From Aspen Journalism (Brent Gardner-Smith):

The directors of the Colorado River Water Conservation District voted Monday to endorse a new state policy regarding “drought contingency planning” designed to bolster water levels in Lake Powell and Lake Mead, with the larger goal of avoiding violating the Colorado River Compact.

The support of the River District board, which represents 15 Western Slope counties, was expected. The district’s general manager, Andy Mueller, spoke in favor of the policy before the CWCB directors unanimously voted to approve it Nov. 15 at a meeting in Golden.

Expected or not, the support by the River District board was seen a key step in the fast-moving effort to get the four states in the upper Colorado River basin, Colorado, Utah, Wyoming and New Mexico, and the three states in the lower river basin, California, Arizona and Nevada, to keep working together on a plan to keep the two biggest reservoirs on the river system functioning as intended.

Lake Powell today is 43 percent full. The giant reservoir formed by Glen Canyon Dam typically receives 10.3 million acre-feet of water flowing into it from the Colorado, Green and San Juan rivers each year. But annual inflows have been less than 5 million acre-feet for seven of the past 18 years, and have been below average for 15 of the past 18 years, according to a summary of recent water meeting at Colorado Mesa University prepared by Ken Ransford, the secretary of the Colorado River Basin Roundtable.

Water from the Roaring Fork, Fryingpan and Crystal rivers flows into the Colorado River in Glenwood Springs.

Water managers say three more dry years could leave the reservoir too low to make hydropower at the dam, and then if drought continues, too low to release enough water to meet the upper basin’s obligations to the lower basin, which could trigger a compact call.

The timing of the River District’s vote Monday was also important, as the seven basin states are working to gain basin-wide consensus on a series of related drought contingency agreements by the annual meeting of the Colorado River Water Users Association in Las Vegas from Dec. 12 to 14.

And if the River District had not endorsed the state’s new policy, it could have signaled discord on the plans between Colorado’s Western Slope and Front Range.

“We recognize that these policies are far from perfect. We do, however, believe that they represent a good-faith effort by the CWCB at demonstrating leadership and a commitment to many of the policies adopted by our board,” Mueller said in a Nov. 23 memo to the district’s board of directors.

The new Colorado policy, which has now been endorsed by the River District, voices the state’s support for setting up a regulated pool of water in Lake Powell designed to boost reservoir levels.

That pool of water — a tiny bucket within a very big bucket — is to be filled through a voluntary, temporary and compensated demand management, or water-use reduction, program that has yet to be set up across the upper basin states.

Colorado’s new policy also says if the voluntary program does not send enough water to the new pool in Lake Powell, and a mandatory curtail program is necessary to avoid a compact call, that such a mandatory program be set up only after a public process.

The policy also says that the voluntary program will be designed to cut back on water use on both sides of the Continental Divide so as to minimize economic hardship being focused on just one part of the state.

“One of the primary areas of concern for the West Slope conservation districts is that any demand management program not have disproportionate impacts on the West Slope and that water contributed to such a program be produced in rough proportion to the post compact depletions to the Colorado River system from both sides of the continental divide,” wrote Mueller in his Nov. 23 memo.

Marti Whitmore, who represents Ouray County on the River District board, put that concern in plain terms Monday: “I want the Front Range to actually have to turn off the spigot, so to speak.”

Soft on prior appropriation?

The River District’s endorsement of the new state policy was not without some contention, including issues raised by Glenn Porzak, the water attorney for the Eagle River Water and Sanitation District and the Upper Eagle Regional Water Authority, which together provide water for 65,000 users in the Vail and Eagle County region.

Porzak had concerns about whether the state policy represented a retreat from the prior appropriation doctrine in Colorado, which is summed up by the phrase “first in time, first in right.”

In his letter, Porzak said language in the new state policy about potential future compact administration “is an obvious effort to protect transmountain diverters with junior water rights and should be alarming to all senior West Slope water managers, owners and organizations charged with protecting those rights.”

Porzak also questioned whether the CWCB would advocate in the future for strict adherence to the prior appropriation system, where junior water rights are cut off before senior rights, and especially water rights in use before the 1922 Colorado River Compact was signed.

“The lack of commitment to the state’s constitution and laws demonstrates its intent to deviate from them should a compact call occur,” Porzak said in his letter.

The River District board discussed Porzak’s concerns and then ended up taking three votes on carefully worded motions, all of which passed.

The first vote was to formalize the River District’s support for the regional drought contingency planning efforts and the setting up a voluntary demand management program in Colorado and the other upper basin states.

That motion also said “the River District will continue to advocate on behalf of West Slope water uses in future discussions concerning a demand management program.”

The second vote was to voice the district’s support for a public process in the event that a mandatory effort was needed.

And in response to Porzak’s concerns, that motion also said the River District will only support curtailment policies or actions that are consistent with the district’s own policies regarding the Colorado River Compact.

The River District’s policy, last updated in July, recognizes that some flexibility in how the prior appropriation system is administered may be needed in the future, given the complexity of actually curtailing water rights across four Western Slope river basins based strictly on their priority date.

The third vote taken Monday by the River District board was to support, in concept, the short piece of federal legislation that is soon to be introduced and is required to allow the drought contingency planning efforts to take effect.

Editor’s note: Aspen Journalism covers water and rivers in collaboration with The Aspen Times and other Swift Communications newspapers. The Times published this story on Tuesday, Nov. 28, 2018.