NSAA v. USFS: ‘In the West, state water law and the rights it protects are sacred to westerners’ — Scott Tipton


Here’s the release from US Representative Scott Tipton’s office:

Rep. Scott Tipton (CO-3) spearheaded a hearing in the House Natural Resources Subcommittee on Water and Power, [April 25, 2013], to draw attention to recent federal attempts to circumvent long-established state water law in the Western United States in order to hijack privately held water rights. With Colorado jobs and the economic health of rural communities at stake, Tipton has led the charge in Congress to protect privately held water rights in Colorado and other Western states.

Read Tipton’s opening statement.

In her testimony, Geraldine Link of the National Ski Areas Association, laid out what is at stake for Colorado’s economy should the federal government succeed in taking away privately held water rights that ski areas, communities and other businesses rely on for their livelihoods.

“Collectively, ski areas have invested hundreds of millions of dollars on water rights to support and enhance their operations…Water is crucial to future growth of ski areas and that future growth directly impacts the rural economies associated with ski areas. Ski areas are major employers in rural economies, employing 160,000 people, and help drive job creation in rural and mountain economies,” Link said. “US Forest Service (USFS) water clauses that demand transfer of ownership of ski area water rights to the United States substantially impair the value of these ski area assets…These types of water clauses provide a disincentive for ski areas to acquire more water rights in the future… If ski areas stop investing in water rights for the future, the outlook for the rural economies dependent on them would be bleak.”

Read Link’s full testimony.

The USFS is moving forward to implement a permit condition to require the transfer of privately held water rights to the federal government, without any compensation, as a permit condition on National Forest System lands. Last year, the National Ski Areas Association filed suit against the Forest Service to block implementation of the permit directive. In December 2012, the United States District Court for the District of Colorado vacated the 2012 USFS directive, and ordered the agency to pay $125,000 to cover the Ski Area Association’s legal fees.

In January 2013, the USFS announced that it intended to initiate a public comment process as it once again ramps up efforts to implement a directive that would require the transfer of privately held water rights to the federal government as a permit condition on National Forest System lands. The USFS justifies this policy as necessary in order to ensure that these water rights are not improperly sold off and used for other purposes, and to ensure that water is available for snow making and grazing.

Tipton asked Link if there has been a case of these water rights being sold or used improperly by the ski industry.

Link replied that this is a “made up issue,” and that there has been no such case. As such, she said that it’s believed that the USFS intends to use the water for other purposes, including endangered species protection, rather than for continued snowmaking and grazing as the agency has stated.

“The Agency’s most recent explanation for its policy which is, ‘saving the ski areas and the ski communities,’ is really just a cover for a longstanding objective of getting more water for the woods, for these other purposes,” Link said. “If the Agency were truly aiming to keep the water with the ski areas, why under its 2012 policy for example, which was struck down in federal court, was the Forest Service not willing to guarantee that the water would actually stay with the ski areas?”

VIDEO: Watch Tipton question the witnesses.

The implications of the USFS water grab extend past the ski area association and into the heart of rural America where farmers and ranchers rely on privately held and developed water rights to secure loans, as well as irrigate crops and livestock.

“This policy isn’t limited to ski areas. The Forest Service has also been implementing a similar requirement for grazing permits in several western states,” Tipton said. “Many of the ranchers I represent can’t afford drawn-out and costly legal battles with the Forest Service to protect what is rightfully theirs under state law.”

In addition to seeking the relinquishment of water rights through ski area permits, the USFS has begun implementing back door ways to control private water rights.

In his written testimony, Gary Derck, CEO of Durango Mountain Resort, told the committee that although the resort has been a good steward of the environment and its water rights, the Forest Service has repeatedly denied access to develop those water rights, jeopardizing those privately held rights under state law.

