In what could be a major blow to the Durango & Silverton Narrow Gauge Railroad, a federal judge has recommended a district court throw out the train’s motion to dismiss a lawsuit in which the U.S. government is seeking $25 million for fighting the 416 Fire.
In July, the U.S. government named the D&SNG as the cause of the 416 Fire, which started along the train’s tracks north of Durango in summer 2018 and went on to burn more than 54,000 acres of mostly national forest lands in the Hermosa Creek watershed.
After eyewitness accounts and months of speculation, federal investigators determined a cinder emitted from a smokestack from a D&SNG coal-burning locomotive, which was running at a time of extreme drought in Southwest Colorado, sparked the fire.
At the same time, U.S. officials said the D&SNG denied starting the fire, prompting a lawsuit that seeks $25 million from the railroad for damages and fire-suppression costs.
In September, the D&SNG filed a motion to dismiss the lawsuit, saying there is no federal law that allows claims to recover fire suppression costs, and the only Colorado law on the issue allows for recovering actual damages from a fire on property – but not firefighting costs.
The judge overseeing the case – U.S. District Court Judge Robert E. Blackburn – asked for a recommendation from U.S. Magistrate Judge N. Reid Neureiter on interpreting the law and on whether to dismiss the case.
On Friday, Neureiter filed his recommendation, which supported the U.S. government.
“First, I reject the (D&SNG’s) argument that, as a public entity providing a civic service by fighting a forest fire, the United States is not entitled to recover fire suppression costs,” he wrote.
“The United States was protecting its own property, the National Forest, and acting like a property owner in fighting and attempting to suppress the fire … the United States is entitled to whatever protection is afforded to other landowners in Colorado – including entitlement to recovery of fire suppression costs.”
The 416 Fire near Durango, Colorado, ignited on June 1, 2018. By June 21, the wildfire covered more than 34,000 acres and was 37 percent contained. Photo credit USFS via The High Country News
The 416 Fire started at about 10 a.m. on June 1, 2018, approximately 10 miles north of Durango, CO. Rocky Mountain Type 1 Incident Management Team is managing the fire. The fire is burning on the west side of State Highway 550 on some private land and on the San Juan National Forest. The fire is burning in grass, brush, and timber. The Weather conditions remain critical and fuels are ideal for significant fire growth. The fire has been very active and continues to burn in rough and inaccessible terrain. Many homes have been evacuated and structure protection is in place. Map via Inciweb
Screen shot of Animas River debris flow July 2018 aftermath of 416 Fire (CBS Denver).
Debris flow from 416 Fire. Photo credit: Twitter #416Fire hash tag
Water in Loveland comes from the Colorado-Big Thompson Project, which diverts water over the Continental Divide to the Front Range. Over the past several years, units of water from the project have soared in price as Northern Colorado’s population has grown and development increases.
From 2010 to 2019, the average price of C-BT units rose from $7,000 to $55,000. The amount of water in a C-BT unit is set yearly by the Northern Colorado Water Conservancy District — Northern Water — and fluctuates based on the amount of snowpack and forecast streamflows for that year. In 2019, it was set at 70 percent of an acre-foot…
The city of Loveland requires developers to bring their own water rights to a project or to purchase water from the city. The city’s cash-in-lieu price for water rights is pegged to the market value and has steadily risen alongside it.
At the Loveland Utilities Commission meeting Dec. 18, the city approved raising the cash-in-lieu price of C-BT units to $47,640. It last raised the price in July to $39,330.
The city asks developers to pay their own way so that they don’t cut into the city’s water resources for the future, said Joe Bernosky, the director of Loveland Water and Power.
“What we’re doing is we’re to trying to make them pay their own way so the existing citizens don’t have to pay or we don’t kick the can down the road,” Bernosky said. “And that’s not a good way to do business when you’re a utility.”
Cash-in-lieu money the city receives from developers all goes toward firming up the city’s water portfolio, said Larry Howard, a senior civil engineer in the Water and Power utility.
There’s no profit incentive to increasing the cash-in-lieu price, Howard stressed. The city is just reacting to market conditions and doesn’t have a lot of options.
The rising cost of water is making it harder to build more affordable housing in Loveland, something the city badly needs. Jeff Feneis, director of the Loveland Housing Authority, said water rights are one of the organization’s biggest challenges.
In order to help mitigate the increasing cost of water, the city recently recalculated the water rights necessary per building unit. The change, which went into effect this September, applies only to residential buildings.
Due to more efficient building practices such as more efficient appliances, new houses require less water than older ones do. In light of this, the city reduced the required amount of water for a single-family dwelling from about one-quarter of an acre-foot to about one-tenth.
FromThe La Junta Tribune-Democrat (Bette McFarren):
Issues with clean water supply going back to the settlement of the Arkansas Valley will be aided by the Colorado Water Conservation Board’s approval of a $100 million packet for the Arkansas Valley Conduit.
“The Southeastern District and Reclamation are working to reduce project costs and the need for up-front federal funding in order to begin construction of the Arkansas Valley Conduit project. About $30 million has been invested in planning since 2011,” wrote Chris Woodka in a recent article about the CWCB’s action.
