Drought news: No change in depiction for #Colorado

Click here to go to the US Drought Monitor website. Here’s an excerpt:

Summary
This U.S. Drought Monitor week saw improvements in drought conditions in parts of the Southeast and Mid-Atlantic in association with Hurricane-Tropical Storm Hermine. Hurricane Hermine marked the first hurricane to make landfall in Florida in eleven years since Hurricane Wilma in 2005. The hurricane came ashore along the Florida Panhandle moving northeast and impacting eastern portions of Georgia, South Carolina, and North Carolina before moving off-shore. The system brought flooding and heavy rainfall accumulations ranging from three-to-eighteen inches with the heaviest accumulations observed in Florida as well as coastal areas of the Carolinas. In the Central Pacific sector, two hurricanes (Hurricane Madeline and Hurricane Lester) approached the Hawaiian Islands during the past week; both veered away from the island chain, however. Some impacts were observed on the windward side of the Big Island where seven-to-nine inches of rain fell in association with moisture from Hurricane Madeline as it passed just south of the Big Island. Elsewhere, significant rainfall accumulations were observed in southeastern New Mexico as well as portions of the Central Plains where bands of heavy rainfall soaked northwestern Kansas. In New England, dryness continued to deteriorate conditions in Maine, New Hampshire, and Upstate New York. In the West, California and the Great Basin remained in a dry pattern…

The Plains
Across the Plains, short-term conditions improved in isolated areas of western South Dakota and northeastern Wyoming leading to one-category improvements in areas of Extreme Drought (D3), Severe Drought (D2), and Moderate Drought (D1). Conversely, a small area of Extreme Drought (D3) in northwestern South Dakota was slightly expanded in response to very dry conditions observed on satellite-based vegetative health products as well as reports of lack of forage and deteriorating stock pond conditions. In northwestern Kansas, a band of heavy rain improved conditions leading to the removal of an area of Moderate Drought (D1) and reduction in areas of Abnormally Dry (D0). Temperatures were two-to-eight degrees above average in the Northern Plains while further south temperatures hovered within a few degrees of normal…

The West
During the past week, average temperatures were below normal across California, most of the Great Basin, Northern Rockies, and western portions of the Southwest while areas east of the Continental Divide were slightly above normal. Overall, the West was dry last week with the exception of areas of isolated precipitation in northwestern Washington, eastern Montana, and southeastern New Mexico. Dryness during the past 90 days led to expansion of areas of Abnormally Dry (D0) and Moderate Drought (D1) in southeastern and south-central Idaho. In northwestern Wyoming, an area of Severe Drought (D2) was expanded in the headwater region of the Snake River where baseflow has been well below normal. In southeastern New Mexico, locally heavy rainfall accumulations ranging from two-to-ten inches led to one-category improvements in areas of Abnormally Dry (D0) and Moderate Drought (D1)…

Looking Ahead
The NWS WPC 7-Day Quantitative Precipitation Forecast (QPF) calls for significant rainfall accumulations (two-to-five inches) across the nation’s midsection – primarily focused on eastern portions of the Southern Plains, Midwest, and southern portions of the Southwest in association with Tropical Storm Newton. Rainfall accumulations in southeastern Arizona and southern New Mexico are forecasted to be in the two-to-four inch range. Dry conditions are forecast in the Far West, Pacific Northwest, and Intermountain West. The CPC 6–10 day outlooks call for a high probability of above-normal temperatures in the eastern third of the U.S. and most of the Pacific Northwest while below-normal temperatures are expected in the Desert Southwest, Intermountain West, Rockies, and extending eastward into the Plains and western portions of the Midwest. Below-normal precipitation is forecasted for the Pacific Northwest, Northern Rockies, Northern Plains, and northern portions of the Mid-Atlantic while there is a high probability of above-normal precipitation across the Central Rockies, eastern portions of the Southwest, Central and Southern Plains, and northern portions of the Midwest.