“A few years ago, the policies of the USFS took a distinct and concerning change of course. Local USFS officials began telling us that they were no longer in charge of making decisions relative to water rights and water access … and that direction/decisions on these matters was now coming from ‘higher up in the Forest Service,’” wrote Derck. “Apart from the obvious “taking” issue of our private water rights, we are concerned that it appears that our local USFS representatives have been directed to “stand down” and stop working collaboratively with us to help us with what we need to continue to make snow, operate/improve our business, maintain/grow our employment, and provide the recreational activities and services we currently provide for the Four Corners region and the town of Durango.”

Read Derck’s full testimony.

In response to Derck’s testimony, Tipton told the Committee, “This is nefarious and coercive, and it has to stop.”

To add to the list of federal threats to state water law, the Department of Interior recently issued Secretarial Order 3321 establishing the National Blueways System. This is a “source to mouth, watershed-wide” federal program about which little is known, and which has raised the fears of many local water conservation districts who are already doing an outstanding job of managing precious water supplies.

In February, Tipton joined 22 of his colleagues in urging Secretary Salazar to withdraw the Blueways Order, writing, “Water is the lifeblood of our communities, and it should be managed for the benefit of the community in a transparent fashion…Any designation by a federal agency that directly or indirectly attempts to manage the non-navigable headwaters of many of our nation’s rivers would be a usurpation of state authority.”

The Administration tuned-out this request and included funding in its FY2014 budget to expand the Blueways Program.

Russell Boardman, Supervisor of the Shoshone Conservation District in Frannie, Wyoming testified on the Blueways Program during the hearing.

“I would ask how a designation that requires no public notice, no comment opportunity and was created without coordination or consultation with affected landowners, local governments or states, could result in increased coordination…our district and all others in Wyoming are already coordinating with private, state and local entities and we are already promoting best practices and we are already sharing information and resources,” Boardman said. “We fail to see how a Blueways designation will enhance this. In fact, we are concerned in Wyoming that this designation will hamper these efforts by creating fear, confusion and controversy. Real conservation occurs at the grassroots level. If there is a commitment to grassroots conservation then local efforts like the ones implemented by our conservation district should be supported, rather than trumped by a Secretarial edict.”

Read Boardman’s full testimony.

“The bottom line is this: we continue to see a trend of federal intrusion into state water law which protects all of the uses we hold dear, from recreation to irrigation, domestic use and environmental protection. To undermine this system is to create risk and uncertainty for all Western water users,” Tipton said. “This isn’t a political battle, it’s a regional one. Water is the lifeblood of the West.”

From the Cortez Journal (Stephanie Dazio/Joe Hanel):

The hearing, entitled “Federal Impediments to Water Rights, Job Creation and Recreation: A Local Perspective,” did not include any witnesses from the U.S. Forest Service…

In Colorado, state law says water rights are a property right. Owners can use or sell the rights as they please, provided a water court approves of the water’s uses, the Herald previously reported.

Tipton, R-Cortez, grilled Agriculture Secretary Tom Vilsack in a March hearing about the topic, saying the struck-down directive was an attempt to circumvent state law. “The focus here is making sure that we use our forests … in the most appropriate way,” Vilsack said then. “We need to balance that with the interests of those who need the water for economic purposes,” he added, citing the ski industry.

State legislators rebelled against the practice this year and passed a resolution condemning the Forest Service for its policy.

But the Forest Service managed to scuttle a much more substantive bill, which would have changed Colorado water law to prohibit the federal government from demanding water rights in return for issuing land-use permits.

Undersecretary of Agriculture Harris Sherman, who oversees the Forest Service, personally called several state lawmakers and asked them to kill the bill. It has been sitting idle on the House calendar for two weeks, and its sponsor, Rep. Jerry Sonnenberg, R-Sterling, said he expects it to die when the yearly session ends in two weeks.

Sonnenberg has argued that the Forest Service policy takes direct aim at Colorado’s long-standing principle that water rights allow the owner to use or sell the water for any purpose anywhere in the state, as long as a court approves.

