Steamboat Springs has been seeing some much needed rain to start the month of May, which is historically the wettest month of the year for the Yampa Valley.
The Community Collaborative Rain, Hail and Snow Network, which is a collection of volunteers that submit data to the Colorado Climate Center, have observed about 0.3 inches of rain in Steamboat since Sunday…
Despite recent rain, however, water experts say it’s not enough.
“There hasn’t been a tremendous amount of rain, and it is pretty standard for us to get some spring rain, so I don’t think it is going to overcome the deficit that we were already in,” said Erin Light, Division 6 engineer for the Colorado Division of Water Resources.
Light placed water restrictions on the river last year and in 2018, but it is still too early to know if that will be needed this year. She said they are working with the Colorado River District to find ways to avoid a call, potentially releasing water from Elkhead Reservoir.
If a call is avoided, Light said it would likely be because of this collaboration. Still, reservoir releases don’t necessarily fix the problem.
“It doesn’t eliminate the fact that there may be no more stream flow left in the river,” Light said. “It is very possible that we are going to get to a point where our natural stream flow runoff has gone to nothing, and the only thing we are seeing in the river is reservoir water at certain locations.”
This is what happened at the end of summer 2020 and in 2018 to trigger the call.
Light said she is mainly looking at stream flows particularly farther down the river. She focuses on the gauges near Maybell and Deerlodge Park that are both in Moffat County, downstream from many irrigators that pull from the Yampa River west of Steamboat.
“You can only put so many straws in the river before you start to run out of water,” Light said, adding that both of the gauges have hit record lows in recent weeks…
At 10 a.m. Wednesday, both gauges showed flows were only about 20% as strong as they were this time last year. When looking at three-month outlooks, it suggests this summer will be both hotter and drier than normal, Light said.
Steamboat typically receives about 2.5 inches of rain in May, according to the 30-year average from the National Oceanic and Atmospheric Administration.
State work group trying to balance risks from investors, negative impacts to agriculture
Melting snow and flowing irrigation ditches mean spring has finally arrived at the base of Grand Mesa in western Colorado.
Harts Basin Ranch, a 3,400-acre expanse of hayfields and pasture just south of Cedaredge, in Delta County, is coming back to life with the return of water.
Twelve hundred of the ranch’s acres are irrigated with water from Alfalfa Ditch, diverted from Surface Creek, which flows down the south slopes of the Grand Mesa. The ranch has the No. 1 priority water right — meaning the oldest, which comes with the ability to use the creek’s water first — dating to 1881.
What makes the ranch unique among its Grand Mesa-area neighbors is its owner. Conscience Bay Company, a Boulder-based private real estate investment firm, bought the property in 2017.
That fact alone has brought its owners scrutiny from neighbors and Western Slope water managers. Conscience Bay and its president, Eli Feldman, have been accused of water speculation — which means buying up the ranch just for its senior water rights and hoarding them for a future profit.
That is an accusation Feldman denies.
“Any time you come into a place that you’re not from, people are curious at best and skeptical and concerned at worst,” he said.
The ranch raises organic beef using regenerative techniques that operators say are better for soil health. Conscience Bay holds grazing permits on tracts of public land in western Colorado and Utah where the cattle feast on grass before being sent to California to be finished, slaughtered and sold under the brand name SunFed Ranch.
To the charges that he’s doing something untoward by investing in the ranch’s land and abundant water rights, Feldman said he’s just like any other major water user in the state putting it to beneficial use. The ranch is using the water to irrigate, he said.
“We’re growing grass and feeding it to cows and trying to improve the ground, improve the soil health and make a business out of it,” Feldman said.
Speculation work group
The conversation around water speculation has been heating up in Colorado in recent months. At the direction of state lawmakers, a work group has been meeting regularly to explore ways to strengthen the state’s anti-speculation law. The topic frequently comes up at meetings of Western Slope water managers: the Colorado River Water Conservation District, basin roundtables and boards of county commissioners.
Investments such as Feldman’s have been of interest to the work group, which consists of water managers and users from around the state and is chaired by Kevin Rein, state engineer and head of the Division of Water Resources.
“I think it’s a valid concern because they do see unusual parties, large parties that, again, aren’t the typical parties, purchasing those water rights, and so that’s the concern,” Rein said. “Are they speculating or are they purchasing just so they can flip it, as people say, in a few years for more money?”
Under Colorado law, a water-rights holder must put their water to “beneficial use,” meaning continuing to use the water for what it was decreed in order to hang onto it. But Colorado also treats the right to use water as a private-property right. People can buy and sell water rights, change what the water is allowed to be used for and, if given a court’s blessing, move the water from agricultural use to growing cities.
This system, used widely in the western United States, creates an opening for investors who see water as an increasingly valuable commodity in a water-short future, driven by climate change. A private-equity fund, Water Asset Management, is now the largest landowner in the Grand Valley Water Users Association, which provides water for farmers in the intensely irrigated valley, a short drive from Harts Basin Ranch. The purchases of the New York City-based company have raised suspicions among water managers and prompted the formation of the speculation work group.
Similar concerns have cropped up in agricultural communities throughout the West. A water transfer in Arizona from agricultural lands on the Colorado River to a rapidly expanding Phoenix exurb recently stirred up controversy. In Nevada, Water Asset Management is trying to market water held in an underground aquifer.
Colorado’s current anti-speculation doctrine is based on case law that says those seeking a water right must have a vested interest in the lands to be served by the water and must have a specific plan to put the water to beneficial use.
The work group has identified the following risks from speculators: investors’ obtaining a monopoly over a local water market; large-scale, permanent dry-up of agricultural lands; less water availability for other water users; and violation of Colorado’s values to see a vital public resource traded as a commodity.
Potential risks and solutions
The potential solutions to these risks are many, according to a draft document. The work group is exploring several of these, including creating a process to determine the intent of the purchaser; taxing profits from the sale of water rights at varying rates to encourage beneficial use and to discourage profiteering; imposing time limits on turnover of ownership to discourage short-term “flipping”; encouraging local governments to police investments through their 1041 powers; and creating a public-review process for water transfers that exceed some threshold.
The group has not coalesced around any of these potential solutions, but state officials said they are zeroing in on using the water court process to evaluate transfers as a way of spotting speculation.
The work group is supposed to submit a report, along with any recommendations from members, to state officials by August. But so far, the group has had a difficult time making sense of the thorny questions raised by these issues. Even trying to define what speculation is (and isn’t) and who is considered a speculator has been a struggle.
“It’s one thing to point at something and say, ‘Oh, that’s probably speculative.’ Another to actually put the legal definition on it,” said Alex Funk, agricultural water-resources specialist with the Colorado Water Conservation Board. Funk is also a member of the work group.
Discussions so far about reining in speculation have focused on the intent of the buyer. Can the state determine whether someone who is purchasing water rights intends to grow hay or build a residential subdivision? Or are they solely focused on the water rights’ future value? And how do you tell the difference?
“Do we want to protect against certain types of intent?” Rein said. “And then how do we determine that?”
Predetermining a water-right purchaser’s intent could prove to be a difficult task, akin to stopping a crime before it’s actually committed. Funk invoked the 2002 film “Minority Report,” in which a police detective (played by Tom Cruise), with the help of three psychics, tracks down would-be murderers and arrests them before any gun goes off.
“There aren’t speculation police running the state and breaking up these investments, right?” Funk said.
Financial water speculation
A draft report by the work group attempts to define two different types of speculation.
The first is traditional water speculation, which involves obtaining a water right without any plan or intent to put that water to beneficial use. The intent is to obtain a desirable priority date and then sell the water right to others who have a beneficial use.
This type of speculation has been addressed before in Colorado water law in what is known as the High Plains case. In 2005, the Colorado Supreme Court determined that a water-investment company was speculating because its plan for using the water was too expansive and nebulous, and the plan did not identify either the structures through which the water would be diverted or the specific locations where the water would be used.
The second type of speculation — and, because of WAM’s dealings in the Grand Valley, the one on which the work group is more focused — is financial water speculation. The work group defines this as the purchase and use of water rights with the primary purpose of profiting from increased value of the water in a short period of time. Financial water speculation may run counter to Colorado’s prior-appropriation doctrine because the primary intent is profit rather than beneficial use.