A hazy legal question lingers over water rights for Basalt marijuana facility

The High Valley Farms marijuana cultivation facility near Basalt. The court has yet to rule on the question in posed: can a water right be issued specifically to grow pot when it is still illegal to grow weed under federal law?
The High Valley Farms marijuana cultivation facility near Basalt. The court has yet to rule on the question posed: Can a water right be issued specifically to grow pot when it is still illegal to grow weed under federal law?

By Brent Gardner-Smith, Aspen Journalism

BASALT – It’s been two years since High Valley Farms, LLC applied for a water right to grow marijuana near Basalt, but it’s still not known if officials in the Division 5 water court will issue a decree to water pot plants when it is still a federal crime to do so.

And while the hazy legal question posed by court officials has been lingering in the air since 2014, High Valley Farms has amended its application twice and both times has increased the size of its proposed water right.

Instead of seeking a right to use 2.89 acre-feet annually from an on-site well and the Roaring Fork River, High Valley Farms is now seeking to use 9.24 acre-feet a year.

Put in terms of gallons instead of acre-feet, High Valley Farms has gone from asking for the right to use 941,711 gallons of water a year, or 2,580 gallons a day, to asking for 3,010,867 gallons a year, or 8,249 gallons a day.

Further, High Valley Farms has recently picked up two opposers in the case, both oil-company executives from Texas who own property near the 25,000-square-foot pot-growing facility along Highway 82.

The opposition is WCAT Properties, LLC controlled by Earl Michie of Midland, Texas, and the Spencer D. Armour III 2012 Trust, controlled by the namesake, also of Midland.

Both men, according to their attorney, Scott Miller of Basalt, are concerned that the use of water at the High Valley Farms facility is drying up wells on their property, and are less concerned about the issues of federal law raised in the case.

Miller also represents the Roaring Fork Club, which filed the first statement of opposition in the case. That, too, concerns its water rights, not federal legal questions about growing pot.

A graphic from High Valley Farms showing the location of the facility and water sources.
A graphic from High Valley Farms showing the location of the facility and water sources.

More water

High Valley Farms, which is controlled by Jordan Lewis, the owner of the Silverpeak marijuana store in Aspen, wants to use the water covered by the proposed water right to fill and refill large underground storage tanks. The water will be used for plants in the indoor greenhouse, and to power the mist and evaporative cooling systems in the greenhouse.

Those systems now include an expensive odor-suppression system that uses water and carbon filters to stop the smell of potent buds from wafting through the neighborhood.

The water would also be used in sinks and bathrooms in both the greenhouse and a nearby single-family home, and for landscaping purposes on the 4.7-acre lot, which is near the Roaring Fork Club, just upvalley from Basalt.

Rhonda Bazil, the attorney for High Valley Farms, declined on Tuesday to discuss the application.

The map submitted with the original High Valley Farms water right application in August 2014.
The map submitted with the original High Valley Farms water right application in August 2014.

Legal questions

Both the original application from High Valley Farms in August 2014 and the amended version in May 2015 prompted the same question from the water referee in Division 5 water court: Can a water right to grow marijuana be granted in Colorado when growing pot is still a federal crime?

“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 water referee said in a summary of consultation in August 2015. “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.’”

The document put an emphasis on the word “lawfully,” as in, can it be done lawfully if it is still a federal crime?

It was the first time a water court official in Colorado had posed the question, and the case is likely to set a precedent, at least in Division 5, which encompasses the Colorado River basin above the Gunnison River.

The answer to the question remains outstanding, although Bazil, the attorney for High Valley Farms, filed a response to the court in November 2015 making three main points.

She argued that the state water engineer has already said it’s OK to use water to grow pot plants; that the federal Bureau of Reclamation has also said it’s fine to water pot plants in Colorado (as long as you don’t use water taken directly from a federal facility); and that the federal government has long ceded general management of water rights to the states.

Bazil also told the court at the time, “If this court were to determine that, contrary to the findings of the state engineer, the use of water for marijuana facilities is not a beneficial use, the entire industry, which reportedly employs almost 160,000 resident, would be shut down.”

