The Colorado Water Case of Fate v. Destiny, 1 P.4th 2050 (Colo. 2020)
Editor’s note: James Eklund addressed the 2019-2020 graduating class of Water Literate Leaders, a partnership between the Hach Center/Community Foundation of Northern Colorado and the Colorado State University | Colorado Water Center. This article is from his keynote presentation of September 9, 2020. While the article specifically addresses ‘Water Literate Leaders,’ we invite all Coloradoans to consider themselves ‘summoned.’
James Eklund is the co-founder and CEO of Eklund Hanlon, LLC, teacher at the University of Denver, and former director of the Colorado Water Conservation Board and Colorado’s representative on Colorado River issues.
If you have yet to hear of the Colorado water case of Fate v. Destiny, fear not… it has yet to be decided. It is, however, actively being argued and, believe it or not and like it or not, as a Water Literate Leader, you have been summoned for jury duty.
The purpose of this article is to explain the dispute, brief you on the arguments, request your leadership in implementing solutions, and thank you for your service. This case will turn on how Colorado — and its water literate leadership — deals with water stress. Water stress is a “perfect storm” of the following:
- climate change (resulting in higher ambient air temperatures, greater volatility and unpredictability in our water supply, and wildfire in our watersheds),
- increased and hardened demand for water,
- market pressure for municipalities to “buy-and-dry” our irrigated agricultural lands, and
- constraints on how we fund and finance water infrastructure projects.
Warning #1: Some people use metaphor to support their writing, others torture a metaphor. Unfortunately, this author frequently waterboards a metaphor beyond recognition, as demonstrated by this article. So, if you distain or mildly dislike the use of metaphor, you should stop reading now and accept my apology.
Warning #2: An unfortunate aspect of water articles is they, ironically, tend to be dry. To entice reading to the end, you will find a few fun water facts.
About the Parties: Fate, the plaintiff in this case, believes Colorado must adhere to the status quo at all costs when it comes to water (or anything else). Fate is a water lawyer by training.The defendant, Destiny, on the other hand, fiercely believes that Colorado’s water future can be shaped and is not on any predetermined course. Destiny is running for town council.Fate’s Case: We are subject to immutable water law and policy. Even in the face of increased water stress, we are powerless to adjust our practices. The die is cast. Colorado water law is ancient, unmovable, and venerable. The doctrine of prior appropriation, what many other states refer to as the Colorado Doctrine, was birthed here. And why not? Water molecules that begin in our snowpack reach 18 downstream states and the Republic of Mexico. First-in-time, first-in-right forms the foundation of our private property, water rights system. This bedrock aspect of our water law is incapable of change. Therefore, we cannot develop or implement any new tools to confront water stress.
Moreover, we should not seek out new ways to use our old tools, either. If you are looking for agility, flexibility, and adaptability, you have stumbled into the wrong subject. We have made our (river) bed and now we must lie in it. This is true even in the face of serious challenges like climate change disruption and wildfire, hardened demand and population growth, buy-and-dry of irrigated agriculture, inadequate infrastructure and failing water systems, compromised water quality and pandemics, and social inequity (see longer list below).
In short, we must hope that our water future looks similar to our water past. Remember your Shakespeare, “what’s past is prologue” and do not fight it. Finally, the current COVID-19 crisis demonstrates that, even when the data is uniform and unambiguous and human life is on the line, we still cannot agree on policy. Even if Destiny were hypothetically correct, and we could somehow shape our water future, we would still battle each other for control, argue different priorities, and break along political and ideological lines of self-interest.
Rather than create false hope with hyperbole (e.g. collaboration, consensus, commonality of interest), we should be realistic about our inability to achieve any other outcome than the following:
- failure to implement our state water plan;
- an increasingly warmer, dryer water future (aka aridification or megadrought);
- status quo water law and policy;
- no additional water conservation incented or achieved;
- no additional water storage added;
- municipal growth predicated on more water from the Western Slope or from “buy-and-dry” of irrigated agriculture;
- continued decline of river systems (e.g. Colorado River) that increases pressure from downstream sovereign states and nations;
- compliance with our nine interstate compacts and two equitable apportionment decrees generates interstate litigation and decades of uncertainty that ultimately leads to curtailment of water uses in Colorado (which, in turn, spawns intrastate litigation);
- junior municipal users requiring protection from curtailment purchase senior water rights leading to more buy-and-dry of agricultural communities;
- increased balkanization of water interests along local government lines over the parochial and nearsighted interests of water districts;
- compromised reservoirs quadruple electricity rates among some rural electric associations;
- federal funding generated by the sale of hydroelectric power dries up and cripples environmental and international salinity commitments;
- a tightening fiscal knot that strangles any hope of publicly financing water infrastructure projects;
- a reluctance to invite investment of private capital in public projects;
- the accelerated failure of municipal water systems;
- increased wildfire frequency and burn severity in watersheds that compromises water quality, runoff patterns, and reservoir yields;
- increased frequency of isolated high precipitation events resulting in increased flooding;
- inequitable water stress falling disproportionately on disadvantaged populations;
- compromised streamflow and water temperature negatively impacts to biodiversity and recreation; and
- Colorado’s brand as a headwater state with best in class water policy is irrevocably damaged.