The concerns over speculation tap into a deep-seated anxiety that is prevalent in Western farm towns: the transfer of water from agriculture to cities. There are real examples of agricultural water being sold to cities, sometimes derisively described as “buy and dry,” and some rural communities have suffered economically as a result.
In some ways, the work group’s discussion of how to prevent speculation is really a broader discussion of how to prevent water transfers away from agriculture. The group has identified the large-scale, permanent dry-up of agricultural lands as the No. 1 risk from speculators. Part of Funk’s job is to head up a program of “alternative transfer methods,” which allow cities to temporarily buy or lease water from agriculture, but without the severe economic impacts.
“I think the issue with speculation is that what on paper might seem a very sort of small, isolated issue, as soon as you start sort of unpacking it a little bit, it’s essentially all the problems that Western water and rural communities are facing in, like, one issue,” Funk said. “So, as soon as you start unraveling it, you start running into other forces at play that are really beyond the state’s control or any one individual producer’s control.”
Impacts to ag
The work group is walking a fine line to come up with ways to deter speculation while not harming traditional agriculture producers in the process. In a big-picture sense, irrigators may worry about the impact to their community and way of life if all their neighbors sell to hedge funds. But when it’s their turn to receive a check for their water rights, they don’t want regulators doing anything that would make the process harder or devalue the ranch they have put their lives into, including restricting whom they can sell to.
It’s an oft-repeated adage that a rancher’s land and water rights are their 401(k) or their child’s college fund, and some say any new rules aimed at speculators should not make it more difficult for traditional ag producers to cash out if and when they want.
So far, the investment firms active in western Colorado have continued to lease their land back to farmers, or farm it themselves.
Carlyle Currier, a rancher in Molina and president of the Colorado Farm Bureau, has a seat on the Colorado River Basin Roundtable and his family has ranched in the Grand Mesa area for more than a century. Currier said until the investors attempt to sell it off, they’re not doing anything illegal.
“If the government can tell (someone) they can’t buy a farm and farm it, well, then they could tell me that, too. And I don’t want them telling me that,” Currier said.
The speculation discussion is also set against the backdrop of a potential demand-management program, the feasibility of which the state is currently studying. A demand-management program would pay irrigators on a temporary, voluntary basis to fallow fields and leave more water in the river. This water would be sent to Lake Powell to fill a 500,000-acre-foot pool that could be used to help the upper-basin states avoid a protracted legal battle with states downstream on the Colorado River.
Some say the exploration of demand management — including pay-to-fallow pilot projects in the Grand Valley — could have opened the door for investors who want to take advantage of the program to make easy money. Where there are opportunities, there are opportunists.
“Here in Mesa County, we’ve been watching a Wall Street investment firm buying up agricultural properties all with pre-compact water rights,” Steve Aquafresca, Mesa County’s Colorado River District representative, said at a board meeting last month. “I think it could be safely said that these actions probably would not have occurred if the state were not discussing the possibility of a demand-management program and if one particular major irrigation-water provider was not showing some willingness to entertain a demand-management program.”
Suspicion of outsiders
For all the concern about water speculation, there’s scant proof that it’s happening on a large scale on the Western Slope. Even WAM is not speculating, according to the current definition, as long as they keep the land in agricultural production.
“It does seem like there’s a lot of speculation about speculation,” Feldman of investment firm Conscience Bay said.
Instead, he said, old-fashioned suspicion of outsiders is at the heart of the issue.
“There’s people that view us as outsiders and we are not from here,” he said. “We know that. We know that damn well. And that’s not news to us.”
And there’s some evidence that he’s right. The Colorado River District, which protects Western Slope water interests, is developing a policy statement about water speculation. A draft of the policy says the district “recognizes the importance of locally owned agricultural lands and waters” and will work “to protect our state’s water resources from out-of-state special interests.”
And although these ideas didn’t get much traction, the work group has also floated two more potential solutions targeting outsiders: restricting the ability of out-of-state entities to participate in Colorado water court proceedings and prohibiting out-of-state entities from holding water rights.
“Is speculation just another word for investment (but it has) a negative connotation to it because it’s somebody that’s not from here?” Feldman said. “OK, well, do you not want to have investment in rural Colorado? Is that what we’re after? That’s where it would go if you put up enough barriers and hoops.”
Feldman says he is not the enemy. His operation isn’t the mom-and-pop homestead ranch of the Old West. It’s the investor-owned, employee-operated, risk-taking ranch of the New West. Harts Basin Ranch is looking for innovative ways to adapt to water scarcity and is participating in a program with environmental group Trout Unlimited to study consumptive use and how agriculture can stay productive while using less water. The group receives funding from the Walton Family Foundation, which also funds KUNC’s Colorado River reporting.
Feldman sees the heated discussion about speculation as a symptom of how Western communities are choosing to grapple with increasing water scarcity under climate change. There are those who explore new ways of running an old business and there are those who want to protect the status quo.
“At its core you see a real friction or conflict between a group of people that’s trying to make water policy more flexible to adapt to a changing climate,” Feldman said, “and those that are trying to impose more rigidity and prevent any change from occurring.”
This story was part of a collaboration between KUNC in Colorado and Aspen Journalism. Aspen Journalism is a local, nonprofit and investigative news organization that covers water and river issues. KUNC’s Colorado River reporting project is supported by a grant from the Walton Family Foundation. KUNC is solely responsible for its editorial content.
From email from the Colorado Cattlemen’s Association (Phil Brink):
Topics and Presenters:
1) Environmental Quality Incentives Program (EQIP) funding for ditch and irrigation companies: For the first time, ditch and irrigation companies can now apply for USDA-NRCS Environmental Quality Incentives Program (EQIP) funding. What types of improvements are eligible for funding, and what are the payment rates and eligibility requirements?
2) Mountain Meadow Deficit Irrigation (early) Results: During the summer of 2021, irrigated meadows in the Kremmling area were deficit irrigated to learn more about the effects of deficit irrigation on forage production, soils, and the amount of water that could be conserved.
Presenter: Dr. Perry Cabot, Irrigation and Water Resources Leader, CSU Western Colorado Research Center, Fruita, CO.
3) How to Secure your Water Right and Navigate Division of Water Resources (DWR) Records for Information: Water rights are valuable. You will learn how to access information about your water rights via the DWR HydroBase online resource AND the steps needed to help secure your water rights.
Presenters: John Rodgers, P.E., Colorado DWR HydroBase Coordinator and
The U.S. Drought Monitor from April 20th showed slight improvements in areas near Larimer and Boulder counties. Similar to last month, exceptional (D4) drought currently covers 15% of the state; extreme (D3) drought covers 17%; severe (D2) drought covers 28%; moderate (D1) drought covers 29%; and recent precipitation resulted in patches of abnormally dry (D0) areas in 10% of the state.
The 90-day Standardized Precipitation Index (SPI) values from Jan. 11 to Apr. 11 highlight continued dry conditions on the western slope. North eastern Colorado’s SPI data points reflect areas of above average precipitation after January and March snowstorms. The 12-month SPI map depicts the long-term drought conditions due to precipitation deficits in 2020 across the state, especially in the west.
The NOAA Climate Prediction Center three month outlook indicates increased chance of above normal temperatures and below normal precipitation are in the upcoming months. These forecasts are consistent with long-term temperature trends, and a strong signal in seasonal models of inordinate high pressure ridging over the West. Monsoon season remains uncertain. The current La Niña pattern continues to weaken and is expected to revert to neutral conditions in the summer. This is typical; ENSO signals are often dampened in summer. Development of a 2nd La Niña year is anticipated this fall through winter. The last two 2nd year La Niña events were water years 2012 and 2018. Both were drought years.
Water providers across the state report average to slightly below average storage levels and near normal demands. Drought management planning and potential restrictions are being discussed through multiple coordination groups. Stakeholders can follow along with state drought response actions and activities through public engagement pages for the Municipal Water Task Force and Agricultural Impact Task Force.