An underground water tank, yet to be buried, next to the High Valley Farms grow facility in Basalt in February 2016.
An underground water tank, yet to be buried, next to the High Valley Farms grow facility in Basalt in February 2016.

Next steps

After receiving the second amended application from High Valley Farms in May, the water court referee set Oct. 4 as the next date for a status conference.

But on Aug. 31, in response to a motion to extend from High Valley Farms, the referee vacated the scheduled October status conference while all the parties await the third “summary of consultation” in the case from the division engineer’s office.

Once the consultation, or review of the application, is submitted to the court, High Valley Farms will have 30 days to respond and “circulate a proposed ruling.” There is no deadline set for the consultation to be submitted by the division engineer.

Opposers in the case will then have another 30 days to respond to the proposed ruling from High Valley Farms, and a status conference will be scheduled after that.

When ready to act, the water court referee doesn’t necessarily have to address the larger legal question posed by the High Valley Farms application in order to recommend approval by the water court judge.

If satisfied by answers to the lingering federal question, the referee could simply recommend approval of a proposed decree, without comment.

If the referee denies the decree, for any reason, the decision could then be appealed to the water court judge. And an eventual decision by the judge could be appealed directly to the Colorado Supreme Court.

In the meantime, High Valley Farms can continue to water its pot plants; it just doesn’t have a decreed water right to do so.

Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of rivers and water. The Daily News published this story on Wednesday, Sept. 7, 2016.

Workshop: “Strengthening Collaborative Capacity for Better Water Decisions” — Colorado Water Institute

collaboration-training-november-2016-flyer

From MaryLou Smith:

Collaboration! Everyone seems to be talking about it. Most everyone in Colorado’s water community agrees we are at a juncture where it is critical for us to collaborate. But what does this mean? How is this lofty idea actually put into practice? How is collaboration different from its distant cousin–compromise–in which all parties give up something and no one ever emerges very happy?

True collaboration takes a whole new way of looking at things. We all worked hard to craft the voluminous Colorado Water Plan. Now it is time for the challenging conversations and decision-making among the diverse stakeholders in our state to put it into practice. Maybe we have the motivation to do that, and even the energy. But do we have the know-how and the skills to practice effective collaboration?

For those who want to gain that know-how and those skills, or to practice and fine-tune what they already know in theory or from past experience, Colorado Water Institute at CSU is once again teaming up with CDR Associates to offer a hands-on workshop on ‘Strengthening Collaborative Capacity for Better Water Decisions.’ This fall’s training will take place November 9-11 at the Sylvan Dale Guest Ranch, west of Loveland. It is the second such workshop CSU and CDR have offered, following a similar workshop last fall in Palisade. One participant from the Palisade training said, “Given the complex water issues we face in Colorado, it’s inspiring to learn skills to help transcend the polarized positions of different geographic and stakeholder sectors. I can’t wait to apply these new tools to improve collaboration as I approach water challenges in my work.” Participants came from state and federal agencies, ditch companies and conservancy districts, basin roundtables, and non-governmental organizations.

“That mix of sectors involved in water throughout Colorado is a real strength of the training,” says MaryLou Smith of the Colorado Water Institute. Participants are able to jump right in, bringing with them their real-world challenges and some success stories. “They bring their own set of experiences and issues that provide really good material for us to work with,” Smith says. Smith, along with CDR’s Ryan Golten, and the Colorado River District’s Dan Birch, will staff the training.
The retreat-style workshop is an opportunity for “collaboration in action,” as participants learn right off how to establish trust and relationships critical for collaboration—not by just hearing about it, but by practicing it. The workshop offers a dynamic blend of discussions, presentations, practice and role-playing. Key topics include understanding the dynamics of conflict; moving from positional bargaining to interest-based thinking; when and under what circumstances collaborative processes are most effective; and the mechanics and skills-building of designing, facilitating and/or participating in collaborating in problem-solving processes. The workshop offers participants a greater toolbox, concrete skills, and confidence in their collaboration practice, whether as conveners, facilitators or stakeholders. “This is very much hands-on training,” Smith says, “which is what makes it so valuable. Attendees practice role-playing in which they’re challenged to come to agreement in a collaborative setting.”

