Two law students at the University of Denver College of Law are conducting research into the experience of self represented parties in Colorado’s Water Courts and are looking for input from water rights holders and attorneys around the state.
Students Lindsey Ratcliff and Josh Boissevain (both originally from Colorado) hope to learn more about the issues and obstacles that water rights holders encounter as they file water rights applications or statements of opposition.
“We know that, in Colorado, trying to do anything with a water right can be expensive and time consuming, and water law itself isn’t exactly the simplest to wrap your head around,” said Boissevain. “So we are really trying to better understand what that is like for people who’ve gone though the process without the help of an attorney.”
Boissevain said they are also curious about water rights holders who have maybe wanted to represent themselves but because of the cost or difficulty decided not to participate at all.
Ratcliff and Boissevain also hope to learn about the experiences of water attorneys who have been in the same cases with parties representing themselves to learn how the court process changes.
“We’re really looking at two aspects here,” said Ratcliff. “First are there any identifiable access-to-justice issues, and second are there any judicial-efficiency issues?”
The two have set up a couple of websites with anonymous surveys to collect these personal experiences from around the state. They request that water rights holders who have had experience in water court as self-represented parties fill out the survey at https://watercourtresearch-srp.weebly.com/. And they request that attorneys who wish to share their experiences fill out a different survey at https://watercourtresearch-aty.weebly.com/.
Both websites include more information about the project and include ways of getting in touch with the researchers directly.
Snowmelt from the Colorado River Basin contributes about 70 percent of total water supplies for more than half of Southern California and most of southern Nevada, according to the California-Nevada Climate Applications Program. Its low salt content makes snowmelt a useful fresh water source of drinking supplies.
With increasingly warmer winters and a diminishing snowpack in recent years, the lack of snowmelt might pose problems for the communities that need it.
Measurements of the Sierra Nevada snowpack in early spring 2018 revealed that the snowpack remained below normal.
“We’ve seen the typical elevation at which rain transitions into snow, on average, go up over the past decade,” said Nina Oakley, a regional climatologist at the Desert Research Institute’s Western Regional Climate Center in Reno, Nevada.
“Now, we’re seeing less snowpack building, and it’s been observed in the West that with warmer spring temperatures, we’re seeing earlier spring snowmelt runoff,” Oakley said.
A 2017 report from the National Center for Atmospheric Research showed that warmer winters are causing mountain snowpack to melt both earlier and slower. This is due to less thawing occurring during the lengthier nights and weak sunlight of early spring, according to Colorado Public Radio News.
University of Nevada researchers have reported that the cause of less efficient snowmelt runoff is that “slower snowmelt reduces the amount of moisture being pushed deep into the subsurface, where it is less likely to evaporate.”
Researchers believe one effect of slower snowmelt on water supply and hydropower production could be that the snowmelt will move less efficiently downstream to reservoirs at times when it’s especially needed, such as during drier periods.
From the Associated Press via US News & World Report:
The median amount of water contained within New Mexico’s snowpack statewide for the start of April is the lowest on record since at least 2000.
Officials with the National Weather Service in Albuquerque say the measurement — known as the snow-water equivalent — at the Hopewell site in Rio Arriba County had the lowest value since records began in 1980.
They also say the snowpack in southern Colorado is at about 50 percent now and just trace amounts remain in New Mexico’s basins.
The grim statistics come as more than one-third of the state contends with extreme drought.
In Summit, snowpack is at a relatively healthy 88 percent of average. However, Wineland noted that in southern Colorado, some places are seeing 60 to even 30 percent of average snowpack. That will mean more water usage downriver this summer, which affects water rights and availability in the northern and central parts of the state.
Wineland then presented this winter’s butcher’s bill by referring to a precipitation and temperature chart for Summit over the past few months.
“November, higher than average temperatures, lower than average precipitation,” Wineland said. “December, higher than average temperatures, lower than average precipitation. January, the same.”