Colorado Public Safety presented an overview of the wildfire outlook for the coming year to the Water Availability Task Force. Many factors contribute to the extremity of a fire season including humidity, lightning or human created ignitions, rainfall during monsoon season, and winds. In the past, Colorado’s fire season began in late May through June into late August and September. More recently, this pattern has changed around the state and fires can occur during any month. The number of fires has been decreasing across the nation, but the number of acres covered by fires has increased. In 2020, 4 of the 20 largest fires in Colorado occurred, including the first, second and third largest fires in the state’s history.
Getting water to state line would be key in compact call
In September, Front Range water providers released some water downstream — which they were storing in Homestake Reservoir — to test how they could get it to the state line in the event of a Colorado River Compact call.
But accurately tracking and measuring that water — from the high mountain reservoir in the Eagle River watershed all the way through the Colorado River at the end of the Grand Valley — turned out to be tricky, according to a recently released report from the Colorado Division of Water Resources.
From Sept. 23 through Sept. 29, Colorado Springs Utilities, Aurora Water and Pueblo Board of Water Works released a total of 1,667 acre-feet of water, which would have otherwise been diverted to the Front Range, from the reservoir into Homestake Creek, a tributary of the Eagle River. The release gradually ramped up from about 25 cubic feet per second to 175 cfs and then gradually back down over the seven days.
But officials were unable to put a number on how much of that water made it to the state line.
In their attempt to quantify the actual amount of reservoir release delivered to the state line, state engineers ran into challenges that caused uncertainty, they said in an email.
Although they couldn’t measure how many acre-feet officially made it, State Engineer Kevin Rein said that the exercise was still a success and that all the water, minus transit losses, crossed into Utah.
“We have heard this is a failure because not everything worked perfectly, but in my mind, this was an opportunity under non-stress conditions to find out what we need to do to ensure that things will work,” Rein said.
A goal of this project, known as the State Line Delivery Pilot Reservoir Release, was to see if the water could be “shepherded” downstream without senior water-rights holders diverting the extra water. This required Division 5 water commissioners to actively administer some headgates, especially on Homestake Creek and the Eagle River.
According to the report, the water took about 2½ days to make the journey from the reservoir to the gage on the Colorado River near Cameo — about 16 hours longer than predicted by the Colorado Basin River Forecast Center. Along the way, about 10% of the water either evaporated or was soaked up by thirsty streamside soils and vegetation — processes known collectively as transit loss.
Making sure water could get to the state line would be essential in the case of a compact call.
This scenario, the chances of which increase as climate change continues to reduce river flows, 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 a nearly century-old binding agreement.
A compact call could be especially problematic for Front Range water providers since most of their rights that let them divert water over the Continental Divide from the Western Slope date to after the 1922 Colorado River Compact. That means mandatory cutbacks in water use could fall more heavily on the post-compact water rights of Front Range water providers.
Colorado Springs Utilities and Aurora Water, operating together as Homestake Partners, said the problem was that the rate of release was too low. It was more a matter of flow volume than administration. Even in a dry year, a release of 175 cfs was not high enough to reliably track the water, especially when it reaches the Colorado River, which has a much higher volume of water than Homestake Creek or the Eagle River, and the reservoir release is a smaller fraction of its overall flow.
In an email to Aspen Journalism, Homestake Partners said: “A bigger pulse of water would overcome some of the issues that DWR had in tracking the release. This sort of result is exactly what we wanted to explore — it tells us that if we, or anyone else in the state, chooses to make a state line release in the future, a higher volume of water will probably need to be released to be reliably tracked.”
State engineers also had to deal with a river that was constantly in flux. Upstream reservoir releases and changes to irrigation diversions made for additional challenges.
State officials said it was hard to separate the reservoir release from the rest of the Colorado River’s flow at the state line because of numerous ungaged streams and return flows from irrigation that enter the river between Palisade and the state line.
“The ungaged inflows could not be subtracted from the total flow in the river, therefore the separated flows were too large and did not allow for the initial waves of the reservoir release to be identified,” officials said in an email.
The total flows at the state line at the time of the reservoir release’s arrival were around 2,500 cfs, according to DWR.
River District concerns
The Glenwood Springs-based Colorado River Water Conservation District, which protects Western Slope water interests, had several concerns about the reservoir release.
“I think it’s important that the public and the state recognize that they released 1,600 acre-feet of water during an incredibly dry period and they couldn’t actually track it to the state line,” said River District general manager Andy Mueller.
But Mueller’s concerns go beyond the trouble with tracking. He said the state engineer did not reach out to Western Slope water users who had the potential to be injured by the release. He also doesn’t trust that the cities won’t just refill the hole created by the release with more Western Slope water.
The River District’s main concern is that in a water-collection system as complex as Homestake Partners — with several different transmountain diversions bringing water from the Western Slope to the Front Range — it’s hard for the state to make sure they won’t take more water to replace the pool they released.
“From our perspective, it’s very difficult for the state to verify that they haven’t just brought the water over from a different part of their diversion system,” Mueller said. “So it leaves us with a lot of skepticism, and we voiced that in several discussions.”
To address some of these concerns, the cities are required to submit a verification plan to the state to prove three things: that they had enough space available in reservoirs on the east side of the divide to store the water, and they weren’t just releasing water downstream they couldn’t use anyway; that they actually decreased water taken through the Homestake Tunnel by the same amount as the pilot release; and that they didn’t create additional space in Homestake Reservoir to allow for greater storage this year.
“In essence, we brought the ‘hole’ we created in our storage in Homestake Reservoir through to the East Slope when we operated the tunnel in February and March,” the Homestake Partners’ email reads. “This was accomplished by not drawing down Homestake Reservoir quite as much as we otherwise could have this winter in preparation for spring runoff.”
The reservoir release also could have implications for a potential demand-management program, the feasibility of which the state is currently investigating. At the heart of a demand- management program is a reduction in water use on a temporary, voluntary and compensated basis in an effort to send as much as 500,000 acre-feet of water downstream to Lake Powell to bolster water levels in the giant reservoir — which spans Utah and Arizona — and, indirectly, to meet 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. Front Range water providers could participate by releasing water stored in Western Slope reservoirs.
Rein was careful to say that the Homestake pilot release was in no way connected to demand management. Still, the experiment may have revealed potential problem areas should a demand-management program become reality.
“The ability to track water that is conserved consumptive use all the way to the state line is really critical for the success of that program,” Mueller said. “And if you can’t track a slug of 1,600 acre-feet of water to the state line, how are you going to track the voluntary reduction in use of a small ditch on the West Slope that maybe they are saving 15 acre-feet?”
Aspen Journalism covers rivers and water in collaboration with the Vail Daily and The Aspen Times. This story ran in the April 16 edition of the Vail Daily and The Aspen Times.
In 2018, Erin Light did something that had never before been done on the Yampa River downstream from Steamboat Springs. She placed a call.
As district water engineer, Light was responsible for administering Colorado’s complex matrix of water rights. Rights are ranked by date and volume, from earliest decreed and hence most senior to most recent and hence junior. A senior water-rights holder on the Yampa River at Lily Park, near the entrance to Dinosaur National Monument, had called to say he was not getting the water decreed to that property for irrigation of the hay meadows.
The call she placed that summer lasted 21 days, causing the most junior of users upstream to cease diversions until that senior right was met. Then came another hot and dry summer in 2020, and she placed another call, this one lasting 9 days. It was a paradigm shift for the Yampa, a river that through the 20th century always had had enough water for anybody who wanted to dip a straw into it.
If foreign to the Yampa River, such calls have long been commonplace on Colorado rivers. The premise is water scarcity, the idea that there just isn’t enough water for all who want it, at least all the time.
Colorado’s hierarchy of seniors and juniors, older and younger, is commonly traced to the development of irrigation agriculture in the Poudre Valley between Fort Collins and Greeley. The Greeley irrigators were first, but then came new irrigators upstream near Fort Collins. In a drought year, their new diversions had an effect on what was available downstream. Within a decade, soon after Colorado became a state, the first calls were placed on that river.
It took little time for scarcity to be understood on all of Colorado’s rivers east of the Continental Divide. Scarcity was slower to be understood on the Western Slope, where there was more water and, even in the days of feverish gold- and silver-mining, fewer people. Yet over the decades, the Colorado and other rivers came to be fully appropriated.