More NSAA coverage here.

Forecast news: The melt out has started but a storm expected today may boost snowpack, red flag warning south #COdrought

From the National Weather Service Pueblo office:

A Red Flag Warning is in effect for all of southeastern Colorado except for northern El Paso, Teller, and Kiowa counties from 11AM to 8PM. Expect very warm and dry conditions today across the region. Temperatures will be in the upper 80s across the I-2 corridor and eastern plains, in the mid 70s in the San Luis Valley, and in the 50s and 60s in the mountains. Skies will be partly cloudy most of the day, thickening late this afternoon. Light showers are possible across the central mountains and Colorado Springs area this evening.

From the National Weather Service Grand Junction office:

Changes are ahead today into Wednesday as a strong cold front pushes southward through the region. It will be very warm and windy across the central and southern half of the area today, well ahead of the front, with a Red Flag Warning in effect for west central and southwest Colorado as well as wind advisories in effect for the central and southern valleys. Blowing dust will occur along with the strong winds this afternoon. Showers with isolated thunderstorms are expected along and behind the front this afternoon/evening, with much colder air moving in on Wednesday. By Wednesday afternoon, most of the precipitation will have ended with only scattered snow showers for the northern and central mountains. Well above normal high temperatures today will drop some 15 to 20 degrees for Wednesday. Fair conditions with gradual warming is anticipated Thursday and Friday.

Snowpack/drought news: Statewide snowpack = 84% of avg, down from 92% last week #COdrought



Click on the thumbnail graphics for the current statewide snowpack map and the statewide basin high/low graph from the Natural Resources Conservation Service.

From the Glenwood Springs Post Independent (John Stroud):

The weekly Roaring Fork snowpack report issued by the Roaring Fork Conservancy on Friday indicated that current snowpack for the watershed is 112 percent of normal for April 26. However, that statistic is a bit misleading and needs to be put in perspective with the winter season as a whole, the conservancy also said in its report. “Due to cold temperatures and late season snows, snowpack has been rising instead of falling,” according to the report.

Snowpack usually peaks around April 6 before the seasonal melt-off begins. However, this year’s peak snowpack within the Roaring Fork watershed came on April 24 following a recent series of snowstorms that brought heavy, wet snows to the high country.

But, “At peak, we still only had 87 percent of average snowpack” for the season, the report emphasized. The snow-water equivalent also ranged in the most recent report from 96 percent of the to-date median on Schofield Pass in the upper Crystal River drainage, to 118 percent of the median in the upper Fryingpan Valley. “As a result of all these factors, every river in the watershed is flowing less than 50 percent of the median flow,” the report also said.

Statewide, the high country snowpack was still at 95 percent of normal for Friday’s date, and 87 percent of average for the season, according to Mage Hultstrand of the Natural Resources Conservation Service in Denver. As of Friday, the Colorado River Basin remained just above the 100 percent threshold for both the normal and seasonal average, Hultstrand said.

Compared to last year, though, there’s more than three times as much snow still packed away in the high country than there was on April 26, 2012. Colorado had one of its earliest peak runoffs ever last spring.

2013 Colorado legislation roundup: Drought helps drive the legislative agenda


From The Colorado Statesman (Marianne Goodland):

The work for the 2013 legislators began last summer, with the annual interim water resources review committee. The group of 10 legislators traveled the state last summer and fall, hearing about water conservation and legal issues on water rights. The end result was a recommendation for eight measures for 2013: two joint resolutions and six bills. Three other proposed bills were not approved by the entire com-mittee, but members of the committee sponsored two of those bills anyway.

