The environmental advocacy group also claims drillers may have concealed some dangerous chemicals they’ve pumped into wells under state rules that allow companies to withhold the disclosure of industry “trade secrets.” Dusty Horwitt, one of the report’s authors, said the disclosure exemptions make it nearly impossible to know the full extent of the industry’s use per-and polyfluoroalkyl substances — also known as PFAS.
“Coloradans could be unknowingly exposed to these highly toxic forever chemicals, as they’re called, from thousands of oil and gas wells across the state,” Horwitt said.
The claims could add another chapter to a rapidly expanding PFAS pollution crisis. The category of chemicals was born in 1938 when a chemist at DuPont stumbled upon polytetrafluoroethylene, a compound that later became famous as a nonstick cookware coating known as Teflon. Companies soon found other applications for the chemical’s slipperiness and ability to resist oil and water. The discovery fueled the development of other PFAS chemicals now used in a wide range of consumer products like dental floss, waterproof jackets and fire fighting foam.
Colorado’s Court of Appeals has cleared the way for 80-year-old fisherman Roger Hill to fight for his right to fish in peace on his favorite stretch of the Arkansas River as it flows down from snow-packed mountains.
This court ruling also means any other Colorado resident who has been forced off a river, from the Animas to the Yampa, can go to court to protect public access. A three-judge panel unanimously rejected the position of Colorado’s government, which sided with landowners against Hill. Colorado allows private ownership of riverbeds while all other states treat rivers deemed “navigable” as public…
“We’re going to get a chance to establish this as the law of Colorado – the freedom to wade in rivers, whether you fish or not, the freedom to have your feet on the bottom of a river,” he said. “It could open access to waters I am dying to fish if I live long enough.”
Back in August 2012, Mark Warsewa and Linda Joseph, owners of land adjacent to the Arkansas, ordered Hill off the river as he was catch-and-release fishing about five miles downstream from Cotopaxi where Texas Creek flows in and brown trout abound along with occasional rainbows, court records show. Hill’s initial complaint alleges Joseph threw baseball-sized rocks down on him to drive him away.
The appeals judges’ Jan. 27 ruling says state courts must decide river access cases depending on how rivers were used in 1876 when Colorado became a state. That’s the “navigability at statehood” test, based on whether rivers could be used commercially in their ordinary condition, that the U.S. Supreme Court set for states in determining whether a riverbed can be private property.
In Hill’s case, Colorado Attorney General Phil Weiser contends only state authorities, not residents, can fight in court for public access to rivers. Weiser wrote in a July 21, 2021, letter to a concerned southwestern Colorado resident that allowing residents to press claims in court “would destabilize property rights throughout the state” and jeopardize “partnerships” state officials have negotiated with landowners that allow limited public access for fishing…
No state laws or regulations define navigability.
Hill in 2018 filed a lawsuit in federal court challenging Warsewa and Joseph after they forced him off Arkansas River. Colorado’s attorney general at the time, Republican Cynthia Coffman, joined the case backing the landowners.
Since then, Hill and his attorneys — University of Colorado law professor Mark Squillace and Dillon-based attorney Alexander Hood — have fought in federal court and back to state court on procedural grounds, insisting that Hill should be able to be heard in a court.
Colorado appeals judges in their decision wrote that “if, as Hill alleges, the relevant segment of the river was navigable at statehood, then the Warsewa defendants do not own the riverbed and would have no right to exclude him from it by threats of physical violence or prosecution for trespass.”
Hill’s case is based on historical evidence that the Arkansas below Leadville was used for commerce around the time Colorado became a state, specifically the transport of beaver pelts, logs, and railroad ties down the river…
Hill’s case will turn on an intense factual battle over “navigability” in 1876, and “floating logs and beaver pelts” shouldn’t be enough to satisfy the federal test, [Steve] Leonhardt said…
As Colorado’s population and outdoor recreation industry expand, future legal fights over access to rivers have emerged as a possibility. Gov. Jared Polis could set up a process for efficiently determining which stretches of rivers were “navigable” at statehood, Squillace said.
