@WaterLawReview: Crisis on the High Plains: The Loss of America’s Largest Aquifer – the Ogallala

Center pivot sprinklers in the Arikaree River basin to irrigate corn. Each sprinkler is supplied by deep wells drilled into the High Plains (Ogallala) aquifer.

From the University of Denver Water Law Review (Jeremy Frankel):

The grain-growing region in the High Plains of America—known as America’s breadbasket—relies entirely on the Ogallala Aquifer. But long term unsustainable use of the aquifer is forcing states in the region to face the prospect of a regional economic disaster. As the High Plains states reach the verge of a major crisis, the states have taken different approaches to conservation with varying results.

The Ogallala Aquifer supports an astounding one-sixth of the world’s grain produce, and it has long been an essential component of American agriculture. The High Plains region—where the aquifer lies—relies on the aquifer for residential and industrial uses, but the aquifer’s water is used primarily for agricultural irrigation. The agricultural demands for Ogallala water in the region are immense, with the aquifer ultimately being responsible for thirty percent of all irrigation in the United States. The Ogallala Aquifer has long been unable to keep up with these agricultural demands, as the aquifer recharges far slower than water is withdrawn.

Aside from the obvious agricultural ramifications from the Ogallala’s depletion, recent studies have shown that groundwater depletion also has a severe effect on freshwater ecosystems in the region. Each state has had to confront the issue in their own way, but the depletion of the aquifer has become severe enough to warrant the attention of the federal government as well. At the state level, the focus has been on maintaining an orderly depletion of the aquifer rather than developing a plan for sustainable use. However, some states have achieved some level of success in slowing down the aquifer’s depletion. Kansas, for example, has recently achieved mild success by adopting a program that put conservation in the hands of the State’s farmers. On the other hand, Nebraska has seen more success than Kansas by being tougher on farmers and exercising its enforcement powers. The federal government has also set up financial and technical assistance for farmers who commit to conservation and is funding large-scale pipeline projects to bring in water to the more desperate areas of the High Plains.

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Water Information Website screen shot July 23, 2018.

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A look back at Eric Kuhn’s career at the #ColoradoRiver District @ColoradoWater #COriver

From The Aspen Daily News (Allen Best):

Trained as an electrical engineer, Kuhn was pursuing a career in nuclear power plants when he happened to notice a job advertisement in the Wall Street Journal for a position in Glenwood Springs. That was in 1981. Obviously, he got the job, moving from energy to water, from California to Colorado.

It was sharp pivot in Kuhn’s life. And Colorado since 1981 has also pivoted hard in very fundamental ways in its conversations about water.

Tom Alvey, who grows fruit and operates a packing shed in Hotchkiss, credited Kuhn with providing transparency and “getting the facts right” during his time as general manager of the Colorado River Water Conservation District, beginning in 1996.

Bill Trampe, who owns a ranch that sprawls between Crested Butte and Gunnison, lauded Kuhn for having “the foresight to see where we were headed and what we needed to do to be effective in protecting water for the Western Slope.”

Peter Fleming, the river district’s general counsel, testified to Kuhn’s “highly intellectual approach to negotiations.” As arguments and counterarguments were waged at one session, said Fleming, he observed Kuhn scribbling into a notepad. Peering over his boss’s shoulder, he said, he saw numbers. What did they represent? “He was calculating complex integers,” Fleming discovered. In that scribbling could be seen a larger lesson.

“He wasn’t disinterested in what was going on,” said Fleming. “He just knew that the timing wasn’t right for him to offer what would inevitably be a good solution.”

Denver Water’s Jim Lochhead was also at the gathering in Glenwood, just a few blocks from where he had for many years staffed the “Aspen office” of one of the state’s leading law firms. Lochhead drew attention to Kuhn’s influence beyond Colorado’s traditional Eastern Slope versus Western Slope schisms to the broader seven-state Colorado River Basin. There, Kuhn’s voice about preparing for a warming climate has become influential.

“He is collaborative. He is innovative. He thinks about different solutions. He listens. He tries to find the common ground,” said Lochhead, now chief executive of Denver Water, an agency that provides water to 25 percent of all Colorado residents.