The Yampa, though, stood alone among major rivers in Colorado in its relative plentitude. It routinely delivered water to all who wanted it. Even its reservoirs, modest in size, came relatively late in the 20th century, to help moderate flows.
The Yampa’s relative isolation played a role in this. It’s two mountain ranges distant from the Front Range, two significant fences to hop for Front Range cities and Great Plains farmers.
Climate also played a role. You can’t grow corn in the Yampa Valley with any reliability. You can grow hay, but the geography makes even that problematic.
Now that climate is shifting. Not enough to grow corn but enough to cause the Yampa to be marginally less robust and, as the 21st century has shown in 2018 and 2020, but also in other years before that, unable to deliver.
This has led to Light recommending that the Yampa be designated as “over-appropriated.” It’s a legal phrase that suggests something more odious than is actually the case. It sounds like the theater has been oversold and some people will be escorted from their seats to stand outside.
Over-appropriated doesn’t mean that. It does have implications for those wanting to drill large-capacity wells along the river. They must show the ability to deliver augmentation water, which is commonly purchased from an upstream reservoir. Most of Colorado’s rivers long ago were designated as over-appropriated.
Light wasn’t the district engineer in 2002, and only recently did the downstream irrigator near Dinosaur explain why he hadn’t demanded his water that summer and fall. He just didn’t have the heart to cause so much pain upstream in that year of scorching temperatures, forest fires, and meager winter snows eviscerated by spring winds.
Perhaps the most compelling evidence from Light were these statistics, drawn from the U.S. Geological Survey gaging station at Maybell, located along the Yampa River (and Highway 40), between Craig and Dinosaur National Monument. A century ago, the gauging station recorded an average annual 1.5 million acre-feet. That has declined to 1.1 million in the 21st century. And, of course, some years are worse, including one year in the last decade of 500,000 acre-feet.
At a recent meeting of the Colorado Air Quality Control Commission, a representative of Boulder County mentioned drought caused by climate change in support of regulations to control methane emissions. One of the AQCC commissioners, Randy Ahrens, of Broomfield, wanted to know why, if the ski areas could talk about what wonderful record-breaking snows we had, we could still be in drought.
In that question I think I heard some skepticism, perhaps a wondering whether enviros were just a little too chicken-littlish. It was a legitimate question, though.
I saw the answer during my three trips to the Yampa Valley in 2020. In early March I visited Steamboat and then Craig, seeing evidence of a big snow year, reminiscent of the winter and spring I had spent there in 1979. I got skilled that winter at chaining up my Ford Pinto in the dark during a snowstorm while crossing Rabbit Ears Pass.
But those heavy snows I saw in March 2020 soon disappeared in a warm, dry spring.
Kelly Romero-Heaney, the water resources manager for Steamboat Springs, laid it out for me. The snow-water equivalent—a measure of the snowpack—showed 116% of median on March 1. It was down to 69% by June 1.
Then came summer, hot and dry, a record in both categories during August against 130 years of measurements.
That heat and lack of precipitation, Romero-Heaney told me, drove a measure called the SPEI, or Standardized Precipitation Evapotranspiration Index. “The combination
of heat and lack of precipitation drove an SPEI figure that far exceeded drought years, such as 2002, 2012, and 2018,” she said.
Last August, when I returned again to explore the Little Snake River, it felt like an oven. Stopping for a sandwich in Steamboat on the return to the Front Range, it felt Denver hot. That afternoon I continued eastward across Cameron Pass then drove past Long Draw Reservoir and toward the headwaters of the Colorado River. A week later, it was afire.
That Cameron Peak Fire was still in advancing in early October when we returned to Craig a third time. It was a smoky time there—and everywhere.
On that October trip I drove up the Elk River northwest of Steamboat Springs to see Jay Fetcher. His ranch a few miles from Steamboat Lake had been his parents’ ranch when they arrived from Philadelphia in 1949 and he was a toddler. His parents had kept a record through their years of when the last snow disappeared from the meadow. His father died just a few years ago, a legend in Steamboat and beyond, partly because he was a co-founder of the ski area, but also because of his work in water.
Jay has continued the work of his parents, charting the withering of the winter snowpack. And the chart he gave me showed a clear progression toward earlier springs, particularly during the 21st century. There’ still great variability, but now more so. The “snow off meadow” date arrives an average one day earlier every five years. That means longer summers.
The story here is that last year was emblematic of what has been happening in the Yampa River. There’s no longer enough water for everybody who wants it all the time. It’s not because of additional new diversions, although there are some. But that does not tell the story. The longer, hotter summers may cause ranchers to divert more water to irrigate. That could be part of the story.
The largest story is of the warming weather, the shifting climate.
Light has submitted her proposal for over-appropriation to her boss, Kevin Rein, the state water engineer. In an interview, he had also chosen his words about climate change carefully. Approving this, he said, would not be a prediction of a climate to come, only a recognition that the hydrological balance has shifted.
Fair enough. But there’s the weight of evidence, almost crushing, that climate change has started playing a heavy hand in the Colorado River. There are the studies by Udall, et al, that point to the “hot drought” as the story, with roughly half the recorded declines due to temperature and not precipitation. There are, of course, the enduring images of the bathtub ring at Lake Mead. And there are the models that predict much more warmth is yet to come.
Climate change is not just the future. It’s here, it’s now. And from all available evidence, the climate scientists were too conservative in their predictions.
This was published in the March 18, 2020, issue of Big Pivots, an e-magazine. For a free subscription, go to http://BigPivots.com.
Here’s the release from the Colorado Division of Water Resources (Chris Arend):
The Colorado Division of Water Resources announced the commencement of a public comment process today on a proposed plan to designate the main stem of the Yampa River in Northwest Colorado as “over-appropriated.” An over-appropriated stream system is one in which at some or all times of the year, the water supplies of a stream system are insufficient to satisfy all the decreed water rights within that system.
Colorado water law is driven by a system of “prior-appropriation” or a first in time, first in right water right system. The system is designed for Colorado’s semi-arid climate to fairly and efficiently distribute the state’s limited water supply for the beneficial use of Coloradans. If a river system, such as the Yampa River, at times has insufficient supply to provide water to all decreed uses, then additional measures to protect those decree uses are necessary.
“The Yampa River is an incredibly important resource for Northwest Coloradans. It sustains our communities, farms, ranches, wildlife, outdoor recreation and power supplies,” said Erin Light, Division Engineer, Water Division 6, Colorado Division of Water Resources. “However, the combination of continued diversions by senior water rights and recent appropriations, along with recent climatic conditions, such as sustained drought, indicates a strong potential that the mainstem of the Yampa River meets the criteria of being “over-appropriated” and requires more careful administration to ensure senior water right holders are able to properly use their legal water rights. We want to make sure our water users and community are knowledgeable on this change in the river and are educated on the potential changes that may occur as water is developed in the Yampa River valley.”
The effect of this designation is the requirement that new well permits in the affected area will require an evaluation of their potential to cause injury to surface water rights and in many cases will need to secure a replacement supply of water to mitigate the impacts of their pumping through an “augmentation plan” before being issued a well permit by the Division of Water Resources.
“We understand this new well permitting process will be a change for water users and those looking to develop water in Yampa Valley,” Light added. “I want to assure community members that my office and our Division is here to assist you in these new measures as we all work towards equitably managing our scarce but critical water resources.”
Following the formal notice of this recommendation, which involves notifying members of the Division 6 Substitute Water Supply Plans (SWSP) Notification List and additional community input, the State Engineer and Director of the Colorado Division of Water Resources, Kevin Rein, will work with Erin Light to determine next steps, which may include additional public outreach. Rein will not make a final determination on the proposed “over-appropriated” designation until he is satisfied that the water users fully understand the effect of the designation.
Having a river system designated as “over-appropriated” is not a new concept in Colorado. In fact, only a small minority of river systems in Colorado are not considered to be over-appropriated. The South Platte, Rio Grande, and Arkansas River systems with their heavy agricultural and municipal and industrial water users have long been considered “over-appropriated.”
To submit comments on or any questions about the proposed plan please contact Erin Light, Division Engineer, Water Division 6, at firstname.lastname@example.org or 970-879-0272 Ext. 3.
