Day: January 21, 2024

Are We Headed for the First #ColoradoRiver Compact Tripwire? — Eric Kuhn and John Fleck (InkStain.net) #COriver #aridification #CRWUA2023

Colorado River “Beginnings”. Photo: Brent Gardner-Smith/Aspen Journalism

Click the link to read the article on the Inkstain website (John Fleck):

The Bureau of Reclamation’s January 2024 “Most Probable” 24-month study forecasts that annual releases from Glen Canyon Dam for both Water Years 2025 and 2026 will be 7.48 million acre-feet per year (maf). If this happens, the ten-year total flow at Lee Ferry for the 2017-2026 period will drop to about 83.0 maf, only about 500,000 acre-feet above 82.5 million acre-feet, the first 1922 Compact hydrology “tripwire.”

That line – 82.5 maf feet of Lee Ferry deliveries over a ten year period – has become a dividing line between two contending interpretations of the most important unresolved question in the century-old Colorado River Compact: How much water must the Upper Basin deliver to the Lower Basin? What happens if it doesn’t?

September 21, 1923, 9:00 a.m. — Colorado River at Lees Ferry. From right bank on line with Klohr’s house and gage house. Old “Dugway” or inclined gage shows to left of gage house. Gage height 11.05′, discharge 27,000 cfs. Lens 16, time =1/25, camera supported. Photo by G.C. Stevens of the USGS. Source: 1921-1937 Surface Water Records File, Colorado R. @ Lees Ferry, Laguna Niguel Federal Records Center, Accession No. 57-78-0006, Box 2 of 2 , Location No. MB053635.

The consequences of triggering the tripwire, which might happen in 2027, are significant. In the worst case scenario, it could plunge the basin into Supreme Court litigation over the interpretation of the 1922 Compact, which could result in a forced curtailment of post-compact water uses in the Upper Basin. Or, alternately, if the Basin States are willing to settle their long-term disputed issues or implement basic changes to the Law of the River via the renegotiations of the post-2026 operating rules, it could be a “non-event.”  This is one of the fundamental issues facing the states as they meet to develop their basin-state alternative.

The 82.5 maf tripwire is based on the 1922 Compact’s two flow-related requirements at Lee Ferry; Article III(d) requires the four Upper Division States to not cause the progressive ten-year flow at Lee Ferry to be depleted be depleted below 75 maf. Additionally, Article III(c) provides that if there is not sufficient surplus water to meet the annual water delivery requirements of the 1944 Mexican Treaty, normally 1.5 maf, then each basin must provide half of the deficiency (the required annual delivery minus the available surplus). The Upper Division States must deliver their share of the deficiency at Lee Ferry in addition to their obligations under Article III(d).

The Upper Division and Lower Division States have never agreed on the meaning and interpretation of Article III(c). There have been numerous papers on the disputed issues by both compact scholars and practitioners and Article III(c) has never been interpreted by the U.S. Supreme Court. Suffice it to say that the Lower Division States believe that the Upper Division States must deliver at Lee Ferry a total of 82.5 maf every ten years (75 maf + 10 x 750,000), but the Upper Division States believe that they currently have no obligation to Mexico, so the number is at most 75 million. There are of course, nuances. The Lower Division States have suggested that the Upper Division States might also need to cover transit losses between Lee Ferry and Mexico and the Upper Division States have most recently suggested that if climate change, not Upper Basin depletions, is causing the ten-year flow to fall below 75 million, then their article III(d) non-depletion obligation must be appropriately adjusted. Further, if pursuant to either the extraordinary drought provision or a treaty minute, the required annual delivery to Mexico is less than 1.5 maf, then, even with no surplus, the Upper Division’s 50% share would be less than 750,000 acre-feet.

Paria River near Buckskin Gulch. By Seth G. Cowdery – Transferred from English Wikipedia. Original location was here., CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=835575

One should recognize that the annual releases from the Glen Canyon Dam and the annual flow at Lee Ferry (the compact point) are not the same.  Between the dam and Lee Ferry, the river gains flow from groundwater accretions (in part due to leakage around the dam) and from the Paria River. These gains can vary from about 30,000 acre-feet to over 300,000 acre-feet annually.  The ten-year Lee Ferry flow for 2014-2023 was approximately 86.1 maf.

That amount – 86.1 maf – might seem like a safe cushion. But because it is a ten-year moving total, we are about to drop out years with big releases (9 million acre feet) and replace them with years with just 7.48 maf. At the end of 2024, because both 2014 (the year that drops out) and 2024 (the year that is added in) are 7.48 maf years, the ten-year flow will stay about the same.  The way the ten-year flow calculation works is next year, 2015 will drop out and 2025 will be added in, and so on, but here is the problem; From 2015 through 2019, the 2007 Interim Guidelines dictated an annual release of 9 maf per year. With accretions, flows at Lee Ferry averaged about 9.18 maf per year (source: UCRC 74th Annual Report). Thus, if 2025 and 2026 are 7.48 maf years, the ten-year flow will lose about 1.5 maf/year making the total about 83 maf for the 2017-2026 period. Because the 2007 Interim Guidelines expire, we don’t know what the annual release will be in 2027, but if it’s less than about 8.5 maf, because 2017 was a 9 maf year, the ten-year Lee Ferry flow could drop below the tripwire – 82.5 maf (with two more 9 maf years, 2018 and 2019, in the pipeline).