The group’s legislative agenda was its most aggressive since the 2002 decision by the General Assembly to make it an annual permanent interim committee. Six bills and two resolutions came from the committee’s summer work, and two other bills that were not adopted by the committee got to the legislature anyway, introduced by committee members…

A drought can make legislators do things that they haven’t been able to do in the past, and that may hold best for HB 1044, which would authorize the use of graywater. Legislators, including those on the interim water committee, have tried for several years to get a graywater statute into the books, without success. This year, however, the General Assembly is just one more vote away from making it part of the state’s conservation efforts…

Perhaps the most significant bill on water rights was Senate Bill 13-074, which clarifies water court decrees issued prior to 1937; according to sponsors, that’s most of the decrees.

Prior to 1937, some decrees did not specify the amount of acreage that would be irrigated under a water right; SB 74 says that in a dispute, the court could rely on the historical acreage irrigated in the first 50 years after the decree was entered. Supporters claimed that farmers have counted on that water for generations, and that it has substantial value, including for estate planning purposes.

Opponents, including the Colorado Water Congress, claimed it might harm senior water rights and intends to solve a problem that doesn’t exist. It’s unusual for the CWC to oppose anything coming from the interim committee, according to attorney Steve Simms. He said that the water courts have faced virtually every possible scenario on water rights during the past 100 years, and in 95 percent of those cases, they can go back to the original intent of the decree and figure out how much acreage was to be irrigated. SB 74 says “if you cheat and get away with it, we’ll legitimize it as long as you can hide it long enough,” Simms said.

State Water Engineer Richard Wolfe said there are more than 16,000 water decrees. He said he could not estimate how many would be affected by SB 74 without reviewing each one individually. The bill was signed into law by Gov. John Hickenlooper on April 4…

SB 75 was signed into law by the governor on March 15. It prohibits reductions in the amount of water allocated when a user has undertaken conservation measures. Sponsors, including Sen. Greg Brophy, R-Wray, explained that farmers are implementing better irrigation systems and techniques for water use, but they should not have their water allocations reduced as a consequence, particularly in drought situations.

SB 19 is another one of the bills not supported by the interim committee but that got onto the legislative calendar anyway. The bill, in its final form, applies to three water districts on the western slope, and provides opportunities for conservation, according to Schwartz, its primary sponsor. Some mountain water districts have voluntarily curtailed water use in order to maintain river flows, according to attorney Kristin Moseley, who represented the Eagle River Water and Sanitation District. SB 19 encourages voluntary curtailments without penalizing the water user long-term by reducing their water diversion rights, Moseley said. SB 19 has passed the General Assembly and is awaiting signature from the governor…

SB 41 also deals with water rights and conservation, and another state need: firefighting. State water law is basically “use it or lose it,” and it includes a variety of needs that are considered “beneficial use,” such as irrigation, dust suppression, recreation and domestic. However, water storage isn’t among the approved uses under state law, and that was verified in 2011 by the Colorado Supreme Court. The Court, in stating that storage is not a beneficial use, could have forced the state water engineer to empty reservoirs every year. SB 41 reverses the Supreme Court position to allow water storage as a beneficial use, and it also adds firefighting to that list. The governor signed the bill into law on April 8.

There are two major water bills still moving through the process: HB 1248 and HB 1316.

HB 1248 is the legislature’s attempt to save water rights on agricultural land; it sets up a pilot program on fallowing agricultural land and letting that water be used for municipal purposes. The bill is based upon concerns that Colorado could lose more than a half-million irrigated acres statewide and basins could lose up to 35 percent of their irrigated acreage, all by 2050. “If we do nothing, ‘buy and dry’ becomes the default for meeting 21st century water needs,” according to the bill’s sponsor, Rep. Fischer. “Buy and dry” refers to the practice of permanently selling off agricultural water rights for development purposes.

Under HB 1248, the Colorado Water Conservation Board would authorize up to three pilot programs that would allow for temporary leasing of agricultural water rights, for up to 10 years, for four river districts: the South Platte, the Arkansas, the Rio Grande and certain portions of the Colorado. It doesn’t solve long-term water needs, but according to attorney Peter Nichols, it would create a short-term supply for municipalities during times of drought. The bill is awaiting Senate action.

