NASA’s three-week field study of snow conditions in the Silverton and Grand Mesa areas ends Saturday, after which scientists will analyze the data in an effort to develop satellites to provide snow observation data critical to water management.
On Tuesday, NASA deployed three aircraft and had about 50 researchers on the ground for the last days of data collection.
“It takes some time after we get out of the field to fully analyze the data,” said Ed Kim, a physical scientist at NASA. “We don’t have any significant findings this early. We’re always at the mercy of whatever weather we happen to get, and we know warm, wet weather has impacted the project. We’ll find out what that impact is.”
People throughout the snow research community from Canada, Europe and the U.S. volunteered their time for the effort. Researchers on the ground spent the past three weeks taking measurements, including the variation of snow depth, and digging snow pits to study the vertical structure and composition of snow layers from the surface to the ground. The team also mounted sensors to snowmobiles. The data collected on the ground will be compared to the accuracy of measurements taken from aircraft.
“That’s really critical to understand what airborne sensors are seeing,” Kim said.
Researchers used a combination of instruments to collect data on the snow, including radar and LIDAR, which stands for light detection and ranging, to measure snow depth and density, thermal infrared sensors to gauge temperature, and a hyperspectral imager and multispectral imager to measure how much sunlight the snow reflects and how fast it consequently will melt. NASA also used a passive microwave, which can gauge how much natural microwave radiation is blocked by snow.
NASA’s goal is to use the research to develop a multi-sensor satellite to study snow and predict water content, which would be a watershed invention for science. Snow impacts drinking water, agriculture and industry across the globe, yet there is no comprehensive instrument to measure it. SnowEx is sponsored by the Terrestrial Hydrology Program at NASA Headquarters in Washington, D.C., and managed by NASA’s Goddard Space Flight Center in Greenbelt, Maryland.
NASA’s Colorado expedition marks the first of a five-year snow study called SnowEx. Kim said NASA will spend the second year analyzing the data collected this month in the Senator Beck Basin, just north of Red Mountain Pass, and Grand Mesa, east of Grand Junction, as well as making plans for the final three years of the study.
Kim said NASA’s conclusions over the next year from this winter’s study will determine the next steps…
NASA selected the Senator Beck Basin near Silverton and the Grand Mesa area to conduct research because the two areas offer varied terrain and snow conditions. Moreover, scientists want to develop an instrument that can observe snow hidden in forested areas.
Federal forecasters now expect the reservoir to avoid its first federal shortage declaration next year, thanks to the boost it should get from what could wind up as the wettest winter on the river’s basin in 20 years.
“We’re in for a good year, no doubt about it,” said Randy Julander, snow survey supervisor for the U.S. Department of Agriculture’s Natural Resources Conservation Service in Salt Lake City.
Storms in Utah, Colorado and Wyoming over the past month have added more than 3 million acre-feet to the water supply forecast for the Colorado. That’s a 10-year supply for Nevada, which gets 300,000 acre-feet from the river each year and uses it to supply the Las Vegas Valley with 90 percent of its drinking water.
SHORTAGE DECLARATION UNLIKELY
The latest forecast from the National Weather Service’s Colorado Basin River Forecast Center calls for the surface of Lake Mead to start 2018 about 3 feet above the trigger line for a shortage declaration that would force Nevada and Arizona to reduce their river use.
Projections in January called for slightly below average flows on the Colorado through this summer, resulting in an 11-foot drop that would take the lake below the shortage line.
Forecasters now expect 9.6 million acre-feet of snowmelt — 134 percent of the average for the past 30 years — to make its way into the river between April and July.
One acre-foot of water is enough to supply two typical valley homes for just over a year. The Colorado River provides water to some 40 million people in the U.S. and Mexico.
Some monitoring stations on the western slope of the Rocky Mountains show roughly twice as much snow as usual for this time of year, and Julander said it is very wet and “ripe” to begin melting into the river system.
“We’ve seen a dramatic and substantial increase in snowpack and soil moisture,” he said. “January and February were absolutely outstanding. It feels good to say that.”
Heavy snow and rain in California also could take some pressure off the overburdened Colorado. The Golden State draws more water from the river than anyone and might be able curb its use and store more of its supply in Lake Mead now that its own reservoirs are filling again following heavy rains in the lowlands and snowfall in the Sierra Nevada.
As of Feb. 21, Colorado’s snowpack was sitting at 140 percent of what is considered normal, according to the U.S. Department of Agriculture’s Natural Resources Conservation Service.
That amount has dropped some, though, as only a week earlier, the statewide snowpack was at 147 percent of normal.
Still, this bodes well for Fort Morgan in terms of having plenty of water this summer and fall. It also looks good for Northern Water, which provides that water to the city through the Colorado-Big Thompson pipeline.