From the Water Education Colorado Blog (Willow Cozzens, Samantha Grant, Amelia Nill, and Andrew Primo):
This is the second blog post in a series on diversity, equity and inclusion in Colorado agricultural water planning. Find the first post here.
As discussed in our previous post, Colorado has an exciting opportunity to create a truly sustainable future for residents by making its water plan update process more inclusive. There are at least three groups that have been historically excluded from Colorado statewide agricultural water planning: the Colorado Ute tribes, those who operate under acequia management systems, and urban agriculture producers. While these groups have been included at an interstate level and at the local level through the Basin Roundtables, intrastate coordination and statewide inclusion of these folks is in need of improvement.
The 2015 Colorado Water Plan (CWP) acknowledges federally recognized tribes within Colorado and their federally reserved water rights, these important topics are only covered at a high level without in-depth examination of more local nuances. Additionally, the term acequia is mentioned only once in the entire 2015 CWP, in a footnote of a farmer profile.
Colorado should thoughtfully integrate more explicit inclusion for these groups not only in the Colorado Water Plan 2022 update, but also within the Interbasin Compact Committee, the Colorado Water Congress, and the Colorado Water Conservation Board (CWCB). The CWCB has made efforts to initiate more inclusion in the CWP update process through the newly announced Equity Committee. This Committee will constitute two representatives from each of the nine river basins, plus one representative from each of the two Colorado Ute tribes. The true purposes and outcomes from this committee, however, remain to be seen. To create a more thoughtful and equitable Colorado water planning process, the equity committee must focus on creating robust measures for water justice in each element of the Colorado Water Plan Update.
This post will focus particularly on agricultural stakeholders who have been excluded from Colorado water planning. The following sections will provide background and discussion for the three groups identified. While these groups are related in that they were not adequately included in the 2015 CWP, each community is quite distinct. Both acequia water management systems and tribal water users have a rich history in Colorado that must not be ignored in planning discussions. Separately, urban agriculture, while not entirely novel, is a rapidly emerging practice in Colorado’s cities and may serve as an important tool not only to preserve agricultural viability but also to facilitate water stewardship and education. These three communities each have uniquely valuable and important perspectives on regional water issues in the state and should be given specific consideration in the planning process.
Acequias in Colorado
For communities in Colorado and northern New Mexico, an acequia is a physical system, an irrigation ditch, but it is also a deeply embedded philosophy of community and governance. The philosophy revolves around loyalty to the community and a common understanding that water is both a shared resource and a shared responsibility. This ideology has shaped relationships between humans and the environment for centuries in Colorado, creating a resilient natural and cultural system that supports families, communities, and the food system.
Acequia water management systems have been largely excluded in Colorado’s state water planning process, despite the fact that there are thousands of acres of acequias between Colorado’s Rio Grande and Arkansas River Basins. Among the Statewide Water Supply Initiatives, the 2015 Colorado Water Plan, the 2017 Technical Update, and the 2019 Ripple Effects Report, the word acequia is mentioned only once一in a footnote in the 2015 Plan. Acequias are briefly discussed in the 2015 Rio Grande Basin Implementation Plan, and they are not mentioned in the 2015 Arkansas Basin Implementation Plan.
Acequia stakeholders are often absent from statewide planning process meetings and forums. The newly established Colorado Water Equity Task Force does not include any representation for acequia stakeholders. Excluding acequias from the Colorado water planning process shuns an entire population of Coloradans一primarily farmers of color一from statewide water planning and funding. Farmers and others who operate under acequia management must be recognized and included in the statewide planning process for the 2022 CWP update.
Colorado water planners may look to acequia management in New Mexico to model pathways for inclusion. Despite the similarities in culture and natural resource demands in the San Luis Valley, Colorado’s and New Mexico’s governance approaches to acequias are starkly different. Acequia recognition has been written into New Mexico law since the mid-19th century. Furthermore, throughout New Mexico’s statewide water plan, almost every time that agriculture or irrigation is discussed, so are acequias. For example, as mentioned above, the culture of shared scarcity that underlies acequias is crucial to farmers in times of drought. New Mexico’s Water Plan explicitly acknowledges this strength, illustrating that this type of water sharing should be encouraged to support holistic agricultural viability. Colorado water planning could benefit from a similar outlook on the resilience of acequias.
Though the 2009 Colorado Acequia Recognition Statute codified that acequias hold unique powers and rights under Colorado water law, the statute only allows acequias with written bylaws to have the special powers and unique rights recognized under Colorado law. This can be a barrier for acequia communities, as some producers may not have the means to hire a lawyer to draft legally acceptable bylaws. New Mexico’s Water Plan also discusses how the state supports acequia bylaw creation. Such programs are absent in Colorado, where acequia users rely on non-governmental organizations and academic institutions, such as the Getches-Wilkinson Center Acequia Assistance Project and the Sangre de Cristo Acequia Association, rather than on funds directly from the state.
Colorado water planners should consult with stakeholders within Colorado’s acequia communities on how to best include planning and funding for acequias in statewide water management. Historically, the relationship between acequia managers in the San Luis Valley and in the Arkansas Basin with the Colorado Water Conservation Board has not been the strongest. CWCB should be inclined to add another seat to the equity committee specifically for acequia representation to try to remedy this historic exclusion.
Colorado Ute Tribes
The Ute peoples are the oldest continuous inhabitants of the land now called Colorado. They have been intimately tied to the waters of the region for many centuries, long before incursion by European colonizers and settlers. However, beginning in the mid-19th century, the United States federal and Colorado state governments began systematically dispossessing the Ute people of their land and separating them from their sources of water.
By the end of the 19th century, the only three bands of Ute peoples remaining in the state had been relegated to its southwest corner, in what are now the Southern Ute Indian and Ute Mountain Ute reservations. Although the Ute people had been gradually pressured to adopt a settled agricultural lifestyle, they were removed to some of the least suitable lands for agriculture in the state.
Despite these setbacks, both tribes have fostered successful agricultural communities on their reservations; the Ute Mountain Ute Tribe’s Farm and Ranch Enterprise, for instance, has been repeatedly recognized at both state and national levels for its products.
Much has been done in the last 30 years to address some of the historical inequities created by the separation of the Colorado Ute Tribes from their ancestral lands and traditional water sources. The 1988 Colorado Ute Indian Water Rights Settlement Act and subsequent 2000 Amendments clarified and quantified the Tribes’ reserved rights and authorized a reduced Animas-La Plata Project as well as deliveries from McPhee Reservoir to provide a reliable source of water to the tribes. Both tribes are active members of the Southwest Basin Roundtable and are represented on the Colorado Water Equity Task Force, and the importance of Tribal reserved rights is addressed in the 2015 Water Plan.
Both tribes, however, still face significant supply and infrastructure challenges, as detailed in the 2018 Colorado River Basin Ten Tribes Partnership Tribal Water Study. Some of these infrastructure projects, such as the Pine River Indian Irrigation Project, are nominally maintained by the federal Bureau of Indian Affairs, although that agency’s budget and staffing challenges make adequate upkeep difficult.
As holders of federal reserved water rights, the Southern Ute Indian and the Ute Mountain Ute tribes are invaluable partners to the State of Colorado and the Southwest Basin in addressing water management challenges, particularly issues of interstate compact compliance. Much of the groundwork for this partnership has been laid in the Ten Tribes Partnership Study, which provides detailed data on the challenges faced by the Colorado Ute Tribes, as well as opportunities that working closely with the tribes can provide state and regional water planners. The study provides an excellent starting point for addressing the challenges faced by the tribes and highlights their importance in addressing the water challenges faced by the State and the region.
Given the challenges and opportunities posed by the tribes’ unique water rights and the long history of oppression and exclusion of Indigenous peoples by both the federal and state governments, particular considerations of equity and justice must be extended to the Colorado Ute Tribes in regards to water issues. This is particularly important because tribes’ vital cultural, spiritual, and ceremonial uses are often not adequately addressed in Western legal and economic structures.
Careful, intentional, and respectful consultation with the tribes一as well as inclusion in statewide deliberative water planning processes一is essential to developing a robust understanding of their needs, as well as the cultural significance and intended uses of water.
