2015 Preview: States React to New Era of Water Scarcity — Circle of Blue

From Circle of Blue (Brett Walton):

Water is priority in state Legislatures and governors’ offices.

California, its hand forced in 2014 by a nasty drought, brought its groundwater laws out of the Gold Rush era and into line with nearly every other state in the Union. New York’s Democratic governor banned fracking for natural gas, in large part because of concerns about water pollution.

Kansas debated how to cope with a shrinking Ogallala Aquifer, its main source of irrigation water. Voters in California, Florida, and Maine endorsed new state spending on water conservation, water treatment plants, pollution cleanup, and river restoration. And more than one dozen states, spooked by drought and needing guidance, discussed or submitted new water plans.

Taken together, these actions represent an awakening in the United States that water supplies are not as abundant as once thought. A series of severe droughts in recent years — from Texas in 2011 to the Midwest in 2012 to California today — is the frontline reality of a hotter, drier era that is forcing state leaders to take stock of their water assets and reevaluate laws, regulations, and investment strategies.

More is coming in 2015.

In states that voted for water spending, leaders this year will open the public purse. The Texas Water Development Board, a loan-making agency, will distribute funds from a $US 2 billion pot of money that voters approved in 2013. Applications for the first round of loans are due in February and the loans will close by December. Though much of the money will be spent on new pipes, wells, reservoirs, and treatment plants, state law requires at least 20 percent go toward water conservation and recycling.

The Florida Legislature also will spend a pile of cash, in its case from a fund seeded by real estate taxes and designated for land and water conservation. Approved at the ballot box in November, the fund could generate between $US 10 billion and $US 18 billion over 20 years for land purchases and infrastructure investments tied to improvements in water quality.

Montana lawmakers will consider a $US 336 million infrastructure package that was proposed by the Democratic governor. Thanks to an oil boom in neighboring North Dakota, border counties in the eastern third of the state are outgrowing their water and sewer grids. Roughly one-sixth of the package is dedicated to water, sewer, and irrigation projects.

In California, the nine-member California Water Commission is laying the groundwork for expending some of the $US 7.5 billion in bond money that voters approved in November. The commission, whose members are appointed by the governor, must write the rules for deciding priorities…

Groundwater on the Agenda

Debates about groundwater, as in 2014, will continue to echo in statehouses. Wisconsin, for one, will be a battleground for groundwater regulation. Lawmakers rejected a bill last session that would have forced regulators to approve new wells without considering cumulative effects of groundwater pumping on rivers and lakes. The Wisconsin League of Conservation Voters hopes to keep attention on the state’s aquifers, making groundwater legislation one of its top priorities in 2015. Their concern is well placed. An explosion of high-volume irrigation wells in central Wisconsin is causing streams to dry up.

The loudest chatter, however, may come from Texas, a state in which groundwater is essential to urban growth and agriculture…

In addition to new laws, several states — Arkansas, Colorado, Kansas, and Montana among them — will be finalizing water plans that were introduced in 2014. Both Arkansas and Colorado are proposing multibillion dollar infrastructure projects. In Arkansas’s case, new canals will wean farmers from unsustainable groundwater use. In Colorado, the growing cities of the Front Range are looking to move more water across the continental divide, from the Colorado River Basin.

Other states, meanwhile, will hope that long-running legal disputes will be resolved this year in the U.S. Supreme Court. Texas has sued New Mexico over declining flows in the Rio Grande, while Florida successfully petitioned the justices to consider Georgia’s use of water from shared rivers.

More general interest coverage here

Snowpack news: Arkansas Basin = 115% of normal (best in state), Rio Grande improves = 73%

Westwide SNOTEL snow water equivalent as a percent of normal via the NRCS
Westwide SNOTEL snow water equivalent as a percent of normal via the NRCS

Click here to go to the NRCS website for snow maps and other products.

Can Colorado approve a water right to grow pot? — Aspen Journalism

Roaring Fork River back in the day
Roaring Fork River back in the day

From Aspen Journalism (Brent Gardner-Smith) via the Glenwood Springs Post Independent:

Can the state of Colorado issue a water right to irrigate marijuana plants when federal law still says that growing pot is a crime?

That’s the question being asked by a division engineer and a water referee in Division 5 water court in Glenwood Springs, in response to a water rights application filed by High Valley Farms LLC.

