Wolfe v. Sedalia average annual historical use decision from the Colorado Supreme Court

Plum Creek near Sedalia
Plum Creek near Sedalia

Back at the end of January I was howling with other water wonks at the Colorado Water Congress Annual Convention. The case, Wolfe v. Sedalia, Historical Beneficial Consumptive Use Calculation — Change of Water Right And Augmentation Plan Decree — Claim And Issue Preclusion – Prolonged Unjustified Period of Nonuse was a topic of discussion by many in the hallways in between sessions.

The decision came down yesterday from the Colorado Supreme Court. Here’s an excerpt:

JUSTICE HOBBS delivered the Opinion of the Court.

This appeal concerns the historical beneficial consumptive use quantification of an 1872 irrigation right in a change of water right and augmentation plan proceeding involving water diverted from West Plum Creek in the South Platte River system, Water Division No. 1. Sedalia Water and Sanitation District (“Sedalia”) is the current owner of a portion of that water right, which it acquired from Owens Brothers Concrete Company (“Owens Concrete”). The State and Division Engineers (“the Engineers”) participated as parties in Owens Concrete’s 1986 augmentation plan case. They also appear as parties in this case.

When the concrete company owned this portion of the originally decreed appropriation, it obtained a change of water right decree quantifying an annual average of 13 acre-feet of water available for use as augmentation plan credit for replacement of out-of-priority tributary groundwater depletions from a well. Having acquired the concrete company’s interest in the 1872 priority, Sedalia claimed a right to the same amount of historical consumptive use water for its well augmentation plan in this case. On competing motions for summary judgment, the water court ruled that the doctrine of issue preclusion prohibited the Engineers from relitigating the quantification question, although the Engineers could raise the issue of abandonment at trial if they wished.

The issue the Engineers present for appeal concerns “a third successive change of the Ball Ditch water right” and whether its “average annual historical use last quantified by the second change decree” should be requantified in this proceeding to take into account “twenty-four years of subsequent nonuse.” In their briefs and at oral argument, the Engineers urge us to adopt a comprehensive rule that every change case triggers requantification of a water right. On the other hand, Sedalia asks us to adopt the polar opposite rule—that once determined in a previous change case, the amount of historical beneficial consumptive use allocated to the original appropriation carries through every subsequent change case and cannot be relitigated.

We adopt no such cosmic rule. Instead, we address the case before us in light of applicable claim and issue preclusion water cases. We affirm the water court’s judgment in part and reverse it in part. We hold that issue preclusion applies to prevent relitigation of the historical beneficial consumptive use quantification made in the 1986 Owens Concrete change of water right and augmentation decree, but this legal doctrine does not prevent a water court inquiry into the 24 years of post-1986 nonuse the Engineers allege. On remand from this decision and in finalizing Sedalia’s decree, the water court should take any evidence and legal argument offered by the parties on the issue of the alleged post-1986 nonuse. If the water court finds there has been prolonged unjustified nonuse of the water right between entry of the prior change decree and the pending decree application, it may conclude that this constitutes a changed circumstance calling for the selection of a revised representative period of time for calculating the average annual consumptive use amount available for Sedalia’s change of water right and augmentation decree.

The legislature may provide even more guidance to the State Engineer’s office with SB15-084, Water Right Partial Historical Consumptive Use.

More water law coverage here.

The latest One World One Water Center newsletter is hot off the presses

@CIRESnews: We cannot continue to release CO2 and hope to clean it up later

USGS: Climate Change Viewer shows projected changes in climate by state, county, or HUC

Relief from the (mostly) dry weather?

Precipitation forecast February 15 thru February 19, 2015 via the Climate Prediction Center
Precipitation forecast February 15 thru February 19, 2015 via the Climate Prediction Center

From the Vail Daily (Scott N. Miller):

While snowfall is being measured in feet in the northeastern U.S., particularly New England — Boston has broken a 30-day snowfall record — the western part of the country has been clear and dry. In fact, the last sustained snowfall in the valley dates back weeks now, probably into the last days of 2014.

HIGH PRESSURE SYSTEM

The culprit has been a lingering high pressure system in the western U.S. that has shuffled Pacific storm systems into a persistent low-pressure system in the eastern part of the country. The result has been great gobs of snow there, with just a few random snowstorms in this part of the country.

