11 percent of the population, while the Front Range makes up 75 percent of the state’s economy. Colorado is split geographically, demographically and politically when it comes to water. Any way you cut it, a plan dictating major reforms is likely, in legal and political terms, to be a losing proposition.

“Which politician is going to feel like they have sufficient public cover to adopt it?” Brookings’ Mulroy said. “Let’s face it. If there were a real plan, people would be loading their guns about now. This (plan) is probably as good as you’re going to get unless you’re in a crisis mode like California.”

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Hickenlooper made a shrewd choice of who would lead the water planning process.

James Eklund had worked as one of his legal counsels and as a natural resources lawyer for the Attorney General’s office before the Governor picked him to direct the Colorado Water Conservation Board. It helps that Eklund is what Hickenlooper isn’t – a fifth generation Coloradan who grew up not only on the Western Slope, but also in a farming family.

It also helps that Eklund knows a bit about politics, having studied the subject at Stanford and later worked as a driver to Ken Salazar, the AG turned U.S. senator turned U.S. interior secretary. He shares with Salazar the unique ability to navigate as well on cattle ranches he does in the conference rooms of 17^th Street white-shoe law firms.

As Eklund tells it, the water plan already is a huge accomplishment, at least from the perspective of how many people have become involved. Through May, it had generated more than 24,000 public comments touching on every aspect of water use in the state. His staff has responded to every one.

“The process is a success in itself,” Eklund says.

But how will the state measure the success of the content rather than just the process? That’s a little tougher to define.

Eklund told The Independent last week that progress is being made on the more detailed elements of the plan, which will look at regional suggestions submitted by the basin roundtables and put forth reasonable outcomes – at least in concept. He says the plan and process need to be able to adapt and morph as circumstances such as growth, drought and climate change shape the future. There’s also a need for “agility” in state water law and federal regulatory processes in order for the plan to be successful, he added.

All in all, he downplays expectations for Chapter 10.

“No one solution is a silver bullet,” Eklund noted. “We have to have a package solution that includes storage and conservation. We can’t conserve our way out of this.”

The issue of water storage – dams, reservoirs and other systems linked with massive delivery systems known as “trans-mountain diversions” – is the third rail of Colorado water policy.

The Front Range wants more storage facilities, or at least the option to build them, so it can shore up supplies to keep up with population growth. The Western Slope agricultural community, intent on keeping its water west of the continental divide, says no way. Environmentalists and sports-folks want cities and farmers to conserve more to ensure enough river flow to protect outdoor recreation, plants and critters.

Two polls that came out last year showed 90 percent of Colorado voters want to keep our rivers healthy and flowing.

“We want this plan to include funding to protect rivers across the state. It should be a river plan, not just a water plan,” says Bart Miller, Western Resource Advocates’ water program director.

WRA and other environmental groups are pushing for aggressive urban conservation goals like ones passed in other states seeking to cut usage 20 percent over 20 years.

On the issues of conservation targets and more storage projects, water interests have dug in their feet.

George, who serves as vice chair of the Water Conservation Board, said he always expected by this point in the roundtable process to be able to answer the puzzle of how to ease the blow of projected shortfalls.

“That question just gets more intense the farther we move along. So the question here at the 11th hour is whether there’s water anywhere in Colorado that can be moved from where it is to greater use to more people, the Front Range,” he said. “Underlying all of this is great fear: Are we just going to take the water from agriculture to the cities for domestic use? Because that’s what happens if we do nothing.”

It’s in this context of political pressure and fear that Eklund and his staff have struggled to come up with actionable solutions. Scrambling to fill in the glaring blankness of the much-anticipated Chapter 10, they last week put before a state-formed water committee 160 questions about possible fixes.

Some sources say those talks fell apart because of a hesitancy to propose legislation, regulation or change.

As George tells it, the suggestions are “still lingering.”

“You have to understand that the staff doesn’t want to make policy decisions. Those are political judgment calls. So it’s hard slogging.”

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Herein lies the downside of the grassroots approach.

Water users within each of the river basins have made progress discussing their regional needs. But now there’s distrust among the water basins – especially Western Slope versus Front Range – whose participants perceive the process has pitted their basins against others.

No matter how many basin roundtable meetings the state holds, no matter how many public comments it solicits, and no matter how many public-comment emails planners respond to, devising the fix-it part of the plan calls for exactly what the administration hoped to avoid. It requires top-down decisions that either manage to bring all the basins together or, more practically, show a willingness, if needed, to uphold certain political interests above others.

Factors such as cost come into play: Without help from the feds, like Colorado used to receive for new water projects, can the state afford such massive expenditures?

And there are economic repercussions to weigh: Will new businesses and families keep moving to Colorado if, like lately in drought-savaged California, the plan would require them to cut back on watering their lawns or filling their hot tubs?

And there are political calculations to make: Do lawmakers – already bitterly divided with a split legislature, tensions between urban and rural concerns, and pressures of an election year – have the fortitude to pass any meaningful water use bills? And what would Hickenlooper’s legacy be if, uncharacteristically, he tried to dictate aggressive water use reform?

“You have tens of thousands of comments here. Somebody needs to decide which input is valid or invalid. Someone needs to make sense out of the chaos. That’s a subjective process,” Mulroy said.

And it’s a process that by definition is far from grassroots. It takes expertise about the legal and political complexities of water policy.

“You have people who aren’t in the water business who are expressing their views. Can tens of thousand of individual comments produce some vision?” said Denver Water’s Lochhead. “At the end of the day, there needs to be some leadership to produce action.

“Someone needs to step up and move forward.”

It’s not enough, Lochhead says, for the plan to assert broad value statements such as the needs to protect Colorado’s farms and ranches, preserve future options for undeveloped water and conserve. As he puts it, those are just platitudes.

Lochhead has lists of specific, measurable solutions that include enforcing conservation through the state’s permitting processes, offering incentives for more green architecture, allowing Coloradans to capture rainwater, encouraging use of more recycled or “gray water” and increasing efficiency in irrigation systems.

He also has asked the administration to set ground-rules for water negotiations, “defining what needs to be done and who are the parties that are going to get together by date-certain to develop a solution.”

In other words, he wants a Chapter 10 with details and deadlines, and a commitment to pushing all parties beyond their own interests. Even his water district’s own.

“There’s still a very real opportunity both in Chapter 10 and throughout the plan to articulate a path forward and a plan for meeting our needs, saving our rivers and setting goals that citizens around the state can rise up and achieve,” Miller said.

The administration had calculated that if Chapter 10 is too robust, Hickenlooper could face the stigma of messing with water users’ property rights á la California Gov. Jerry Brown. But if Chapter 10 turns out to be just conceptual, proposing no meaningful action items, Hickenlooper could face the perception of weakness and the dubious distinction of having championed a water plan without a plan.

For the water plan to succeed, it requires a delicate balance between political pragmatism and leadership. If it swings too far either way, it likely will be mothballed in some library’s Western history section, as was Colorado’s first statewide plan – from 1974.

“Yes, that’s right. It’ll come as news to a lot of people that this isn’t in fact our first state water plan,” Kemper said. “The reason nobody’s heard of the first plan is because it had no impact.”

Marianne Goodland contributed to this story. 

Photo credit: Andy R, Creative Commons, Flickr