Nobody, however, spoke directly to the giant pivots in water politics, policies and problems in the 37 years since Kuhn arrived in Colorado.

One of the largest pivots had already begun in 1981. The federal government had spent most of the 20th century building the giant dams, canals and other hydraulic infrastructure in the West. In Colorado, the greatest ambition was evident in the gigantic transfer of water from the Colorado River headwaters near Grand Lake to the benefit of farmers in northeastern Colorado. It’s called the Colorado-Big Thompson Project.

The transfer — some would call it a heist — was opposed on the Western Slope, of course. One result of the compromise was a 1937 state law that created the river district and charged it with “conservation, use and development of water in the Colorado River and its principal tributaries in Colorado.” It covers 15 counties, including Pitkin, Garfield and Eagle. Southwestern Colorado has a similar district.

Another outcome was federal construction of Green Mountain Reservoir, on the Blue River north of Silverthorne. The dam had immediate benefits to the Western Slope, helping regulate flows to the benefit of farmers around Grand Junction. Much later, the regulated flows were crucial to providing water for endangered fish species in the Colorado River.

A later enterprise, the Fryingpan-Arkansas Project, hewed to the same template: It diverts water from the Roaring Fork drainage to farmers in southeast Colorado. For this, the Western Slope got Ruedi Reservoir. It was completed 50 years ago.

More projects were proposed, but in 1977 President Jimmy Carter announced they wouldn’t get funded. Westerners bristled and ridiculed Carter as a peanut-farmer in rain-drenched Georgia who didn’t understand the West. Ronald Reagan, arriving at the White House in 1981, was heralded as a Westerner who would right things. He only went half-way: Locals would have to come up with half the money for their dams and diversions. For most projects, it wasn’t nearly enough.

Kuhn noted that during his time, two of the five projects on Carter’s hit list in Colorado were eventually built, if not to the sizes originally envisioned. One of them, Ridgway Reservoir (originally called Dallas Divide), provides hydroelectricity that is part of Aspen Electric’s 100 percent renewable portfolio.

Altogether, however, the river district during Kuhn’s time had a hand in building five smaller-size reservoirs. Wolford Mountain Reservoir near Kremmling, by far the largest, is two-thirds the size of Ruedi. It was built in co-operation with Denver Water.

The River District under Kuhn also worked with Denver Water on other projects. But when Kuhn started work in Glenwood Springs, the relations were rocky. Denver wanted to build a giant dam in the foothills southwest of the city. Two-thirds of the water behind the Two Forks Dam was to have come from the Western Slope, primarily Summit County. Water was to go to Denver’s fast-growing suburbs.

Kuhn had been assigned to represent the river district on a task force appointed by then-Gov. Dick Lamm, to help sort through the controversy. The Western Slope task force aligned with the environmental community and together they conceded need for a small Two Forks as well as expanded diversions from Winter Park area for an enlarged Gross Reservoir west of Boulder. In exchange, the task force said, Denver needed to commit to greater water conservation. Denver Water’s leaders, confident of their rightness to the point of cockiness, refused.

The drama was cut short in 1991 when the administration of President George H.W. Bush vetoed the project, which was to be on federal land, based on environmental impacts.

Kuhn points out that the levels of conservation the Western Slope and environmentalists asked of Denver were much less than what has actually occurred. Denver Water now uses the same water for roughly double the number of people it did in 1990. The default expectation of ever-more water supplies has been shattered.

“You have this decoupling of municipal growth and water use, and we really didn’t see that coming in the early 1980s,” Kuhn said in an interview last week.

Neither did Aspen, for that matter. Both Denver and Aspen have been part of a national trend of declining per-capita use of water that may be far from over. It’s a simple matter of economics. Wringing the sponge of water conservation is cheaper. More expensive is buying water from farms on the Great Plains, but it’s still cheaper than developing new supplies.