Urban agriculture (UA) is most simply defined as “all forms of agricultural production occurring within or around cities.” In any given urban area, this may include quite a variety of operations and projects, including ground-based outdoor gardens and farms, indoor hydroponic or aquaponic growing, rooftop gardens and farms, landscaping and nurseries, urban livestock, and more. The sector is growing as cities become home to more UA-focused organizations, citizens get more creative with urban landscapes, and policies incentivize green infrastructure. Such programs or policies are often intended to promote public health, economic development, and enhance socio-ecological relationships.
Over time, UA has taken on a new form and meaning. With connections now to social justice and environmental sustainability, urban farming has taken root in countless large and small city centers across the nation, oftentimes appearing in the form of community gardens, rooftop gardens, and greenhouses. UA is not recognized in the Colorado Water Plan, or many other western state water plans, despite its growing popularity across the nation. UA offers a multitude of exciting opportunities to foster resilience within western water planning and our food systems.
Regardless of the form it takes, all UA operations require water. Water resources may be utilized on a wide spectrum of UA irrigation tactics一from traditional flood irrigation in peri-urban fields to precision application in a vertical farm. The increasing prevalence of UA operations in Colorado cities requires more attention from water planners, especially as food production technology advances and local food becomes more popular among citizens. The CWP update should not only provide support for both existing operations, but also recognize the potential water-efficient food production in the future of UA. This will be especially important as Colorado could see a shifting food system in the face of climate change and urbanization. The current trajectory of UA could provide a significant contribution to water resilience planning and food production for Colorado.
Though this growth may represent an exciting shift in the food system, it is crucial to recognize UA’s capacity for exacerbating environmental injustices. Often, initiatives led by non-residents may be detrimental to local communities. This is especially prevalent when mostly young, white non-residents have led initiatives in predominantly Black and/or Latinx neighborhoods, “unintentionally excluding people of color from participating in or reaping the benefits of such efforts.” Furthermore, residents of lower-income communities and/or people of color are more likely to experience difficulty accessing land, funding, and political support for UA projects than white and middle class individuals or organizations. Therefore, in order to avoid perpetuating injustice, UA implementation must be nuanced and place-based. A successful and anti-racist CWP update will recognize possible inequities and provide support for urban residents to facilitate UA projects within their own neighborhoods.
This overview intends to provide the background and ethics necessary to integrate the Colorado Ute Tribes, acequias, and urban agriculture considerations into the Colorado Water Plan update. In an effort to begin the process of elevating voices of underrepresented communities, this research team hosted a virtual listening session and working meeting for water planning professionals and UA stakeholders. This event was meant to serve as a platform for stakeholder and administrator collaboration with the goal of creating a more equitable and inclusive CWP update. Our next post will detail the process and results of this meeting.
Colorado water officials are considering whether to designate the increasingly stressed Yampa River from Steamboat Springs downstream to near its entrance into Dinosaur National Monument as over-appropriated.
If approved by the state water engineer, the designation would require augmentation plans for larger-volume wells along the river from Steamboat to Lilly Park, where the Little Snake River flows into the Yampa.
Augmentation plans document how the water used will be replaced to satisfy senior water rights. Such water is typically delivered from upstream reservoirs, both large and small.
The proposal comes amid growing evidence that the Yampa River can no longer deliver water to all users all the time as they wish. There have been two “calls” on the river in the past three years, limiting diversions of users with later — or junior — diversion decrees until those of older or more senior decrees are satisfied.
The changed hydrology of the river can best be understood at the gauging station along U.S. Highway 40 near Maybell. There, according to Division 6 Engineer Erin Light, annual flows a century ago of 1.5 million acre-feet annually have declined to 1.1 million acre-feet annually. The gauge during one year in the past decade recorded only 500,000 acre-feet.
Light is proposing the over-appropriation designation. When the comment period will begin and how long it will extend has not been determined.
“An existing water right is not going to be injured by this over-appropriation designation,” Light said on a video conference meeting Monday evening with more than 100 viewers. “They would be protected.”
Colorado law considers all groundwater to be tributary to the stream system unless proven otherwise. As Light recently explained to the Yampa/White/Green Basin Roundtable, when a stream system is over-appropriated, drawing water from a well can deplete the stream during times when the water in the stream is insufficient to satisfy all decreed water rights.
The Yampa River famously long had sufficient flows such that it lacked the close supervision of many of the state’s rivers, including all of those on the east slope.
“If you look at the South Platte, the Rio Grande and the Arkansas, these are basins where the surface water was over-appropriated 100-plus years ago,” said Kevin Rein, the state engineer. He will be making the decision whether to approve Light’s recommendation.
Only a few of Colorado’s rivers, mostly on the flanks of the San Juan Mountains, remain free of restrictions that require augmentation plans for wells along rivers as are now proposed for the Yampa.
Regulation of large-capacity wells began in Colorado during the 1960s. The laws were adopted in response to conflicts in the South Platte River Valley between farmers diverting water directly from the river and those drilling wells. State legislators clarified the legal rights of each. The key breakthrough was acceptance that groundwater was, in many cases, part of the same water system as the surface flows.
In the Yampa River valley, this designation would primarily impact new residential wells located on lots less than 35 acres and wells used for purposes other than domestic uses.
Permits for new wells located on lots of less than 35 acres in existing subdivisions may be issued for in-house use. If the well serves additional purposes, such as for livestock watering or a pond that intercepts groundwater on a lot less than 35 acres, then an augmentation plan must be in place before a well permit will be issued.
Well permits may be issued for as many as three single-family dwellings, irrigation of as much as 1 acre of lawn and garden, and for watering of domestic animals, on lots greater than 35 acres.
Based on her experience after designations of the Elk River and the Yampa River upstream of Steamboat Springs in the past decade, Light expects to see no major impacts.
“I have just not seen a tremendous impact on people because of this designation,” she said.
Stagecoach Reservoir, near Oak Creek, has several thousand acre-feet of its 36,000 acre-feet of storage capacity available for augmentation. YamColo, a smaller reservoir located on the Bear River, upstream from Yampa, has lesser quantities available. Both are administered by the Upper Yampa Water Conservancy District, whose boundary goes to but does not include Craig.
How much augmentation water will be needed from upstream reservoirs will depend upon the use, explained Holly Kirkpatrick, external affairs manager for the district. Does the well provide for livestock water, for example, and if so how many animals?
The conservancy district has enough water in the two reservoirs, especially Stagecoach, to provide for all needs, at least in the near term.
“Individual augmentation plans are of very small magnitude,” said Andy Rossi, general manager. “We might be talking about less than one acre-foot up to three acre-feet” (annually), he said of augmentation plans for new wells.
Traditional agriculture water users would normally seek storage rights in the reservoirs for larger volumes.
It will still be possible to file for new water rights in the Yampa subject to Colorado’s first-in-time, first-in-right pecking order. But the proposal signals a new paradigm for the full Yampa River Basin.
“It should be a clear indicator to those individuals establishing a new appropriation that water may not be available all of the time every year to meet their water needs,” Light said.
One of the key water rights in determining water use upstream are those at Lilly Park.
Twice in the past three years those rights have triggered “calls” on the Yampa River upstream, causing Light, as the water engineer, to require more junior users upstream to end their diversions. That same call could have been made in 2002, but the owner of the water rights at Lilly Park recently confided to Light that he didn’t want to cause the problems upstream in that notoriously dry year.
Enlargement of Elkhead Reservoir, near Hayden, has also allowed more water to be delivered downstream, forestalling the need for the designation of over-appropriation.
The Yampa River upstream of Steamboat Springs and many of its tributaries were previously designated as over-appropriated after a water decree for a recreational in-channel diversion for the kayak park in Steamboat Springs was granted in 2006.
For Steamboat Springs, one consequence was the need to create an augmentation plan for the wells along the Yampa River supplying its water treatment plant. The water from Stagecoach will be needed only if the river downstream is on call, meaning that Steamboat’s water diversions must be curtailed to meet needs of senior users.
Will the over-appropriation designation downstream of Steamboat impact the city’s water supplies?
“No, not that I’m aware of,” said Kelley Romero-Heaney, the city’s water resources manager.
The designation of over-appropriation “just means there’s more accountability” to ensure that new diversions don’t injure existing water users and water-right holders, Romero-Heaney said.