“Most of the issues of water quality in the Arkansas Valley are dealing with nucleides,” said Tom Seaba, water and wastewater director for the City of La Junta. “Our new Waste Water Treatment Plan will reduce the contaminants going back into the river, and we will need time and accurate readings to see how effective it is. I don’t think of Selenium as a contaminant, but as a naturally occurring element in our area. We hope to install some other type of treatment to bring us into complete compliance. We are working under a discharge specific variance that is good for five years, and may be renewed for five years. All other elements are under control. We are in year two of the variance.
“Many of the smaller systems, such as South Swink and May Valley, are in much worse condition. A cleaner water source from the Pueblo Water Reservoir would make compliance with clean water standards a non-issue.” Seaba said 15 of the 24 public water systems in Otero County have state water violations for naturally occurring radioactive contaminations.
Swink and four other small systems are currently importing water from La Junta because of La Junta’s reverse osmosis water treatment plant. For smaller water companies, the improvements La Junta has made are not financially possible.
From Stanford University Water in the West (Megan Glatzel):
New research finds one drought can amplify or cause another. Decreased moisture recycling and transport impacts how droughts form and move across continents.
Could a drought in California be linked to a drought in the Midwest? A recent Stanford-led study [Reduced Moisture Transport Linked to Drought Propagation Across North America] published in Geophysical Research Letters finds that regions may fall victim to water scarcity like dominos toppling down a line.
“We know droughts can travel thousands of miles across continents, but it has not been clear exactly how,” said lead author Julio E. Herrera Estrada, a postdoctoral scholar with the Stanford Water in the West program and the Stanford Department of Earth System Science.
Droughts occur when a lack of precipitation causes a water shortage. Continents receive most of their precipitation from water vapor transported by wind from other land and ocean areas as well as from moisture that evaporates from a region and falls in the same area – a process known as recycling.
In this study, researchers looked at how decreased moisture from recycling and transport amplified the 2012 drought in the Midwest, which resulted in losses of over $33 billion. Using a complex, mathematical, moisture tracking model combined with state-of-the-art data on precipitation, evaporation and moisture fluxes in the atmosphere, they found that reduced precipitation from recycling and transport from upwind land areas made up 62 percent of the total precipitation deficit experienced by the Midwest. Diminishing moisture transported directly from oceans made up only 38 percent of this deficit.
Like most of the U.S., the Midwest relies on moisture imported from other regions. When a drought occurred in the western U.S. that same year, it resulted in less evaporation and drier air. Transported by wind, this drier air likely resulted in less rainfall over the Midwest, according to the researchers. As less moisture arrived in the Midwest, precipitation recycling shut down, further intensifying the drought. This sequence can reinforce itself and lead to new or more severe droughts. The study found that the Midwest eventually recovered from drought when more moisture was imported directly from the ocean, restarting the precipitation recycling process in the region.
“We show that multiple droughts over a continent may not necessarily be a coincidence,” said Herrera Estrada. “There may be important feedbacks between and within land areas that can propagate and intensify droughts, helping them travel across continents.”
As the U.S. faces more intense climactic events, understanding how droughts form and move will be increasingly important. While there is still a great deal to be learned, it is imperative for water managers and policymakers to prepare for future droughts. Being able to better predict where and when droughts occur and how long they last will be key. To slow the potential domino effect of droughts, the researchers urge the adoption of sustainable land management practices to prevent soil erosion and degradation and recommend preventing deforestation and desertification. These practices ensure more vegetation and better soil which will help keep up the supply of moisture for recycling and to be exported to regions downwind.
“It will also be crucial to take a regional approach to drought risk management and facilitate coordination between upwind and downwind communities to reduce the severity and impacts of future droughts,” concluded Herrera Estrada. “In many instances, this will require international cooperation.”
This paper was co-authored by J. Alejandro Martinez, Adjunct Instructor at the Escuela Ambiental, Universidad de Antioquia in Colombia; Francina Dominguez, Associate Professor and Richard and Margaret Romano Professional Scholar at the Department of Atmospheric Sciences, University of Illinois at Urbana-Champaign; Kristen L. Findell, Research Physical Scientist at the Geophysical Fluid Dynamic Laboratory; Eric F. Wood, Susan Dod Brown Professor of Civil and Environmental Engineering at Princeton University; and Justin Sheffield Professor of Hydrology and Remote Sensing at the University of Southampton in the United Kingdom.
Water managers from throughout the Colorado River Basin took the stage at the Colorado River Water Users Association conference earlier this month to talk about conserving water in the face of the twin threats to the river: increasing demand and climate change.
The state of Colorado is currently exploring a water-use-reduction program that is largely designed to pay farmers and ranchers on the Western Slope to voluntarily conserve water. While there’s still debate whether such a program should be implemented, the first question many ask is how to pay for such a program. In recent months, some water managers have come up with innovative ways to fund the controversial water-use-reduction plan — known as demand management — that wouldn’t rely entirely on taxpayers.
