Written by Ralph "Terry" Scanga, General Manager UAWCD

The misreading of Section 5, Article 16 of the Colorado Constitution has led many citizens to mistakenly assume that all the water of the state belongs exclusively to the public.  This section states in part:
“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 hereinafter provided.”

Essentially the waters are the property of the public for appropriation to beneficial use.  The ownership of the water by the public is conditioned upon it not being appropriated.  Further the water is dedicated to the people for appropriation for beneficial use.  In the Arkansas Basin every drop of water in the natural streams is appropriated and thereby owned by individual entities, private and public.

Due to the above misreading and misunderstanding of ownership a tension between private rights and public rights to water has existed.  Importantly, Colorado is not a public trust state.  Thus, the waters of the state are not “held in trust” for the public, rather, they are dedicated to the people of the state for appropriation and use.  The statute therein creates the ability for individuals to acquire a private ownership of water—a water right confirmed by court decree through a priority of use date. 

Some incorrectly argue that a water right is a usufructuary right, which is technically correct.  A usufructuary right refers to one individual’s right to use the property of another provided that the right is not altered or impaired.  A Colorado water right is different, it is alienable.   That is, it may be changed and transferred to another type of use, place of use, or manner of use.  The priority of use has historically been viewed as a private property right that can be separated from the land upon which it is used.  The water right itself can be separated and transferred from the land upon which it was historically used and may be purchased separately from the land. (1)  Although water rights are property rights and are considered realty, they can be abandoned, thus they are a possessory right. (2)

For nearly 150 years water in Colorado has been allocated by prior appropriation.  Especially in the arid Western half of the USA this system that establishes these property rights is called the “Colorado Doctrine”.  When the interior of the Western United States was developed Colorado was the trailblazer on water appropriation.  The West needed miners, ranchers, and farmers to develop its resources and build a viable economy through hard work.  During this early development period the average citizen mistrusted government and large monopolistic enterprises and feared the creation of a system that would facilitate collusion between government and these corporations.  To best use the water resources of Colorado the prior appropriation doctrine was adopted to create the incentive for resourceful individuals to divert waters of the state and place them to uses that would develop vibrant economies.  The system that was adopted prevented wealth speculators from hoarding water and creating a windfall profit.  The language in the Colorado Constitution does just that.  Public refers to the people individually given the right to appropriate water and place it to beneficial use and thereby creating a private property right. 

By law the amount of water so appropriated must be beneficially used without waste.  Irrigation water rights are allocated by a ratio of a volume or rate of water to a specific amount of acreage.  This is termed the “duty of the water right”.  From this ratio and historic practice is derived the specific amount of water that an individual water right owner owns, stated in acre feet.  This is commonly called the transferrable or historic consumptive use.  The transferrable consumptive use is the measure of the amount owned and the amount that can be transferred for use in different locations or changed to a different type or manner of use.  In order to protect other vested water rights a transfer must be confirmed by the water court and a new or a change decree issued.  Through the water allocation and use mechanisms developed in the Colorado Doctrine, Colorado citizens have been able to optimize the use of incalculable value in an arid region of the United States.
1Strickler v. City of Colorado Springs, 16 Colo. 61, 26 P. 313 (1891)
2Knapp v. Colorado River Water Conservation District, 131 Colo. 42, 53, 279 P.2d 420, 425 (1955)

Kenneth Baker, Legislative Consultant for the Upper Arkansas Water Conservancy District, was born in Salida, CO on March 10, 1932, the year Franklin Delano Roosevelt was elected 32nd President of the United States. Mr. Baker has seen, experienced, and accomplished a lot in his 87 years, which we learned when we sat down with him for an interview late last year. Our hopes were to hear a few stories about Ken’s life, his family, and his work, to glean from his experiences and knowledge, and to capture the story and the magic of a man that has meant so much to the water community and to those that know him personally. We hope to share a hint of that magic with you.
 
It’s a special thing to be entrusted with someone’s story, an even greater honor to be allowed to share it. When we first set our intention to create an archive of stories of individuals that have impacted the local water community we were reminded of the mission of StoryCorps’, which is “to preserve and share humanity’s stories in order to build connections between people and create a more just and compassionate world.” On its website StoryCorps’ states, “We do this to remind one another of our shared humanity, to strengthen and build the connections between people, to teach the value of listening, and to weave into the fabric of our culture the understanding that everyone’s story matters. At the same time, we are creating an invaluable archive for future generations.”

