From The Mountain Town News (Allen Best):
Utility says Gross expansion needed for water security for 1.5 million people
Denver Water has been awarded its final federal permit for expansion of Gross Reservoir but may still need a permit from Boulder County.
A permit from the Federal Energy Regulatory Commission announced today wraps up all the federal permitting needed to raise the existing 340-foot-tall Gross Dam across South Boulder Creek by 131 feet.
The dam has a hydro plant with a capacity of producing up to 7.6 megawatts.
But the most difficult permit may be the one that it still lacks: a 1041 permit from Boulder County. The Boulder Daily Camera explains that a district court decision affirmed the county’s authority to review the project under a 1973 law. That law, commonly known by his legislative bill title, gives local governments land use authority to review major projects by other governments.
Eagle County used that same authority in 1991 to deny a permit sought by Aurora and Colorado Springs to conduct a major water diversion project from within the Holy Cross Wilderness Area near Minturn and Red Cliff. The two Front Range cities fought the denial but lost and ultimately participated in a collaborative process designed to produce a more acceptable solution. That process is ongoing, with many opposed to the lighter, gentler approach. But by any measure, the current proposal in the Homestake Valley would have much less impact upon the wilderness area .
This case of Gross Dam is different in that the water being diverted only passes through Boulder County. The water would come from Grand County via the Moffat Tunnel. The county itself signed off on the expansion after a lengthy collaborative process that was in many ways modeled after what was created in the wake of the Homestake II denial.
Denver Water in this case committed to a collaborative process called Learning by Doing. The intent is to allow Denver to use its water rights in the Fraser Valley and also in the adjoining Williams Fork Valley but in ways that avoid the harshest of impacts.
The process earned Denver the support of Trout Unlimited, and also some fierce Denver critics such as Kirk Klancke, a Fraser Valley resident.
But some Fraser Valley residents continue to oppose the project. “We don’t have any more water to send to Denver,” says Andy Miller, a Fraser town trustee, as elected members of the governing council are known. “With the water that is being diverted now, we are barely keeping the system alive.”
Miller said additional diversions would mean that at times the only water in the Fraser River will be the releases from the wastewater treatment plants in Winter Park and Fraser. “That’s not enough,” says Miller, a member of the Upper Colorado River Watershed Group.
Denver began pursuing the expansion of the dam after the drought of 2002 exposed the vulnerability of water delivery to Arvada and other suburbs in the northwest metropolitan area that contract with Denver Water for supplies. The next year, Denver began the federal environmental permitting process. Denver already received approvals from the Colorado Department of Public Health and Environment and the U.S. Army Corps of Engineers in 2016 and 2017.
Colorado’s largest water provider, Denver Water provides water not just for the city’s residents but a broad swath of the metropolitan area, a quarter of the state’s 5.8 million residents.
In a statement, Jim Lochhead, the chief executive of Denver Water, said the FERC permit—it’s technically called an order—brings a comprehensive 17-year federal and state permitting process to a close.
Lochhead also characterized the project as a necessary given the increasing weather variability in a warming climate.
“The project provides the system balance, additional storage and resiliency needed for our existing customers as well as a growing population. We are seeing extreme climate variability and that means we need more options to safeguard a reliable water supply for 1.5 million people in Denver Water’s service area,” he said.
From The Boulder Daily Camera (Sam Lounsberry):
Denver Water announced Friday it earned its final federal approval to pursue the largest construction project in the history of Boulder County with its planned Gross Reservoir expansion.
If completed, the enlargement would help continue to serve a growing population in the water provider’s jurisdiction amid climate change that is clouding future supply with uncertainty, [Jim Lochhead] said…
An opening brief is due in August for the water agency’s appeal of a Boulder District Court decision that affirmed the county’s ability to review the project under what is known as local government 1041 power, which could result in its ultimate official disapproval by local leaders, or not, if they allow it to move forward…
Denver Water touted that the project has the support of environmental groups such as Colorado Trout Unlimited, The Greenway Foundation and Western Resource Advocates. It also said it has committed more than $20 million to more than 60 environmental mitigation and enhancement projects that will create new habitat and water flow protections for rivers and streams on both sides of the Continental Divide.