Still being debated is how much water Colorado has to develop out of its entitlement, under compacts governing the Colorado River. As with Two Forks, a notion that the solution to water shortages is to build more dams and divert more still lingers. It assumes water remains available. A state report issued several years ago concluded that Colorado had as much as 1.5 million acre-feet of water in the Colorado River to develop.

Kuhn scoffed at that estimate. He said then that no more than 150,000 acre-feet remained — and, quite possibly, not even that. Even allocations for existing water uses are questionable because of the dangling uncertainty of the warming climate.

In retirement, Kuhn may be working on the most important project of his career. Working with John Fleck of New Mexico, he’s writing a book about the Colorado River in a time of global warming.

After rummaging around climate change science beginning in about 2000, Kuhn became increasingly vocal through published papers and other work about the need to recognize the profound implications of a warming climate on water supplies in the Colorado River and the demands.

“I was just reading some of the work that was coming out in the early 2000s, and it’s largely proven to be generally correct,” he said last week. “I am surprised how quickly it has come on, because there is so much noise in the system,” he added, referring to the inherent variability of weather, both temperature and precipitation. “Even from one year to the next there can be a lot of noise.”

What this means exactly for Colorado is still hard to say. There’s still too much uncertainty about impacts to justify significant infrastructure investments at this time, according to even Denver Water. Kuhn agrees.

“It will take a long time to see how that pattern (of change) sets up,” he said.

Climate modeling suggests — but with low confidence — less snow and precipitation for southern Colorado and more for northern Colorado. The Elk Range can be seen as a divide between that wetter and drier future.

“If I were in the southwest, in Durango, I would be a heck of a lot more concerned than if I were in Steamboat Springs, based on what we know now—but it’s still a guess,” he said.

For the broader Colorado River Basin, though, Kuhn expects less water in the Colorado River as it flows into the Grand Canyon past Lees Ferry. That, he thinks, should have profound implications for how the seven states of the Colorado River Basin – plus Mexico—move forward.

And that is the big idea for the book now being written. In it, he and Fleck point to a report issued before the Colorado River Compact was formally adopted by Congress in 1928. The framers of the compact had assumed 16.4 million acre-feet average flows in allocating the waters among the seven basin states — with more yet due Mexico. In fact, flows during 20th century proved to be somewhat less, about 15 million acre-feet. The report provided accurate evidence of lesser flows beginning in 1875 and, more circumstantially, to 1850.

In other words, it was wishful thinking to assume so much water — and based on what is known about global warming, it’s fair to assume even less water in the 21st century. Through the first 14 years of the century, according to the research of Brad Udall and Jonathan Overpeck, flows have declined 19 percent.

“It’s a story about ignoring inconvenient science,” Kuhn said of the book. “If you had accepted the science, it would have made the political job [of apportioning the waters] much more difficult.”

It’s a story from a century ago, he said — but one fully relevant going forward.

The latest Middle #Colorado Watershed Council newsletter is hot off the presses #ColoradoRiver #COriver

Morning on the upper Colorado River. Photo: Brent Gardner-Smith/Aspen Journalism

Click here to read the newsletter. Here’s an excerpt:

As the summer continues to become drier and hotter, the importance of water in our lives is becoming magnified even if you don’t work with it on a day to day basis. Splashing in some water is a great, fun way to keep you cool on the weekends, but a lot of us along the Middle Colorado rely upon water for our recreational business, our industry, or our agricultural fields, which at the very least we all enjoy as part of the open Western Slope landscape.

There are lots of awesome ways to get out and see or even beautify your watershed this summer. Glenwood Springs is hosting it’s annual RiverFEST on August 4th, with a river clean up from 9am-noon (join the MCWC Clean Up Team!) and stand up paddleboarding demos, fly fishing demos, and music afterwards. We’re hosting two public meetings in August to determine what to put in our new Interpretive Center and we need your input (see below), and we’re hosting a Watershed by Bike tour on September 15th down the Glenwood Canyon Recreation Trail for a morning of beautiful downhill riding with three short educational stops with speakers along the way. Pick one and join us sometime this summer!

