Poem: Red Rocks — Greg Hobbs

FIRST WEEK MAY 2020

Red Rocks

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RED ROCKS

We gathered here for farming,
for mining and for trees,
came to work the traplines
and gold upon our knees,
we prayed to God for guidance
and mapped a thousand peaks,
built the gleaming cities
and plugged the wildest creeks.

The Rockies have a hold of us
and of our ancestry,
plains and rivers tell us
there’s granite in the sea,
an ocean where the canyons are,
each rock a history,
Colorado is as old as us
as young as we might be.

Now each of us has had a day
we’ve done our best and worst,
said our share of lying
and placing mankind first,
we’ve but to see that lupine
is the future at our feet
and marmots running sprightly
over Rocky Mountain peaks.

Thunder’s booming sharply
across the plains below,
we see the lightning flashing,
hear the wind begin to blow,
mountains all are burning
in sunset’s awesome glow,
it’s all up there before us
in clouds piled up like snow.

Red Rocks, Justice Greg Hobbs,
Colorado Mother of Rivers, Water Poems at 26
(Colorado Foundation for Water Education 2005)

United Power alleges Tri-State G&T crossed legal line to ‘imprison’ it in supply contract to 2050 — The Mountain Town News

Transmission tower near Firestone. Photo credit: Allen Best/The Mountain Town News

From The Mountain Town News (Allen Best):

Trojan horses and de facto bribes.

Secrecy with the intention of imprisonment.

And then a clandestine project, co-named Blue Sky II, which the electrical cooperative United Power claims was the project designed by its wholesale supplier, Tri-State Generation and Transmission, to explore ways to get jurisdiction by regulators in Washington D.C.

The goal?

To keep United Power, the largest among Tri-State’s 43 members that are spread across Colorado and three adjoining states, as a member—and contributing fistfuls of dollars for decades to come. And also to keep the Colorado Public Utilities Commission from exercising authority over determining what would constitute a fair and reasonable exit fee.

Or so goes the argument in the lawsuit filed by United Power against Tri-State and three of its new, associated members.

Much of the argument had been previously shared by United Power and La Plata, both member co-ops that want to leave Tri-State. See: Why Tri-State’s new policies don’t work for these two dissident members And also: FERC order leaves Tri-State dispute with its largest members in Colorado.

This lawsuit adds specificity to the complaints coupled with colorful language.

La Plata Electric is not a party to the lawsuit.

Tri-State dismisses the lawsuit as so much folderol, calling the assertions “false and reckless.”

“United Power’s most recent complaint smacks of desperation and is completely without merit,” the wholesaler said in a statement yesterday evening, after hours after copies of the lawsuit were disseminated by Untied Power.

“Tri-State will vigorously defend its members and its board of director’s lawful, appropriate, and open decisions and actions to seek federal regulation,” the statement added. “Further, United Power’s complaint insults our other cooperative members, who clearly understood the direction of the association.”

It accused United of trying to foist off onto other members $1 billion in costs.

United Power is the largest among the 43 members in Colorado and three adjoining states that together constitute Tri-State, alone responsible for 17% of electrical demand from Tri-State. United serves the fast-growing suburbs north of Denver but also the electricity-heavy hydrocarbon extraction operations in the Wattenberg field.

The lawsuit says that United Power has purchased in excess of $200 million in wholesale electricity annually from Tri-State in recent years that it then distributes to its individual members as well as the oil and gas customers. This power is sold by Tri-State under its “Class A” rate, which is “materially higher now—and has been for years—than what United Power would be required to pay if it purchased electricity on the open market.”

Included in this $200 million per year is a built-in margin, which United Power calls profit. It might also be called overhead. That so-called profit has totaled $45 million to $70 million among all of Tri-State’s members in recent years. United, however, pays the lion’s share, $150 million during the past four years alone, it says.

In the future? More of the same, several hundred million dollars in just the next decade. The current contract does not expire for three decades.

Not a fair deal, says the lawsuit – and to avoid that fair deal Tri-State has “misused the cooperative governance structure in an effort to deprive United Power of its right to exit Tri-State.”

That effort to leave began in August 2018, when United Power asked for a buyout. Tri-State came up with a figure of $1.2 billion. That’s what Tri-State said United Power would have to pay to leave its so-called all-requirements contract before 2050. That contract allows members to procure only 5% or less of their own power.

