The Republican River Water Conservation District Board of Directors will be holding its regular quarterly meeting Thursday, July 10, in Holyoke. It will be from 10 a.m. to 4 p.m. in the Biesemeier Meeting Room in the Phillips County Events Center.
The agenda includes a report from Colorado State Engineer Dick Wolfe on negotiations with Kansas regarding the compact compliance pipeline resolution and the Bonny Reservoir resolution. The board will receive the 2013 audit report, and is expected to approve an engagement letter for the 2014 audit.
From the Glenwood Springs Post Independent (Hannah Holm):
Which is more important: The public’s enjoyment of healthy streams, or preserving private property rights and agriculture? Do we really have to choose?
Questions swirling around proposed ballot initiatives that assert public rights to Colorado’s water and environment reflect broader tensions between public and private rights that are inherent in our democracy, as well as changing public values regarding natural resources.
The U.S. Constitution barely mentions water, but the Colorado Constitution has an entire article (16) on “Mining and Irrigation,” which provides the underpinnings of Colorado water law. In summary:
• Water in streams is owned by the public: “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state …”
• At the same time, individuals’ rights to take water out of a stream to use it are assured: “The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.” Further details explain that “priority of appropriation shall give the better right…” In other words, first in time, first in right.
• Rights of way have to be provided to move water from a stream to where it’s needed: “All persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water … upon payment of just compensation.”
These provisions reflect the necessity of access to water from streams for life and livelihoods in semi-arid Colorado and, according to legal scholar David Schorr, a desire to prevent that access from being controlled by a privileged few. This is a very democratic kind of desire.
Over the last 100-plus years, public values related to water have become more complicated. We all still want to drink water and eat food, but water in streams for recreation and a healthy environment have also become high priorities. And sometimes water taken out of streams to serve those long-established values of domestic use, agriculture and industry, and the livelihoods related to them, ends up leaving streams depleted and unhealthy.
The constitution clearly provides for taking water out of streams, but gives no direction about when water should be left in. The General Assembly passed laws allowing water rights to be filed for environmental and recreational purposes, but most of these rights are very junior to others and vulnerable to going unmet.
Proposed ballot initiatives to establish public rights in water and the environment seek to reverse the priority of these values. Initiative 103, “Public Trust Resources,” which focused on water, was derailed from its track to the ballot by the Supreme Court, but Initiative 89, “Local Government Regulation of Environment,” was cleared for signature collection.
Initiative 89 would amend Colorado’s constitution by asserting that Colorado citizens “have a right to Colorado’s environment, including its clean air, pure water and natural and scenic values.” It directs the state and local governments to protect these resources, and says that when local and state laws conflict, the more restrictive or protective would govern.
In his dissenting opinion, Justice Gregory Hobbs argued that the new public right to the environment “would override existing private and publicly held property rights,” and would require state and local officials “to act adversely to the interests of private parties …”
In addition to reflecting the ever-present tension between public and private rights, the dispute also reflects polarization between parties primarily interested in preserving the status quo and those seeking enhanced environmental protections.
Longtime environmental advocate and vice president of the Upper Gunnison River Water Conservancy District Steve Glazer, speaking at the Colorado Water Workshop in Gunnison in June, urged both sides in the conflict to “listen to each other more, and move together instead of apart” in order to find solutions that don’t sacrifice one set of values to serve the other.
Douglas Kemper, executive director of Colorado Water Congress, joined Bruce Whitehead of the Southwestern Water Conservation District, and elected leaders to educate the council on two initiatives that could change the state’s prior appropriation system for managing water claims. Prior appropriation is a way of water allocation that controls who uses how much water, the types of uses allowed and when those waters can be used.
The secretary of state’s website said any person can draft a statewide initiative to amend the state constitution. If proponents of the ballot measure gets enough signatures, about 86,105, all voters in the state would decide the issue. The Colorado Supreme Court affirmed initiatives 89 and 75.
The Water Congress, a nonprofit group providing leadership on water issues, created a stewardship project that tracks, what it believes are, “public trust doctrine” initiatives that would change how Colorado allocates water. The group opposes public-trust initiatives. Switching to a public-trust system would mean the government would decide how to allocate water rights instead of who came first, according to Kemper.
Initiative 75 would give local governments the power to approve laws that would establish the fundamental rights of residents, communities and nature. It would give local governments expanded power over businesses, such as allowing local laws to establish or eliminate the rights of corporations and other businesses operating in the community to protect the rights of people, communities and nature.
“Those are some pretty far-reaching powers,” Kemper said. “Basically, it says those local laws would be superior to international, federal or state law.”
Initiative 89 declares that Colorado’s environment is the common property of all Coloradoans, including the clean air, pure water, and natural and scenic values. It makes state and local governments trustees of the environment and requires them to protect the environment.
Colorado Supreme Court Justice Gregory Hobbs Jr. wrote in a dissenting opinion on Initiative 89 that the initiative would create a new common property right that would override existing private and publicly held property rights.
“Initiative 89 would upend the existing regulatory balance and thrust private-property owners and governments into an uncertain future,” Hobbs wrote…
State Rep. Mike McLachlan, D-Durango, urged city councilors to draft a resolution opposing these initiatives. The Southwestern Water Conservancy District has issued a resolution in opposition to public trust initiatives.