“Late spring and early summer snowmelt and runoff from the Rocky Mountains provides most of Colorado’s water supply,” Northern Water’s website explains. “Greater snowpack means favorable water supplies; lower amounts can signal an impending drought.”
The two major river basins that play roles in the water supply for the C-BT pipeline are the Upper Colorado and South Platte, and they had snowpacks of 147 and 142 percent, respectively, in mid-February. Those percentage fell to 140 and 132 as of Feb. 21…
But even with the dips over the last week, the numbers were still well above normal. That could continue to be the case, according to Northern Water.
“The most probable streamflow forecasts are also well above average,” the water district stated.
Further, the C-BT pipeline’s water storage level was “above average” at the start of February, tracking at 121 percent of normal as of Feb. 1.
GLENWOOD SPRINGS – The water referee in Division 5 Water Court in Glenwood Springs, in a case involving a major marijuana grow operation in the midvalley, has found that Colorado courts can lawfully issue a new water right specifically to grow the plant, even though it’s still illegal to grow pot under federal law.
“The fact that the Controlled Substances Act [CSA] prohibits marijuana use does not make an otherwise lawful appropriation of water under Colorado law illegal,” wrote Susan Ryan, the water referee, in Friday’s order on High Valley Farms, the grow site for Aspen’s Silverpeak Apothecary. “Instead, the validity of the appropriation is governed by Colorado water laws.”
Ryan’s 12-page order found that the actual legal process of the state issuing a water right to grow pot does not conflict with federal law, even though the watering itself of cannabis plants still may be in conflict.
“Establishing a valid appropriation does not require an analysis of the legality of the subsequent use of the water right,” Ryan’s order says. “Because water-right appropriations are governed exclusively by Colorado law, there is no conflicting provision in the CSA.”
With the order, High Valley Farms LLC is able to continue to pursue its application for a new water right to irrigate marijuana, and a novel question under Colorado water law has been answered.
Ryan’s order is the most detailed articulation to date of the state’s position on the question of whether a new water right specifically to irrigate marijuana can be issued, although it applies only to Division 5.
And it’s possible that a water court referee or judge in another water court division could issue a differing opinion should the question arise in other ongoing cases. The Colorado Supreme Court might have to eventually sort out opposing views.
Rhonda Bazil, the Aspen-based water attorney for High Valley Farms, declined to comment on the order, as did Jordan Lewis, the owner of both High Valley Farms and the Silverpeak marijuana store in downtown Aspen.
Posing the question
Ryan, the water referee, recently took her position in the water court in Glenwood Springs after working as a water attorney in private practice at a law firm in Denver. She found herself having to rule on a question that had been posed in August 2015 by the preceding water referee, Holly Strablizky, who is also an attorney and now works for Eagle County, and state division engineer Alan Martellaro, who is based in Glenwood.
Strablizky and Matellaro jointly reviewed the 2014 water rights application from High Valley Farms, in which it openly told the water court it was seeking a water right to irrigate up to 3,000 marijuana plants in a facility near Basalt.
After amending its original application, High Valley Farms is now seeking the right to use 9.24 acre-feet of water a year from the Roaring Fork River and an existing well on the site.
After their joint review of the water rights application, the water referee and the division engineer issued a customary “summary of consultation.” In it, they posed a question to the court: Is it OK to issue a water right in Colorado specifically to grow pot, which is still an illegal act under federal law?
The question, however, was not stated in such plain terms.
“The application must explain how the claim for these conditional water rights can be granted in light of the definition of beneficial use as defined [under state law],” the summary of consultation says. “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.’”
In the summary of consultation, the officials put the word “lawfully” in italics.
Answering the question
Ryan, in the Friday order, reframed the question from the summary of consultation in more direct terms.
“The issue before the court is whether High Valley can lawfully appropriate water to cultivate marijuana and for use in its greenhouse facilities in light of the federal Controlled Substances Act, which prohibits all marijuana use,” Ryan wrote. “Whether High Valley can seek to appropriate water for marijuana cultivation is a threshold issue in this case. To resolve this issue, the court must determine how ‘lawful’ is used in the water law statutes and if there is a conflict between those statutes and the CSA.”
After digging into the issue, Ryan determined that the “lawfully” in question does not pertain to the end use of the water, but to the legal framework and process that allows the water right itself to be granted.
In explaining her conclusion, she focused on two words, “lawfully made,” and not just on the word “lawfully” that had been emphasized in the summary of consultation.
“In this provision ‘lawfully made’ is closer to the word ‘appropriation’ than the word ‘use,’” Ryan wrote, turning to the “principles of statutory construction,” or the actual words used in a given law, for guidance.
The term “lawfully made,” she concluded, “modifies appropriation, not use.”