“Even though the cultivation of marijuana and the sale of marijuana is legal in the state of Colorado, because it is still not legal under federal law, this question is still out there — whether beneficial use includes any use that is not legal under federal law,” said Alan Martellaro, the division engineer in Division 5.

Martellaro said a water right in Colorado can be issued only if the water is being put to a beneficial use, such as irrigation.

But the use of the water also has to be lawfully made. If it is not a lawful use, it is not a beneficial use, and so no water right can be issued.

On the other hand, Martellaro recognizes the logic of a counterargument, which is that if it is legal under state law to grow pot plants, then it is a lawful act to water them, regardless of federal law.

“We’re not coming down one way or the other, we just want an answer,” Martellaro said.

High Valley Farms, LLC is controlled by Jordan Lewis, who owns the Silverpeak marijuana store in Aspen and a new 25,000 square-foot indoor marijuana growing facility along the Roaring Fork River south of Basalt.

High Valley Farms filed an application with the water court in August seeking the right to annually pump 2.89 acre-feet of water (941,710 gallons) from the Roaring Fork River to irrigate 2,000 to 3,000 marijuana plants in the Basalt facility.

It also is seeking approval of an augmentation plan for a back-up supply of water.


On Nov. 19 Martellaro, after conferring with the Division 5 water court referee Holly Strablizky, issued a “summary of consultation” about the High Valley Farms application.

“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 (Colorado state law),” the summary of consultation stated.

“Specifically,” the summary report said, ”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 word “lawfully” is in italics in Martellaro’s summary report, but that’s the extent of how the question is posed.

Whether it is legally a “beneficial” use or not, watering marijuana plants in Colorado is a valuable practice.

In the first 10 months of 2014, people spent $574 million on marijuana legally grown in Colorado, according to “The Cannabist” at The Denver Post.

In May, the U.S. Bureau of Reclamation issued a policy in response to Washington state and Colorado legalizing the growing of marijuana.

The federal agency said it “will not approve use of Reclamation facilities or water in the cultivation of marijuana,” given that the Controlled Substances Act of 1970 still prohibits growing weed.

This has lead to a tentative working assumption by some water providers that it is OK in Colorado to provide water for irrigating marijuana plants, as long as it is done with “nonfederal” water.

The augmentation plan filed by High Valley Farms includes a contract for a back-up supply of water from an irrigation ditch owned by the Basalt Water Conservancy District.

The Basalt district often leases water it controls in Ruedi Reservoir, which is a Bureau of Reclamation facility.

But the contract between High Valley Farms and the Basalt district says the water provided on High Valley’s behalf will be only from “nonfederal sources.”

High Valley’s augmentation plan also includes a contract to buy water from the Colorado River District out of Wolford Reservoir, which is a nonfederal reservoir north of Kremmling.


Other marijuana-growing operations in Colorado have so far gotten their water by using existing water rights, Martellaro said, not by applying for new ones.

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.

Martellaro said this is apparently the first time an applicant has filed in Colorado for a new water right specifically to grow marijuana.

Beth Van Vurst, a water attorney for High Valley Farms, responded to the division engineer’s summary of consultation on Dec. 19.

“The procedure for addressing this concern will be discussed at the next status conference,” Van Vurst told the court, which has set the next conference for Jan. 13.

At that time, Martellaro expects that a deadline will be set for High Valley Farms to file a legal brief on the issues raised by the court.

Van Vurst said Wednesday she could not discuss the issues in the case as they are pending before the water referee.

If High Valley Farms does file a legal brief, Strablizky, the water referee, would have several options, Martellaro said.

She could accept the explanation from High Valley Farm and the matter could end there.

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

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

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

Many water court cases include a number of parties that have filed “statements of opposition” in the case, which gives them standing to appeal decisions.

However, only one party has filed a statement of opposition in the High Valley Farms case, and that’s the Roaring Fork Club.

The club’s office is next door to Silverpeak’s new growing facility and it owns water rights on the Roaring Fork River.

“The Roaring Fork Club will probably get invited to weigh in on this, but we’re very likely to take no position on this issue,” said Scott Miller, a water attorney representing the club, referring to the issue raised by seeking a right to water marijuana plants.

“Our primary issue in this case is to protect our water rights in this stretch of river, which is already heavily diverted,” Miller said.

Aspen Journalism, The Aspen Times and the Glenwood Springs Post Independent are collaborating on coverage of rivers and water. More at http://www.aspenjournalism.org.

More water law coverage here.