Of course, it would be impossible to communicate the depth and breadth of Ken Baker in one short article- 87 years is a lot of life to have lived! We hope that our video and audio archive, the compilation of articles that Ken has written over the years, and this little glimpse into his story will serve to facilitate connection and appreciation for a life well lived.

If you take a peek at Ken’s bio on the District’s website you’ll find these words. “Ken Baker graduated from the University of Colorado with BA, MA and JD degrees. He was admitted to the Colorado Bar Association in 1964 and practiced law in Salida from 1974 until 2001, specializing in water, real estate and administrative law. Mr. Baker was the Chaffee County Attorney for 25 years and former Poncha Springs Town Attorney. Mr. Baker was one of the founding members of the Upper Arkansas Water Conservancy District and served as the manager and attorney for the District from 1979 until 2001. He was instrumental in developing the District’s blanket well augmentation plan and today is the District’s Legislative Consultant.” That’s a lot! And at the same time, it’s only a tiny piece of Ken’s story.

Here are a few other things we learned when we took the time to listen and dig deeper. Ken grew up in Salida, next to an Italian grocery store, one block from the railroad tracks. He was one of seven children, six of whom were boys. Salida was an immigrant community at that time, the railroad having brought people from all over the world, and it was not uncommon to hear Italian, Spanish, and Croatian spoken on Salida’s streets. Ken grew up fishing and playing along the Arkansas River and remembers Tenderfoot (S Mountain) as his playground. He knew the gulches by name and would regularly get water out of a spring across the river. For those that don’t know; that spring is called Pasquale Springs and is now part of the City of Salida’s water supply.
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Both Ken and his father were students at Longfellow. Living so close to the tracks Ken remembers hitching a ride home on the back of the train, though he was always careful to jump off a block early and walk the rest of the way so his mom wouldn’t ask too many questions. The railroad was central to the community as Ken grew up. Ken’s dad was a railroader and Ken’s first job was as a railroad brakeman.

Ken planned to go to college right after high school but President Truman had a different plan for fellows his age. The Korean war had started and Ken joined the United States Navy. He remembers travelling from Denver to San Diego by train and a few things stood out to him about that trip. He saw his very first television in the window of a shop in Salt Lake City. He also remembers stopping in a quaint little gambling town in the middle of nowhere in Nevada. You may have heard of it- it’s called Las Vegas. Things sure have changed since Ken took that trip out West!

Following his service with the Navy, Ken returned to Colorado and was invited to play football at the University of Colorado, where he majored in history and Latin American studies. Ken then went on to study law, was admitted to the Colorado Bar Association in 1964, and started his first job as a lawyer in Alamosa specializing in land and water.

But this wasn’t Ken’s first experience with water. Ken grew up around water and knew about irrigation from an early age. His work in Alamosa with the agricultural community only served to deepen that knowledge and experience, which he then brought back to Chaffee County. Over the course of many decades Ken worked as a private attorney, Chaffee County attorney, and attorney for the Town of Poncha Springs. He was one of the founding members of the Upper Arkansas Water Conservancy District, serving as manager and attorney for more than 20 years, and remains the Legislative Consultant for the District to this day.
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One thing you notice when Ken starts talking about this period of his life is his humility. Despite decades of work and life experience, Ken credits others for the many significant water related accomplishments that have been achieved throughout the years. His list of mentors is long, each name bringing forth a story and a deep sense of respect and gratitude. People like George Everett, Wendell Hutchinson, Tom Young, Denzel Goodwin, Jim McCormick, Glenn Everett, Eddie Holman, and Terry Scanga, just to name a few. A lot of these folks are no longer with us, but their legacies live on. It was a privilege to hear Ken share their stories with us, just as it honors us to share his story with you.

When we asked Ken about his role in founding the District and developing the District’s blanket augmentation plan he said, “I didn’t know what we were meant to do when we started but I’m proud of what we’ve done.” He says the District started as the little engine that could and turned into the little engine that did. And because Ken writes about the history and accomplishments of the District better than we ever could, we encourage you to read his article, “A Footnote in History as the Arkansas River Flows through the Upper Valley” .
 