One other member co-op, Kit Carson Electrical Cooperative in Taos, N.M., had already left in 2016, and Delta-Montrose Electric had started negotiating with Tri-State to leave. That agreement was reached last July and will take effect on July 1, 2020.

United Power didn’t want out. That’s what the lawsuit says, and that’s also consistent with what this writer reported at the time. It only wanted the ability to generate more of its own power and take advantage of emerging opportunities for cleaner and cheaper sources.

Now comes the equine subterfuge. The lawsuit says that Tri-State amended the bylaws to allow for partial requirements contracts, allowing more self-generation than the 5% allowed under the all-requirements contracts. Coupled with this was a new classification proposed by Tri-State managers in April 2019. This new class allowed members who weren’t electrical co-operatives.

To what end the new class of membership?

United alleges duplicitous behavior by Tri-State.

“Tri-State staff knew that Tri-State’s loss of all, or even part, of United Power’s load would have enormous adverse effects on Tri-State’s financial health,” the lawsuit says. “Tri-State staff also knew that other Tri-State member-owners were, for similar reasons, interested in retaining United Power as a Tri-State member. So Tri-State saw its opportunity, using United Power as a Trojan horse to convince Tri-State’s membership to amend Tri-State’s bylaws in a way that members believed would benefit them.”

Tri-State had been consulting with the lawyers, in-house and outside, about becoming FERC jurisdictional for at least six months and possibly much longer. This effort was called Blue Sky II. More about Blue Sky later.

Why did United, as a voting member of Tri-State go along with all this—indeed, by its own admission, champion it? United claims naiveté. Or, more precisely, deception.

“Tri-State concealed the existence of Blue Sky II from its members. By December 2018, Tri-State already had drafted the tariffs that it would need to file with FERC if it were to seek to become FERC regulated. Tri-State concealed from United Power and even from the Colorado PUC the existence of those draft tariffs,” the lawsuit says. The intent of all this was to “displace the Colorado PUC’s jurisdiction over member withdrawals.”

Why did Tri-State want to avoid the Colorado PUC jurisdiction in this matter? That is never explicitly stated.

But United Power says that it believed Tri-State’s good intentions throughout 2018 and 2019, even voting for the new bylaws that are now being used against its own best interests. Those bylaws allowed Tri-State to expand its membership to include:

  • MIECO, which sold natural gas to Tri-State.
  • Ellgen, which rented land from Colowyo Coal Co., a wholly owned subsidiary of Tri-State.
  • Olsons, a greenhouse in Fort Lupton, which purchases steam from Tri-State.
  • Each “received additional payment from Tri-State for engaging in the scheme to deprive the Colorado PUC of its jurisdiction over Tri-State through purported “patronage capital’ and, in the case of Olson’s, an increased discount in the price it paid for steam.”

    Tri-State argues that these new additional members pre-empt the PUC’s jurisdictions over member withdrawals. They are also named as defendants in the lawsuit by United Power.

    Tri-State all along has maintained that it added the members in order to gain FERC jurisdiction over rates. Because it has members in four states, it has explained, and so it’s easier to have one rate-reviewing body, even if in Washington D.C., than four in state capitols. However, in practice, Colorado’s jurisdiction is the one that matters. Wyoming and Nebraska do not exercise rate jurisdiction and New Mexico has not consistently done so.

    Tri-State explains its case somewhat differently: “Tri-State and its member cooperatives have been open and transparent about their desire to be regulated by the FERC, to eliminate inconsistent rate treatment across the states. In recent years both Colorado and New Mexico have exercised rate jurisdiction, which resulted in increased costs, unrecovered revenue and inconsistent rates to its members.”

    And in seeking FERC rate regulation, says Tri-State, it’s doing what almost all “other similarly situated wholesale generation and transmission providers” already do. That also includes Xcel Energy and its contracts with non-Tri-State Colorado cooperatives, which includes Yampa Valley Electric and Holy Cross Energy, among others.