U.S. loses bid to end children’s climate change lawsuit

Climate Science 101

From Reuters (Jonathan Stempel):

A federal appeals court in San Francisco on Friday rejected the Trump administration’s renewed bid to dismiss a lawsuit by young activists who say the U.S. government is ignoring the perils of climate change.

By a 3-0 vote, the 9th U.S. Circuit Court of Appeals said the government fell short of the “high bar” needed to dismiss the Oregon case, originally brought in 2015 against the administration of President Barack Obama.

Twenty-one children and young adults, ages 11 to 22, accused federal officials and oil industry executives of violating their due process rights by knowing for decades that carbon pollution poisons the environment, but doing nothing about it.

The government contended that letting the case proceed would be too burdensome, unconstitutionally pit the courts against the executive branch, and require improper “agency decision-making” by forcing officials to answer questions about climate change.

But the appeals court said the issues raised “are better addressed through the ordinary course of litigation.”

A trial is scheduled for Oct. 29 in the federal court in Eugene, Oregon…

The activists are seeking various environmental remedies.

Julia Olson, one of their lawyers, said in a phone interview, “The 9th Circuit sees that this case needs to go to trial with a full factual record on the young plaintiffs’ harms, their constitutional rights and climate science.”

The case is U.S. et al v U.S. District Court for the District of Oregon, Eugene, 9th U.S. Circuit Court of Appeals. No. 18-71928.

Poem: Poudre Heritage — Greg Hobbs

Poudre Heritage

O, my Lady,
how you lead me along

Wherever water is
there I am.

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Greg Hobbs 5/17/2018

@EPA To Hold PFAS Community Engagement in Colorado Springs

Photo via USAF Air Combat Command

Here’s the release from the Environmental Protection Agency:

Starting on Tuesday, August 7, 2018, the U.S. Environmental Protection Agency (EPA) will hold the third PFAS community engagement event in Colorado Springs, Colorado. This two-day public event allows EPA to hear directly from Colorado communities, Mountain West states, and local and tribal partners about their experiences with PFAS.
WHAT: Colorado Springs PFAS Community Engagement

WHEN: Tuesday, August 7, 2018: Listening Session
4:00 PM MST — 10:00 PM (MST)
Wednesday, August 8, 2018: Working Session
9:45 AM — 12:00 PM (MST)
WHERE: Hotel Eleganté Conference & Event Center
2886 S. Circle Dr.
Colorado Springs, CO 80906

The Colorado community engagement event will consist of two sessions — a public listening session and PFAS working session — to hear from the public; provide tools to assist states, tribes, and local communities in addressing challenges with PFAS in the environment; and understand ways EPA can best support the work that’s being done at the state, local, and tribal level.

Both days are open to the public and press. If you are interested in attending the event, please register here: https://www.epa.gov/pfas/forms/pfas-community-engagement-colorado-springs-co. Those interested in speaking should also select the option to speak while registering.

Background

PFAS is a group of man-made chemicals that have been widely used in everyday products since the 1940s. But PFAS compounds also can enter the environment, raising concerns about the potential environmental and health risks.

Addressing PFAS is a national priority. At the National Leadership Summit in Washington, D.C. in May, EPA announced the following four-step action plan:

  • EPA will initiate steps to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS. We will convene our federal partners and examine everything we know about PFOA and PFOS in drinking water.
  • EPA is beginning the necessary steps to propose designating PFOA and PFOS as “hazardous substances” through one of the available statutory mechanisms, including potentially CERCLA Section 102.
  • EPA is currently developing groundwater cleanup recommendations for PFOA and PFOS at contaminated sites and will complete this task by fall of this year.
  • EPA is taking action in close collaboration with our federal and state partners to develop toxicity values for GenX and PFBS by this summer.
  • EPA has conducted similar engagements with communities impacted by PFAS in New Hampshire and Pennsylvania, and will be headed to North Carolina next month. These events are critical to understand ways the Agency can best support the work that’s being done at the state, local, and tribal levels. Using information from the National Leadership Summit, community engagement events, and public input provided by the docket, EPA plans to develop a PFAS Management Plan for release later this year.
    To learn more about PFAS, please visit: http://www.epa.gov/pfas