Salida
I have a friend who is interested in the Upper Arkansas Water Conservancy District, how its directors are put in office, and how, in this age of term limits, some of those directors can continue in office for 20 consecutive years.
My friend is a bright, funny guy, but when he sees a big metaphoric window, he sometimes starts searching for a brick to throw through it. Like me, he is often impatient with the status quo and he can see how things might be better if they were different. He is unafraid of change, an optimist who thinks that change usually results in progress. When he considers water conservancy districts, he thinks about term limits and he looks for a brick.
Water conservancy districts (WCDs) are very important in rural Colorado. They have substantial authority over the distribution of water, the lifeblood of all rural economies. Even if you live in a city or town, and you don’t have to get an augmentation permit from a WCD for your well, check your tax bill and see if you are paying a tax bite to one or more WCDs. They have teeth.
All Colorado water is owned in common by the people of Colorado, and individuals have only the right to the beneficial use of certain amounts of it. WCDs were created by statute in the 1930s to govern that use. Because the legislature thought that people with special knowledge of water issues should set the rules, district court judges appoint WCD directors from people who know something about water ranchers and farmers, mostly, people who irrigate. Elections of directors are permitted but require a petition process that is hard to get through. There is therefore little accountability to the voters for WCD directors. Back in the 1930s, judges were elected, but judges no longer run for re-election (retention votes are very different) and the voters have little control over these governmental bodies that have such power over our water, and oh by the way can also take private property through eminent domain.
As times change, the importance of different water uses also change. WCD boards have for many years created policies that encourage the traditional uses of water farming, ranching, and mining. With the increasing importance of the housing and development industries in rural Colorado, WCD policies began to emphasize residential use of water. However, perhaps because WCD directors are appointed, not elected, and tend to come from the In Crowd in any district, there has been little recognition that it is time for WCDs to start emphasizing newer, nontraditional uses, like conservation of wildlife. In Chaffee County, one important “nontraditional use” is to leave the water in the Arkansas River, where it can serve fishermen and the rafting/kayaking community.
The Chaffee Board of County Commissioners, recognizing the economic importance of people who come here to fish or raft or kayak, filed for an Instream Flow, a new kind of water right that will help keep water in the river, instead of being diverted to the thirsty cities of the Front Range. The directors of the Upper Arkansas Water Conservancy District, however, objected to the Commissioners’ filing. They can give you good reasons, no doubt, but to me it looked like the traditional users were protecting their turf from newer, more modern users like rafters, fishermen, guides and outfitters. The Commissioners are directly answerable to the voters, so they may be more in tune with the people’s will than the unelected directors of the Upper Ark WCD.
And why are WCD directors not subject to term limits? Term limits are justified primarily as a tool to reinforce accountability to the voters. The constitution applies limits to all “elected officials.” A recent opinion by the Attorney General suggests that term limits do not apply to officials appointed to fill seats of officials who resign. WCDs therefore have some justification for believing there are no term limits for their directors who are appointed from the start. But all WCD directors could be elected, if petitions are filed. All directors are therefore holding elective offices. In my view, term limits should apply to the office, no matter how the current office holder came to power.
Where term limits are required of almost every office holder in the state, it does not make sense that directors of our powerful water conservancy districts should be exempt.
F.R. Pamp is a lawyer, adjunct professor of environmental law and a consultant to non-profit organizations.
