#Colorado officials set sights on ponds without water rights — @AspenJournalism #ColoradoRiver #COriver #aridification

A canoe floats in the Milvich family pond in Old Snowmass. The Colorado Division of Water Resources issued a cease-and-desist letter because the pond, which does not have a legal water right, was taking water out of priority. Photo credit: Heather Sackett/Aspen Journalism

From Aspen Journalism (Heather Sackett):

Rebecca Milvich has many fond childhood memories of playing in the pond on her family’s Old Snowmass property, which they purchased in 1985.

Every summer, the pond off Little Elk Creek Avenue in Old Snowmass, became the neighborhood hangout as Milvich and her siblings and friends swam and paddled a canoe. Still today, the pond, which is filled by a ditch branching off Little Elk Creek, brings the family joy as they admire the ducks, fish and muskrats that live there.

“Those are the passions that are wrapped around it,” Milvich said. “It’s very personal. It’s something that has enhanced our quality of life a thousandfold. Our ability to have a water feature has changed our lives for the better, for sure.”

But on Sept. 22, the Milvich family received a cease-and-desist order from the Colorado Division of Water Resources that said they had to stop filling their pond because of a downstream call on the Colorado River, in which water users junior to the Grand Valley irrigators’ water rights had to be shut off.

It turned out the Milvich family did not have a legal water right for their pond, making them one of the most junior water users on the Colorado River system and one of the first to be curtailed.

“We were from Southern California and we missed having the beach,” Milvich said. “And my dad was excited to purchase an actual piece of property that had water on it, totally not knowing that we were in some ways for these last 35 years breaking some rules and regulations. We had absolutely no idea.”

The Milvich family’s pond is not the only one in the area lacking a water right. DWR officials say undecreed ponds throughout the region are depleting the Colorado River system in a time when a climate change-fueled drought makes it more important than ever to account for every last drop of water.

The Glenwood Springs-based Division 5 engineer’s office issued five cease-and-desist orders for ponds without water rights this season in the upper Roaring Fork Valley. And officials say there are many more ponds like these out there. Some of them are recently built for fire protection.

The main concern with these ponds is water loss to the Colorado River system through evaporation. The bigger the surface area, the more water that is lost.

“A lot of the depletions are pretty small, but it’s death by a thousand cuts,” Division 5 Engineer Alan Martellaro said. “When you have these all over the place, they add up at some point.”

According to Colorado water law, anyone is allowed to divert water from a stream simply by putting it to beneficial use as long as it does not harm senior water-rights holders. To protect their ability to keep using the water and save their place in line, most users make their water right official by getting a decree through water court. This enshrines the water right in Colorado’s system of prior appropriation in which the older the water right, the more powerful it is.

“It’s a good idea because it protects your standing,” Martellaro said. “It protects your priority. That’s the whole point of a water right.”

That means ponds without a decree are last in line and are the first to be shut off when there’s a downstream call from irrigators in the Grand Valley, which have much older water rights — one from 1912 and one from 1934. Known as the “Cameo Call,” these irrigators can control all junior water rights upstream of their diversion at the roller dam in DeBeque Canyon.

Most summers, Grand Valley irrigators “call” for their water when streamflows begin to drop. In general, the drier the year, the earlier the call comes on. This year, the Cameo Call first came July 30 and went off at the end of irrigation season Oct. 26.

As long as the call is on, junior upstream water rights must be shut off or “curtailed” so that the downstream irrigators can get the full amount of water to which they are legally entitled. It is up to the division engineer’s office to decide exactly how to administer the call and which junior water rights to curtail, but undecreed water use is generally the first to go.

“When the call is on, they are stealing somebody else’s water if they don’t have a water right,” said Bill Blakeslee, water commissioner for District 38, which encompasses the Roaring Fork River watershed.

Blakeslee said he doesn’t like to issue cease-and-desist orders, and his goal is to educate people about the Colorado River system.

“We don’t like to do our business this way, but this is one of the tools we use to help people understand we don’t have as much water as we used to and we all need to take steps to preserve as much as we can,” he said. “It makes a statement to the general public that we are in a drought situation, so let’s not do things that continue to contribute to further loss of water.”

Even though the ponds are causing water loss to the river system at all times, Blakeslee said he can apply the pressure of the law only when there is a call.

“I can’t enforce the rules until the call goes on the system,” he said.