Learn more and register here to attend November 9-11.

Colorado’s Water Plan has a subtitle: “Collaborating on Colorado’s Water Future.” The first page of the executive summary says “This is the beginning of the next phase in Colorado water policy, where collaboration and innovation come together with hard work to meet and implement the objectives, goals, and actions set forth in Colorado’s Water Plan.”

Register now to get some down-to-earth instruction and practice in collaboration and innovation critical to Colorado’s water future. For questions, contact MaryLou at MaryLou.Smith@colostate.edu.

stopcollaborateandlistenbusinessblog

The latest “Fountain Creek Chronicle” is hot off the presses

UCCS Clean the Stream Team at the 2015 Creek Week. Photo via the Fountain Creek Watershed, Flood Control and Greenway District.
UCCS Clean the Stream Team at the 2015 Creek Week. Photo via the Fountain Creek Watershed, Flood Control and Greenway District.

Click here to read the newsletter from the Fountain Creek Watershed, Flood Control and Greenway District. Here’s an excerpt:

The 2016 Steering Committee has been working very hard to make this 3rd annual event bigger and better than ever, including a new website! Mark your calendars for Sept. 24-Oct 2 , gather up your Creek Crew and get ready to make a huge difference for our watershed and beyond. Read about last year’s event for inspiration. Interested in getting involved, need more info, want to sponsor – contact us (creekweeksoco@gmail.com)!

House passes Polis bill to allow Minturn to use water rights, fill Bolts Lake — Real Vail

Mountains reflect off of Bolts Lake as seen from US 24 S in Colorado. Photo via  LessBeatenPaths.com.
Mountains reflect off of Bolts Lake as seen from US 24 S in Colorado. Photo via
LessBeatenPaths.com.

Here’s the release from Congressman Polis’ office via Real Vail:

Polis’s Bolts Ditch bill passes House of Representatives

WASHINGTON – Rep. Jared Polis (D-Colo.) today passed the Bolts Ditch Access and Use Act (H.R. 4510) out of the House of Representatives. This bill directs the U.S. Department of Agriculture to authorize special use access of Bolts Ditch for the diversion of water and maintenance by the town of Minturn, Colorado.

When Congress designated Holy Cross a Wilderness Area in 1980, legislators inadvertently left Bolts Ditch off the list of existing water facilities. The bill would authorize special use of the Bolts Ditch headgate and the segment of the Bolts Ditch within the Holy Cross Wilderness Area, allowing the Town of Minturn to use its existing water rights to fill Bolts Lake.

“This bill provides the Town of Minturn access to clean and affordable drinking water while preserving the sanctity of the surrounding wilderness areas,” Rep. Jared Polis said. “We can all agree that water is a precious resource, and we must be deliberate about how we use it. The efforts by our residents, the conservation community, and water utilities displays how we can work together to resolve a long-term problem, and I look forward to swift passage by the Senate.”

“The Town of Minturn has actively pursued a common sense solution to fill Bolts Lake,” Matt Scherr, mayor of Minturn, said. “This bill will give our community the ability to use existing water rights and obtain clean water without harming the wilderness. We commend Rep. Jared Polis for his leadership in the House of Representatives on passing this practical bill, and are excited that it’s one step closer to becoming law.”

Sen. Michael Bennet (D-Colo.) and Sen. Cory Gardner (R-Colo.) introduced companion Bolts Ditch legislation in the Senate. Both Rep. Doug Lamborn (R-Colo.) and Rep. Scott Tipton (R-Colo.) are co-sponsors of H.R. 4510 in the House of Representatives.

From Real Vail (David O. Williams):

…a lot of people. But on Tuesday the House of Representatives actually passed a bipartisan bill that should prove very helpful for the town of Minturn. Sponsored by U.S. Rep. Jared Polis, D-Boulder, it’s called the Bolts Ditch Access and Use Act.