It’s late fall 2021 and I’m at the Tuba City Chapter House on the Navajo Nation for one of several community meetings that American Rivers, the Grand Canyon Trust, and local communities are hosting to explore ways to safeguard and sustain the Little Colorado River. The air is crisp and the sun peeks above the eastern horizon as we set up an outdoor meeting space designed to respect necessary Covid-19 precautions. Because this type of grassroots organizing has been nearly impossible for over a year, there is a tangible feeling of excitement as people gather to engage in conversations about this lifegiving watershed that supports much of present-day northern Arizona.
The Little Colorado River (LCR) is essentially a misnomer—“little” only in title and by comparison to the Colorado River. The LCR basin is 27,000 square miles of high deserts, mesas, and mountains near the center of the Colorado Plateau. Its grandeur can be understood from various angles. As part of the larger Colorado Plateau, the LCR basin has the highest agricultural and ethnolinguistic diversity north of the Tropic of Cancer. The river itself originates in the White Mountains where its headwater springs have been designated as a sacred site by the White Mountain Apache Tribe. From there, the river drops over 5,000 feet as it flows northwest to its Confluence with the Colorado River deep within Grand Canyon. As it nears the mainstem Colorado, the LCR cuts steeply into limestone and sandstone, creating the spectacular lower LCR gorge. Springs in the lower gorge provide the cerulean baseflow of the LCR, which at the Confluence with the Colorado is approximately 158,000 acre feet annually—equivalent to over half of Nevada’s allocation of Colorado River water.
With monsoon and spring runoff events, the LCR can swell to over 400 times its baseflow. The river is a primary contributor of sediment to the Grand Canyon and critical habitat for the threatened humpback chub. In truth, the cultural and ecological significance of the LCR and its watershed is difficult to overstate. It is the ancestral or present-day homelands of at least eight tribes, including Hopi, Zuni, Diné, Southern Paiute, Cibecue and White Mountain Apache, Havasupai, and Hualapai, each of whom have maintained relationships with the LCR since time immemorial.
The uniqueness of this high desert river and watershed is also demonstrated by its resilience. Until the early 20th century, the LCR flowed year-round for its entire 340-mile course. It is now intermittent except for three short stretches. Sixty years of industrial groundwater withdrawal has impacted aquifers critical to springs, tributaries, and drinking water in an increasingly arid region. The Grand Canyon Escalade project proposed a massive tourist attraction at the remote and sacred Confluence of the LCR and Colorado River, which led American Rivers to list the Colorado River in the Grand Canyon as America’s Most Endangered River in 2015. Coal-fired generating stations polluted the air and drove strip mining in the basin. Uranium mining and milling contaminated water sources and continues to impact human, animal, and plant health.
Now, hydroelectric dam proposals threaten the lower LCR. With total disregard for tribal sovereignty, Pumped Hydro Storage LLC applied for three preliminary permits in 2019 and 2020 from the Federal Energy Regulatory Commission (FERC) to dam the LCR and its tributaries. While two of the permits have been surrendered, the company is awaiting a preliminary permit for the Big Canyon project. Despite objection from the Navajo Nation and Hopi Tribe, the Big Canyon project proposes four dams and four reservoirs that would be filled with groundwater from the same aquifer that sustains the sacred springs and iconic milky-blue waters of the lower LCR.
The concentrated harm to the LCR caused by colonization, coupled with the ongoing uncertainty of what threat will have to be fought off next, makes the LCR a poster child for environmental injustice. But the river and LCR communities persist. Save the Confluence stopped the Grand Canyon Escalade and continues to advocate for the Confluence as a sacred area. Black Mesa Trust advocates for the ancient aquifers in the LCR basin and their related springs that are central to Hopi religion. Tó Nizhóní Ání protects the sacred lands and waters of Black Mesa, a central recharge area for the LCR. And Tolani Lake Enterprises rebuilds the Indigenous food sovereignty movement on the banks of the LCR.