Rebecca Milvich has many fond childhood memories of playing in this pond on her family’s property in Old Snowmass. Officials from the Colorado Division of Water Resources say ponds without a water right, such as this one, are depleting the Colorado River system. Photo credit: Heather Sackett/Aspen Journlism

Compact call

The Milviches were supposed to have stopped diverting water out of priority within 10 days of receiving the order or else face enforcement actions such as having to pay the state’s costs and legal fees. But Martellaro said his office so far has not fined the owners of any of the five ponds and won’t as long as they are working toward a solution. And since the Grand Valley call is now off the river, the issue is less urgent — for the moment.

Colorado is entering a period of tighter accountability for some water users as Lake Powell’s levels continue to drop and the threat of a compact call looms larger in a warming West.

A compact call could occur if the upper-basin states (Colorado, Wyoming, Utah and New Mexico) can’t deliver the 7.5 million acre-feet of water per year to the lower-basin states (Arizona, California and Nevada), as required by the Colorado River Compact, a nearly century-old binding agreement. Upper-basin water managers desperately want to avoid this scenario.

“I guess you could say one of the elephants in the room is the interstate compact situation,” Blakeslee said.

So what are the Milviches’ options to remedy the situation? In order to be allowed to keep using water for the pond when a call is on, they must replace that water to the system. One possibility is getting a contract for an augmentation plan with a local water-conservancy district to release water from Ruedi Reservoir to make up for depletions from the pond. The Milviches have met with an engineer to assess their options.

Whatever they decide, securing a water right through water court can be a lengthy, expensive process.

“We are definitely terrified about that reality,” Milvich said.

Aspen Journalism is a local, nonprofit, investigative journalism organization covering water and rivers in collaboration with The Aspen Times and other Swift Communications newspapers. This story ran in the Nov. 2 edition of The Aspen Times.

Water Wars and Hidden Riches on #Colorado’s High Plains — Westword #groundwater

From Westword (Alan Prendergast):

If nothing else, [Wes] McKinley’s crusade has brought attention to the profound disconnect between the emerging water crisis in eastern Colorado and a state policy that encourages total depletion of the resource. The surface water in virtually all of the state’s major river basins, from the Colorado, Arkansas and Rio Grande rivers to the humblest creeks, has been over-appropriated for decades. The major source of non-tributary water in the Far Quarter is the High Plains Aquifer, also known as the Ogallala Aquifer. Farms and ranches have been draining the aquifer, a vast underground reservoir of fresh water stretching across eight states, at an accelerating rate, despite warnings that the overpumping is likely to have catastrophic effects on fish habitat, interstate compact agreements and the sustainability of the aquifer itself, which requires centuries to recharge.

Cimarron River Basin. By Shannon1 – Drawn by myself; shaded relief data from NASA SRTM North America imagery here, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=12115861

The warnings have been trickling through Baca County for more than fifty years. A 1966 study of groundwater in the area of the Cimarron River, which cuts across the southeast corner of Colorado and then vacillates between Kansas and Oklahoma, concluded that “the most serious problem in the Cimarron Basin appears to be the extreme decline of water levels from pumping.” A 2001 report prepared for the Southern High Plains Groundwater Management District noted that groundwater levels in the district had dropped a hundred feet in the past half-century; the report recommended a moratorium on all new and replacement wells in the High Plains Aquifer, except for domestic wells with a modest pumping rate of 15 gallons per minute.

Yet no moratorium was ever put in place. Instead, the Colorado Ground Water Commission has continued to issue large-capacity well permits like they were gimme caps. Data provided by the Colorado Division of Water Resources indicates that the commission granted 64 permits for new wells in the Southern High Plains in the last 21 months — a rate that’s more than triple the average number for the previous five years.

“Colorado does not have a statutory directive that impact to an aquifer needs to be considered when issuing a well permit,” says Kevin Rein, the state engineer, who also serves as executive director of the groundwater commission.

Long-range studies about climate change and dwindling aquifers don’t figure in the permitting process, which is preoccupied with mundane questions of how many other wells are operating within half a mile of the new well and whether an immediate neighbor would suffer “material damage” from additional pumping. McKinley contends that the rules as currently written don’t adequately protect the resource and shift the burden of proof to the opponents, who have to show that their own water rights would be adversely impacted by a new well. But Rein points out that some groundwater management districts have successfully petitioned the commission for a declaration that their area is over-appropriated, a finding that prevents the issuance of new well permits.

“That has happened in many of the basins, but it hasn’t happened in the Southern High Plains,” Rein observes. It isn’t the commission’s place to get involved in promoting such prohibitions or seeking changes in the law that would protect the High Plains Aquifer from more wells, he adds: “As the state engineer, I don’t have the charge to bring that sort of policy discussion.”

