December 2023. Xcel Energy, the utility that runs a small hydroelectric plant in Glenwood Canyon, signs a purchase and sale agreement over that plant's water rights, in favour of the Colorado River District, the public body that administers water in the west of the state. Agreed price: ninety-nine million dollars, subject to closing conditions.
The plant is not a storage dam: it diverts the water into a tunnel two miles long, drops it onto its turbines, and returns it to the river just below. As for the prospective buyer, it will generate no electricity and will not divert a single gallon. Two parties agree on ninety-nine million dollars for water that neither of them consumes.
the agreed price for an obligation imposed on everyone upstream
A water right is not permission to take water: it is the right to require that a given flow reach one precise point on the river. Shoshone's covers 1,250 cubic feet per second, and its point of delivery is at the bottom of Glenwood Canyon, downstream of almost every user on the upper Colorado.
For those 1,250 cubic feet to arrive there, all the water of the upper basin must have come down to the canyon without being diverted on the way. That, and nothing else, is what carries the price.
Colorado water does three things: it irrigates fields, it supplies towns with drinking water, it turns turbines. Every diversion rests on a right that fixes a volume, a place, a use, and a date. When the flow no longer suffices, the most senior holder can place a call: a state official then works back up the list and shuts the headgates one by one, starting with the most junior, until the promised water reaches the caller's own diversion.
Nobody arbitrates between a field, a tap and a turbine: the only thing looked at is the year in which each right was recorded, and Shoshone's right is dated 1902.
The flow of the Colorado varies from year to year; it can be measured, and it is badly forecast. Rank, by contrast, no longer moves: on a given river, the number of rights recorded before yours is fixed for ever, and nobody can slip in above you.
You can dig a ditch, buy land, build a plant. You cannot move up the queue: the real scarcity here is not the water, it is a closed list.
How to read it: each dot is a right recorded on the river, placed at the year in which it was taken. Indicative diagram. Between the first right recorded on a river and the last, the acre-foot goes from about $50,000 to $5,000.
A date is not old in itself: it states only a rank, and that rank changes from river to river.
Every right exists as a decree entered by one of Colorado's seven water courts, specialised tribunals that hear nothing else, organised in their present form in 1969 and holding priorities that go back to the 1850s. The decree fixes the volume, the use, the point of diversion, and the date.
The right can be sold, bequeathed and mortgaged like real property, and every transfer goes back before the judge. The chain is not reconstructed after the fact by an expert: it has been kept by the state from the outset, and it is the state that enforces it every summer.
A dry summer on the St. Vrain: downstream, farmers take shovels to the dam that diverts the water into another valley.
Sued by the ditch company, they argue: our land fronts the river, so the water that runs past it is ours.
The Court rules: fronting the river gives no right; being recorded first does.
The rule fits in one sentence, written into the Colorado constitution in 1876: “Priority of appropriation shall give the better right”. That date is the date of no water right: it is the date of the rule that ranks them, and many of the rights it ranks had been taken before the rule was written.
Six years later, the Court goes further than naming a winner: it writes that water, once appropriated, ceases to be an appendage of the land and rises “to the dignity of a distinct usufructuary estate”. The story therefore does not belong to whoever is selling: it is held by a published judgment, followed in nine states, and re-enacted every summer by an official closing headgates.
In the twelve previous issues of L'Écart, proven prior existence came to confirm a value born elsewhere: of scarcity, of taste, of the story. It served as proof. In Colorado water law it does not prove value: it manufactures it. A decree stripped of its date guarantees no volume, confers no rank, and is worth nothing on resale.
Shoshone's right is not described by the year it was taken; the date is the whole of the right.
As long as the plant runs, Shoshone places its call and so pulls the water down to the foot of the canyon: it keeps the farms and towns downstream alive, and forces those on the Front Range to cut what they take upstream. If the plant closed, nobody would place the call any more, and the water would stay up above. The $99 million is meant to keep that call in place for ever.
Money is not the obstacle: $97 million of the $99 million has been raised. But a right depends on its use, and this one must shift from the turbine to the river. Since 1973, leaving the water in the stream has been a recognised use in Colorado, provided a state body holds the right: that body gave its consent in November 2025, and the water court has still to fix the exact flow. The gap no longer separates price from value, but a proven value from the unprecedented use intended for it.