The drought contingency plan, which water leaders inked at last year’s annual CRWUA meeting, set up a reserve account of 500,000 acre-feet of water that the Upper Basin — Colorado, Wyoming, Utah and New Mexico — could use to store water in Lake Powell as an insurance policy against dwindling reservoir levels.
In November, Colorado voters passed Proposition DD, which is projected to funnel roughly $16 million a year to the Colorado Water Conservation Board, or CWCB, by taxing sports betting. Demand management is one of the two things money from Proposition DD could fund (the other is Water Plan grants).
However, it’s widely accepted that $16 million is not enough to fund either of those things in their entirety. Demand management needs other sources of money.
Although the Glenwood Springs-based Colorado River Water Conservation District still isn’t convinced that a demand-management program is the right approach for the Western Slope, general manager Andy Mueller told the Las Vegas crowd that the Upper Basin has to reduce its water consumption — and explore creative solutions to accomplish that.
“I often talk about the Lower Basin overuse and how that’s driving the problem, and I will say they in the Lower Basin need to fix that problem,” Mueller said. “I will also say we in the Upper Basin … need to reduce our use. The science is pretty clear. Water we all thought was there even 15 years ago is not going be there. You can’t have water for the environment and the people if we are not reducing consumptive use throughout the basin.”
Who should pay?
So, if nearly all water users on the Colorado River, including those in the Lower Basin — California, Nevada and Arizona — would stand to benefit from a demand-management program, who should pay for it?
Not Colorado taxpayers, Mueller said, at least not entirely.
“Eighty million (dollars) a year would need to be out there in payments to get the appropriate amount of water in Lake Powell,” he said. “That cost to taxpayers is too high. So you turn to: Who else benefits from us creating a storage account in Lake Powell?”
One answer: power providers in both the Upper and Lower Basin states, who all need Lake Powell to remain above 3,525 feet, the minimum level required to continue generating hydropower. Some Upper Basin power cooperatives such as Western Area Power Administration, which sell power to local communities, including Aspen and Glenwood Springs, purchase hydropower generated at Lake Powell. Adding a small demand-management surcharge to customers’ bills is something that should be explored, Mueller said.
“Power customers should share in the costs of us storing for demand management,” Mueller said.
Another potential source of funds could be nonprofit environmental groups, since sending more water downstream to Lake Powell would also benefit stream health. The federal government, whose Bureau of Reclamation operates Lake Powell and Lake Mead, also has a role to play, Mueller said.
But no matter where the money comes from, Mueller said it must be channeled through the CWCB in a heavily regulated market to prevent speculation by private buyers.
“We have been very clear it needs to be a guided market if it’s going to happen, with lots of thoughtful, proactive rules to prevent lots of serious consequences,” he said.
The CWCB currently has a workgroup devoted to exploring how to fund demand management. The group has met twice so far, but CWCB facilitator Anna Mauss said the two biggest questions the group is grappling with are these: how much water is needed and what would the cost be. The workgroup, she said, will dive deeper into funding strategies at the next meeting, scheduled for the end of January.
“We are baby-stepping into this, trying to be diligent,” Mauss said. “It’s really just looking at scenarios at this point.”
The state is also encouraging innovative ideas from the private sector. The CWCB recently awarded $72,000 to 10.10.10, a Colorado Nonprofit Development Center project that aims to tackle “wicked problems” in water and climate. Under the program, 10 entrepreneurs will, over 10 days, attempt to tackle 10 systemic issues that are not adequately addressed by government, organizations or institutions.
“Yes, we are looking at demand management, and it could be one of the wicked problems we address,” said Jeffrey Nathanson, president of 10.10.10.
Platform for payment?
While some people work on finding sources of funding, others are already creating a platform to pay irrigators once the money is in place. Southwest Colorado water managers Steven Ruddell and David Stiller think a reverse auction to compensate water users for using less is the best way to go.
A reverse auction, which features many sellers (farmers and ranchers) and one buyer (the state of Colorado through the CWCB), would allow water-rights holders to set the lowest price they are willing to accept to voluntarily send their water downstream. According to Ruddell and Stiller’s paper on the subject, a reverse auction would remove paying for demand management from a political process and move it into a market-based process that lets water-rights holders bid the fair-market value of their water. It would also keep costs down for the CWCB.
Ruddell and Stiller presented their reverse-auction idea at the Upper Colorado River Basin Forum at Colorado Mesa University last month.
“We’ve tried to bite off a small piece of demand management by suggesting we use an auction that people are familiar with,” Ruddell said. “It’s used to determine the value of something, especially in the ag world.”
There are still many questions surrounding how a demand-management program might be paid for.
“There are all sorts of options,” Mueller said. “We shouldn’t just focus on raising taxes in our state.”
Aspen Journalism collaborates with The Aspen Times and other Swift Communications newspapers on coverage of water and rivers. This story appeared in the Dec. 30 edition of The Aspen Times.
Click here to view the Twitter hashtag #CRWUA2019 from the conference.