More 2014 Colorado November election coverage here.
[Dick Wolfe] said I-70, which runs east and west through the Centennial State, has become something of a line of demarcation. Agricultural producers north of I-70 are seeing more favorable water supplies in 2014. Traveling south of the interstate, conditions begin to change and become more extreme.
“A large driver of the water in aquifers is snowpack and runoff,” Wolfe commented, adding that snowpack was generally good in the Rocky Mountains this year. “The lowest water levels on record are in the Rio Grande Valley. In the Rio Grande, runoff continues to be bad.” Much of Colorado’s San Luis Valley, known for its production of potatoes for the fresh market, lies within the Rio Grande Water Conservation District.
The district saw the formation of Colorado’s first-ever groundwater management subdistrict which continues to take measures to reduce water consumption by agricultural interests and, at the same time, address ongoing depletions in the aquifer. “Mother Nature is that other part we have no control over,” Wolfe commented. “Over the last 10 to 15 years, the southern half of the state has been getting drier. And the Rio Grande has been consistently been in drought conditions.”
Elsewhere in Colorado, it’s another story. “The Arkansas River Basin is not looking too bad in the upper part of the state,” Wolfe noted. The headwaters of the river are located in northern Colorado, and the basin supplies water to agricultural producers in southeast Colorado.
Growers in Colorado’s Western Slope, located west of the Continental Divide, are generally reporting good water availability this season for their crops. The Colorado River and its tributaries flow through the region. “The Colorado and Gunnison rivers had great runoff conditions in the north,” Wolfe said. “The south [Western Slope] is in drought.”
There is considerable agricultural production in northeastern Colorado, the location of the South Platte River Basin. Last September, unprecedented flooding occurred in the area, with the greatest impacts affecting infrastructure and residential areas. “The runoff is now over, but we are not out of the woods yet,” said Wolfe of the potential for possible flooding attributed to rainfall.
There is concern in the South Platte River Basin about high water tables in the Sterling and Gilcrest/LaSalle areas. “That’s certainly a concern at the governor’s level,” Wolfe commented…
Officials continue with recovery efforts in northern Colorado following 2013 flooding. Wolfe said 27 dams were damaged. “That didn’t make those reservoirs unusable,” he commented. “Seventy-five percent of structures have been restored from last year’s damage.” Another 23 stream-gauging stations and 220 diversion structures were also damaged.
From email from Reclamation (Kara Lamb):
Inflow keeps coming up. As a result, we are upping the release from Green Mountain Dam to the Lower Blue River, again. By 4 p.m. [July 2] the release from the dam to the river should be around 1700 cfs.
From email from Reclamation (Kara Lamb):
Not a lot of changes for the east slope of the Colorado-Big Thompson Project this week. Horsetooth and Carter are full and will stay full through the holiday weekend. Flatiron, Pinewood and Lake Estes all fluctuate slightly, due mostly to power generation, but remain at the upper end of their storage pools. In fact, the water elevation at Pinewood is on the rise again after going down last week.
The outflow from Olympus Dam to the canyon remains at 125 cfs.
Our big news is at the mouth of the Big Thompson Canyon. We have curtailed the release of water through the concrete chute to the river. Instead, we are once again running water through the Big Thompson Power Plant. This is an exciting moment for us as the plant had been off-line since the flood.
From email from Reclamation (Kara Lamb):
We have increased releases twice from Green Mountain since my note yesterday. Yesterday afternoon, we went up to about 1400 cfs. This morning around 9 a.m. we went up to about 1600 cfs. We are still storing in Green Mountain Reservoir. It is 97% full.
The reason for these changes is we are seeing the high elevation snow melt runoff come down the Blue River. It is very likely we will see another change or two before the Holiday Weekend.
The Resurrection Mining Company has filed for approval of an augmentation plan that would allow it to use water shares to replace water depleted from the Yak Tunnel and water treatment plant. Under the plan, the company would use shares it owns in Twin Lakes Reservoir to replace water depleted by its operations in California Gulch. Resurrection filed an application for approval of the augmentation plan with Division 2 of the Colorado Water Court on May 20.
Resurrection currently owns 22 shares of water in Twin Lakes. Twelve of those shares are included on a provisional basis, meaning Resurrection can remove those shares from the plan or use it for purposes other than what it was originally approved for.
In its plan, Resurrection estimates that depletions from its plant range from 3 to 7.7 acre feet of depletions a year. The plan seeks to augment five structures owned by Resurrection. Of those structures, only two cause water depletion, according to the plan. Water depletes from the Yak Surge Pond and the Yak Treatment Plant via evaporation, and some also leaves the treatment plant through the disposal of residuals used in water treatment. The water shares from Twin Lakes would be delivered to the intersection of Lake Creek and the Arkansas River under the plan.
ASARCO and Resurrection have been using water from Twin Lakes to replace depletion from their operations at the Yak since 1989. However, they have been doing so under substitute water supply plans, which expired June 14, 2014. Resurrection’s application would provide for a permanent water replacement plan. The application also asks the division to renew the substitute water supply plan.
Resurrection and ASARCO entered into a joint agreement to develop mine sites in the Leadville area in 1965. The Yak Treatment Tunnel was originally under title to ASARCO. However, when ASARCO went bankrupt, Resurrection assumed the title.