Of course, Ken’s life is a vessel that is filled with more than water. It is filled with family, including his wife Linda whom he met square dancing and married in 1990, and his children whose accomplishments, like Ken’s, are too many to list. It is also filled with the many friends, mentors, and colleagues whose own cups are a little fuller because of Ken’s part in their lives. 
 
We know that this article has only scratched the surface of Ken’s story, but hopefully this connection with history through his story has provided a reminder of our shared humanity. Ken has given his heart and soul, his mind, his resources, and his energy to protecting water rights, to holding up the doctrine of prior appropriation, and to his family, friends and community whom he loves dearly. If this little scratch on the surface of Ken’s life leaves you with a sense of anything at all, we hope it’s that Ken Baker’s story, like all of our stories, is one worth sharing.

As water legends and water battles flowed through the historic Arkansas River into folklore and judicial precedent, the legacy of the Ranching family, the Everett's of Chaffee County, Colorado, left its brand on the colorful doctrine of “Colorado Water Law”.
 
Like his father, George E. Everett carried on the tradition of protecting water rights on the river. Among his many public service contributions, he was a member of the Board of Directors of the Southeastern Colorado Water Conservancy District until September 23, 1977 when, along with his brother Dan, he was killed in an airplane crash en route to Cortez, Colorado. His son Glenn succeeded to the vacancy on the Southeastern board and continued the legacy of water leadership left by his father and grandfather.
 
Prior to his death, George E. Everett was working to create a water conservancy district in the upper reaches of the Arkansas River to directly represent water users and the water community in the upper basin. The inspiration of citizen Everett survived the airplane crash. Fueled by a crushing drought and irrigation wells pumping out of priority, the inspiration became a rallying call to fellow ranchers, water users, political friends, and everyday citizens to petition the Court for the new district. The tireless efforts of community leaders led to a court declaration forming the Upper Arkansas Water Conservancy District in the Spring of 1979.
 
The UAWCD, under the directorship of fellow ranchers, friends, and devotees of George E. Everett ranks among the significant leaders in water law and the water user community in Colorado. It is also one of the principal water managers of the water flows in the Arkansas River and its tributaries. In 2004 the UAWCD purchased water rights and land irrigated by George E. Everett and his wife Wilmoth for more than half a century. This chapter of his legacy will be continued.
 
The George E. Everett Memorial Award was created to preserve the legacy of George E. Everett, to serve as a guide for the preservation of water and its use in the historic traditions of the Arkansas River, and to dedicate, in his memory, an annual award to a person or persons who have made a significant contribution to the principals which guided George E. Everett and his family in pursuit of these goals. 

The misreading of Section 5, Article 16 of the Colorado Constitution has led many citizens to mistakenly assume that all the water of the state belongs exclusively to the public.  This section states:

“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 hereinafter provided.”

Essentially the waters are the property of the public for appropriation to beneficial use.  The ownership of the water by the public is conditioned upon it not being appropriated.  Further the water is dedicated to the people for appropriation for beneficial use.  In the Arkansas Basin every drop of water in the natural streams is appropriated and thereby owned by individual entities, private and public.

Due to the above misreading and misunderstanding of ownership a tension between private rights and public rights to water has existed.  Importantly, Colorado is not a public trust state.  Thus, the waters of the state are not “held in trust” for the public, rather, they are dedicated to the people of the state for appropriation and use.  The statute therein creates the ability for individuals to acquire a private ownership of water—a water right confirmed by court decree through a priority of use date. 

Some incorrectly argue that a water right is a usufructuary right, which is technically correct.  A usufructuary right refers to one individual’s right to use the property of another provided that the right is not altered or impaired.  A Colorado water right is different, it is alienable.  That is, it may be changed and transferred to another type of use, place of use, or manner of use.  The priority of use has historically been viewed as a private property right that can be separated from the land upon which it is used.  The water right itself can be separated and transferred from the land upon which it was historically used and may be purchased separately from the land.  Although water rights are property rights and are considered realty, they can be abandoned, thus they are a possessory right.