“The water court must determine whether the claimed appropriation is lawful, not whether the claimed beneficial use is lawful,” Ryan concluded. “A lawful appropriation of water does not require an analysis of the lawfulness of the subsequent use of that water.”
No conflict with federal law
Ryan also found there was no conflict between state and federal laws in creating the High Valley Farms water right, which was a key concern in the case.
“There is no federal law that prohibits the appropriation of unappropriated water, if that appropriation is done in compliance with state law or lawfully,” she wrote.
As part of her finding, Ryan cited two other recent decisions by the Colorado Supreme Court that centered on conflicts between Colorado and federal law relating to marijuana, Coats v. Dish Network, LLC, which concerned an employee using medical marijuana, and People v. Crouse, which dealt with law enforcement officers having to return confiscated marijuana.
In both cases, there was a direct conflict between federal and state laws, and federal law prevailed.
“In contrast to the facts in those cases, there is no federal water law that governs the appropriation of water from intrastate water sources,” Ryan wrote. “The regulation and allocation of a state’s internal water resources has been expressly delegated to the states by the federal government. There is no way to determine whether an appropriation is lawful under federal law. Thus, lawful appropriation means lawful under Colorado water law.”
Ryan did recognize the federal government’s ability to overrule Colorado’s pot laws via the federal Supremacy Clause, but said applying federal law to marijuana would pertain to possessing and using marijuana, not to the “lawful appropriation” of water.
“If the federal government decides to enforce the CSA’s provisions, the Supremacy Clause would apply, and federal law trumps Colorado state law allowing the possession and use of marijuana,” Ryan wrote. “However, this does not change the analysis of whether a lawful appropriation is made under Colorado water law.”
Will it stand?
Ryan’s order could be challenged and referred to the Division 5 water court judge, James Boyd, by one of the three other parties in the case, each of whom owns property near the High Valley Farm facility: the Roaring Fork Club; WCAT Properties, LLC; and the Spencer D. Armour III 2012 Trust.
But Jason Groves, a water attorney at Patrick, Miller and Noto of Aspen and Basalt, who represents all three opposing parties in the case along with his colleague at the firm, Scott Miller, said their clients are focused on the amount of water proposed by High Valley Farms, and not the marijuana question. As such, they do not plan on challenging the order.
“The current objectors in the case, which we represent, have no concerns about the beneficial use question raised in the summary of consultation,” Groves said. “Our concerns are on the amount of water they propose to use, which is nearly a four-fold increase in use from the existing well on the property.”
It is also possible that another party could file a motion to intervene in the case and contest the referee’s order, but so far no other person or entity has indicated they are inclined to take such action.
The diminishing water level in the 280-acre lake south of the Colorado Springs Airport is intentional. Gary Steen, manager of the Fountain Mutual Irrigation Company that owns the Big Johnson, said Tuesday morning that his company has been draining the reservoir since the summer of 2016 and preparing to repair three outlet gates…
The irrigation company typically fills the reservoir in the fall and winter months before the irrigation season begins in early April. Steen said crews have been building a bypass pipeline for the last few weeks and will finish the work prior to April 1.
When Fountain Mutual built the reservoir in 1910, it took control of a water storage decree that dates back to 1903, Steen said. That decree allows the company to store up to 10,000-acre feet of water in the lake. But, according to Steen, sediment in the reservoir has diminished its capacity over the years to about 5,000-acre feet.
As station chief at NOAA’s Point Barrow, Alaska, observatory, Bryan Thomas works close to the edge of the Arctic Ocean. What he saw from his office in early February, looking north toward the horizon, was troubling.
“I could see what’s known as water-skyoffsite link — the reflection of dark water on clouds on the horizon,” Thomas said. “From land, you can maybe see 10 miles, and the clouds were telling us that somewhere in that distance there was open water.”
Normally, there would be unbroken sea ice for hundreds of miles.
“Here we are in February, when we expect maximum sea ice extent,” Thomas added. “This might be all we’re going to get.”
The Arctic’s new abnormal
It’s a time of tumult in the Arctic, with record temperatures and extraordinary sea-ice conditions now becoming the norm. For starters:
Sea ice observed in January in the Arctic was the lowest in the 38 years of satellite recordoffsite links and 100,000 square miles less than 2016. That’s equivalent to the size of Colorado.
The average temperature of 4.4 degrees F in Barrow, Alaska, from November 2016 through January 2017 shattered the old record of 0 degrees set between 1929 and 1930. From 1921 to 2015, the average November-to-January temperature in Barrow was -7.9 degrees F.
Temperatures in the Arctic for the calendar year 2016 were by far the highest since 1900. Each of the past four years was among the top 10 warmest on record.
The late and faltering formation of sea ice this winter is one of many signs of extraordinary change in the Arctic, said Mark Serreze, director of the National Snow and Ice Data Center. He added that repeated surges of extremely warm air have stunted the growth of sea ice during fall and winter.