February, on the other hand, saw cooler temperatures and higher precipitation, which offered some, but far from enough moisture to raise the “fuel-moisture index,” a tool that determines how much moisture is present in fuel sources — such as grass, brush and trees — to mitigate the chances of wildfire. The higher the fuel moisture, the less chance for wildfire. On the converse, lower- or no-fuel moisture may lead to larger, hotter forest fires burning out of control.
Wineland then dropped the sobering bombshell that offered the best insight into the danger presented by this upcoming wildfire season.
“2002 and 2012 were Colorado’s driest winters on record,” Wineland said, “and this will be Colorado’s third driest winter on record.”
Wineland complicated the picture by noting how Colorado was in a weather band between the warmer El Nino phenomena in the eastern Pacific ocean and the cooler La Nina; a period colloquially known as “La Nada.” During this unpredictable “neutral” period, it is extremely tough to properly forecast regional temperature and precipitation, and thus tougher to know how bad the wildfires will be this summer.
FromAspen Journalism (Brent Gardner-Smith) via The Aspen Times:
Federal officials told regional water managers last week not to plan on coordinated reservoir releases this spring to help endangered fish in the Colorado River near Grand Junction as there’s likely not going to be enough water.
“It’s difficult for me to find the water in my forecast,” said Victor Lee, a hydraulic engineer with the Bureau of Reclamation during a conference call March 27 with regional water managers.
For the past three years, 29,400 to 35,700 acre-feet of “surplus” water has been released out of various combinations of Ruedi, Wolford, Williams Fork, Green Mountain, Homestake, Willow Creek and Granby reservoirs to bolster spring flows.
The water is released in early June to help maintain critical habitat in a 15-mile stretch of the Colorado River between Palisade and Grand Junction, above the river’s confluence with the Gunnison River.
Big peak flows clean the cobble on the river bottom where endangered fish lay their eggs. And the high flows frustrate non-native fish species that prey on young native fish, a major obstacle to growing the endangered fish populations.
The coordinated release of reservoir water is meant to offset the immediate impact of two large water diversion structures with senior water rights at the top of the 15-mile reach that send irrigation water to the Grand Valley.
It also offsets the extensive series of transmountain diversions that occur at the top of the system for Front Range use, and the irrigation diversions from the river system on the Western Slope.
Keeping the endangered fish populations stable matters to regional water managers because it allows current and future water uses to occur. If the fish populations continue to decline, the rules in the Endangered Species Act could produce a much different regulatory climate.
To avoid that, water managers work together through the Upper Colorado River Endangered Fish Recovery Program, which is managed by personnel at the U.S. Fish and Wildlife Service.
The coordinated releases of water from upstream reservoirs in the spring are part of the effort.
Last year the effort increased the peak flow in the 15-mile reach from more than 12,000 cubic feet per second to over 14,000 cfs on about June 10.
The coordinated releases from the reservoirs have happened in 10 out of 20 years since 1997. In wet years such as 2011, spring flows are judged to be high enough.
And in low years, as this one is expected to be, it can be hard for water managers to find water to spare for the endangered fish.
“It just doesn’t look like we’re going to have the coordinated reservoir releases from the reservoir this year, it being such a dry year,” said Tim Miller, a Reclamation hydrologist who manages water in Ruedi Reservoir on the Fryingpan River above Basalt. “And we need to make sure we fill, that’s the No. 1 priority.”
Last year, as part of the spring release program, Ruedi Reservoir sent 4,501 acre-feet into the lower Fryingpan River toward the 15-mile reach, causing flows to rise June 2 from 200 cfs to 600 cfs on June 7, before stepping back down to 200 cfs by June 14.
Miller’s March 1 forecast this year showed a water-supply forecast, which is based on snowpack, of 69 percent in the upper Fryingpan River basin above the reservoir.
And like other regional water managers, he doesn’t expect this week’s forecast to look any better.
