Basalt water case could  affect state’s pot industry

A view of the High Valley Farms grow facility, just east of the town of Basalt.

By Brent Gardner-Smith, Aspen Journalism

BASALT – Can Colorado ‘lawfully’ grant a new water right to grow its marijuana?

If officials in Division 5 water court in Glenwood Springs rule it’s illegal to grant a water right to grow marijuana, it could shut down the pot industry in Colorado, an attorney for High Valley Farms, a Basalt-based marijuana growing facility, has told the court.

“If this court were to determine that, contrary to the findings of the state engineer, the use of water for marijuana facilities is not a beneficial use, the entire industry, which reportedly employs almost 16,000 residents, would be shut down,” wrote Rhonda J. Bazil, an attorney in Aspen for High Valley Farms LLC.

High Valley Farms supplies marijuana to the Silverpeak store in Aspen. The grow site and the retail store are commonly owned and Jordan Lewis is CEO of both Silverpeak and High Valley Farms.

High Valley Farms applied in August 2014 for water rights to grow 2,000 to 3,000 pot plants in a 25,000-square-foot facility between the Roaring Fork River and Highway 82, across from Holland Hills and next to the Roaring Fork Club.

(Since the original application was filed, it has been amended, and High Valley’s request is now best reflected in a proposed decree dated Nov. 13, 2015).

In response to both the original and amended High Valley Farms applications, a water court referee who initially reviews applications asked High Valley to answer the question of whether a water right to grow marijuana in Colorado can be “lawfully” granted when the plant is illegal under federal law.

Other marijuana-growing operations in Colorado have typically gotten their water by using existing water rights, and not by applying for new rights specifically to grow pot, as High Valley Farms has done.

For example, a grower might have bought land that came with water rights, or may have leased water from a district or city with existing water rights.

Whether the High Valley Farms case implodes the pot industry or not, the case is on track to set legal precedent.

“Because this is reportedly the first case of its type in Colorado, the court has asked that High Valley address whether marijuana cultivation is a beneficial use under under” state law, Bazil wrote in her answer, filed in November.

“This is a critical issue to the entire industry,” she told the court. “If marijuana cultivation is considered to be an unlawful use of water under state law, the constitutional amendment would essentially be invalidated.”

The passage of Amendment 64 in 2012 changed the state constitution and allowed for the legal production and sale of marijuana in Colorado.

The provision of state law that the court and Bazil are now parsing is CRS 37.92-103(4), a core tenant of Colorado water law.

“‘Beneficial use’ means the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made,” the statute reads.

It’s the word “lawfully” that is in question in the case.

As in, can an appropriation of water in Colorado to grow pot be “lawfully made” given it’s still illegal under federal law to grow weed?

The answer matters, because if it’s not a “lawfully” made appropriation, it’s not a “beneficial use” of water.

Bazil told the court that imposing the federal Controlled Substances Act “onto the beneficial use statute in relation to Amendment 64 would result in every marijuana cultivation facility in this state being operated illegally whether they are providing their own water supply or are operating with water from a municipality.

“To follow this argument to its logical conclusion, the state of Colorado would have to suspend all marijuana retail, cultivation, testing and manufacturing facility licenses because there would not be any water available from any source,” Bazil wrote. “This would be an absurd result.”

But Bazil also told the court, “Fortunately, there are regulations, case law and statutes that support the position that marijuana cultivation is a beneficial use of water in Colorado.”

Bazil makes three main arguments:The state water engineer has said it’s okay to use water to grow pot plants; The federal Bureau of Reclamation has also said it’s okay to water pot plants in Colorado, as long as you don’t use water taken directly from a federal facility; the federal government has ceded general management of water rights to the states.

The High Valley Farms facility sits between the Roaring Fork River and Hwy 82, across from Holland Hills, just upvalley from Basalt. It seeks to use water from the Fork and a well in a potentially precedent-setting case.

Ref’s question

In response to High Valley’s application, the court’s water referee, Holly Kirsner Strablizky, posed the “lawfully made” question as part of a “summary of consultation” report from the division engineer.

In such reports, the division engineer typically describes their own concerns and also those of the water court referee, if they have any, without disclosing who has which concerns.

So while the marijuana question has technically been raised in a report from the division engineer, it’s understood by those close to the High Valley Farms case that the referee has posed the question.

“The applicant must explain how the claim for these conditional water rights can be granted in light of the definition of beneficial use as defined in C.R.S. § 37-92-103(4),” report states. “Specifically, beneficial use means ‘the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’ (emphasis added).”

Krisner Strablizky does not discuss court cases before her. And Bazil did not return several requests for comment.

There has been one statement of opposition filed in the water court case, by the Roaring Fork Club, which is just downstream of the High Valley Farms facility.

Attorney Scott Miller of Patrick, Miller, & Noto in Basalt, who represents the club, said their interest in the case is not about the marijuana question but only in the relatively straightforward request to physically use water.

High Valley Farms seeks a right to use 0.5 cubic feet per second of water from the Roaring Fork River in the grow facility, the right to store .61 acre-feet of water in underground tanks, and the right to use up to 7.56 acre-feet of water a year in its operations from an onsite well.