Water attorney Curtis estimates that McKinley’s objections cost his clients $200,000 in legal expenses and delays. McKinley’s time would have been better spent, he suggests, gathering the required technical data to petition the commission to close the district to new wells.

“Water rights are vested property rights, and you can’t strip someone of those rights without a proper basis,” Curtis says. “He knows the process. Either he doesn’t have the energy to do it the right way or he doesn’t care. But he never presented a single piece of relevant evidence to support his position.”

A major factor in the recent surge of permits in Baca County is a ramping up of irrigation wells on the Cimarron Valley Ranch, a 45,000-acre cattle ranch that stretches along 22 miles of the Cimarron River in Oklahoma and Colorado. Owned by Georgia-based LGS Holding Group, the property is for sale for $39,900,000, reduced from $45 million. An online real estate listing touts “some of the best hunting in the country,” including the ranch’s resident elk herd, as well as “incredible diversity in regard to terrain, wildlife, livestock grazing, income opportunities and more.” Also prominently mentioned is the ranch’s ample water supply and new well permits, which will allow the operation to double its number of irrigation pivots.

The mega-ranch’s wells account for nearly half of the permits the commission has issued in the Southern High Plains over the past two years. That rankles local rancher Dan Caldwell, a longtime friend of McKinley’s, whose property lies just across the state line from the Oklahoma stretch of the Cimarron Valley Ranch. Caldwell says that he, too, filed an objection to the LGS permits, but was told he hadn’t proved material damage — and that he could be liable for legal fees if he persisted. He knew his objection wasn’t going anywhere, he says, when he learned a representative of the Colorado Attorney General’s Office was joining the case —representing the groundwater commission, not the citizens of Baca County.

“We have no recourse,” Caldwell says. “We are nothing to them. There’s no reason to give our water away so freely, but they’re doing it.”

The Southwest Kansas Groundwater Management District also protested the LGS applications, on the grounds that new pumping along the Cimarron River was bound to diminish supplies downstream. A few years ago, Kansas won a long-running lawsuit concerning Colorado’s excessive water use under the Arkansas River Compact, but no such compact exists regarding the Cimarron.

“Colorado has a presumption that there’s water available for any application unless there’s a hearing,” notes Mark Rude, executive director of the district. “We had to become an opposer of the application in order to be involved in the hearing process. We’ve since discovered that Colorado works to not have a hearing process.”

Like Caldwell and McKinley, Rude was told there wouldn’t be a hearing because he lacked the legal standing to object. Southwest Kansas no longer permits new wells that would draw upon the High Plains Aquifer out of concern over the falling water table. But neither Colorado nor Oklahoma has followed suit.

“We have tools in Kansas to propose reductions in allocations, just to make the water last a little longer,” Rude says. “But it’s hard to have those conversations locally when people say, ‘Well, it’s unrestricted in Colorado and the Oklahoma Panhandle.’”

Rein calls the recent spike in permits in Baca County “anomalous” and doesn’t see any particular cause for concern in the recent water enhancements at a 45,000-acre ranch. “Certainly, some people in the basin are alarmed,” he says. “Is the commission alarmed? I don’t think we’ve had open discussion about that.”

McKinley doesn’t know what his objections might have accomplished, but he hopes more people will ask questions about where the water is going. “You don’t know what works and what don’t,” he says. “I’ve always thought there’s nothing wasted; it’s an experience gained. Sometimes, though, you pay a lot of tuition and wonder what you’ve learned.”

Dinosaur tracks in Picketwire Canyon. Photo credit: USFS

The only public access to the dinosaur tracks in Picketwire Canyon is by way of the Withers Canyon trailhead, an eleven-mile round trip. With the guided four-wheel tours suspended, you have three choices for mode of transport: mountain bike, horseback or on foot.

Bikers might think twice, after watching a few cautionary YouTube videos about the many, many goat’s head stickers and opportunities for flat tires. The horse option has some drawbacks, too; although most of the path is a level stroll along the canyon floor, the steep descent into the canyon on a rock-strewn trail and the purgatorial ascent at the end may not be something you want to do on top of a thousand-pound animal.

That leaves the third option, a six-hour hike in rugged and largely exposed country. Since temperatures in the canyon can be intense from late spring until early fall, reaching as high as 110 degrees in July and August, the Forest Service advises visitors to carry “at least” a gallon of water per person. (In 2017, two summer hikers died in separate heat-related incidents.) But on a temperate fall day, the startling, shifting environment of the canyon — from juniper-and-piñon prairie to meadows lined with cottonwoods to bright fields of yarrow and cacti in bloom — can make you forget you’re wandering through the northern edge of the Chihuahuan Desert.