For nearly 150 years water in Colorado has been allocated by prior appropriation.  Especially in the arid Western half of the USA this system that establishes these property rights is called the “Colorado Doctrine”.  When the interior of the Western United States was developed Colorado was the trailblazer on water appropriation.  The West needed miners, ranchers, and farmers to develop its resources and build a viable economy through hard work.  During this early development period the average citizen mistrusted government and large monopolistic enterprises and feared the creation of a system that would facilitate collusion between government and these corporations.  To best use the water resources of Colorado the prior appropriation doctrine was adopted to create the incentive for resourceful individuals to divert waters of the state and place them to uses that would develop vibrant economies.  The system that was adopted prevented wealth speculators from hoarding water and creating a windfall profit.  The language in the Colorado Constitution does just that.  Public refers to the people individually given the right to appropriate water and place it to beneficial use and thereby creating a private property right. 
​
By law the amount of water so appropriated must be beneficially used without waste.  Irrigation water rights are allocated by a ratio of a volume or rate of water to a specific amount of acreage.  This is termed the “duty of the water right”.  From this ratio and historic practice is derived the specific amount of water that an individual water right owner owns, stated in acre feet.  The number of acre feet owned is what can be transferred for use in different locations or transferred to a different type or manner of use.  In order to protect other vested water rights a transfer must be confirmed by the water court and a new or a change decree issued.  Through the water allocation and use mechanisms developed in the Colorado Doctrine, Colorado citizens have been able to optimize the use of incalculable value in an arid region of the United States.

This is part two of a two-part series by General Manager, Ralph "Terry" Scanga. To read part one, click here.

Threats to Water Use​
In terms of water supply the greatest threat for the future would be a loss or erosion through legislative or administrative action of the time-tested Colorado Doctrine of prior appropriation.  Actions are underway to use the water plan as a framework to advocate instead for the use of policy to appropriate water.  Using policy for water appropriation would give the administration and legislature a pathway or initiative to utilize legislation in lieu of the more deliberate Appropriation system that is designed to protect existing water rights from injury.  This strongly suggests that the legislature and administration may attempt to act upon perceived crises to garner support to move future appropriations or changes of current water use through legislation instead of the water court system.
 
Already underway is a Demand Management Plan that will allow administrative policies to transfer water rights from agriculture through Deficit Irrigation or by utilizing an undefined process termed “Conserved Consumptive Use” to Lake Powell or to municipal use.  In the Arkansas Basin most irrigation is already in a deficit so there is no water to be saved.  Under Colorado’s pure form of prior appropriation, in low flow periods, water rights are curtailed automatically to force reductions in use.  There is no need to use state policy to create conservation.  The frightening part of these actions is that if successful the only way for water right owners to protect themselves from injury will be expensive court action.  If legislation is successful in adopting the concept of “Conserved Consumptive Use” it is possible we will see lower flows in the Arkansas River due to a reduction in trans-mountain diversions.  These diversions support all uses in the river such as the voluntary flow management program.  Instead of water flowing to the Arkansas River some may flow down the Colorado River to Lake Powell for storage and eventual evaporation there under a plan called Demand Management.
 
Water Quality
​In the Upper Arkansas Basin water quality has been addressed is various ways.  The Arkansas River was polluted by mining runoff and is normally by natural geologic formations.  Most of this pollution has been cleaned-up and today there are large sections of gold medal fishing.  Studies conducted by the US Geological Survey have concluded that most of our ground water is of good quality.  These are good things.  But the threat to water quality from sediment runoff from burn areas in our forests are real.  Due to the beetle infestations and decimation of the forest stands in the US Forest lands fire is more likely and has occurred.  The after effects of fire is larger than normal storm runoff.  This will and has already caused heavy sediment loading on our streams and the Arkansas River.  The Upper Arkansas Water Conservancy District (UAWCD) and the Arkansas Basin Roundtable is working with the US Forest Service and local entities to address some of these areas.  Locally, the UAWCD is working with the Forest Service on a pilot project to remove beetle killed forest stands and make it a commercially viable resource.  If successful, this may be be part of the solution.  In the lower part of the Upper Arkansas River Basin, in Eastern Fremont County, there is a geologic formation that contains selenium that contributes to contamination in this part of the Arkansas River.  At this time simply identifying these areas is a challenge but is being worked on by the US Geological Survey.  Most of this type contamination mostly affects the Lower Arkansas Basin.  Delivery of good municipal drinking water supplies is being undertaken by the South Eastern Colorado Water Conservancy District with the construction of a pipeline from Pueblo Reservoir to the Lower Basin communities.