The operation would use 5.82 acre-feet of water a year at the facility’s current size and up to 7.56 acre-feet if expanded to 37,500 square feet.

What appears to be an underground water tank, yet to be buried, next to the High Valley Farms grow facility in Basalt. High Valley Farms LLC has applied for the right to store water in an underground tank.

Whose call?

Now that Bazil has made High Valley Farms’ case, the water court referee has several options.

She could accept the arguments from High Valley Farms and the matter could end there.

She could, without making a ruling, refer the case to Judge James Boyd, who presides over Div 5 water court.

Or she could reject the legal argument, and then High Valley Farms could appeal to Boyd.

If the judge eventually rules against it, High Valley Farms could appeal directly to the Colorado Supreme Court.

A case management memo filed by Kirsner Strablizky after a Jan. 28 status conference with Bazil and Jason Groves, another attorney for the Roaring Fork Club, tees up the next step in the case.

“Applicant (Bazil) stated that she and opposer (the club) are working together to finalize details regarding the proposed ruling,” Kirsner Strablizky wrote, suggesting the physical water issues in the case may be relatively straightforward.

The court asked whether, once stipulated, does the applicant desire for the referee or judge to determine whether the application is for a beneficial use,” Kirsner Strablizky also wrote, which means Bazil was asked if she preferred whether the referee or the judge rules on her argument.

“The applicant stated that the referee should process it as she feels fit,” Kirsner Strablizky wrote.

The Roaring Fork River, looking downstream, with two men standing on an irrigation headgate, river left, at the Roaring Fork Club. The High Valley Farms facility is just upstream, river right, and not in the photo.

The argument

In her answer to the court’s question, Bazil was upfront that High Valley Farms filed its application “to provide water for commercial and irrigation uses inside a greenhouse in which marijuana is grown.”

“Like most other commercial agricultural products grown in Colorado, marijuana cultivation requires supplemental irrigation,” she notes.

Then Bazil describes various green lights, if you will, along the road of her argument.

First, she points out the state water engineer’s office does not object to using water to grow pot instead of, say, strawberries.

Bazil cites a fact sheet issued in October 2014 by the state engineer called “Well and Water Use in Regards to Amendment 64 and Cultivation of Marijuana” in which “the state engineer is treating marijuana like any other cultivated plant.”

Then she directs the court to the Colorado Retail Marijuana Code developed by the state Dept. of Revenue.

“In addition to the regulations confirming the appropriateness of the use of water in marijuana facilities, the regulations specifically require that an adequate supply of water he provided to marijuana facilities,” Bazil writes, adding it’s important to note that two state agencies have now issued rules for using water in grow facilities.

In terms of federal policy, Bazil cited a policy adopted by the Bureau of Reclamation, which she says “reinforces Colorado’s right to use water for marijuana cultivation.”

The bureau’s policy, Bazil writes, ”prohibits the use of reclamation facilities or water in a manner that is inconsistent with the Controlled Substances Act, but the policy specifically excludes “non-contract water commingled with contract water in non-federal facilities.’

“In other words, water may be used under state law for marijuana cultivation as long as the water is not stored in a federal reservoir and the water is not a Bureau of Reclamation water right,” Bazil explains.

High Valley Farms is seeking water rights for exchange and augmentation from two water districts, to better protect its access to water rights in times of drought.

It seeks the right to 2.3 acre feet of water from the Basalt Water and Conservancy District’s Troy and Edith Ditch, and not from Ruedi Reservoir directly, and .9 acre-feet from the Colorado River District’s Wolford Reservoir.

Both sources of augmentation water are from non-federal sources of water, and so are consistent with the Bureau policy, Bazil notes.

She also cites a 1952 federal law, the McCarran Amendment, by which the federal government ceded authority to manage water rights to the states.

“In short, state law governs the adjudication of water rights,” Bazil wrote.

Editor’s note: Aspen Journalism, Aspen Daily News and Coyote Gulch are collaborating on coverage of rivers and water. More at Aspen Journalism.org.

#Snowpack news: #Colorado, where all basins are average or above

Click on a thumbnail graphic to view a gallery of snowpack data from the Natural Resources Conservation Service.

Statewide snowpack map February 9, 2016 via the NRCS.

Arkansas River Basin High/Low graph February 8, 2016 via the NRCS.

Upper Colorado River Basin High/Low graph February 8, 2016 via the NRCS.

Gunnison River Basin High/Low graph February 8, 2016 via the NRCS.

Laramie and North Platte Basin High/Low graph February 8, 2016 via the NRCS.

Upper Rio Grande River Basin High/Low graph February 8, 2016 via the NRCS.

San Miguel, Dolores, Animas, and San Juan Basin High/Low graph February 8, 2016 via the NRCS.

South Platte River Basin High/Low graph February 8, 2016 via the NRCS.

Yampa and White Basin High/Low graph February 8, 2016 via the NRCS.

Meanwhile, here’s what things look like westwide.

Westwide SNOTEL February 9, 2016 via the NRCS.

#ColoradoRiver: Many eyes are on the Shoshone Hydroelectric water right

From The Grand Junction Daily Sentinel (Dennis Webb):

The Colorado River District is asking Western Slope governments and water entities for more funding for continued study into ways to ensure the permanent preservation of a large, priority water right on the Colorado River.