Destiny’s Case: Despite Fate’s argument, and incredibly depressing list, we do not know what the future holds for water in Colorado or the major river systems originating here. Nevertheless, we, and not some external force, have the power to shape our water future. While inertia is indeed a powerful force, overcome it we can. Rather than merely react, or worse fail to act at all, we can (and must) plan and act to create the communities and state we want. Ben Franklin’s “failure to plan is planning to fail” is applicable here. Colorado’s water challenges require a plan (which we have) and the bold leadership to implement it (that’s where Water Literate Leaders come in).
In November of 2016, Colorado produced its first comprehensive, strategic water plan. The product of a 10-year civic engagement process that saw tens of thousands of Coloradans participate, it emphasized implementation over stagnation and measurable objectives over worthless hyperbole. One reason this planning effort succeeded where so many others fail was because the authors were actual Coloradans charged with crafting their own basin implementation plans. Nearly four years later, Colorado and Colorado’s Water Plan requires water literate leadership to ensure effective implementation. Specifically, the plan includes measurable objectives that deserve your attention:
- The Gap: Colorado faces a gap between water supply and demand that is projected to grow to 560,000 acre feet by 2050 if we do nothing differently (i.e. we fail to implement Colorado’s Water Plan). This challenge requires us to work immediately from the supply side (storage) as well as the demand side (conservation).
- Conservation: 400,000 acre feet of new conservation by 2050 (above and beyond conservation efforts existing as of November 2015) must be achieved. And this is not a bridge too far. Technology that allows us to utilize graywater and leak detection can save a quarter of the consumptive use in a home. Unlocking this potential, however, takes leadership that encourages adoption of these technologies.
- Land Use: we must better integrate water use into our master land use planning in a real and meaningful way (75% of land use plans must integrate water use by 2030).
- Agriculture: alternatives to “buy-and-dry” must be developed (at least 50,000 acre feet of alternative transfer mechanisms such as rotational fallowing) by 2025.
- Storage: 400,000 acre feet of new storage (above and beyond storage amounts existing as of November 2015) must be achieved by 2050. Conservation without storage is poor water management. As a headwaters state, we must maintain an acre foot of storage for every acre foot of conservation we create. Like conservation, this storage goal is achievable if we take full advantage of groundwater storage and recharge potential.
- Watershed Health, Environment, & Recreation: As a headwaters state, water is a critical part of our bottom line and our brand. We also know that our water is under threat from climate change. Therefore, we need 80% of our locally prioritized rivers and streams covered by stream management plans by 2030. We also need 80% of our watersheds covered by watershed health plans by 2030. Again, failing to plan is planning to fail… and water is too important to fail in Colorado.
- Funding: While Colorado has certainly directed state revenue to water infrastructure, we project at least a $3 billion shortfall by 2050. This means that we require at least $100 million in new water funding per year starting in 2020. Even with the passage of Proposition DD (sports betting benefiting water project funding), we are likely to fall far short of the target. Moving forward, we will be required to leverage the public capital we maintain while harnessing private capital to fund the water infrastructure we require.
- Education, Outreach, & Innovation: Water Literate Leaders are required to achieve any and all of the objectives of Colorado’s Water Plan. As Coloradans, it is our plan and we must ensure its implementation. The state of Colorado is merely a facilitator. The people of Colorado require water education, outreach, and innovation on a historic scale. We have done big things in water in our short history as a state and managing our own future requires us to do big things again. This time, however, we can neither wait nor rely on federal intervention. Instead, we need to utilize private sector markets, technology, innovation, and investment while improving public water management and policy. This time, we cannot afford the cost of homogenous decisionmakers that do not reflect the gender and racial makeup of end users. This time, climate change and our non-consumptive water rights will be considered.
This is our roadmap for shaping Colorado’s water future. As Fate accurately states, water certainly can divide us as a state and obfuscate solutions; however, Fate fails to recognize the power of water to unite Coloradans, as demonstrated by the formulation of Colorado’s Water Plan. Rather than widening the gaps between us, water can act as a great equalizer and unifier. This requires intentionality, strategy, and innovation. Not knowing our history dooms us to repeat it. We, however, are very aware of our rich water history and can therefore chart this new course.