If it passes in the Senate, where Colorado Sens. Michael Bennet and Cory Gardner have introduced a version in the upper chamber, the bill would allow the town of Minturn to access Bolts Ditch in order use existing water rights to fill Bolts Lake. Right now that’s problematic because Bolts Ditch was accidentally included in the Holy Cross Wilderness Area back in 1980.

That’s why it’s a good idea to get all the local water authorities and local governments on board before proposing wilderness legislation. One of the big hurdles in drafting a Senate version of Polis’ Continental Divide Wilderness and Recreation Act was understandable resistance from the Eagle Valley Water and Sanitation District, which wants to maintain access to water sources in any proposed additions to the Eagles Nest and Holy Cross Wilderness Areas.

“Eagle River Water and San has been kind of a thorn, but it sounds like they’ve got things worked out,” Eagle County Commissioner Kathy Chandler-Henry said during an EcoFlight flyover of the proposed wilderness additions last month. “All of that [access for management of water resources] is in the language already, and I’ve heard they’re ready to say OK.”

#AnimasRiver: EPA creates the Bonita Peak Mining District superfund site #GoldKingMine

On April 7,  2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear. Eric Baker
On April 7, 2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear.
Eric Baker

Here’s the release from the Environmental Protection Agency (Laura Jenkins):

The U.S. Environmental Protection Agency (EPA) will add the Bonita Peak Mining District (BPMD) site in San Juan County, Colo., to the National Priorities List (NPL) of Superfund sites on September 9, 2016. Superfund is the federal program that investigates and cleans up the most complex, uncontrolled or abandoned hazardous waste sites to protect public health and the environment.

“Listing the Bonita Peak Mining District on the National Priorities List is an important step that enables EPA to secure the necessary resources to investigate and address contamination concerns of San Juan and La Plata Counties, as well as other downstream communities in New Mexico, Utah, and the Navajo Nation,” said Shaun McGrath, EPA’s Regional Administrator. “We look forward to continuing our efforts with the State of Colorado, the Bureau of Land Management, the U.S Forest Service, Tribal governments, and our community partners to address the impacts of acid mine drainage on the Animas River.”

EPA proposed the BPMD site for addition to the NPL on April 7, 2016, and conducted a 68-day public comment period on the proposal. After reviewing and responding to all comments in a responsiveness summary, EPA has added the site to the NPL. To view the responsiveness summary (Support Document) and other documents related to the addition of the Bonita Peak Mining District to the National Priorities List, please visit: http://www.epa.gov/superfund/current-npl-updates-new-proposed-npl-sites-and-new-npl-sites.

The Bonita Peak Mining District site consists of historic and ongoing releases from mining operations in three drainages: Mineral Creek, Cement Creek and Upper Animas; which converge into the Animas River near Silverton, Colorado. Mining began in the area in the 1860s and both large- and small-scale mining operations continued into the 1990s, with the last mine ceasing production in 1991. The site includes 35 mines, seven tunnels, four tailings impoundments, and two study areas where additional information is needed to evaluate environmental concerns.
Water quality in the BPMD has been impaired by acid mine drainage for decades. Since 1998, Colorado has designated portions of the Animas River downstream from Cement Creek as impaired for heavy metals, including lead, iron and aluminum. EPA has waste quantity data on 32 of Bonita Peak’s 48 sources. These 32 sources have waste rock and water discharging out of mining adits at a combined rate of 5.4 million gallons per day. Cadmium, copper, manganese and zinc are the known contaminants associated with these discharges.

“Listing the Bonita Peak Mining District is critical to addressing historic mining impacts in San Juan County and our downstream communities,” said Martha Rudolph, director of environmental programs for the Colorado Department of Public Health and Environment. “We are committed to working closely with our Federal and state partners to achieve an effective cleanup, while ensuring that all our affected communities have a voice in the process as this moves forward.”

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the law establishing the Superfund program, requires EPA to update the NPL at least annually and clean up hazardous waste sites to protect human health with the goal of returning them to productive use. A site’s listing neither imposes a financial obligation on EPA nor assigns liability to any party. Updates to the NPL do, however, provide policymakers with a list of high-priority sites, serving to identify the size and nature of the nation’s cleanup challenges.