The district and other contributors already have spent more than $200,000 looking into options to preserve the rights associated with the Shoshone Generating Station hydroelectric plant in Glenwood Canyon east of Glenwood Springs.

The district is now seeking to spend another $200,000 for the effort. It is shouldering half of the cost of the study.

The Shoshone plant has water rights dating to shortly after 1900. Its right to 1,250 cubic feet per second is senior to rights including those of Front Range municipal transmountain diverters.

As a result, the right ensures at least that level of flow both above and below the dam that serves the plant.

“The importance of that in the recreation and rafting industry frankly can’t be overstated. It’s huge,” Lee Leavenworth, an attorney advising Garfield County commissioners, told them Monday.

The small, 15-megawatt plant is owned by Xcel Energy. Western Slope interests long have feared that Xcel might sell the plant to a Front Range entity interested in buying and retiring the water right to allow more diversions under junior rights.

Xcel has said the plant’s not for sale and is important to Xcel’s power system reliability and stability.

But the Western Slope organizations aren’t taking chances, with the study exploring options including Western Slope acquisition of the plant and its water right should the plant go up for sale.

A 2013 agreement between Denver Water and 17 Western Slope water providers and governments included formalization of a protocol for generally continuing flows required by the plant even when there are plant outages. Denver Water also agreed to support possible Western Slope purchase of the plant.

Garfield commissioners on Monday agreed to commit up to $4,300 to the continuation of the study as part of a cost-sharing arrangement that would include entities from the Colorado River headwaters to the Utah state line.

“If that power plant is for sale we need to be first in line, the Western Slope,” Garfield Commissioner Tom Jankovsky said Monday.

He also voiced confidence in the ability of Western Slope entities to come up with what would be needed to buy the plant if that possibility arises.

“I think you would find that the money is there if we need to buy that,” he said.

Shoshone hydroelectric generation plant Glenwood Canyon via the Colorado River District

Shoshone Hydroelectric Plant back in the days before I-70 via Aspen Journalism

Shoshone Falls hydroelectric generation station via USGenWeb

Water rules costly for [Alamosa] — the Valley Courier

From the Valley Courier (Ruth Heide):

Complying with the state groundwater rules will not be painless or cheap for the City of Alamosa.

The city, like hundreds of well owners throughout the San Luis Valley, will have to comply with the recently filed state groundwater rules for the Rio Grande Basin.

City staff and legal counsel Erich Schwiesow have already been preparing for the inevitable compliance.

Well owners who must comply with the groundwater rules must join a water management sub-district or submit their own augmentation plans to the water court. The city of Alamosa is submitting an augmentation plan that will detail how the city plans to comply with the rules so it can continue pumping water from its wells for municipal use.

Schwiesow updated the Alamosa city council during a recent work session on the compliance process, and City Manager Heather Brooks updated the council on the compliance cost.

Brooks estimated the city’s cost to comply with the rules would be about $2.1 million. The rules require those who are pumping water from wells which constitutes the city’s water supply to replace the injuries their well pumping causes to surface water rights and to help restore the basin’s underground aquifer system. In Alamosa’s case, Schwiesow said the city must repair injuries to three rivers in the Valley, the Rio Grande, Conejos and Alamosa Rivers.

The city does not yet possess enough water rights to make up for its calculated injuries and sustainability obligations, so city staff members are currently negotiating for one water purchase that would help take care of that problem but may need to make more than one water purchase.

“We are looking for surface water and we are looking for groundwater,” Schwiesow said.

Brooks said the purchase the city is currently negotiating would be for surface water rights, but finding groundwater to help the city meet its sustainability obligations might be more difficult.

“We’ve been looking. There’s just not a lot out there,” she said.

The cost of the water rights is part of the $2.1 million compliance cost, with other portions including legal fees and possible water storage costs. Brooks said initial estimates were much higher than that, at about 3 million.

Bringing that cost down, Schwiesow and Brooks told the council, is the fact the city will receive credit for its accretions, the water it puts back into the system from the wastewater treatment plant. In fact the city has surplus accretion credits of 800 acre feet annually it is offering for bid starting at $250 an acre foot for a five-year lease. See the city’s web site at http://cityofalamosa.org/ultimate-auction/augmentation-credit/

Schwiesow explained that the city has made an application in the water court to exchange the accretion credits it has below Alamosa farther upstream on the Rio Grande and Conejos Rivers to cover depletions the city is obligated to replace on those two rivers.

How much the city will have to replace is determined by a groundwater model that predicts how the pumping of certain groups of wells, designated in “response areas ,” affects surface streams, Schwiesow explained. Alamosa is in the Alamosa/La Jara Response Area, he said.

He also gave a hydrology lesson to the city council about how water melting from snow in the mountains recharges the San Luis Valley’s aquifer system and how the water under the Valley floor is divided by clay into unconfined (more shallow) and confined (deeper) aquifers , but there is connectivity between the aquifers. The city’s potable water wells are located in the deeper confined aquifer ranging in depth from 1,400-1,700 feet, according to Alamosa Public Works Director Pat Steenburg. The city has a total of seven wells.