    Meanwhile, an administrative law judge at the PUC is scheduled to hear the case of both United Power and La Plata on May 18-22. Tri-State wants the FERC to hurry up and take on the same case. United portrays this as a sinister conspiracy:

    “Notwithstanding that imminent proceeding, it has become completely clear that Tri- State has declared war on the Colorado PUC and literally will stop at nothing to try to prevent it from deciding a just, reasonable and non-discriminatory charge for United Power to withdraw as a member-owner of Tri-State. Tri-State’s legion of attorneys―whose fees are paid by Tri-State member-owners―are desperately seeking the expedited assistance of the Federal Energy Regulatory Commission in creating a conflict that Tri-State will then use to claim that the PUC’s jurisdiction has been pre-empted.”

    As for Blue Sky II, if United is correct that it existed, what’s with the name? One hypothesis would be that it alludes to an area of the Vail ski resort, the one newest and most remote from the base-area ski lifts, closer to the town of Red Cliff than to the town of Vail.

    Blue sky thinking can refer to brainstorming no limits.

    The United Power press release.

    The Tri-State G&T statement.

    And United’s court filing: Adams County – United Power Complaint-c3.pdf

    Citizen’s Guide to Colorado Groundwater — @WaterEdCO

    Click here to snag a copy:

    This guide discusses how groundwater is formed, regulated and used in Colorado. It explores the factors threatening groundwater supplies in some areas and illuminates how the role of groundwater could be expanded in Colorado’s water future.

    Webinar: Two New #Drought Tools and Outlook (North Central U.S.)

    Click here for all the inside skinny and to register:

    This webinar will cover two new drought tools available to the public and provide a short update on drought conditions and the outlook. The tools in include Grasscast, which informs those interested and range and pasture lands on possible future conditions for that crop. The other tool we will be discussing is from NASA and maybe used in the U.S. as well as around the globe for soil moisture and groundwater monitoring and prediction. At the end of the webinar we will briefly discuss current conditions and the drought outlook in the North-Central U.S.

    NOAA’s 3-month precipitation outlook for May-Jun-Jul is leaning slightly (33-50% chances) towards above-normal for southern ND, all of SD, NE, and KS, much of OK, as well as northeastern CO, eastern WY, and southeastern MT. So the left map might be slightly more likely for these states. For all other areas, the outlook currently shows equal chances, so the three maps above are equally likely. To check the seasonal precipitation outlook for your specific location, please visit NOAA’s outlook at: https://www.cpc.ncep.noaa.gov/products/predictions/long_range/lead01/off01_prcp.gif.

    One billion people will live in insufferable heat within 50 years – study — The Guardian #ActOnClimate #KeepItInTheGround

    The realized human climate niche relative to available combinations of MAT and precipitation. Human populations have historically remained concentrated in a narrow subset (A–C) of the available climatic range (G), which is not explained by soil fertility (H) or potential primary productivity (I). Current production of crops (D) and livestock (E) are largely congruent with the human distribution, whereas gross domestic product peaks at somewhat lower temperatures. Reconstructions of human populations 500 BP are based on the HYDE database, whereas those for 6 Ky BP are based on ArchaeoGlobe (https://doi.org/10.7910/DVN/CQWUBI, Harvard Dataverse, V4). NPP, net primary productivity. See SI Appendix, Methods.

    From The Guardian (Jonathan Watts):

    Human cost of climate crisis will hit harder and sooner than previously believed, research reveals

    The human cost of the climate crisis will hit harder, wider and sooner than previously believed, according to a study that shows a billion people will either be displaced or forced to endure insufferable heat for every additional 1C rise in the global temperature.

    In a worst-case scenario of accelerating emissions, areas currently home to a third of the world’s population will be as hot as the hottest parts of the Sahara within 50 years, the paper warns. Even in the most optimistic outlook, 1.2 billion people will fall outside the comfortable “climate niche” in which humans have thrived for at least 6,000 years.

    The authors of the study said they were “floored” and “blown away” by the findings because they had not expected our species to be so vulnerable…

    Instead of looking at climate change as a problem of physics or economics, the paper, published in the Proceedings of the National Academy of Sciences, examines how it affects the human habitat.

    The vast majority of humanity has always lived in regions where the average annual temperatures are around 6C (43F) to 28C (82F), which is ideal for human health and food production. But this sweet spot is shifting and shrinking as a result of manmade global heating, which drops more people into what the authors describe as “near unliveable” extremes.

    Humanity is particularly sensitive because we are concentrated on land – which is warming faster than the oceans – and because most future population growth will be in already hot regions of Africa and Asia. As a result of these demographic factors, the average human will experience a temperature increase of 7.5C when global temperatures reach 3C, which is forecast towards the end of this century.