We recognize that the 24-month studies don’t predict the future. They are a planning and management tool. It’s plausible that by 2027, a series of wet years could result in a ten-year flow that is much higher than 82.5 maf, something that is, in our view, unlikely. But as we sit here in January 2024, the 24-month study is the only planning tool we’ve got. It would behoove us to pay attention to what it is telling us.

If a future 24-month study projects that ten-year flows will fall below 82.5 maf, it will be a big deal for the basin. What provision of the Law of the River will control annual releases from Glen Canyon Dam – the post-2026 Operating Guidelines, the Lower Division’s interpretation of the 1922 Compact (82.5 maf), or the Upper Division’s interpretation of the 1922 Compact (75 maf or less)?  If the Lower Division States agree to a ten-year flow target of less than 82.5 maf, are they effectively surrendering to the Upper Division States? If the Upper Division States agree to a flow target of 82.5 maf, are they effectively surrendering to the Lower Division States? If the Upper Basin states agree to either 82.5 maf or some smaller compromise delivery target and the hydrology remains bad, how will Wyoming, Colorado, New Mexico, and Utah – our states – approach the required water use reductions? What if there is not enough water in storage in Lake Powell (and the other CRSP reservoirs) to release sufficient water to bring the ten-year flows to 82.5 maf? Will the Lower Division insist that that the UCRC implement a curtailment of post-compact uses in the Upper Basin. If the UCRC refuses to do so, will that plunge the Basin into litigation?

The structural deficit refers to the consumption by Lower Basin states of more water than enters Lake Mead each year. The deficit, which includes losses from evaporation, is estimated at 1.2 million acre-feet a year. (Image: Central Arizona Project circa 2019)

At the recent 2023 CRWUA meeting, representatives of the Lower Division States stepped up and made it clear they own the “structural deficit,” and the conference was buzzing with talk of the innovative system approach the Lower Division has put on the table. This is great news, but as Colorado’s Royce Tipton concluded sixty years ago, the “structural deficit” is not a single number. It’s a range that depends on the interpretation of the Lee Ferry obligations of the Upper Division States under the 1922 Compact. If the average annual flow requirement is 8.25 maf/year, (which Tipton referred to as “fictional”) he calculated the deficit to be about 1.2 maf/year. Today we believe it’s about 1.4 -1.5 maf/year (Tipton’s assumptions about system losses were probably too low and perhaps his Lee Ferry to Lake Mead inflow assumptions too high). If, however, the average annual flow requirement is 7.5 maf/year, he calculated the deficit to be about 2 maf/year, today maybe 2.2 maf/year. This difference is huge, especially for the Central Arizona Project, the junior user on the Lower basin mainstem.

In the past decades, water managers in the Colorado River Basin have made accomplishments that even two decades ago were considered out of reach: The 2019 Drought Contingency Plans, the shortage sharing agreements with Mexico, the increased recognition of the rights of the Basin’s Native American communities are just a few. The Lower Division’s recent pronouncement that they own the structural deficit is another major step forward, but it has a fundamental flaw. Representatives of all seven Basin states continue to stubbornly insist that the Law of the River, and specifically, the 1922 Colorado River Compact, will serve as the “foundation” of the post-2026 operating guidelines. The flaw is that is that we don’t know if this foundation is based on a ten-year Lee Ferry flow of 82.5 maf, or 75 maf, or something different.

Put simply, the states agree that the Law of the River has to be the basis of what we do, but don’t agree on what the Law of the River actually says. [ed. emphasis mine] Without an agreement on this fundamental issue, calling the 1922 Compact a foundation is nothing more than self-delusional wishful thinking. Now that the Lower Division States have agreed to own the structural deficit, is the next step for all seven states and the federal government to openly acknowledge that given the impacts of climate change on the river, the 1922 Compact’s overallocation of water and its disputed Lee Ferry flow provisions are core problems for the basin, not the foundation? Finding a sustainable future, without litigation, will require accepting and acknowledging the basic problems we face, not avoiding them.