Schwiesow also gave the council a water history lesson about priority being given to water rights on the basis of when they were first granted, with older rights having more seniority. Groundwater rights are very junior, he explained, because the wells were drilled long after water rights were granted to those using the surface streams. However, the state has not administered the wells in the past under the priority system, and a prior attempt to do so failed. The state was successful , however, in issuing moratoriums on drilling new wells both in the confined and unconfined aquifers, Schwiesow explained to the council.

Last fall the state promulgated rules requiring the junior groundwater rights to replace depletions they are causing to surface streams, and although filed, those rules are not yet in effect, pending challenges being resolved in court, Schwiesow added.

Councliman Charles Griego asked about how soon the city had to come into compliance with the state water rules. Schwiesow said the city has to be in a sub-district or have an augmentation plan or substitute supply plan within a year after the rules are finally approved by the court.

Griego asked why the city was in such a hurry to put the augmentation plan together now if the legal process could take years before the rules are finally approved.

“Because it takes time,” Schwiesow said, “and we want to be ahead of the curve. If we wait until the rules are approved, we can’t get it done in a year. It’s a long process.”

He added, “We can’t just sit here and wait until the court cases are over.”

The council talked about the role of the weather and climate in the basin’s diminished aquifer levels and how important it is to emphasize conservation measures with city water customers. Brooks said city staff is looking at ways the city itself can conserve water, perhaps implementing more xeriscaping for example.

“We could do a better job in the conservation piece,” said Councilor Jan Vigil.

The January 2016 ‘State of the Climate’ is hot off the presses from NOAA

Click here to go to the website. Here’s an excerpt:

U.S. climate highlights: January

Temperature

Above-average temperatures were observed across the West, Northern and Central Plains, Upper Midwest, and the Northeast. Maine observed its 11th warmest January on record. Below-average temperatures occurred in the Mid-Atlantic and Southeast.

Alaska had its fifth warmest January on record. The statewide average temperature of 17.1°F was 15.0°F above the long-term average. Much-above-average temperatures were observed throughout the state, with slightly above-average temperatures across the Aleutians.

Precipitation

Below-average precipitation was observed across much of the eastern United States. Ohio had its ninth driest January with a precipitation total of 1.28 inches of precipitation, 1.53 inches below average.

Above-average precipitation fell across parts of the West and in Florida. Parts of Florida were record wet and the statewide precipitation total of 5.96 inches was 3.00 inches above average and ranked as the fourth wettest January for the state.

According to an analysis of NOAA data by the Rutgers Global Snow Lab, the January contiguous U.S. snow cover extent was 1.65 million square miles, 286,000 square miles above the 1981-2010 average, and the seventh largest in the 50-year period of record. Above-average snow cover was observed across the West, Northern Plains, and Northeast, with below-average snow cover in parts of the Southern Plains.

According to the February 2nd U.S. Drought Monitor report, 15.5 percent of the contiguous U.S. was in drought, down from 18.7 percent at the end of December. Drought conditions improved for parts of the West and Northeast, with drought worsening in parts of the Northern Rockies and Plains. January was drier than average for much of Hawaii, with many locations receiving less than 25 percent of normal monthly precipitation. Abnormally dry and moderate drought conditions expanded to the entire state.

Significant Events

A powerful winter storm hit the Mid-Atlantic and Northeast from January 22-24, with snow falling from Arkansas to Massachusetts, impacting more than 100 million people. Several cities, including Baltimore, Maryland and New York City, set new all-time snowfall records. Impacts were widespread with power outages, more than 13,000 flight cancellations and severe coastal flooding. On the Northeast Snowfall Impact Scale (NESIS), the storm rated as a Category 4 (Crippling) winter storm and ranked as the fourth most impactful winter storm since 1950. Only winter storms in 1993, 1996, and 1960 ranked higher.

Drought continued to shrink across much of the U.S. during January, resulting in the smallest drought footprint since October 2010. Several Pacific storms slammed into the West Coast, bringing beneficial precipitation but causing coastal erosion. At higher elevations, above-average mountain snowpack was observed across the Sierra Nevada Mountains, which have been snow starved for several winters. Despite the slightly improved drought conditions in the West, longer-term precipitation deficits persist with exceptional drought continuing for 39 percent of California. Drought conditions were nearly non-existent east of the Rockies.

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#COleg: HB 16-1005, Another attempt at approving rain barrels

From The Pueblo Chieftain (Chris Woodka):

Another attempt to legalize rain barrels in Colorado is being made in the state Legislature.

Rep. Daneya Esgar, D-Pueblo, Rep. Jessie Danielson, D-Wheat Ridge, and Sen. Mike Merrifield, D-Colorado Springs, are trying to get a measure passed that would allow homeowners to collect up to 110 gallons of rainwater in two barrels on their own property. The bill is HB 16-1005.

A nearly identical measure passed the state House last year, but was allowed to die before it reached the Senate floor. It faced opposition from water users who claimed the water would be intercepted before it reached streams and rivers.

“Colorado is the only state where it is illegal to collect and use rainwater,” Esgar said. “We think it will be good for all of Colorado.”