    At that level, about 30% of the world’s population would live in extreme heat – defined as an average temperature of 29C (84F). These conditions are extremely rare outside the most scorched parts of the Sahara, but with global heating of 3C they are projected to envelop 1.2 billion people in India, 485 million in Nigeria and more than 100 million in each of Pakistan, Indonesia and Sudan…

    “I think it is fair to say that average temperatures over 29C are unliveable. You’d have to move or adapt. But there are limits to adaptation. If you have enough money and energy, you can use air conditioning and fly in food and then you might be OK. But that is not the case for most people,” said one of the lead authors of the study, Prof Marten Scheffer of Wageningen University.

    Crystal River Ranch near Carbondale seeks to preserve water rights tied to potential dams, reservoirs — @AspenJournalism

    Elk gather in irrigated hay fields below Dry Park Road on the Crystal River Ranch, which is seeking to maintain conditional water storage rights tied to two potential 55-foot-tall dams. One of the dams would be located at the edge of the hayfields, to the left in the photo, and another would be located in the Four Mile Creek valley. Photo credit: Brent Gardner-Smith/Aspen Journalism

    From Aspen Journalism (Heather Sackett):

    Sue Anschutz-Rodgers, the owner of Crystal River Ranch above Carbondale, has told the state she is making progress toward building two 55-foot-tall dams that would form two 500-acre-foot reservoirs on land she owns in the Four Mile Creek basin and along Dry Park Road.

    The cattle and hay operation has been owned by the Anschutz family since 1966. Water attorneys for Anschutz-Rodgers and the ranch are in state water court seeking to maintain conditional water-storage rights tied to the two potential reservoirs: Sue’s Four Mile Reservoir No. 1 and Sue’s Four Mile Reservoir No. 2.

    They would be located on ranch-owned land in the Four Mile Creek drainage and along Dry Park Road, respectively.

    The dam that would form Reservoir No. 1 would be 55 feet tall and 950 feet long, and the resulting reservoir would inundate 22 acres with water. The dam for Reservoir No. 2 would be 55 feet tall and 800 feet long, and the reservoir would inundate 30 acres. Each reservoir would hold as much as 500 acre-feet of water. By comparison, Grizzly Reservoir on Lincoln Creek above Aspen holds 590 acre-feet of water and is formed by a 56-foot-tall dam that floods 44 acres of land.

    Anschutz-Rodgers is a philanthropist and environmentalist whose brother Phil Anschutz is worth $12 billion, according to Forbes. She has served locally on the boards of the Aspen Valley Land Trust and the Thompson Divide Coalition, and Anschutz-Rodgers is listed on the application as general partner of Crystal River Ranch Co., LLC.

    On March 13, her water attorney, Glenn Porzak of Boulder-based Porzak Browning & Bushong, told the court in a proposed ruling that Crystal River Ranch “has exercised reasonable diligence in the development” of the two dams and reservoirs. He also noted that “the measure of diligence is the steady application of effort to complete the appropriation in a reasonably expedient and efficient manner.”

    As such, the ranch is requesting that the conditional water-storage rights tied to the two potential dams — rights first decreed in 2006 — be extended for another six-year period.

    “I believe we have shown the necessary amount of work to show diligence and extend these conditional rights,” Porzak said.

    Any start of the dams’ construction, Porzak said, “is still at a preliminary stage.”

    Water from Four Mile Creek irrigates land on Crystal River Ranch off of Dry Park Road above Carbondale. Ranch owner Sue Anschutz-Rodgers has told the state she is making progress toward building two dams and reservoirs on the property. Photo credit: Heather Sackett/Aspen Journalism

    Irrigating more than 600 acres

    The water from the potential reservoirs could be used to irrigate 535 acres of land along Dry Park Road, which drains into the Roaring Fork River, and another 93 acres of land in the Four Mile Creek basin. Four Mile Creek flows into the Roaring Fork downstream of the Ironbridge golf course.

    The Crystal River Ranch house and the main part of the sprawling 7,600-acre site is located just off Garfield County Road 108, which leads from Carbondale up to the popular Spring Gulch cross-country ski area. The section of the ranch visible from CR 108 is irrigated with water diverted from the Crystal River via the Sweet Jessup Canal.