The last major bill is HB 1316, which passed the House Health, Insurance, and Environment Committee 6-5 on Thursday and ends an exemption for the largest oil and gas field in Colorado and increases groundwater testing. Currently 25 percent of all drilling activity and the most intense growth of development and applications for new drilling occurs in the Greater Wattenberg Area (GWA) in northern Colorado. This month, of the 28 spills that have been reported to the Oil and Gas Conservation Commission, 15 occurred in the GWA.

More 2013 Colorado legislation coverage here.

CFWE: ‘Colorado’s water is important to the state, but it also impacts the rest of the country’ — Caitlin Coleman


From The Colorado Statesman (Caitlin Colemen):

Colorado’s water is important to the state, but it also impacts the rest of the country — we are a headwaters state with water flowing from our mountains to nourish 19 states and the Republic of Mexico. Our water matters. If Colorado has a dry year, or pulls more than our allocation of water from the state’s rivers, our downstream neighbors will feel the effects. This has always been true, but as populations continue to grow and we experience more frequent hot and dry years in the West, competition for water is going to intensify and those choices we make become increasingly grave. It’s important to understand the implications of water use on a personal and policy-level…

…the state often sees new policy-makers who need to quickly learn water policy; this year there are eight new legislators on the House Agriculture Committee. “They’re certainly dealing with a variety of complex topics, everything from climate to groundwater policy to water planning,” [Doug] Kemper says.

Making those complex topics digestible is why the Colorado Foundation for Water Education exists — to help all Coloradans ‘speak fluent water.’ That means knowing where your water comes from, where it goes, who else depends on it and using that background to make informed decisions. The nonprofit started in 2002 as the result of legislation and was backed by financial support from the Colorado Water Conservation Board. As Colorado Supreme Court Justice Gregory Hobbs says, water professionals came together with the shared sentiment that Colorado needed an organization focused on nonbiased statewide water education. “We can point to a law that the legislature passed that is unlike anything else that I know about in the water field,” Hobbs says. “The fact that the state of Colorado has decided to support a non-advocacy, nonpolitical water foundation to communicate with people is extraordinary.”

I consider Ms. Coleman a friend and teacher. She is the primary blogger at Your Water Colorado Blog. (Disclaimer: I helped her start the blog using WordPress software.)

More Colorado Foundation for Water Education coverage here and here.

SDS: ‘My central issue is that we need a concrete plan to identify stormwater needs’ –Terry Hart


From The Pueblo Chieftain (Chris Woodka):

Pueblo County commissioners want Colorado Springs to explain its stormwater plan as soon as possible, and hinted Monday that a hearing on the 1041 permit for Southern Delivery System could be necessary if answers aren’t forthcoming. “We as a community are very concerned that when the stormwater enterprise disappeared, the conditions in the 1041 permit disappeared,” Commission Chairman Terry Hart said. “The community has been patient.”

Colorado Springs City Council in 2009 eliminated its stormwater enterprise and $13 million annual funding for identified needs. Since then, a new majority of the council has been elected in 2011 and 2013, and Steve Bach was elected mayor under a new governance system. A regional stormwater task force has formed, but apparently it does not have Bach’s support and it won’t begin making recommendations on funding nearly $1 billion in projects until July at the earliest.

At a workshop Monday, commissioners reviewed several parts of the 1041 permit, including revegetation of the pipeline scar through Pueblo West and Walker Ranches and the potential for acceleration of $50 million in payments for improving Fountain Creek. But the big issue was stormwater. The commissioners want an accounting of which projects were on the Colorado Springs stormwater list, what was addressed when the fee was in place and what remains to be done. “My central issue is that we need a concrete plan to identify stormwater needs and how they are going to pay for it,” Hart said.

Colorado Springs Utilities has asked Pueblo County to wait until July to hold an explanatory meeting, in order to allow stormwater task force committees to complete their work.

More Southern Delivery System coverage here and here.