This year’s bill is substantially the same as the 2015 version, and allows water collected to be used for nonpotable purposes such as lawn irrigation, landscaping and gardening. It would require the state engineer’s office to post information on its website.

Sen. Jerry Sonnenberg, R-Sterling, is offering an amendment to the bill which would require the state engineer to develop rules and which would make water providers accountable for replacing the amount of water collected. Sonnenberg led opposition to last year’s bill.

Sponsors are not likely to amend the bill as Sonnenberg is suggesting, however, and instead will look at adding their own amendment that would categorize rainwater collection as part of the doctrine of prior appropriation, Esgar said.

“This is not the camel’s nose under the tent that some have tried to portray,” she said. “We’re just talking about collecting water to put on flowers and gardens.”

A study conducted by the Urban Water Center at Colorado State University-Fort Collins concluded collecting 100 gallons of water from the lot of a typical Denver household had little impact on runoff. In fact, new construction of previously undeveloped land — on which state water law is mute — had a much larger impact on runoff by increasing the amount of water that reaches streams.

Colorado has rarely enforced its prohibition on rain barrels, and has two laws on the books that allow for limited rainwater collection.

A 2009 state law (SB80) authorized the use of rain barrels in connection with other water rights. Another 2009 bill (HB1129) authorized pilot projects for rainwater harvesting. So far, the proposed Sterling Ranch development in Douglas County has been the only applicant.

From Western Resource Advocates (Drew Beckwith):

Bing-bing! Like any good fighter worth their weight, our legislative effort to legalize rain barrels is back for another round. Round 1 was all about gauging the opponent’s weaknesses and testing out combination punches – of social media with editorials, and big-name supporters with grassroots action. In Round 2, we’ll hone our path to victory and are aiming for a K.O.

Boxing analogies aside, making it legal for Colorado residents to have a rain barrel is up again at the Colorado legislature, this time as House Bill 16-1005. Last year’s attempt was wildly popular with the general public and was editorialized in support by five of the state’s largest newspapers. The people want this bill to pass.

In Colorado, current law assumes that the rain falling on your roof already belongs to someone else further downstream. Yes, you are a scofflaw for putting a bucket under your downspout. It seems totally ridiculous, and it is.

Just like last year’s bill, HB 16-1005, seeks to change our antiquated status quo by allowing residents to use up to two rain barrels for watering their plants, garden, and flowers. Lots of research that I will not get into, demonstrates that this limited amount of rain water capture has no impact on downstream water users. In fact, the whole point of this bill is to get our public more engaged in water issues. Someone with a rain barrel begins to pay attention to how much water it takes to water the lawn; they begin to question where their water really comes from beyond the tap; and this can lead them to develop a conservation ethic towards water resources.

This increased awareness is a good thing, and frankly a must-have if we are going to tackle the difficult water challenges facing our region.

Unfortunately, our collective efforts were thwarted last year via political game playing. Knowing that the bill would pass out of the Senate Agriculture and Natural Resources committee and would have received bi-partisan support in the full Senate, Senator Sonnenberg who chairs the Ag Committee “laid the bill over” for multiple weeks, stalling a committee vote on it until the second to last day of the legislative session. This effectively killed the bill because Senate rules dictate that bills cannot be debated by the full senate and voted upon in the same day.

In this next round, we’re prepared for another stall tactic and are building even greater support for legalizing rain barrels with influential groups across the state. HB 16-1005 is still awaiting its first committee meeting in the House, so stay tuned for updates from WRA. You can follow #rainbarrel and #HB1005 for the latest news.

Lake Nighthorse assessment available soon for comment — The Cortez Journal

From The Cortez Journal (Jessica Pace):

An environmental assessment and other documentation on Lake Nighthorse may soon be available for public review and comment, bringing residents a step closer to recreational use, U.S. Bureau of Reclamation officials say.

Kathleen Ozga, resource division manager for the Bureau of Reclamation Western Colorado Area Office, said the comment period will last 30 days. The agency will then continue massaging the environmental assessment with a tentative completion date in late April.

“We’re reviewing the documents internally and hoping by the end of the month, a draft of the EA will be available,” Ozga said. “Once that’s done, there would be construction at the entrance area, signage, an overflow parking lot and possibly improvements to the access road. Ideally, we’re looking at (opening recreation) sometime in 2017.”

Lake Nighthorse was filled with 1,500 surface acres in June 2011 with the purpose of providing water for local tribes and water districts. But fishing, boating, swimming and other recreational uses have been prohibited, to the public’s dismay, as stakeholders weigh the impacts of such uses and figure out which entity – which could be the city of Durango – should be charged with managing recreation.

Most concerns from the Southern Ute and Ute Mountain Ute tribes, which have a significant claim to water rights at the lake, are connected with the impact to cultural resources and water quality. Proposed compromises entail limiting lake access to day-use only and prohibiting camping.

Aspinall Unit Spring 2016 forecast #ColoradoRiver

From email from Reclamation (Erik Knight):

The February 1st forecast for the April – July unregulated inflow volume to Blue Mesa Reservoir is 640,000 acre-feet. This is 95% of the 30 year average. Snowpack in the Upper Gunnison Basin is currently 110% of average. Blue Mesa Reservoir current content is 582,000 acre-feet which is 70% of full. Current elevation is 7490.1 ft. Maximum content at Blue Mesa Reservoir is 829,500 acre-feet at an elevation of 7519.4 ft.