Miller still expects to fill up the 100,000 acre-foot Ruedi Reservoir by early July as usual, there’s not much “wiggle room” in the forecast, or the snowpack.
A slow-fill of Ruedi means the Fryingpan below the reservoir also will see a low and steady flow of water — probably not more than 150 cfs and perhaps less — from May 1 until late July or early August, when late summer releases begin, Miller said.
Other reservoir managers in the upper Colorado River basin are facing similar challenges, and Don Anderson, the instream flow coordinator for the endangered fish recovery program, understands they don’t have “fish water” to release every spring.
“It’s an operational call that they make based on their comfort level of either bypassing or releasing inflows with the confidence that they are not jeopardizing their storage conditions later in the season,” Anderson said.
The coordinated high spring releases are meant to benefit four species of endangered fish that still eek out a living in the Colorado River between Rifle and Westwater Canyon.
The humpback chub and Colorado pikeminnow populations are still wild, while the bonytail and razorback sucker populations are stocked.
And the chub has recently been in the spotlight, as the U.S. Fish and Wildlife service announced March 22 that a five-year study has shown the chub could soon be downlisted from “endangered” to “threatened.”
At the core of that recommendation was the relatively stable population of about 12,000 adult humpback chub that live in the Little Colorado River in the Grand Canyon, where the muscular torpedo-shaped fish evolved 3 million to 5 million years ago.
There also are about 400 adult humpback chubs living in the Black Rocks section of the Colorado River, just west of Loma. And there are another 2,000 to 3,500 adults in Westwater Canyon just over the state line.
Both population groups appear relatively stable, but their future is uncertain. A similar population group in the Yampa River, last seen in 2004, is now considered “extirpated,” meaning eliminated.
The biggest challenges for the remaining humpback chubs are lack of adequate stream flow and the spread of non-native predatory fish.
“What we really have to worry about in these low-flow years are critters like smallmouth bass that have not shown up yet in Black Rocks and Westwater in any kind of numbers,” said Tom Chart, the director of the endangered fish recovery program. “These low-flow years do seem to benefit the non-native species preferentially over the native fish.”
Regional water managers like Miller at Ruedi Reservoir also work together in late summer to release water to boost low flows in the 15-mile reach in the late summer.
Last year, 79,000 acre-feet of late-season fish water was released from participating reservoirs. The water kept the river closer to the targeted-flow of 1,240 cfs instead of the 500-cfs-levels it was dropping to in August.
Of that 79,000 acre-feet released from the reservoirs last year for late-season flows in the 15-mile reach, Ruedi contributed 21,413 acre-feet of water, sending it downstream between Aug. 7 and Oct. 16.
But it’s expected that there will be less late-season fish water this year, both out of Ruedi and in general.
On last week’s conference call, officials with the fish recovery program said they intend to set a low-flow target of just 810 cubic feet per second for late summer flows in the 15-mile reach, instead of last year’s target of 1,240 cfs.
The decision could change if spring snows come. But if the low-flow target is definitively set this year as expected, it will be the first time since 2012.
Anderson said that given the dry conditions and the challenges that reservoir operators are facing it is “smart and prudent to look at the lower target.”
“It’s just looking at what’s really going to be feasibly achievable given the actual wet water we have to work with,” Anderson said.
And even the low-flow target of 810 cfs could be hard to hit this year.
“We can’t always get there sometimes with the water that is available, but we can at least do the best we can to close that gap,” he said.
On Friday May 11, Water Education Colorado will celebrate water education and water leadership at its annual President’s Reception. Each year, WEco honors the work of a Coloradoan who has a body of work in the field of water resources benefiting the Colorado public, a reputation among peers and a commitment to balanced and accurate information, with the Diane Hoppe Leadership Award. This year, WEco will recognize Tom Cech with the One World One Water Center with this award.
Join us to celebrate with friends and colleagues and support water education. Learn more and register here.