The Superfund program has provided important benefits for people and the environment since Congress established the program in 1980. Those benefits are both direct and indirect, and include reduction of threats to human health and ecological systems in the vicinity of Superfund sites, improvement of the economic conditions and quality of life in communities affected by hazardous waste sites, prevention of future releases of hazardous substances, and advances in science and technology.

For more information on the Bonita Peak Mining District site please visit: http://www.epa.gov/superfund/bonita-peak

From the Associated Press (Dan Elliott) via The Farmington Daily Times:

A Colorado mine that spewed 3 million gallons of contaminated wastewater into rivers in three Western states was designated a Superfund site Wednesday, clearing the way for a multimillion-dollar federal cleanup.

The U.S. Environmental Protection Agency added the inactive Gold King Mine and 47 other nearby sites to the Superfund list…

The Colorado Superfund designation is the beginning of a years-long effort to clean up the wreckage of a once-booming mining industry in the San Juan Mountains in the southwestern corner of the state. Abandoned mining sites send millions of gallons of acidic wastewater to creeks and rivers every year…

The spill triggered a storm of criticism of the EPA and at least three lawsuits.

New Mexico has sued both the EPA and Colorado over the spill, while the Navajo Nation sued the federal government. Utah officials say they also plan to sue…

An investigation last year by the Interior Department, which is independent of the EPA, said the cleanup crew could have avoided the spill but rushed its work.

Interior officials said they found no evidence of criminal wrongdoing. A separate criminal investigation is still underway, along with an internal EPA inquiry.

Congress has conducted multiple hearings on the spill and is considering several bills to address hundreds of old, leaking mines nationwide.

The EPA said Wednesday it’s too early to say how long the cleanup will take and what it will cost.

Authorities will first gather data including water and sediment samples and assessments of fish and wildlife habitat and other information. That process will probably end next year, said Rebecca Thomas, EPA’s manager for the project, known as the Bonita Peak Mining District Superfund Site.

The EPA will then study different cleanup methods, choose a preferred option and ask for public comment. Work would then start on designing and implementing the cleanup.

Fixes could include water treatment plants for acidic waste draining from the site, plugging abandoned mines that are leaking and moving mine waste piles away from streams, Thomas said.

The Superfund listing marks a dramatic shift in public sentiment in Silverton and surrounding San Juan County, where many residents first feared the designation would stamp the area with a stigma and hurt its vital tourism industry. The EPA does not designate Superfund sites without local support…

Esper said Silverton could become a research center for cleaning up leaking mines across the nation. The Government Accountability Office estimates that at least 33,000 abandoned mines across the West and in Alaska are contaminating water or causing other environmental problems.

The cleanup might also improve the town’s finances, which have been in decline since a mine and mill closed in 1991, Esper said.

From The Silverton Standard (Mark Esper):

The U.S. Environmental Protection Agency (EPA) will add the Bonita Peak Mining District (BPMD) site in San Juan County, Colo., to the National Priorities List (NPL) of Superfund sites on September 9, 2016. Superfund is the federal program that investigates and cleans up the most complex, uncontrolled or abandoned hazardous waste sites to protect public health and the environment.

“Listing the Bonita Peak Mining District on the National Priorities List is an important step that enables EPA to secure the necessary resources to investigate and address contamination concerns of San Juan and La Plata Counties, as well as other downstream communities in New Mexico, Utah, and the Navajo Nation,” said Shaun McGrath, EPA’s Regional Administrator. “We look forward to continuing our efforts with the State of Colorado, the Bureau of Land Management, the U.S Forest Service, Tribal governments, and our community partners to address the impacts of acid mine drainage on the Animas River.”

EPA proposed the BPMD site for addition to the NPL on April 7, 2016, and conducted a 68-day public comment period on the proposal. After reviewing and responding to all comments in a responsiveness summary, EPA has added the site to the NPL. The responsiveness summary can be found here: https://www.regulations.gov/docket?D=EPA-HQ-OLEM-2016-01522