Map credit: AGU

Excellent water quality starts with water in the stream — #Colorado Water Trust #BoulderCreek #CrystalRiver

North Fork of the Gunnison River. Photo credit: Colorado Water Trust

Click the link to read the article on the Colorado Water Trust website (Sarah Klahn):

It is a bitterly cold December morning and I am tooling up Boulder Canyon to do some backcountry skiing above Nederland. As I slow down for a hairpin turn, the sun makes its way over the edge of the canyon and I notice some movement in the creek. It’s a little bird known as a Dipper, bobbing up and down on a rock in the creek—and now diving into a pool below a fallen tree. These incredible birds live year-round near flowing streams in the Rocky Mountains and elsewhere in the west. They dive underwater for their food—aquatic insects—and actually have an extra eyelid so they can see while they’re underwater! Dipper populations on a stream mean it has excellent water quality and low silt load—both characteristics of Boulder Creek in Boulder Canyon above the City of Boulder.

Excellent water quality for Dippers and other species that live in or around aquatic ecosystem starts—of course—with water in the stream. In Colorado, water use is controlled under the state’s “prior appropriation system”, which forms the legal framework for water distribution in the state. You may have heard the phrase “first in time is first in right” which simply means the more “senior” rights to use a quantity of water are associated with the earliest uses. In many parts of the state (for example the Cache La Poudre River near Fort Collins or the Rio Grande and its tributaries near Alamosa), many irrigation water rights pre-date statehood. And, while the act of putting water to use forms the basis of a water right, that right is only enforceable if confirmed by a district court or, since 1969, Colorado’s water courts.

The habitat of the American Dipper (Cinclus americana) is usually clear, rushing, boulder-strewn, mountain streams, within tall conifer forests. Photo via http://birdingisfun.com

In many, if not most streams in the state, the amount of water decreed far exceeds available water supplies. Such streams are “over-appropriated”, meaning that only in a very wet year will many of the more recent (“junior”) water rights get to divert water.  In fact, Boulder Creek is over-appropriated at locations downstream of the City of Boulder. The Dippers are still safe in the canyon, where there are few actual diversions of water for consumptive use.

“Over-appropriated” as a concept gets a bad rap. At the time of European settlement, those turning the prairie and mountain valleys into farms and cities were focused on building new homes in an unfamiliar place. Whether we agree with these decisions today, at the time, claiming every drop of available water was an obvious start to settling in a place as arid as Colorado. But Colorado’s prior appropriation system also has flexibility that allows volumes of water to be assigned to “instream flow” uses—providing a means to leave water in the stream to benefit aquatic ecosystems, including our friend the Dipper.

The Colorado Water Trust is on the forefront of creative and thoughtful efforts to use flexibility in state water law to put water back into streams. The Trust works to identify both streams in need of additional flows and water rights owners who want to re-imagine the use of their consumptive water rights to improve stream health in their own neighborhood. Broadly, these tools fall into two categories: leases or loans, which are used by the Trust and water right owners who want to maintain ownership of their water rights; and purchase of water rights from owners who are interested in selling to the Colorado Water Trust.

An image of the Crystal River Valley from an EcoFlight mission in August 2022. The view is downvalley, toward Mount Sopris. A group is exploring a federal designation of wild and scenic for the Crystal River in Gunnison and Pitkin counties. Courtesy of Ecoflight

On the Crystal River, a tributary of the Colorado River, the Water Trust and Cold Mountain Ranch, a water user diverting from a critical reach of the Crystal River, entered into an agreement that compensates the Ranch for coordinating diversions in a manner that enhances stream flows. The result is two-fold: the Ranch coordinates its diversions during certain types of water years to benefit the stream flow, but maintains ownership of its valuable, senior irrigation rights for use when water is more plentiful; and the stream benefits in years in which the river reach would otherwise be dry.

The Trust has also, from time to time, purchased portions of water rights, including an interest in the McKinley Ditch which diverts from the Little Cimarron River near Gunnison. Historically, three miles of the Little Cimarron River near Gunnison ran dry during late summer, due to upstream water diversions. Working with the Trust’s frequent partner, the Colorado Water Conservation Board, the Trust obtained a change decree from the Division 4 Water Court. The change decree authorizes the Trust’s water, which would otherwise be limited to irrigation uses, to be left in the stream for the benefit of the aquatic ecosystem.

Sarah Klahn, Board Member, Colorado Water Trust, Shareholder, Somach Simmons & Dunn. Credit: Colorado Water Trust

The Dippers in Boulder Canyon are in good shape, given the water quality and flow regime in Boulder Creek below Barker Dam; any resident Dippers in the Cimarron or Crystal watersheds in the vicinity of the Water Trust’s projects are in better shape than they were before the Trust’s projects were initiated. And for other streams in Colorado that may experience extreme low flows (or dry up completely) during certain types of water years, the Water Trust is actively looking for opportunities to partner with senior water right owners and use available tools provided by the prior appropriation system to enhance stream flows and enhance and protect aquatic ecosystems.

Sarah Klahn is a member of the Water Trust Board of Directors and a shareholder in Somach Simmons & Dunn. Sarah represents farmers and ranchers, as well as institutional clients, on water rights matters in four western states.