The question, then, is when those patterns will change, bringing relief to the Northeast and the relief of fresh powder to the Mountain West?

‘EVENTUALLY’

The answer, at this point, is a somewhat vague, “eventually.”

Ellen Heffernan, a forecaster at the National Weather Service’s Grand Junction office, said next week could bring a slight disturbance in those persistent patterns. The predicted snow, though, could track mostly into the southern part of the state.

But if you think this part of the state could use some snow, Southern Colorado is really hurting. The U.S. Drought Monitor website shows the southeastern part of the state is already in a “severe” drought, with other areas rated as being in a “moderate” drought.

West Drought Monitor February 3, 2015
West Drought Monitor February 3, 2015

Most of Western Colorado is rated as “abnormally dry.”

WATER SUPPLY FOR SUMMER

That’s bad for powder-loving skiers, of course. It could also be bad news for summer water supplies, since virtually all of Colorado relies on mountain snowfall for agricultural and domestic water.

But Jim Pringle, another forecaster at the National Weather Service’s Grand Junction office, said current snowpack numbers are OK, despite several dry weeks. Still, he said, the warm weather is abnormal for the region.

According to a Feb. 5 release from the U.S. Natural Resources Conservation Service, the Colorado River basin, of which Eagle County is a part, still had 95 percent of its average snowpack despite a very dry January.

But snow is needed, and fairly soon, to maintain a good snow supply for the summer.

Diane Johnson of the Eagle River Water & Sanitation District said it’s important to look ahead into the spring, toward the dates when snowpack generally is at its peak for the snow season.

“Every day you don’t get precipitation, you’re affecting that peak,” Johnson said.

That’s why good numbers now can quickly turn dismal if the weather doesn’t cooperate.

The peak dates are also important because snowpack numbers tend to fall quickly once the warm days of spring arrive. Even a big snowfall in late April won’t have much of an impact because that snow tends to melt quickly.

LONGTERM OUTLOOK

Forecasters can’t predict specific storm patterns past 10 days or so. On the other hand, the long-term outlook is pretty positive. The National Weather Service Climate Prediction Center calls for near-normal temperatures and above-average precipitation through the end of March and into April.

Pringle acknowledged the difficulty of long-range forecasts for specific storms, but added the Climate Prediction Center’s more general forecasts are generally pretty reliable.

Don’t put away the boots and shovels or drain the gas tanks on the snow blowers just yet.

From Steamboat Today (Tom Ross):

In spite of sparse January snowfall and the early spring skiing weather that prevailed during the first week of February, the moisture stored in the snow on the West Summit of Rabbit Ears Pass is a healthy 98 percent of median for Feb. 9.

To the south, in the foothills of the Flat Tops at Crosho Lake, that number is 119 percent of the median for the date. Snowpack numbers at Rabbit Ears and Crosho Lake don’t jive with the overall Feb. 1 snowpack numbers released Feb. 5 for the combined Yampa/White River basins by the Natural Resources Conservation Service. And in other locations in Northwest Colorado, snowpack is much lower.

Colorado Snow Survey Supervisor Brian Domonkos said in a news release that the North Platte River Basin along with the combined Yampa/White River Basins saw snowpack decrease in January by margins of 23 and 26 percent of normal respectively.

“With nearly one-third of the winter remaining, Colorado is running short of time to catch up,” Domonkos said. “Statewide snowfall would need to amount to 124 percent of normal from now until mid-April to achieve normal snowpack peak levels.”[…]

Domonkos said that although summer outlooks for streamflow volumes for April through July vary significantly around the state, most are forecasted to be between 60 percent and 85 percent of average.

streamflowforecast02012015nrcs

The forecast for the Yampa stood at 81 percent of average streamflow on Feb. 1. The Little Snake River drainage to the northwest of Routt County was forecasted to have only 71 percent of average flows. And the forecast for the White is 79 percent.

If there is a reason for optimism, it could be found in the current water storage in reservoirs around Colorado. Reservoirs in the Yampa/White River drainages are among the strongest in the state, averaging 112 percent after heavy rainfall in July, August and September, according to the Conservation Service.

The snowpack numbers around the Yampa and Elk River drainages are spotty.

On Buffalo Pass at the tower measuring site, snowpack was 79 percent of median on Monday. But even Buffalo Pass seems to be benefitting from the fact that the relative handful of snow storms that have passed over the northern Flat Tops and the Park Range have been high-moisture events.