“We are committed to working closely with the Boulder County community to ensure safety, be considerate neighbors and retain open, two-way communication channels during this construction project,” Jeff Martin, program manager for the Gross Reservoir Expansion Project, stated in the news release. “We will continue to seek community input on topics such as traffic control plans, hauling traffic schedules, tree removal plans and other construction-related activities.”
The design phase for the Gross expansion is expected to finish by the middle of next year, followed by four years of construction, if approved. It will involve raising the existing 340-foot Gross Dam by an additional 131 feet, increasing reservoir capacity by 77,000 acre-feet, and it will include 5,000 acre-feet of storage dedicated to South Boulder Creek flows that will be managed by the Boulder and Lafayette city governments. Raising the capacity of Gross was a recommendation of environmentalists as an alternative to building a new dam, a proposal that would have created Two Forks Reservoir in the 1980s, the release said.
From The Associated Press via KUNC:
Even with federal approval, Boulder County still wants to conduct its own review under local government 1041 power, that could result in the project’s ultimate official disapproval by local leaders.
“We think that it was a well-reasoned decision from the district court and we have strong arguments in defense of the appeal,” County Deputy Attorney David Hughes said. “It’s not uncommon for local governments to use 1041 powers in review of major projects by other governments.”
Denver Water is expecting to appeal the county’s decision and provide an opening brief in August.
From Colorado Public Radio (Corey H. Jones):
In 2018, some environmental groups sued three U.S. government agencies in an effort to stop the expansion. They argued that it would harm aquatic life and wildlife as well as hinder streamflows, adding that the Colorado River needs to be better protected…
Lochhead has said that Denver Water will only take extra water from tributaries during wet years, avoiding periods of drought.
It’s been a long road for the utility, which began the permitting process for the expansion seventeen years ago. Denver Water plans to finish the design next year, followed by four years of construction.
From Aspen Journalism (Heather Sackett):
After a year of meetings, workshops and in-depth discussions, state officials feel a feasibility investigation into a program that would pay water users to reduce consumption and add to a savings account in Lake Powell should continue.
Although no formal decision has yet been made on whether to implement a voluntary, temporary and compensated water-use reduction plan known as demand management, Amy Ostdiek, Colorado Water Conservation Board deputy section chief for interstate, federal and water information, told the state agency’s board of directors on Wednesday she has not found a reason to keep from moving forward.
“I didn’t identify any points that would indicate to me that we should stop the feasibility investigation,” said Ostdiek, who has been leading and organizing the process for the state. “From my perspective, we have not identified a reason not to continue the analysis or any hard reason it wouldn’t work.”
At the heart of a potential program is a reduction in water use in an attempt to send up to 500,000 acre-feet downstream to Lake Powell to bolster levels in the giant reservoir and meet 1922 Colorado River Compact obligations.
Under such a program, agricultural water users could get paid to temporarily fallow fields and leave more water in the river, in order to fill a 500,000 acre-foot pool as an insurance policy in case of continued drought or further reduction in average flows.
Report from workgroups
In June 2019, the CWCB, a state agency responsible for developing and protecting Colorado’s water, named 74 water experts and managers to eight work groups tasked with tackling complicated issues and questions around the creation of a demand management program. The groups were divided by topics: law and policy; monitoring and verification; water-rights administration and accounting; environmental considerations; economic considerations and local government; funding; education and outreach; and agricultural impacts.
A ninth group, headed by former Colorado lawmaker and chair of the Interbasin Compact Committee Russell George, has been focusing on how to ensure a demand management program is equitable among water users and basins. The IBCC facilitates conversations among representatives of different river basins and addresses statewide water issues.
Each group met multiple times over the past year and their findings, as well as their lingering questions, were included in a 200-page demand management update report presented [July 15, 2020] to CWCB directors.
The sprawling report summarizes the work completed by the groups and their overlapping key values, concerns and uncertainties. The sustainability of agriculture and agricultural communities ranked highest in the values category, while program design and participation ranked highest in the uncertainties category.
Several board members offered their opinions on a potential demand management program. Steve Anderson, who represents the Gunnison-Uncompahgre River basin, questioned whether the state could create water savings by funding more projects outlined in the Basin Implementation Plans instead of crafting a demand management program. The BIPs identify how each basin’s water needs will be met through existing or new projects, policies and processes.
“Once we become more efficient I think we would generate more system water for the Colorado,” he said. “At the end of the day we are going to have a choice between buying an insurance plan or using those funds elsewhere for conservation and efficiency.”