For most visitors, the highlight of the journey is crossing the Purgatoire to arrive at a vast limestone plain, the stamping ground of monsters. The giant paw prints embedded in the ancient lake shore, back when the canyon was a lush, steamy tropical retreat, tell a story about lumbering, plant-eating apatosauruses traveling in gregarious herds, and the three-toed carnivores who stalked them. This quarter-mile stretch of the river is the most extensive set of dinosaur tracks in North America, yet it’s just a small portion of the Jurassic riches in the area; numerous fossils have been painstakingly unearthed by volunteers under the supervision of a Forest Service paleontologist.

The bones and tracks may be the main draw, but they’re hardly the only one. In 1988, a University of Wisconsin student on a field trip headed down from the west rim of the canyon to check out the dinosaur tracks. On the way down, he came across a petroglyph panel in a shallow alcove and snapped a picture of it. He assumed the panel was already well known to researchers. It wasn’t. According to Loendorf’s account in his book Thunder & Herds: Rock Art of the High Plains, when a wildlife biologist familiar with the canyon saw the photo, “he realized that he was looking at a significant and previously unknown site.”

The panel features a single human figure in the center, surrounded by three dozen quadrupeds — some with elaborate antlers, some suggestive of bison and sheep. The central figure holds an object in its right hand, possibly a net or snare, indicating a form of control over the animals. Loendorf regards the Zookeeper, as the panel has become known, as one of several key rock-art sites in the area that provide glimpses into the hunter-gatherer culture that once flourished there. He believes a climatic event more than 600 years ago, one that ruined crops and drove the game away, may have been responsible for its abrupt disappearance.

“You have these obvious hunt scenes, driving animals — antelope, probably — into nets, and then it just ends,” he notes. “It pretty much suggests that the Apishapa were affected, like all of the Southwest, by drought. I personally think at least some of the Apishapa people were seasonal and pulled back to the mountains in the wintertime. And the drought period ended that; then they stayed close to the mountains year-round. Then came the Apache and the Comanche. They weren’t dependent on trying to grow corn.”

#ColoradoRiver District Issue 7A: Voters overwhelmingly pass River District tax hike — The #Aspen Times #COriver #aridification

The Colorado River Water Conservation District spans 15 Western Slope counties. River District directors are asking voters this fall to raise the mill levy.

From Aspen Journalism (Heather Sackett) via The Aspen Times:

According to preliminary results as of 10:45 p.m. Tuesday, encompassing about 246,245 ballots, about 72% of voters said yes to the measure. Saguache County was the lone county to vote against the measure.

Pitkin County voters passed ballot question 7A with 80% in favor, despite three of five county commissioners and Pitkin County’s representative to the River District board John Ely opposing the measure. Nearly 69% of voters in Mesa County, which has the largest population base in the district, supported the measure.

River District general manager Andy Mueller said the results prove that water is the one issue that can unite voters in western Colorado. [ed. emphasis mine]

“It was the one issue that’s not partisan, that was about uniting a very politically diverse region,” he said. “Everybody is so sick of the nasty, divisive, partisan politics. People with (Donald) Trump signs and (Joe) Biden signs voted for the same thing.”

Ballot measure 7A raises property taxes by a half-mill, or an extra $1.90 per year for every $100,000 of residential home value. The measure will raise nearly an additional $5 million annually for the River District, which says it will use the money for fighting to keep water on the Western Slope, protecting water supplies for Western Slope farmers and ranchers, protecting drinking water for Western Slope communities, and protecting fish, wildlife and recreation.

According to numbers provided by the River District, the mill levy will increase to $40.28 from $18.93 annually for Pitkin County’s median home value, which at $1.13 million is the highest in the district. In Eagle County, where the median home value is $660,979, the mill levy will increase to $23.63 from $11.11 annually.

Property owners can expect to see the mill-levy increase on their 2021 tax bill.

The proposal received wide support among county commissioners, agricultural organizations and environmental groups…

The River District’s fiscal implementation plan for the revenue that would be raised by the tax hike says 86% would go toward funding water projects backed by roundtables and local communities. Those projects would fall into five categories: productive agriculture; infrastructure; healthy rivers; watershed health and water quality; and conservation and efficiency.

Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with The Aspen Times and other Swift Communications newspapers. For more, go to aspenjournalism.org.