At Rabbit Ears on Feb. 2, the snow depth was a modest 37 inches and contained 12.2 inches of moisture. Four days later on Feb. 6, 15 inches of additional snow depth had bumped the water content to 14.8 inches, or an additional 2.6 inches of snowpack.

It was a similar story on top of Buffalo Pass where the snowpack picked up an additional 4.3 inches of water thanks to 20 inches of new snow that boosted snow depth to 77 inches.

North of Steamboat, the Elk River and Lost Dog sites at 8,700 feet on the edge of the Mount Zirkel Wilderness area both stand at 83 percent of average.

Click on a thumbnail graphic below to view a gallery of snowpack data from the Natural Resources Conservation Service.

“Conservation has been successful and will be an integral part of meeting our future water needs” — Jim Lochhead

Cheesman Dam spilling June 2014 via Tim O'Hara
Cheesman Dam spilling June 2014 via Tim O’Hara

From The Denver Post (Bruce Finley):

Maybe it is projects such as replacing 10,000 toilets in Denver Public Schools. Maybe it is Denver Water’s ceaseless “Use Only What You Need” campaign. Or maybe residents seeing scarcity are self-motivated. Whatever the reasons, water use in metro Denver has dipped to 40-year lows.

The total amount residents used in December decreased to 3.19 billion gallons, and in January to 3.36 billion gallons — down from previous winter highs topping 4 billion gallons, utility officials said.

The last time December use dropped this low was in 1973 when Denver had 350,000 fewer people.

“Our customers are responding. … Conservation has been successful and will be an integral part of meeting our future water needs — along with reuse and new supply,” Denver Water manager Jim Lochhead said.

The low use this winter continues a trend of declining water use despite a growing population. Denver residents use 82 gallons a day per person for all indoor and outdoor purposes, utility data show. That’s down from 104 gallons in 2001 and puts Denver ahead of other Western cities that are counting on conservation to avoid running dry.

Water supply has become more of a challenge around the West, with population growth and droughts projected to be more frequent and severe. The crisis in California, where mountain snowpack lags at 25 percent of normal, prompted Interior Secretary Sally Jewell to meet with Gov. Jerry Brown last week to hash out relief.

Farmers use the most water, by far, for food production — an 85 percent share in Colorado. Yet it is city dwellers who are making the greatest strides in water conservation.

Denver Water leaders last week declared a new target for 1.3 million customers: 30 gallons a day for indoor use.

The overall water conservation effort relies on a widening strategy: rebates for those who switch to water-saving appliances, tiered water rates that encourage using less, summer lawn-watering restrictions, and a rule that all new development must include soil “amendments” so that soil retains more water.

Water bills still are relatively low. Denver Water charges about $455 a year for households using less than 115,000 gallons, compared with $1,283 in Arapahoe County and $890 in Colorado Springs.

The recent low use likely resulted partly from citywide conservation projects, utility officials said — including the replacement of toilets in 140 public schools with low-flow models designed in Japan.

Denver Public Schools field supervisor Jeff Lane said current toilets use 3.5 gallons per flush while the Toto toilets use 1.25 gallons. That’s expected to save the city 65.9 million gallons a year.

So far, district crews have replaced 3,200 toilets, Lane said this week at Colfax Elementary. The rest should be done by 2018.

Less water coursing through 4-inch iron and clay sewer lines could complicate the effort, Lane said. “It could get caught up.” But Denver Water officials said they’ve investigated and that, as long as lines are in good condition, there shouldn’t be a problem.

Denver Water pays DPS rebates of $90 per toilet. DPS officials said they’ll also sell old brass parts, $2 a pound, to help finance the switch.

The reduced water use also is attributed to Denver Water “messaging” using billboards, television and utility bills. Last month, bills contained blurbs touting the 30-gallon target. “Each person in an average single-family house should use roughly 30 gallons inside per day, or better yet, shoot for less!”

This is “something to aspire to,” Lochhead said.

Water bill blurbs also exhorted residents to “rethink your fixtures,” consult with neighbors because “understanding how others conserve will help you, too,” and replace portions of lawns with low-water shrubs.

A widening awareness of water supply challenges also appeared to be motivating residents to use less. “Whether it is a drought in Colorado or the West,” Lochhead said, “water availability is becoming a more familiar topic for many people.”

More conservation coverage here.