Time is of the essence. While final judgement may not be rendered until 2050, the more quickly we act, the better our chance of avoiding Fate’s negative list of outcomes and creating the following positive results: 
- implement our state water plan;
- meet an increasingly warmer, dryer water future (aka aridification or megadrought) with increased water conservation and storage;
- build water law and policy that incents innovation, conservation, and storage;
- add and incent 400,000 acre feet of additional water conservation;
- add and incent 400,000 acre feet of additional water storage (including underground storage);
- municipal growth predicated on more water conservation and the rotational fallowing of irrigated agriculture;
- implement tools (e.g. the Colorado River Drought Contingency Plan) to stabilize and improve the health of river systems (e.g. Colorado River) – approaches harnessing the potential of our private property water rights markets while ensuring local agricultural economies realize benefits;
- compliance with our 9 interstate compacts and 2 equitable apportionment decrees generates successful interstate negotiation and decades of certainty that removes the threat of curtailment of water uses in Colorado;
- junior municipal users are able to avoid the buy-and-dry of agricultural communities in favor of alternative transfer mechanisms;
- increase regionalization of water interests and far-sighted water districts;
- critical reservoir elevations are preserved and electricity rates are kept low with green hydroelectric power;
- federal funding generated by the sale of hydroelectric power continues to support environmental and international salinity commitments;
- a tightening fiscal knot is cut and increases publicly financing water infrastructure projects;
- a willingness to invite investment of private capital in public projects and leveraging public funds;
- the decelerated failure of municipal water systems;
- decreased wildfire frequency and burn severity in watersheds that enhances water quality, runoff patterns, and reservoir yields;
- decreased frequency of isolated high precipitation events resulting in increased flooding;
- equitable water stress falling disproportionately on disadvantaged populations;
- streamflow and water temperature are part of stream management plans that positively impact biodiversity and recreation; and
- Colorado’s brand as a headwater state with best in class water policy is maintained and improved.
Water Literate Leaders must play critical roles if we are to achieve any or all of these results. Water policy is not made in a vacuum and context is important. Water leadership requires an ability to emphasize the importance of these policy issues to ensure they compete for time and resources in the policy arena. The following lesser-known water facts demonstrate the unifying power of water.
- All the water that has ever existed here on Earth is still here (minus a miniscule amount created as a biproduct of particle acceleration). Our water scarcity is a product of the place those water molecules reside at a given time. Climate change is, in essence, transforming or relocating those molecules to unusable forms or placing them where they cannot be accessed.
- 4 billion people, or more than half of the world’s population, live in areas of physical scarcity and face economic water shortage.
- If all of Earth’s water (oceans, icecaps and glaciers, lakes, rivers, groundwater, and water in the atmosphere) was put into a giant sphere, then the diameter of that sphere would be about 860 miles, a bit more than the distance between Salt Lake City, Utah to Topeka, Kansas. The volume of all water would be about 332.5 million cubic miles. A cubic mile of water equals more than 1.1 trillion gallons (3.3 million acre feet).
- About 3,100 cubic miles of water (10.47 billion acre feet), mostly in the form of water vapor, is in the atmosphere at any one time. If it all fell as precipitation at once, the Earth would be covered with only about 1 inch of water.
- The lower 48 states receive a total volume of about 4 cubic miles (13.5 million acre feet) of precipitation each day.
- Each day, 280 cubic miles (946 million acre feet) of water evaporates or transpires into the atmosphere.
- If all of the world’s water was poured on the lower 48 states and contained, it would cover the land in a column of water 107 miles deep.
- Of the freshwater on Earth, much more is stored in the ground than is available in rivers and lakes. More than 2 million cubic miles (6.75 trillion acre feet) of freshwater is stored in the Earth, most within one-half mile of the surface. But, if you really want to find freshwater, most is stored in the 7 million cubic miles (23.65 trillion acre feet) of water found in glaciers and icecaps, mainly in the polar regions and in Greenland.
- There are more molecules of water in one cup of water than there are cups of water in all the world’s oceans.
- Water is unique because, when it gets very cold (below 4 degrees Celsius), it expands and becomes less dense when most every other substance becomes more dense as it cools.)
- The human body can generally survive for 3 weeks without food, but only 3 days without water.
- The modern human body is 60 percent water, 30 percent bones and stuff, and 10 percent coffee.
Conclusion: Perhaps water’s most fascinating property is its ability to unite or divide people politically. Colorado’s Water Plan represents an opportunity for Water Literate Leaders to unite to confront both parochial and existential threats. We need not condemn Colorado’s water future to some fate beyond our control. Instead, we can use it to shape a more just, equitable, efficient, and strategic destiny for this critical and fundamental resource.
 This list constitutes merely the top twenty of inevitable water results Coloradans can expect.
 This is also the reason I stress that I was the “architect” of the plan and not its author. As the plan itself states:
If we do nothing, these challenges demonstrate the uncertain future we will hand down to our children and grandchildren. It is a future without a value-based strategy. Colorado’s Water Plan offers an alternate path.
This path will not solve all our problems, and it will not be easy. It will require the continued hard work
and effort of Coloradans both inside and outside of the water profession, as well as measurable progress made on items identified in the Critical Action Plan.
This strategic plan is the first of its kind for Colorado: a plan by Coloradans, for Coloradans. Colorado’s Water Plan is designed to be dynamic so that it can evolve as Colorado grows and transforms. While the plan reflects the most current water data available, the CWCB will update the plan as data, needs, and projections change. Colorado’s Water Plan, p. 1-5.
 Importantly, my definition of “water infrastructure” includes traditional projects (e.g. pipelines, supply projects, metering technology) but also stream management plans and conservation efforts (e.g. graywater, leak detection, stream temperature and water quality mitigation measures).
 This list constitutes merely the top twenty of possible water results Coloradans can work toward.
 Many of these facts and figures can be found on the USGS website, visited 9.13.2020.