The state also designated the Elk River, north of Steamboat, as over-appropriated Jan. 1, 2011, just a few months after the first call. Water is available from Steamboat Lake for augmentation.
Small reservoirs have also been constructed to deliver augmentation water in the Elk River basin. Small augmentation reservoirs may be needed for new development downstream from Craig, such as for new rural subdivisions.
Light, in recommending the over-appropriation designation, identified no single trigger.
There were the two calls, critical low-flows in other years, and the increasing importance of juggling reservoir releases. She said the most important signal of a new era came in 2018, when the first call was placed on the river.
“I think you could make a good case of climate change and different ecological conditions,” said Rossi. Snowfall remains highly variable, but runoff has consistently arrived earlier followed by more intense heat and, perhaps, a later arrival of winter.
Soil moisture may also be a factor. If soils are dry going into winter, they’ll soak up more of the runoff.
“Start the season with dry soils, and that is the first bucket that needs to be filled when the snow starts melting,” Becky Bolinger, the assistant state climatologist for Colorado, explained last week in The Washington Post.
These changes were evident in 2020. Winter snows were healthy and the snow water equivalent, or the amount of water in the snow once it has melted, was 116% of median. Then came spring, early and warm. By June, the snow-water equivalent of the remaining snowpack had dropped to 69%.
Then came summer, hot and mostly absent rain. August broke records for both the hottest and driest summer month on the 130-year record. This combination of heat and lack of precipitation actually made 2020 worse than the other notorious drought years of recent memory: 2002, 2012 and 2018, according to Romero-Heaney
Designation of over-appropriation, however, would not forecast the climate in the Yampa Valley, cautioned Rein.
“It just recognizes what has been happening recently,” he said.
Climate change has started playing a significant role in declining river flows and falling reservoir levels in the Colorado River basin. These declines have led to concerns in Colorado during the last 20 years that requirements of the compact governing the Colorado River and its tributaries in the seven basin states could force curtailment of water use within Colorado.
From his perspective in Denver, Rein sees the proposed designation on the Yampa being neutral. All groundwater is already considered tributary to the river and hence should have no additional impact on compact compliance matters.
Aspen Journalism covers water and rivers in collaboration with the Steamboat Pilot & Today and other Swift Communications newspapers. This story ran in the March 10 edition of the Steamboat Pilot & Today.
Amid dry soils and struggling snowpack in Denver Water’s collection area, longer-term Colorado River challenges also loom large.
Denver Water’s supply managers are closely attuned to the dry weather, lagging snowpack and poor soil moisture in its mountainous collection area that could mean heightened efforts to conserve water this summer.
At the same time, the utility is closely engaged with a more persistent and growing long-term challenge: a drying trend across the seven-state Colorado River Basin.
The two issues go hand-in-hand.
While early snowpack has been underwhelming, a few recent storms brought us closer to average in the two nearby basins that matter most to Denver Water: The South Platte and the Colorado.
Even so, the long-running drought across the southwestern United States persists. And earlier this year, a new warning was triggered after updated projections from the U.S. Bureau of Reclamation suggested poor inflows to Lake Powell could put the reservoir at a level low enough to take new steps.
In short, the BOR said Lake Powell — the massive storage vessel that serves as the bank account for the upper basin states of Colorado, New Mexico, Wyoming and Utah — is at risk of falling below an elevation of 3,525 feet in 2022.
That’s important to Denver Water and many Colorado water users as a century-old law requires states in the upper basin to send a certain allotment out of Lake Powell each year to the lower basin states of Arizona, California and Nevada.
Under major agreements developed between the federal government and the seven states in 2019 called drought contingency plans, Reclamation’s projection initiates a planning process with water leaders across the upper basin states to address ways to avoid further elevation declines in Powell.
This is a trigger point to say, “Hey, it’s time to ramp up our monitoring and planning, to be ready to address the potential further decline in reservoir levels,” explained Rick Marsicek, planning manager for Denver Water. “This was a metric, developed to ensure the upper basin states focus harder on next steps should Lake Powell be at risk of hitting that level.”
Planners focused on 3,525 feet as a trigger point, so as to have time to act before Lake Powell falls another 35 feet, which would threaten its ability to send enough water through turbines to generate hydropower, another important element of Powell’s operations. Hydroelectricity at the dam provides power to more than 5 million customers.
It’s an initial step toward drought contingency plans, which could be triggered as early as 2022 in the Upper Basin. The lower basin’s DCP was triggered last year, when projected shortages in Lake Mead, the other gargantuan Colorado River reservoir — a sister of sorts to Powell — required Arizona and Nevada to pull smaller amounts from supplies stored there.
All of this movement comes amid other developments important to Denver Water and water interests throughout Colorado.
The state of Colorado is working with water providers and users across the state to gauge the potential of a “demand management” plan. Such a plan would compensate water users to temporarily and voluntarily conserve water that would flow instead to Lake Powell as a deposit in a sort of bank account. Such a “pool” of water would maintain critical water levels in Lake Powell and could later be released if necessary to assure Colorado River Compact compliance.
Water users kicked off a study related to demand management in 2020. Irrigators in the Kremmling area fallowed some parcels as part of a detailed study on how high-elevation farmland would respond should water be left off the land in some growing seasons.
At the same time, the basin states, in partnership with the federal government, are beginning to dig into a new set of guidelines to help manage river supplies that must be complete in 2026, when an existing set of interim guidelines is set to expire. These guidelines co-exist with the 1922 Colorado River Compact and numerous other agreements that make of the “law of the river,” which split the river between the two big basins and the country of Mexico.
Closer to home, Denver Water and other metro area and Front Range water providers are coordinating in preparation for a year when they may have to toughen summer watering restrictions to address a dry winter and spring. It’s too early yet to know for sure how supplies will look, but the meetings that kicked off this month are an effort to get ahead of the situation and see where watering and conservation messages can be aligned to help the public understand the potential need to reduce outdoor irrigation between May and October.
“There is a lot happening, and that’s a good thing,” Marsicek said. “Far better to overplan and overprepare than to simply hope for the best. We’ve had drought years before, and we have a long-term drought now in the Colorado River Basin. By working together and planning not just for a hot summer, but for a drier long-term future, we can meet this challenge with our eyes wide open.”
For two hours, a cascade of Zoom presenters on the final day of the 39th Annual Southern Rocky Mountain Agricultural Conference and Trade Show explained different aspects of the San Luis Valley water situation.
Thursday’s, Feb. 4, updates included historical data and projected forecasts, but water users on the call also heard about pressing deadlines. The 2015 Ground Water Use Rules fully take effect on March 15. Some well owners, for example, may not realize how new regulations will affect them this spring…
The program manager for Subdistricts 2, 3 and 6, Pacheco has already been absorbing some of Simpson’s duties since he won the Colorado State Senate District 35 seat. She presented his legislative update while he attended committee meetings in Denver. According to Pacheco, draft legislation called the “30 by 30 Resolution to Save Nature” sets a goal of measuring meaningful improvements in conservation across the country before 2030.
Pacheco said she was “not familiar with the legislation, so I can’t answer many questions. But looking over a short summary, it looks like there may be some potential economic opportunities for producers in the Valley who are looking to participate in conservation efforts.”
Pacheco mentioned retiring wells, planting cover crops and conducting soil projects as examples of these efforts, “just to name a few.”
Before moving on to updates for Subdistricts 2, 3 and 6, Pacheco encouraged participants to contact the San Luis Valley Ecosystem Council Director Christine Canaly for legislative details — 719-589-1518 or email@example.com.
In April, Subdistricts 2 and 3 will complete the second year of Annual Replacement Plans (ARPs). “So far,” Pacheco said, “we’ve successfully replaced all stream depletions to all river systems as required under our plans.” Pacheco added that Subdistrict 6 is currently in its first year, and “they have successfully replaced all their depletions to date.”
Subdistricts 3 and 6 operate with sustainability requirements defined in the 2015 Ground Water Use Rules. They are currently within 78% of requirements and look sustainable for a while, although continued drought conditions may threaten the 22% cushion.