Such grassroots efforts hold the barrage of threats to the LCR at bay while also highlighting the need for durable and permanent protections for this remarkable river and the life it supports. Building on our previous work in the basin, in the Spring of 2020 American Rivers joined LCR communities and allies, like the Grand Canyon Trust, to explore ways to safeguard the river’s cultural and natural resources—with particular focus on the lower LCR—in ways that align with the needs and wants of local communities. For a year and a half, we’ve been working collaboratively to identify pathways to protect the LCR while upholding local autonomy and traditional land uses. This includes preventing commercial and industrial developments in the area, such as the Big Canyon proposal, that are unwanted by local communities. Our guiding belief is that thoughtful community engagement and collective management approaches can help protect the lower LCR, surrounding sacred sites, and all living beings for years to come. By engaging individual community members through in-depth conversations, hosting in-person and virtual community meetings, and providing information on possible protective pathways, we are collaborators in a growing movement to protect the LCR. Looking ahead, we are committed to supporting this movement through expanded community engagement and leadership until permanently protecting the LCR simply becomes inevitable.
As I drive away from the meeting in Tuba City, I am reminded that despite overuse, unregulated groundwater withdrawal, impacts from industrial energy production, and the increasing effects of climate change, the LCR is alive. It is sustained as much by monsoons, ancient groundwater, and high elevation snow as it is by the collective stories, ceremonies, and traditions of its Indigenous communities. Often described as an umbilical cord, the LCR is a literal lifeway in the region and, as such, it deserves more than simply being resilient. It deserves to thrive.
Here’s the release from the North Weld County Water District:
The Western United States has been in 22 consecutive years of drought. In just five years, reservoirs in the Colorado River Basin have dropped to their lowest levels on record. Lake Mead and Lake Powell have lost 50% of their capacity. This past summer, the U.S. government declared the first-ever water shortage at Lake Mead and initiated Tier 1 federal drought restrictions on three states and Mexico. A second round of federal water restrictions may affect Colorado in the relatively near term and potentially result in Colorado River supply curtailments.
This enduring drought situation is affecting North Weld County Water District (“NWCWD” of “District”), which is now considered to be in an extreme drought according to the National Drought Mitigation Center and Colorado Department of Natural Resources. We do not anticipate this situation to improve in the foreseeable future.
In response, NWCWD has been conducting hydrologic river modelling to evaluate our drought readiness and prepare mitigation measures. The District’s water supply portfolio is derived from Colorado Big Thompson (C-BT) units, as well as some native water rights. The majority of the native water rights are associated with irrigation ditch share ownership in the Cache la Poudre River basin and trans-basin rights. When extreme drought conditions occur for an extended period, the NWCWD water supply will be limited
Many agricultural business customers within the District currently operate using District surplus water supply. If the drought conditions continue to persist and/or Colorado River drought mitigation measures affect the amount of water available to NWCWD from the Colorado river, NWCWD’s ability to provide this surplus water will be diminished or eliminated altogether. NWCWD recommends that customers who operate on NWCWD supply begin to prepare for drought conditions and not rely solely on NWCWD water supply to supplement their allocated water.
Due to the potential severity of an enduring drought, NWCWD will be placing flow control devices on water meters to ensure that district supply is not being used to supplement demand beyond customers’ allocations. We understand that this shift in water availability may present a challenge for customers and NWCWD is willing to assist you in identifying new water allocations and potential alternatives for supply or infrastructure. However, we strongly recommend that customers hire professional services to navigate this challenge.
Please also be aware that NWCWD is making some adjustments to its fee schedule. Please refer to the NWCWD web page for updated rates and fees.
The North Weld County Water District, which has maintained a moratorium on new water taps since last fall, will install flow-control devices on water meters to prevent agricultural and commercial users from using more than their allocation of water in times of drought.
The district announced the new policy in a Tuesday posting on its website addressed to “Agricultural Business Owners.”
“This enduring drought situation is affecting North Weld County Water District … which is now considered to be in an extreme drought according to the National Drought Mitigation Center and Colorado Department of Natural Resources,” the district stated. “We do not anticipate this situation to improve in the foreseeable future.