It is unclear how much a demand management program would cost the state, but one of the work groups is dedicated to the funding question.
The main goal of a demand management program would be to defend against what’s known as a “compact call,” which could happen if the upper basin states — Colorado, Utah, Wyoming and New Mexico — were not able to deliver the 75 million acre-feet of water over 10 years to the lower basin states, as required by the Colorado River Compact. Colorado water managers desperately want to avoid this scenario, which looms larger each year with the increasing effects of drought and climate change on an over-allocated river, because it could trigger mandatory cutbacks for water users.
CWCB board member Greg Felt, who represents the Arkansas River basin, struck a dark tone, saying moving forward with a demand management program is necessary because one of the potential alternatives — involuntary cutbacks, also known as “curtailment” under a compact call — will be impossible to enforce.
“I frankly think that people are not going to accept curtailments on any rights the way they have historically,” Felt said. “From what I’ve watched this year in rural Colorado, people aren’t going to be buying curtailment. The water is going to come out of the stream. You can’t have enough water commissioners to stop that.”
Funding for next steps restored
With the first year of a feasibility investigation complete, the ultimate decision on whether to move forward with a demand management program lies with CWCB board members. The board plans to discuss the work presented by the work groups at a one-day workshop in September.
CWCB staff also are planning a virtual regional workshop for the public to learn more about the first year’s findings. Both meetings will be open to the public.
For several weeks there was uncertainty surrounding the future funding of the demand management feasibility investigation, when on May 1, Gov. Jared Polis suspended the program’s funding due to the COVID-19-caused state budget crisis. But the funding was restored in this year’s projects bill, according to CWCB Deputy Director Lauren Ris.
The agency now has until the end of June 2021 to spend the remaining $834,000 of the original $1.7 million allocation, should the board decide to continue delving into the issue for another year.
CWCB Director Rebecca Mitchell urged the board to be leaders for Colorado on the issue of demand management.
“We want to do whatever we can to avoid a curtailment situation,” Mitchell said. “Everyone is looking to see what we do and how we handle this, and we do have a very unique opportunity at a very critical time to lead strongly on this.”
Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with The Aspen Times and other Swift Communications newspapers. This story ran in the July 18 edition of The Aspen Times.
Click here to read the newsletter. Here’s an excerpt:
General Manager Andy Mueller recommends financial security for West Slope water security
The Colorado River is under tremendous strain. In seven states and two countries over 40 million people rely upon the river for their drinking water and millions more throughout the United States are fed by the more than three million acres of irrigated agriculture that the river supports. The number of people served by the river is expected to hit at least 70 million by 2060.
Long term drought and rising temperatures mean that we have less water flowing in the river. Over 60% of the river’s natural flow originates within the boundaries of the Colorado River District. As the population grows, and the river flows continue to diminish, we are experiencing greater pressure on this limited resource.
There is widespread recognition that the river is out of balance and there are many suggestions as to how the river should be brought back into balance. Many of the suggestions being promoted by Lower Basin states and major metropolitan areas focus on reducing water use in places like our District; people such as former U.S. Secretary of the Interior Bruce Babbitt are calling for a redistribution of water from our agricultural communities to the urbanized Lower Basin. Never has it been so clear that the people of Western Colorado need a strong advocate at the water policy table who can speak for the West Slope with a unified voice, leading in the protection, conservation, use and development of the waters of the Colorado River for the residents and environment within our District. That voice is your Colorado River District.
Unfortunately, even before the current pandemic-inspired economic upheaval, the Colorado River District was facing a declining revenue stream. Declining tax revenues from the fossil fuel industry, losses caused by the Gallagher Amendment and the effects of the Taxpayers’ Bill of Rights (TABOR) Amendment are conspiring to drive the District’s income into significantly negative territory. The most recent state predictions for 2021 indicate that the Gallagher Amendment alone will likely cause the District to lose approximately $425,000 in the District’s General Fund budget.
Our flat and decreasing revenue led District management in the last 18 months to reduce the District work force by 4 positions or 15%, suspend our grant program, reduce the District vehicle fleet and implement across-the-board reductions in expenses. Even with these cost-saving measures, our financial projections indicate that the District will have to reduce its work force again as soon as 2022. While the District to date has been able to tighten its belt and successfully accomplish our core mission, our ability to protect the West Slope’s water security in the future will be significantly compromised through the loss of additional staff positions and proper resources.