Black Canyon Water Right

The peak flow and shoulder flow components of the Black Canyon Water Right will be determined by the May 1 forecast of the April – July unregulated inflow volume to Blue Mesa Reservoir. If the May 1 forecast is equal to the current forecast of 640,000 acre-feet of runoff volume, the peak flow target will be equal to 5,102 cfs for a duration of 24 hours. The shoulder flow target will be 515 cfs, for the period between May 1 and July 25. The point of measurement of flows to satisfy the Black Canyon Water Right is the Gunnison River below Gunnison Tunnel streamgage at the upstream boundary of Black Canyon of the Gunnison National Park.

Aspinall Unit Operations ROD

Pursuant to the Aspinall Unit Operations Record of Decision (ROD), the peak flow and duration flow targets in the lower Gunnison River, as measured at the Whitewater gage, will be determined by the forecast of the April – July unregulated inflow volume to Blue Mesa Reservoir and the hydrologic year type. At the time of the spring operation, if the forecast is equal to the current forecast of 640,000 acre-feet of runoff volume, the hydrologic year type will be set as Average Dry. Under an Average Dry year the peak flow target will be 8,070 cfs and the duration target at this flow will be 10 days.

Projected Spring Operations

During spring operations, releases from the Aspinall Unit will be made in an attempt to match the peak flow of the North Fork of the Gunnison River to maximize the potential of meeting the desired peak at the Whitewater gage, while simultaneously meeting the Black Canyon Water Right peak flow amount. The magnitude of release necessary to meet the desired peak at the Whitewater gage will be dependent on the flow contribution from the North Fork of the Gunnison River and other tributaries downstream from the Aspinall Unit. Current projections for spring peak operations show that flows in the Gunnison River through the Black Canyon could be in the 5,000 to 5,500 cfs range for 10 days in order to achieve the desired peak flow and duration at Whitewater. If actual flows on the North Fork of the Gunnison River are less than currently projected, flows through the Black Canyon could be even higher. With this runoff forecast and corresponding downstream targets, Blue Mesa Reservoir is currently projected to fill to an elevation of around 7517.5 feet with an approximate peak content of 812,000 acre-feet.

Snowmaking — an economic catalyst for #Colorado

From The Pueblo Chieftain (James Hagadorn):

Snowmaking, once relegated to hills frequented by lowland landlubbers, has become one of Colorado’s key economic catalysts. And along the way, we were the proving ground for a secret ingredient now used in snowmaking worldwide.

Our watershed moment was the winter of 1976-77, when there was not a fluff of snow on most mountain slopes, not even by the time the Grinch arrived. For perspective, Steamboat’s season lasted less than a month and a half, compared to the 4½ months it’s regularly open today.

The situation was the same all over the West, and repeated itself again in the winter of 1980-81.

Hands were wrung.

Snow was hauled in by garbage bags. Snow dances were performed.

Governors scowled, declaring it a disaster. And the effect was the same: Tourists and locals who’d bought ski passes and planned trips canceled.

Employees and employers whose livelihood hinged on travel and winter life were devastated.

Despite the fact that ski areas like Golden’s Magic Mountain and Colorado Springs’ Ski Broadmoor had been making snow since 1958-59, it took these two brutally dry and unpredictable winters for Colorado to get on board with what the Midwest and Northeast had been doing for decades. After that, we never looked back.

Opening dates

The purpose of snowmaking is to allow the industry to reliably predict when their winter terrain will be open. An earlyseason base not only helps preserve naturally falling snow, but with the assistance of Snowcats’ and snow-dozers, it helps patch protected or hightraffic areas that wouldn’t normally accumulate sufficient snow.

Most snowmaking starts in October or November, with an eye toward having a base built up by Thanksgiving. This is the industry’s key target date because most direct and indirect ski/snowboard revenue comes from out-of-state visitors, and they want to plan their trips for holidays.
Fortunately, Colorado adopted snowmaking long after the first garden hose, spray nozzle and paint compressor were tested at Mohawk Mountain in Connecticut in 1949. Thus we benefited from and later fed into the evolution of snowmaking technology and strategy.

Bacterial help

Fundamentally, snow is produced by blowing highly pressurized air and water out of a “cannon” or “gun” when it’s cold. The science behind manipulating water, air and microclimate to engineer snow is a topic in and of itself.

But making snow isn’t just physics and engineering. It’s chemistry and biology, too.

That’s because to make snowflakes, a nucleus is needed. In the sky, the nucleus might be a bit of windblown dust or silica that gets heaved up into the freezing-cold clouds. But to make snowflakes down near the ground, and to do it in relatively “warm” temperatures (i.e., above 17 degrees), water droplets need a really good nucleus to trigger crystallization.

Most of the naturally occurring nuclei in our waters only catalyze snowflake growth below 17 degrees. Enter good luck. Some geneticists discovered that a nontoxic bacterium native to most plant leaves, flowers and vegetables helps tiny ice crystals to form. They produced these bacteria en masse, freeze-dried them, and sent them to Colorado. Our very own Copper Mountain tested them, making snow under warmer temperatures than usual.