    Another section of the ranch where elk are often seen roaming the irrigated hay meadows is off Dry Park Road, which runs between CR 108 and 4 Mile Road. The land in Dry Park is currently irrigated with water diverted from Four Mile Creek via the McKown Ditch, which crosses the ridge that separates Dry Park from the Four Mile Creek valley.

    The headgate for the McKown ditch on Four Mile Creek is about 1½ miles downstream from the Sunlight ski area.

    According to its application, the 1,000 acre-feet of water that the ranch hopes to store would be used for four purposes: stock watering, piscatorial, wildlife and irrigation. (Piscatorial pertains to fish.)

    A herd of elk could be seen roaming amid the irrigation sprinklers of Crystal River Ranch on Thursday. Ranch owner Sue Anschutz-Rodgers has told the state she is making progress toward building two dams and reservoirs on the property. Photo credit: Heather Sackett/Aspen Journalism

    Diligence application

    Crystal River Ranch filed its initial water-rights application for the two potential dams in Division 5 Water Court in Glenwood Springs in 2006. After working through some issues with five other water-rights holders in the case, a conditional water-rights decree for the two dams and reservoirs was issued by Judge James Boyd in 2013.

    The 2013 decree required Crystal River Ranch to submit a due-diligence application in 2019 in order to maintain the conditional water rights.

    In the diligence application, Porzak said since 2013 the ranch has spent $70,000 to “survey the reservoir sites; prepare layouts of the dams and reservoirs; (and) design work on the spillways, inlets, and outlet infrastructures of the reservoirs.”

    A portion of the $70,000 also went to “design irrigation improvements and conduct layout of the pumps and sprinklers for the lands to be irrigated by the reservoirs; conduct a hydrology analysis for each reservoir site; drill boreholes at each reservoir site; test soil samples and perform a geotechnical analysis of each reservoir site; and prepare cost estimates for each reservoir site and all of the associated infrastructure.”

    In reviewing a diligence application, the division engineer and the water court’s referee, who functions as an administrative judge, apply a standard of diligence. The standard is often met by the applicant listing the work they’ve done on the potential facilities that are tied to the water rights and are necessary to put the water to use.

    “You have to show you are moving forward in a reasonable manner,” said Alan Martellaro, the Division 5 engineer.

    No entities filed a statement of opposition to the application.

    Martellaro reviewed the diligence application along with Susan Ryan, the water court’s referee, and then filed a memo — called “a summary of consultation” — with the court Feb. 28.

    The summary said Crystal River Ranch “should provide reports and other documents, which support the diligence activities performed within the relevant diligence period as claimed in the application.”

    A stony irrigation channel runs past rolled hay on the Crystal River Ranch, just below Dry Park Road, with Basalt Mountain in the background. The pond in the lower field, to the right of the white trailer, drains to the Roaring Fork River and is the approximate location for a potential 55-foot-tall dam that would hold 500 acre-feet of water. Photo credit: Brent Gardner-Smith/Aspen Journalism

    Next steps

    To date, however, none of these documents have been filed with the court, and only a hard-to-read map of the general area where the reservoirs would be located has been made public.

    Porzak said the work done on the two potential reservoirs has not yet been reduced to final written reports.

    He also said that the activities in the diligence application were verified under oath by Craig Ullmann, the engineer who oversaw the work. Ullmann is president of Applegate Group Inc., a water-engineering firm with offices in Glenwood Springs.

    Martellaro said the word “should” in the court’s summary of consultation means “should,” not “must,” so it is not clear whether the design documents for the two dams will be made public through the court process. He also said the documents cited in the application would be helpful for the state to have on file for the next diligence filing.

    Porzak said all the relevant information was contained in the application.

    Should the dams ever be built, the associated water rights would hold a priority date of 2006, a junior right under Colorado’s system of prior appropriation. As such, Crystal River Ranch couldn’t count on the water being there to store in dry years, Martellaro said.

    “It’s a really junior water right on a stream that’s over-appropriated,” he said. “This is one of those creeks that just doesn’t have surplus. They are pretty much limited to snowmelt runoff to fill these ponds.”

    Aspen Journalism is a 501(c)(3) nonprofit organization supported by its donors and funders and partners with The Aspen Times and other Swift communications publications on water coverage. This story ran in the May 4 edition of The Aspen Times.