Tom Cech, Rural-Urban Educator
By Greg Hobbs
Tom Cech knows what water-short looks like close up. He grew up on a “dirt-poor” dryland farm his great-grandparents homesteaded in 1878 near Clarkson, Nebraska. “That’s where I first learned about groundwater. We got our drinking water from a well 283 feet deep sunk into glacial melt.”
Click here to listen to the podcast. Here’s an excerpt:
The eastern plains of Colorado are a world away from the Rocky Mountains for which the state is famous. It’s flat, wide-open grassland, and if there is a tree on the horizon it was probably planted there by a human to offer respite. It’s an unforgiving place to do agriculture—but many do—practicing something called “dryland farming,” in which people like [Nate] McCaffrey’s family grow wheat, millet, sunflowers, and corn using only what falls from the sky.
“Mother Nature only provides a certain amount of moisture, and we have to use it to the best of our ability and be creative,” McCaffrey says. Because water is so scarce on the high plains, being “creative” means that most farmers there have adopted the practice of fallowing their fields to bank the rain that does fall to save it in the soil for the next year’s crop. After harvest, the soils are tilled and then left to “rest,” so to speak, and often sprayed with herbicides to suppress weeds. The result: for over a year the ground is virtually bare and lifeless. Fallowing was stressful. McCaffrey said, “Growing up on a farm all my life, all I ever knew was going out during that fallow period and stressing about trying to kill every weed out there and keep the ground as bare and clean as you could keep it because you were using moisture.”
Not to mention, the soil was getting hot. There was no groundcover, so every time it rained much of the water would evaporate. Research shows that fallowing land only retains about 25 percent of the moisture that falls in a given year, but to farmers in this area, it was the only realistic way to grow the next cash crop in such a water-starved region.
To Till, or Not to Till—That Is the Question
So when it was time for McCaffrey to go out on his own, he was conflicted about sticking with the so-called “conventional” way of farming, which required tilling and a fallow rotation. It got to a point after being out in his fields night and day tilling the ground, that he’d ask himself, “What good am I doing? Am I just out here trying to raise a crop? Am I just out here trying to create revenue? Or am I actually working toward something that somebody is going to care about in the future?”
The answer was metaphorically blowing in the wind—the soil that was being lost from erosion had to be protected, he determined. To accomplish that, the first thing McCaffrey decided to do was go “no-till.”
Tillage is what you picture when you imagine a farmer on a tractor pulling a plow. It’s meant to prepare the ground for the next season by burying residue from the previous crop, leveling the soil, and killing weeds by cutting them off at the knees.
However, research shows that tillage has some serious downsides. It compacts the soil, and by tearing up the ground it breaks apart soil structure, which can lead to erosion. McCaffrey says it also disrupts soil microbes and other beneficial organisms like earthworms, which he says help with water retention and water infiltration because as the creatures make their burrows, water follows them down into the root zone.
So McCaffrey jumped in with both feet. Not only did he sell his conventional machinery, (so he couldn’t waffle on his decision), he bought new no-till equipment that sows his crop by opening up a small slot in the soil and dropping in a seed. This method leaves most of the ground undisturbed, and one immediate bonus was saving money on fuel costs and labor because he would no longer need to spend endless hours on his tractor tilling.
The Bureau of Reclamation has scheduled a North Platte River Water Information Meeting in Scottsbluff, Nebraska.
The meeting will be held at 10:00 a.m., on Wednesday, April 11, at the Scottsbluff Panhandle Station Auditorium, Scottsbluff, Nebraska. The meeting is being held to apprise water users and other interested parties of the reservoir storage and current water supply conditions. Information regarding snowmelt runoff and expected reservoir operations for water year 2018 will be presented.
Pitkin County is now the second county in Colorado that can issue permits for graywater systems that allow some household water to be reused to irrigate lawns and flush toilets.
Graywater is defined by both the county and the state as water coming from bathtubs, showers, bathroom sinks and washing machines. It does not include water from toilets, urinals, kitchen sinks, dishwashers or non-laundry utility sinks, which is often called blackwater.