Major payback

Before we knew it, nearly every resort was injecting this dried bacterial powder into their snowmaking water supply to act as nucleating agents. These nucleating agents are key when temperatures are relatively high (about 27 degrees) because they permit droplets to freeze quickly, during the limited “hang time” they have when falling from a snow-gun’s nozzle to the ground.

Many resorts also use a surfactant in their snowwater, which is a substance that reduces the surface tension of water (the property that makes water bead up in a domelike shape when you fill a glass to its brim). The surfactant allows droplets to break apart more easily and be smaller.

Smaller droplets have a larger surface area relative to their volume and thus freeze more quickly, during their travel time from snow gun to the ground. Snowmaking takes sophisticated equipment, savvy and fit operators, tons of advance planning, and Mother Nature’s cold, dry, still air to pull it all off. Our snowmaking comes at a high cost (tens of millions each year), has risks and directly and indirectly impacts the environment. Yet per unit of energy, water or investment dollar, it brings a tremendous payback to the state, in terms of predictability, safety and fun.

That’s why every major Colorado ski area makes snow, except for Monarch Mountain (it sits on the Continental Divide), Ski Cooper (home of the 10th Mountain Division) and Silverton Mountain (our highest and steepest terrain).

Fountain Creek: “Colorado Springs has offered $19 million a year, which is inadequate” — Ray Kogovsek

Fountain Creek flooding 1999 via the CWCB

From The Pueblo Chieftain (Chris Woodka):

Pueblo City Council wants the federal government to crack down on Colorado Springs for violating its stormwater permit in order to reduce the risk of damage from Fountain Creek flooding.

Two weeks after approving a resolution with a list of recommended conditions for Pueblo County commissioners to apply in an anticipated intergovernmental agreement, council voted to send the same list to the U.S. Attorney’s office.

Among the conditions would be the expenditure by Colorado Springs of $50 million annually to address a $534 million backlog of stormwater control projects, adequate staffing to maintain structures already in place, a reliable source of future stormwater funding and additional help to dredge Fountain Creek in Pueblo in order to maintain levees.

The action was requested by City Council President Steve Nawrocki because Colorado Springs is on two tracks of negotiations over its lack of stormwater control, City Attorney Dan Kogovsek explained.

“Colorado Springs has offered $19 million a year, which is inadequate,” Kogovsek said.

Pueblo County is looking at assurances of future stormwater control in relation to its 1041 permit for Southern Delivery System. The U.S. Attorney’s office is working with the Environmental Protection Agency on prosecuting Colorado Springs violations of its stormwater permit.

The city’s resolution refers to the 2009 demise of the Colorado Springs stormwater enterprise as a contributing factor to continued sedimentation in Fountain Creek that increases the risk of flooding in Pueblo.

A Wright Water Engineers report for Pueblo County revealed that 370,000 tons of sediment annually is deposited in Fountain Creek between Colorado Springs and Pueblo. A root cause for the increased load is the increase in impervious surfaces in Colorado Springs since 1980.

Colorado Springs had a stormwater enterprise in March 2009 when Pueblo County issued the 1041 permit for SDS. The Bureau of Reclamation considered it to be in place when it issued a record of decision for SDS.

From The Pueblo Chieftain (Chris Woodka):

Colorado Springs has not confronted its stormwater problem on Fountain Creek for years, and there’s no reason to believe they will after the current crisis blows over, in Jay Winner’s opinion.

“Every elected official from the Springs knows how to feed this crap to Pueblo in order to keep sending it down Fountain Creek,” said Winner, general manager of the Lower Arkansas Valley Water Conservancy District. “Every city council comes to us with the same message. I want our elected officials in Pueblo to understand what has happened.”

Colorado Springs last month sent emissaries to the Pueblo Board of Water Works, Pueblo City Council and Pueblo County commissioners to convince them that the city has seen the light after facing legal action from the federal Department of Justice and Environmental Protection Agency.

That didn’t stop council from passing a resolution recommending that commissioners push for $50 million annual funding for stormwater in Colorado Springs, more help with dredging Fountain Creek and other measures to mitigate damage from increased flows. Commissioners maintained a hard stance that the 1041 conditions require stormwater control, and might not be enough if just followed to the letter.

Do the right thing

In short, both wanted Colorado Springs to do the right thing when it comes to Fountain Creek.

The Lower Ark district has been trying to do that since 2005, shortly after Winner stepped into his job — first through negotiations and then through the threat of a federal lawsuit. They worked cooperatively on a $1.2 million Fountain Creek corridor plan that was crucial to early funding of the Fountain Creek Watershed Flood Control and Greenway District. The relationship has soured.

Winner was at some of the meetings last month where Colorado Springs pleaded for time and understanding, but is far from convinced Colorado Springs will follow through on promises this time. He heard Colorado Springs Mayor John Suthers’ pitch that it’s better to spend money on solutions than lawyers — even though lawyers were in the mayor’s entourage.

“Put your money where your mouth is. There are a couple of ways to do this. Maybe it’s time the legal system goes through the process, to make sure Colorado Springs spends the money on the solution,” Winner said. “I believe they could be fined up to $38,000 a day, so that might get their attention. Maybe the EPA could talk to its sister agency, the Bureau of Reclamation, and not let them turn on SDS until this gets taken care of.”