“If the drought conditions continue to persist and/or Colorado River drought mitigation measures affect the amount of water available to NWCWD from the Colorado river, NWCWD’s ability to provide this surplus water will be diminished or eliminated altogether.”
An organization that works to keep water on the Western Slope is taking a stab at rewriting an unpopular piece of proposed legislation aimed at preventing speculators from profiting off of water.
The Colorado River Water Conservation District board of directors voted at its quarterly January meeting to present to legislators an amendment to Senate Bill 29, which addresses investment water speculation. The River District is attempting to use the abandonment principle of water law to address investment water speculation. Invoking the well-known adage of “use it or lose it,” the amendment says that if someone is getting paid to not use their water, they could be punished by losing their water right.
Every 10 years, engineers from Colorado’s Division of Water Resources review every water right to see if it has been used at some point in the previous decade. If it hasn’t, the water right could end up on the abandonment list and the owner has to oppose the listing in water court to try to keep the water right. In Colorado, a user must put their water to “beneficial use,” meaning using the water for what it was decreed for, such as growing crops.
The River District is proposing that someone’s water right could be considered abandoned in much less time than 10 years — perhaps only a matter of days — if they are being paid to not use their water. The concept would not apply to approved water conservation programs, such as those set up by state officials.
“The amendment that we are talking about basically creates a penalty for someone who is not using water if they are being paid to do so and it is outside of a state-sanctioned program,” said River District general manager Andy Mueller. “We have to make sure people are using or not using their water rights for purposes they are not decreed for, and that’s really where we see the speculation potential threat coming in.”
As an example, Mueller said municipal providers in the water-short lower basin states such as Arizona, could pay farmers in western Colorado to let their water run downstream for the benefit of Arizona water users. He said he has not yet seen any lower basin entities paying to reduce water use in Colorado, but that it could happen in the future.
“Our concern is focused on how do you prevent that or have a penalty that’s meaningful, and the abandonment statute seems like a really great way to do that,” he said.
The “strike-through” amendment, if legislators accept it, would essentially replace the current version of the bill.
Opposition from agriculture
The River District’s amendment is an attempt to revise the current proposed legislation, which has not found support from agricultural water users. Even the bill’s Western Slope sponsors — Kerry Donovan, a Democrat from Eagle County, and Don Coram, a Republican from Montrose — acknowledge it is imperfect.
The bill as currently proposed aims to prevent a buyer of agricultural water rights from profiting on the increased value of the water in a future sale by giving the state engineer at the Department of Water Resources the ability to investigate speculation claims and levy fines. Lawmakers are trying to prevent out-of-state investors from making a profit off a public resource that grows scarcer in a water-short future driven by climate change.
The bill has been introduced in the Senate and will be considered by the Agriculture and Natural Resources Committee.
But it has been met with opposition from agricultural producers, one of the very groups that it is trying to protect and who say they don’t want the state peering into their private property transactions.
Although some agricultural water rights owners recognize there could be negative impacts to their communities if water is sold to investors, they don’t want the state making the process of selling their ranch harder or placing restrictions on whom they can sell to or their ability to make a profit. This leaves some posing the question: Whom is the bill for?
“Why are people running a bill if the constituency is not interested and they don’t feel the bill is properly vetted?” asked Joe Bernal, a Loma farmer and president of the Grand Valley Water Users Association, an organization that provides irrigation water to farmers in the Fruita area.
The Colorado Farm Bureau, too, has concerns about the bill and, in a letter sent in October to the Water Resources Review Committee, says the bill could unintentionally negatively impact farmers and ranchers. Farm Bureau State Affairs Director Austin Vincent said the organization is aware of the River District’s proposal but has not taken a position on it.
The Glenwood Springs-based River District represents 15 counties on the Western Slope and often advocates for agricultural water interests. The organization has historically taken an active lobbying role. Some board members thought it better to oppose the bill or ignore it altogether — with the assumption that it, as currently written, will die on its own — rather than try to rewrite the legislation.
The board was split 8-5 in favor of presenting the amendment to lawmakers. Pitkin County Attorney and River District representative John Ely voted against advancing the amendment.
