Colorado told to stop stealing water

  • Arkansas River in Colorado and Kansas

    Diane Sylvain

A special water master appointed by the U.S. Supreme Court handed Colorado a stunning defeat in February. He ruled that the state has stolen hundreds of thousands of acre-feet of water from Kansas since 1949.

Judge Arthur Littleworth's decision concludes an eight-year legal battle over the Arkansas River, and will likely force Colorado farmers to cease groundwater pumping at some 1,500 wells on the eastern plains between Pueblo, Colo., and the Kansas border. That could dry up as much as 30,000 acres of irrigated farmland as early as this summer.

There will also be a monetary cost. Now that he's stopped the damage, Littleworth must determine how much Colorado owes Kansas for losses over the past 45 years. Kansas Attorney General Bob Stephan has tossed out the figure of $100 million for starters.

The Arkansas River once flowed year-round and was over a mile wide near Garden City, in western Kansas. Today, because of water diversions and groundwater pumping in Colorado, the Arkansas bleeds into the ground soon after it crosses the border into Kansas. It stays dry for another 150 miles until downstream tributaries fill the river again below Dodge City.

Kansas lawyers argued successfully that Colorado had violated the Arkansas River Compact by permitting hundreds of shallow irrigation wells. The wells siphoned off river water that otherwise would have reached the main stem of the Arkansas and ultimately Kansas.

However, Littleworth ruled against a second contention by Kansas: that a winter storage program for several Colorado municipalities and irrigation districts also violated the compact.

What the decision will mean for Colorado is not yet clear. Local water districts, bankers and others claim the lower Arkansas valley will be turned into a dust bowl. But depending on individual circumstances, farmers could buy relatively cheap water from Colorado Springs or Aurora, two cities that have become water-rich due to recent purchases and transbasin water projects.

The case, which has already cost Colorado $3 million, will put a significant burden on the state's taxpayers. And it represents a major embarrassment for the state's formidable water establishment.

But there will be little or no impact on the environment. Sucking the Arkansas dry has been a collaborative effort involving both states. This decision doesn't change that.

"It isn't a question of flows that restore some natural condition," says David Robbins, Colorado's lead attorney on the case. "The Kansas irrigators will be using it."

Robbins adds that since Colorado lost, the state should settle out of court before spending more time and money in a lawsuit over damage figures. Kansas, however, has not indicated it is willing to do so.

Meanwhile, Colorado's loss has become a minor political football. Denver attorney Dick Freese, former chairperson of the state Democratic Party, announced in March that he will run against Republican Attorney General Gail Norton. Freese says Norton could have saved Colorado taxpayers millions of dollars by agreeing to an out-of-court settlement before the Arkansas River Compact Administration.

For more information, contact the Colorado State Engineer's Office, 1313 Sherman St., Denver, CO 80203 (303/866-3581).

Barry Noreen reports for the Colorado Springs Gazette Telegraph.

High Country News Classifieds