From Aspen Journalism (Heather Sackett):
A water court judge has agreed with state engineers and dismissed several of a water conservancy district’s claims for water for a dam and reservoir project in northwest Colorado.
Division 6 Water Judge Michael A. O’Hara III, in a Dec. 23 order, determined that Rio Blanco Water Conservancy District has not provided enough evidence that its current existing water rights won’t meet demands in the categories of municipal, irrigation, domestic, in-reservoir piscatorial, commercial and augmentation for Yellow Jacket Water Conservancy District.
The Rangely-based conservancy district is seeking a conditional water-storage right to build an off-channel reservoir using water from the White River to be stored in the Wolf Creek drainage, behind a dam 110 feet tall and 3,800 feet long. It would involve pumping water uphill from the river into the reservoir.
Rio Blanco initially applied for a 90,000 acre-foot water-storage right but later reduced that claim to 66,720 acre-feet for the off-channel reservoir, which would be located between Rangely and Meeker.
According to Colorado water law, new conditional water rights cannot be granted without a specific plan and intent to put the water to beneficial use. For more than five years, top state water engineers have repeatedly said the project is speculative because Rio Blanco has not proven a need for water above its current supply.
State engineers asked the court to dismiss Rio Blanco’s entire application in what’s known as a motion for summary judgment. The court agreed to dismiss only some of Rio Blanco’s requested water uses.
“The applicant has failed to demonstrate that its existing water rights for municipal, irrigation, domestic, in-reservoir piscatorial, and commercial uses are insufficient to meet its needs and are therefore dismissed,” O’Hara wrote in his order.
The town of Rangely’s water needs and whether water was needed for irrigation were two main topics of questions from state engineers in hundreds of pages of depositions in the case.
O’Hara’s order said there are three water-use claims left to resolve at trial: whether Rio Blanco can get a water right for augmentation in the event of Colorado River Compact curtailment, water for endangered species and water for hydroelectric power.
The trial is scheduled to begin Monday, but the parties could still reach a settlement agreement before then.
“We are involved in productive settlement discussions with the engineers and both sides hope that produces a settlement rather than a trial,” said Alan E. Curtis, an attorney for Rio Blanco.
Even if the parties reach a settlement, the judge will still have to approve the final water-right decree. Curtis said parties often reach settlements at the last minute, sometimes even after a trial has begun.
If the case goes to trial next week, a main point of contention will be whether Colorado River Compact compliance is a valid beneficial use of water stored in the White River project. Rio Blanco is proposing that 11,887 acre-feet per year be stored as “augmentation,” or insurance, in case of a compact call. Releasing this replacement water stored in the proposed reservoir to meet these compact obligations would allow other water uses in the district to continue and avoid the mandatory cutbacks in the event of a compact call.
According to the 1922 Colorado River Compact, the upper-basin states (Colorado, Utah, New Mexico and Wyoming) must deliver 7.5 million acre-feet a year to Lake Powell for use by the lower-basin states (Arizona, California and Nevada). If the upper basin doesn’t make this delivery, the lower basin can “call” for its water, triggering involuntary cutbacks in water use for the upper basin.
Water managers are especially worried that those with junior water rights, meaning those later than 1922, will be the first to be curtailed. Many water users in the White River basin, including the towns of Rangely and Meeker, have water rights that are junior to the compact, meaning these users could bear the brunt of involuntary cutbacks in the event of a compact call. Augmentation water would protect them from that.
State engineers argue that augmentation use in the event of a compact call is not a beneficial use under Colorado water law and is inherently speculative. But O’Hara disagreed, saying there is sufficient legal authority for Rio Blanco to develop an augmentation plan for a compact call.
“While it is tempting for the court (to) rule, as a matter of law, that the requested augmentation use is speculative because it is based on an event that may or may not occur, it chooses not to do so here,” O’Hara’s motion reads.
Endangered fish water
Rio Blanco says it needs 60,555 acre-feet of water per year for maintenance and recovery of federally listed and endangered fish. Releases from the proposed reservoir could benefit endangered fish downstream, including the Colorado pikeminnow and razorback sucker.
But the gauge used to measure these flows — the Watson gauge — is located downstream in Utah. State engineers say this violates Colorado’s law regarding exporting water across state lines. Rio Blanco says the water will benefit fish in the White River within Colorado and that they use the Watson gauge because there isn’t one between Taylor Draw dam in Rangely and the state line. Where exactly the fish will benefit from reservoir releases is a matter to be hashed out at trial.
“The court finds that the location of beneficial use is a material fact in dispute,” O’Hara’s order reads. “The expert reports conflict and the characterization of how and where water is to be used vary.”
Another point the parties can’t agree on is how much water from the proposed reservoir would be used by the Upper Colorado River Endangered Fish Recovery Program. The program has not committed to a specific amount of water.
A May 2019 letter from program director Tom Chart says the recovery program “does not know whether, or how much, allocated storage in the project or other White River basin projects may be needed in order to offset depletion effects to the endangered species to assist in the recovery of the endangered fish.”
But, as O’Hara points out, the letter does not say the program will not need water from a future Wolf Creek reservoir.
“The letter creates a material fact in dispute, one more suitable for resolution at trial,” O’Hara’s order reads.
Also to be decided at trial is water use for hydroelectric power. State engineers say hydropower is not an independent use and depends on the court granting the other water uses. They say that if the other uses are dismissed, then hydropower should be dismissed too. But Rio Blanco says water should be stored in the reservoir specifically for hydropower generation and should not be contingent on other uses.
The trial is scheduled to begin [Thursday, January 7, 2021] in Routt County District Court in Steamboat Springs.
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 Dec. 31 edition of The Aspen Times.