Additionally, as our communities face the dual challenges of increasing demand on the Colorado River and reduction in the flow of the river, important West Slope priorities are not being accomplished because they are unfunded. West Slope communities through the three Basin Roundtables in our District have identified priority projects that are essential for water security. The unfunded water priorities span the full range of needs in all categories, including productive agriculture, infrastructure, healthy rivers, watershed health and water quality, conservation and efficiency.
In the recent past, advocacy and creative problem-solving by the District staff have enabled the District to serve as a catalyst for important projects. However, without the ability to bring money to the table we often find ourselves negotiating with our hands out and very little ability to influence the selection and direction of projects. As the District and our water users are forced to turn empty handed to the federal or state government for funding, we find the priorities of the state and federal governments, not those of the West Slope, are dictating the type, location and scope of projects.
The District was founded to lead in the protection, conservation, use and development of the water resources of the Colorado River basin for the welfare of the District. In 1937, at the request of West Slope leaders, the District was authorized to collect up to 2.5 mills in property tax. Today, due to a variety of reasons, the District’s mill levy is capped at 0.252 and its current, effective mill levy is set at .235 mills…less than one-tenth of its original authorization. The District’s ability to fulfill its mission and protect the West Slope is significantly hampered by declining revenue.
In January I recommended to the Colorado River District Board that it consider placing a question on the Nov. 3, 2020 ballot asking voters to approve an increase of the District’s taxing authority to up to 0.5 mills. The recommended increase is predicted on generating approximately $4.9 million in additional revenue per year at a cost of approximately $1.90 per $100,000 in residential value, which is equivalent to a tax increase of $6.34 annually for the median-priced home in the District.
The Board is still contemplating my recommendation. In January, Board members asked the staff to conduct additional outreach and public opinion research. We commenced that outreach through public forums and started discussions with Boards of County Commissioners. We arranged for public opinion polling to take place in the second half of March before the April Board meeting.
Unfortunately, by mid-March the coronavirus pandemic swept through Colorado and shut down our communities, wreaking economic havoc and interfering with our ability to conduct significant portions of our planned public outreach through districtwide events known as our State of the River meetings.
Our polling conducted in late March, after the closure of the ski areas and during the shut-down of the rest of the state, came back showing strong public support for the recommended tax increase. Specifically, the poll indicated that 65% of the likely voters polled were in favor of the measure. The poll showed widespread support across the political spectrum and throughout the District. The poll also showed incredibly strong support for the mission of the District indicating that projects that focus on water security in Western Colorado are funding priorities for residents throughout the District.
In April, society was coming to terms with the long-term economic effects of the pandemic and the Board and staff expressed concern about moving ahead with any tax increase, no matter how small. The Board requested that staff continue to engage in outreach to the public and county leadership and requested that polling be conducted closer to the July quarterly meeting so that we would have a better, more current understanding of public support for this potential ballot measure.
The additional polling was conducted at the beginning of July, and the report is still being finalized at the time of this writing. Preliminary reports from our research firm indicate that support in early July for the District and the potential tax increase remain high. 63% of likely voters polled support the tax increase. When informed that the increase would be modest, i.e. $1.90 per $100,000 in residential value, support for the measure climbed to 67%, identical to the informed support in March. Based upon our outreach to political and civic leaders in the District, there is generally widespread, but not unanimous support for the proposed ballot measure.
We have heard from the public, water-user entities and elected officials that it is incredibly important that the District Board and staff publicly commit to how the funds will be spent by the District. Our Board is contemplating the draft Fiscal Implementation Plan, which if adopted, will outline the District’s commitment as to how it would spend the additional revenue.
In summary, the plan calls for the District to allocate approximately 86% or $4.2 million of the anticipated annual revenue to partnership projects in the District, prioritizing multi-purpose projects that meet needs in one or more of the following five categories: productive agriculture, infrastructure, healthy rivers, watershed health and water quality, conservation and efficiency. The plan commits the District to expending funds in an equitable manner which, over time, disperses the benefits of the program geographically within the District boundaries and among the identified categories. The plan also commits the District to utilizing these funds to drive the initiation and completion of projects that are priorities for residents of the District by utilizing District funds as a catalyst for matching funds from state, federal and private foundation sources.