2013: Shortfalls found

Winner is concerned that last year’s EPA audit said Colorado Springs had taken little action to correct deficiencies identified in a February 2013 audit.

A look at the audit reveals the Colorado Springs stormwater department had been gutted in late 2012 and personnel reassigned to other areas.

Testing of water quality samples in the Fountain Creek watershed was farmed out to the U.S. Geological Survey, the results were ignored and staff was poorly trained to do the work itself.

Waivers of regulations meant to assure developers would properly install drainage structures and ponds were granted routinely without inspection, resulting in siltedup, overgrown ditches and basins.

City staff failed to follow through on cleaning up a gasoline spill that occurred during the inspection while the EPA waited on site. Snow was forecast for the next day.

The solution promised to federal inspectors was a regional stormwater task force that would eventually try to form the Pikes Peak Regional Drainage District, which would have generated $40 million annually to address a $700 million backlog of needs in El Paso County.

When voters rejected that idea in November 2014, Colorado Springs apparently did nothing to correct the problems by the time EPA inspectors returned.

2015: Nothing fixed

The 2015 EPA audit revealed interviews with city stormwater staff who said they did not have the funding or personnel to fix the problems identified by the EPA.

It revealed other things too.

For instance, a 2010 Colorado Springs Utilities stabilization project for a 66-inch-diameter sanitary sewer line on Shooks Run was not properly installed, never inspected by city stormwater staff and never maintained.

Colorado Springs staff told inspectors $11 million in high priority projects could be undertaken when Federal Emergency Management Agency funds came through. The EPA noted that some of the projects were routine maintenance, not flood damage.

The audits are far from exhaustive. In 2013, a team of four inspectors spent four days poking through records and visiting some sites. In 2015, five inspectors spent two days.

But the offenses were judged serious enough that EPA threatened legal action last year.

Chess game

So what was the Lower Ark district doing during the two-year gap?

Trying to move stormwater into the limelight.

Unsuccessfully, it turned out, as Colorado Springs made flanking maneuvers in a political game of chess.

Colorado Springs was, in 2013, trying to deal with the aftermath of the Waldo Canyon Fire, which destroyed 346 homes in 2012 and badly damaged the mountains west of the city. The challenges included building storm detention ponds that were quickly filled in with silt and overrun by summer rains.
Winner tried to raise the issue with the Fountain Creek Watershed Flood Control and Greenway District, which had shelved its own plans to secure a funding source — state law allows it to collect a mill levy — while the stormwater task force worked in El Paso County.

In July 2013, Winner raised questions about Fountain Creek water quality as it relates to downstream farming, but was told by Colorado Springs Mayor Steve Bach and Council President Keith King that the city was not obligated to do projects that benefit Pueblo or downstream communities in the Arkansas Valley.

Bach presented a list that purported to show $46 million in stormwater projects, although many of those used federal grants, were aimed at fire mitigation or would not be completed by the end of the year. Many dealt with new damage that occurred after the 2009 demise of the stormwater enterprise.

In September 2013, during one of the most intense floods on Fountain Creek since 1999, Lower Ark attorney Peter Nichols explained the connection between high water levels on Fountain Creek and the presence of E. coli in the water at a Pueblo County commissioners hearing.

Nichols pointed out the 2012 report card of the American Society of Civil Engineers that gave Colorado Springs mostly Ds and Fs when it came to stormwater control. The city’s per capita funding was the lowest for any large city in Colorado.

At the same meeting, Pueblo County commissioners heard assurances from Colorado Springs Utilities officials and Councilwoman Jan Martin, who voted to repeal the stormwater enterprise in 2009, that stormwater needs would be met.

Colorado Springs also was successful in 2013 in fending off a legal challenge in the state Supreme Court and an appellate court by the Pueblo district attorney — Bill Thiebaut started it; Jeff Chostner finished it — over water quality in Fountain Creek.

A lawsuit is born

A week after the commissioners’ hearing, the Lower Ark board instructed Nichols to begin preparing a federal lawsuit alleging violations of the Clean Water Act. That lawsuit was put on hold last year until the EPA action plays out, but federal attorneys are plowing some of the same ground.

Originally, the Lower Ark sought to sue Reclamation because stormwater control is tied into the federal contract for Southern Delivery System. It’s also a part of Pueblo County’s 1041 permit for SDS, which must be met under federal guidelines.

After the 2014 vote against the regional stormwater authority, the focus of the lawsuit shifted to Colorado Springs.

“We’d heard enough by that point,” Winner said.

Winner has pushed for setting up stormwater as a standalone utility that would be isolated from political whims of Colorado Springs City Council. The current promise of $19 million annually doesn’t necessarily bind future councils to spend money in a way to improve conditions on Fountain Creek, he said.

“I’m glad the EPA is doing something, because Colorado Springs has been thumbing their noses at us for a long time,” Winner said. “They came down here and tried to tell the water board that street sweeping in Colorado Springs will somehow benefit Pueblo. I’d recommend we delay SDS until the EPA gives Colorado Springs a clean bill of health.”