“I thought it was just cleaner to oppose something you feel is poorly written than try to amend it,” he said. “It’s a lot of work to rewrite a bill.”
Last year, lawmakers tasked a work group composed of water managers and policy experts from across water sectors with exploring ways to strengthen the state’s current anti-speculation laws. The group, which included Bernal and River District general counsel Peter Fleming, came up with a list of eight concepts on how to prevent water investment speculation. But the group did not give clear recommendations to legislators because they could not come to a consensus about which concepts to implement.
That inability to find consensus and make recommendations, to Bernal, meant that lawmakers should drop their attempts to put forward a bill.
“It seems to me that this legislation has taken on a life of its own. For what reason, I don’t know,” he said at last month’s Colorado Water Congress conference in Aurora. “I would like to know why legislators are not listening to the team of experts.”
But Donovan said it is now the job of legislators to delve into the report and figure out how to navigate from there. She said lawmakers will get input from stakeholders about next steps.
“A lot of us acknowledge that it’s going to be hard to advance this session an anti-investment speculation bill, but enough of us have heard from our constituents that it’s an important enough issue that we at least need to try,” she said. “My goal this year is to just keep the conversation going.”
The anti-speculation bill is, in part, an attempt by lawmakers to address concerns in the Grand Valley, where a New York City-based private-equity firm has been acquiring irrigated farmland. Water Asset Management is now the largest landowner in the Grand Valley Water Users Association. But under Colorado water law, as long as WAM keeps putting the water to beneficial use by keeping the land in agricultural production — which it appears to be doing — it doesn’t count as speculation.
Even though Bernal doesn’t support the proposed anti-speculation bill, he is still wary of WAM.
“I am concerned about outside interests buying up property in the valley and large blocks of it,” Bernal said. “We as a community are keeping our eyes wide open.”
Aspen Journalism covers water and rivers in collaboration with the Vail Daily. This story ran in the Feb. 4 edition of the Vail Daily.
Click here to read the discussion. Here’s an excerpt:
The Colorado Basin River Forecast Center (CBRFC) geographic forecast area includes the Upper Colorado River Basin, Lower Colorado River Basin, and Eastern Great Basin.
Water Supply Forecast Summary
A ridge of high pressure settled over the region during the second week of January and persisted through the end of the month bringing very dry weather and a decrease in the spring water supply outlook. February 1st snow water equivalent (SWE) conditions generally range between 95-120% of normal across the Upper Colorado River Basin and 90-105% of normal across the Great Basin. Lower Colorado River Basin SWE conditions are 40-120% of normal.
Water supply forecast volumes have decreased across most basins over the past month. Upper Colorado River Basin water supply forecasts generally range between 60-115% of the 1991-2020 historical April-July average. Great Basin water supply forecasts are 60-105% of average. Lower Colorado River Basin water supply runoff volumes are 30-75% of normal.
Water supply forecast ranges (percent of normal) by basin:
April-July unregulated inflow forecasts for some of the major reservoirs in the Upper Colorado River Basin include Fontenelle 615 KAF (84% average), Flaming Gorge 750 KAF (78%), Green Mountain 255 KAF (91%), Blue Mesa 585 KAF (92%), McPhee 185 KAF (73%), and Navajo 455 KAF (72%). The Lake Powell inflow forecast is 5.0 MAF (78% of average), which is a 20 percent decrease from January.
The ridge of high pressure will remain largely in place for the next two weeks. Mostly dry weather is expected across the region, with light precipitation (<0.25”) possible across higher elevations of the Bear, Upper Green, White/Yampa, Upper Colorado, Gunnison, and San Juan Basins. Spring runoff volume guidance will likely continue to decrease through the middle of February given the dry weather outlook.
Tom Brady has officially retired from the National Football League. While Brady moves off the field, fill the void in your Sundays by reading the Drought Monitor. #ICYMI, it’s released every week with an up-to-date drought map. https://t.co/k2fZpgEWmd 🏈 pic.twitter.com/aPht4JaStL