The city and county of Denver was the first to adopt a similar permitting process in 2016, and did so after the state approved guiding regulations in 2015.
The Pitkin County commissioners unanimously approved an ordinance last week that sets up the county’s permitting process, which is voluntary.
The city of Aspen also is considering adopting a graywater permitting system to complement its recently adopted water-efficient landscaping regulations.
Kurt Dahl, the county’s environmental health manager, said a 1999 statewide study found that typical indoor residential uses amounted to 69 gallons of water per person per day, and of that 28 gallons is graywater as defined by the state.
Graywater systems work by diverting household water away from its normal course — toward septic tanks and sewage systems — and into another set of pipes and storage tanks, where it sits until it is reused.
If the water is used for irrigation, the water must be filtered before storage and then, optimally, pumped out into a subsurface drip irrigation system. It cannot be applied via sprinklers.
If graywater is used to flush toilets, it must be disinfected and dyed before being sent to a toilet.
Single-family households can store up to 400 gallons of water a day in a tank for either irrigation or toilet flushing, and multi-family and commercial entities can store up to 2,000 gallons a day.
Graywater systems require double-piping of plumbing systems, which can be expensive to install in existing homes, and so may be better suited, at least economically, to new construction projects.
Brett Icenogle, the engineering section manager at the Colorado Department of Public Health, said Friday he was happy to see Pitkin County adopt a graywater permitting process, and he hopes other jurisdictions follow suit, even if current public demand seems low today.
“We don’t want to wait until there is a water shortage to put regulations in place,” Icenogle said.
The local permitting process begins with the county’s environmental health department, and also requires plumbing and building permits. If used for irrigation, it may also require a state water right.
Dahl served on a group that developed the state’s regulations, and he’d like to see other uses added to the state’s list, such as fire suppression.
“I want to get this to the point where using graywater is an option for everyone,” Dahl said.
Severance tax revenues have fallen off dramatically in the past three years, down from nearly $300 million in 2014-15 to about $57 million in 2016-17. That’s due partly to lower oil and gas drilling activity and to additional property tax deductions awarded to the oil and gas companies, the result of the state losing a lawsuit two years ago to oil giant BP.
As a result, the state doesn’t have enough severance tax money to cover some of those obligations, and the Joint Budget Committee decided to put $30 million in general funds (income and sales tax) into the main severance tax fund to ensure those operations and activities are covered.
Sonnenberg’s idea is to amend House Bill 1338 to start paying back some of the hundreds of millions of dollars in severance tax money that state borrowed to shore up the budget in recession years. Sonnenberg’s amendment will deal with more than just that money; he also wants to be sure there’s enough in the fund to avoid charging boat owners a fee for inspections for zebra mussels. That’s another measure — House Bill 1008 — that’s awaiting final debate and a vote in the Senate.
The measure would charge boaters between $25 and $50 for a stamp that would cover the cost of inspections at state waterways, such as Green Mountain Reservoir in Summit County, where a zebra mussel was found last year.
Sonnenberg considers the zebra mussel problem one of statewide interest, hence his desire to fund the inspection program out of severance tax dollars rather than requiring boaters to pay for it. Sonnenberg is a co-sponsor of House Bill 1008 but voted against it in the Senate Appropriations Committee because of its funding source. “With a $1.3 billion surplus we can pay back severance tax dollars” and cover the cost of the program, estimated at around $2.2 million, he said.
A boost to severance tax dollars might also help out the state water plan. Last week, the annual CWCB projects bill came out, with $7 million targeted toward water plan projects. That’s $3 million less than what the water plan got last year, and that’s because of the lack of severance tax dollars, sources told this reporter. “We have to live within our budget,” Sonnenberg said.
The projects bill devotes $3 million out of the water plan’s $7 million planned appropriation to storage, which Sonnenberg applauds.