Melt season is dead ahead, and it’s not looking good
Will 2017 set a record for the least amount of sea ice ever recorded at winter’s end? Serreze said it’s probably a given: “We’re starting melt season on very, very bad footing.offsite link”
What’s happening in the Arctic isn’t staying in the Arctic, added Richard Thoman, a meteorologist for NOAA’s National Weather Service Alaska Region. Profound changes are coming to the state’s interior as well.
“This winter was cold by today’s climate standards,” Thoman said. “By historic standards, it was completely uninteresting. I’m ready to say beyond any doubt that interior Alaska simply does not experience the temperatures it did in the past. “
The rapid changes are bewildering, even to scientists who’ve studied it for decades.
“We knew the Arctic would be the place we’d see the effects of climate change first, but what’s happened over the last couple of years has rattled the science community to its core,” Serreze said. “Things are happening so fast, we’re having trouble keeping up with it. We’ve never seen anything like this before.”
The extended spell of high global temperatures is continuing, with the Arctic witnessing exceptional warmth and – as a result – record low Arctic sea ice volumes for this time of year. Antarctic sea ice extent is also the lowest on record.
Reports from the U.S. National Oceanic and Atmospheric Administration and NASA’s Goddard Institute for Space Studies said that global average surface temperatures for the month of January were the third highest on record, after January 2016 and January 2007. NOAA said that the average temperature was 0.88°C above the 20th century average of 12°C. The European Centre for Medium Range Weather Forecasts, Copernicus Climate Change Service, said it was the second warmest.
Natural climate variability – such as El Niño and La Niña – mean that the globe will not break new temperature records every month or every year. More significant than the individual monthly rankings is the long-term trend of rising temperatures and climate change indicators such as CO2 concentrations (406.13 parts per million at the benchmark Mauna Loa Observatory in January compared to 402.52 ppm in January 2016, according to NOAA’s Earth Systems Research Laboratory).
The largest positive temperature departures from average in January were seen across the eastern half of the contiguous U.S.A, Canada, and in particular the Arctic. The high Arctic temperatures also persisted in the early part of February.
At least three times so far this winter, the Arctic has witnessed the Polar equivalent of a heatwave, with powerful Atlantic storms driving an influx of warm, moist air and increasing temperatures to near freezing point. The temperature in the Arctic archipelago of Svalbard, north of Norway, topped 4.1°C on 7 February. The world’s northernmost land station, Kap Jessup on the tip of Greenland, swung from -22°C to +2°C in 12 hours between 9 and 10 February, according to the Danish Meterological Institute.
“Temperatures in the Arctic are quite remarkable and very alarming,” said World Climate Research Programme Director David Carlson. “The rate of change in the Arctic and resulting shifts in wider atmospheric circulation patterns, which affect weather in other parts of the world, are pushing climate science to its limits.”
As a result of waves in the jet stream – the fast moving band of air which helps regulate temperatures – much of Europe, the Arabian peninsular and North Africa were unusually cold, as were parts of Siberia and the western USA.
Sea ice extent was the lowest on the 38-year-old satellite record for the month of January, both at the Arctic and Antarctic, according to both the U.S. National Snow and Ice Data Center and Germany’s Sea ice Portal operated by the Alfred-Wegener-Institut.
Arctic sea ice extent averaged 13.38 million square kilometres in January, according to NSIDC. This is 260,000 square kilometersbelow January 2016, the previous lowest January extent – an area bigger than the size of the United Kingdom. It was 1.26 million square kilometers (the size of South Africa) below the January 1981 to 2010 long-term average.
“The recovery period for Arctic sea ice is normally in the winter, when it gains both in volume and extent. The recovery this winter has been fragile, at best, and there were some days in January when temperatures were actually above melting point,” said Mr Carlson. “This will have serious implications for Arctic sea ice extent in summer as well as for the global climate system. What happens at the Poles does not stay at the Poles.”
Antarctic sea ice extent was also the lowest on record. A change in wind patterns, which normally spread out the ice, contracted it instead.
Click here to listen to the podcast. (via David McGimpsey)
Mark Ryan, a former top US EPA attorney now in private practice, joins The Water Values Podcast and provides an insider’s view on the Clean Water Act and several important developments affecting the Clean Water Act. Apart from his outstanding analysis of three pending cases (Waters of the U.S. Rule, Water Transfer Rule, and Des Moines), Mark also fills us in on some general administrative law issues (the Regulatory Accountability Act of 2017) and his thoughts on how the Trump administration might handle these issues.
In this session, you’ll learn about:
The history of the Clean Water Act
What limnology is
What the purpose of the Clean Water Act is
How the Clean Water Act is administered
The five-part test for Clean Water Act applicability
How the Clean Water Act has evolved from 1972 to present