The Fiscal Implementation Plan itself has greater detail. The remaining approximately 14% of the funds will be utilized by the District to fix the District’s internal financial structural deficit caused by the cumulative impact of the Gallagher Amendment, the decline of tax revenue from the fossil fuel industry and TABOR revenue limitations. The District will not utilize the new revenue to create additional staff positions but will allocate the money to fund existing staff positions and business-related expenses. This allocation will help to ensure the financial integrity of the important work of the River District’s Enterprise Fund by preserving enterprise reserves for anticipated capital expenses and critical maintenance and repair work on water-supply assets owned by the District.
At our July meeting, the Board will be considering my recommendation and of course, the thoughts and concerns of the public. The Board may decide that the time is right to ask the voters for approval for a tax increase. The staff and Board welcome the public to attend, listen and comment on this important decision.
The public can listen to the meeting by visiting http://ColoradoRiverDistrict.com and navigating to the District’s YouTube channel.
From The Palm Springs Desert Sun (Mark Olalde):
The Imperial Irrigation District and farmer Michael Abatti have been locked in a years-long legal battle with as many twists as the river over which it has been fought. The saga might finally come to an end, though, after a California appellate court handed down a ruling on Thursday that found IID is the rightful manager of the portion of the Colorado River guaranteed to the Imperial Valley.
The three-judge panel was asked to determine whether IID fairly distributes water, including to the nearly 500,000 acres of agriculture that receive it every year. Additionally, the judges needed to decide whether farmers, via their private property, had a specific right to Colorado River water, as a trial court judge ruled in 2017. That decision had thrown into question a more than century-old system that doled out water in the agricultural valley south of the Salton Sea.
In the ruling, the judges found that farmers have a guaranteed right to water delivery but that they don’t hold a special claim to water rights above other industrial and residential users…
Equitable Distribution Plan
After the ruling came out, questions remained about the future of the Equitable Distribution Plan, a document IID revised in 2013 to determine how water would be apportioned in the case of a declared shortage on the river. Farmers were put last in line in the plan, and that was the other key question Abatti raised in his litigation.
The appellate court ruled that IID “abused its discretion in how it prioritizes apportionment among categories of water users,” but both sides emerged from the case claiming a level of victory on that point.
In an email, Lee Hejmanowski, one of Abatti’s attorneys, told The Desert Sun, “In 2013, Michael Abatti stood up for all of the farmers in the Imperial Valley by challenging the IID’s so-called ‘Equitable Distribution Plan.’ Mr. Abatti is pleased that the Court of Appeal has affirmed the trial court’s decision striking down the EDP, which was not, in fact, equitable because it treated farmers inequitably.”
Frank Oswalt, IID’s general counsel, said he believes “the board’s got a lot of homework to do” to ensure it is reading the decision correctly when moving forward with some form of the Equitable Distribution Plan. But, Oswalt said he viewed the decision as largely affirming the mechanisms the IID used in the plan.
Wally Leimgruber of the Imperial Valley Coalition for the Fair Sharing of Water, which supports IID’s position, said the ruling was a victory for the district. But, he expects the plan to be rewritten to clearly spell out that all water users must be treated equally if there is a water shortage…
What comes next
Both sides in the legal fight between farmers and the IID have hunkered down to determine the next phase of their battle plans.
“Mr. Abatti and his attorneys are digesting the Court of Appeal’s 106-page decision and determining the next steps in the process,” Hejmanowski said.
Oswalt said the IID, too, is mulling the finer details of the ruling, and it ultimately will be up to the board of directors to decide on next steps. But, he said, IID leadership are satisfied that the decision leaves control over water solidly with them, meaning “the IID board is a lot less likely to want to appeal this than the other side.”
Each side also will need to make a determination about how many more resources they want to plow into the fight.
In a January board meeting, Oswalt told the IID board that the district had racked up a $2.3 million legal bill. While the district would not provide an exact updated figure on Friday, Galindo said it had crept toward the $3 million range…
The parties have 10 days after the appellate court’s decision becomes final — which typically happens within a month from when it was handed down — to request that the state’s apex court take it up. The California Supreme Court only hears about 5% of cases that are sent its way, however, meaning there is a strong chance that Thursday’s decision could be the final word in Abatti’s legal challenge to IID’s control over Colorado River water in the Imperial Valley.