Pacheco closed by addressing water users in Subdistricts 2, 3 and 6 who received letters from DWR regarding commercial non-exempt well uses. If they want to become a subdistrict member, they need to contact Pacheco immediately. The customary deadline for receiving subdistrict applications is the first of December for the following year. But the DWR letters mailed in January.
The contract deadline for Subdistricts 4 and 5 is Feb. 15. Although they are no longer soliciting new members, they’re looking for wet water sources on San Luis Creek and Saguache Creeks. They are also seeking Well Injury Payments (WIPs or “forbearance”) on Kerber Creek and Crestone Creek. Partial and full-year Annual Replacement Plans are due. Plans covering March 15 to April 30 are due on March 1, and the annual plan starting in May is due April 15.
The same deadlines apply to Subdistrict 1 water users, according to Program Manager Marisa Fricke. Fricke celebrated 2020, the year with the highest enrollment in subdistrict history. Of the 399 well owners who received letters from DWR, 300 are in the Subdistrict 1 response area. Fricke encouraged owners to reply before making conclusions. One letter recipient called DWR for clarification and resolved the issue right away.
DWR District Engineer Cotten recapped water history from 1938 to present while showing forecasts for hotter, dryer conditions this year. Throughout his update, he referred to the dry years of 2002, 2018 and 2020.
As of Feb. 3, the Snow Water Equivalent for the Upper Rio Grande looks promising at 107%. But runoff forecasts are low. None reach 100% of average as of Feb. 1, and the San Antonio River meandering into New Mexico and back into Colorado ranks lowest among forecasts at 58%.
Referring to letters some well owners received, Cotten reiterated new groundwater rules about to take effect. Wells permitted for domestic drinking and sanitation only will be subject to the Rio Grande rules, which means they will have to cover depletions by joining a subdistrict or presenting an augmentation plan. They can contact DWR for more information.
Closing out the water presentations, SLV Water Conservation District Manager Heather Dutton described opposition to the fifth water export proposal from the San Luis Valley. Previous proposals — San Marcos Pipeline, American Water Development Inc. (AWDI), Stockman’s Water and Sustainable Water Resources – failed. The current pitch from Renewable Water Resources (RWR) does not include water court or permit filings to date, although marketing activities continue.
The RWR website (http://renewablewaterresources.com) provides background and objectives about the proposal. Dutton encouraged people to compare the RWR website with protectsanluisvalleywater.com and the Protect San Luis Valley Water Facebook page to compare data points.
The depth (and salinity) of the water has been disputed since geologist Phil Emery hinted at two billion acre-feet stored in the deposits in 1971. He later explained his miscalculation, but the billion-acre-feet notion persists. Meanwhile, all the Valley water has already been allocated. Two ditches carry water from the Sangre de Cristo mountains to the Wet Mountain Valley between May and July, approximately 1,063 acre-feet a year. The rest heads downstream.
The San Juan Water Commission authorized Director Aaron Chavez to request a release from Lake Nighthorse in an attempt to capture that water for San Juan County residents — if the conditions are right.
The San Juan Water Commission hopes to someday have a pipeline that can reduce the losses from the river if a release from Lake Nighthorse is requested. However that pipeline does not yet exist.
That means the only way to deliver water from Lake Nighthorse to the City of Farmington is through the Animas River, and that has never been tried before.
The City of Farmington requested the action as it hopes to gather data while the river levels are low and the irrigators are not pulling water out of the river, the city’s Community Works Director David Sypher explained during the Feb. 3 meeting…
The proposed release would either be 40 cubic feet per second or 53 cubic feet per second. The release would last for five days and the City of Farmington would draw the water out of the Animas River using its pump at the Penny Lane diversion…
Chavez said during low flows he anticipates it could take 103 hours for the water to reach Penny Lane and there will likely be loss along the way. The water commission is projecting that 30 cubic feet of water per second would reach Penny Lane if 40 cubic feet per second was released. One reason Farmington hopes to do the release is to get better data about the amount of water lost.
If this release occurs, it will likely happen in March and it would cost $4,500 to $6,000 to replace the water in Lake Nighthorse. Sypher and Chavez would work together to ensure none of the water released from Lake Nighthorse passes the diversion at Penny Lane, where the pump station would take the water to Lake Farmington…
Multiple organizations would need to be notified, requiring two weeks of notification. These include the Colorado and New Mexico offices of the state engineer as well as the Animas-La Plata Association…
There has never been a release from Lake Nighthorse upon request of the San Juan Water Commission…
Sypher said the current drought forecasts are awful for the region. If the Animas River was to go dry, the water commission would likely need water released from Lake Nighthorse.
State engineers in the Arkansas River basin are beginning to crack down on more than 10,000 ponds without legal water rights, which they say are harming senior rights holders.
Last month, Colorado’s Division of Water Resources in Division 2 rolled out a new pond-management plan, which they say will help relieve pressure in the over-appropriated basin by restoring water to senior rights holders. The first step was mailing on Jan. 14 informational brochures to 317 pond owners.
Even though the ponds targeted in this effort may have existed for many decades, they don’t have a legal right on the books to divert and store the water. The main concern with these ponds is water loss through evaporation. According to the brochure, for every acre of pond surface area, up to 1 million gallons of water — which is just over 3 acre-feet — is lost to evaporation each year. Division 2 Engineer Bill Tyner said, “Tens of thousands of acre-feet over time would be maintained in the Arkansas River system with a pond-management system in place.”
Although the cumulative water loss could threaten Colorado’s ability to meet its obligations to deliver water to Kansas under the Arkansas River Compact, the main issue is injury to senior water users. Added together, these ponds without a water right could deplete enough water that it makes it hard for these senior water rights holders to get the full amount to which they are entitled.
“Once we put the data together and we could look at the images of ponds and get a count of the number and relative sizes on average of those ponds, it did make us just very sure that this was a problem that could have some very negative consequences for the basin if we didn’t get more aggressive about the way that we took it on,” Tyner said.
Front Range water users divert water from the headwaters of the Roaring Fork and Fryingpan rivers into the Arkansas Basin, but the new pond-management plan probably won’t affect those transmountain diversions, Tyner said.
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 older water rights have first use of the river.
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 older water rights have first use of the river.
Because these undecreed ponds don’t have an official water right, they are taking water out of priority, which amounts to stealing water from senior users.
Matt Heimerich, the consumptive-use representative on the Arkansas River Basin Roundtable, said that over the past two decades the Arkansas River system has been under incredible pressure because of erratic and below-average flows. He described the shifting baseline of what constitutes a severe drought.
“It seems to me we just keep moving the bar lower,” he said. “How bad can the river get? We are always looking for the next threshold.”
Drought and warming temperatures fueled by climate change comprise the backdrop for the implementation of the pond-management plan.
“The system is drying out and the water right holder that typically would be in priority, they don’t have the amount of water they had in the past,” Heimerich said. “Ultimately, someone is taking a haircut that has a legitimate water right.”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 older water rights have first use of the river.
Because these undecreed ponds don’t have an official water right, they are taking water out of priority, which amounts to stealing water from senior users.
Matt Heimerich, the consumptive-use representative on the Arkansas River Basin Roundtable, said that over the past two decades the Arkansas River system has been under incredible pressure because of erratic and below-average flows. He described the shifting baseline of what constitutes a severe drought.
“It seems to me we just keep moving the bar lower,” he said. “How bad can the river get? We are always looking for the next threshold.”
Drought and warming temperatures fueled by climate change comprise the backdrop for the implementation of the pond-management plan.
“The system is drying out and the water right holder that typically would be in priority, they don’t have the amount of water they had in the past,” Heimerich said. “Ultimately, someone is taking a haircut that has a legitimate water right.”
In order to be allowed to keep water in a pond, pond owners must replace the water loss to the system, usually through what’s known as an augmentation plan.
In some areas in Division 2, pond owners can purchase water to replace their depletions through a conservancy district. Salida-based Upper Arkansas Water Conservancy District offers this replacement water, but manager Ralph “Terry” Scanga doesn’t believe there is enough water to fully augment all the ponds in the already over-appropriated basin.
“That’s a concern of mine because that’s a lot of water,” Scanga said. “I don’t think it’s being overstated what the impact could be.”
Scanga, who also serves on the Arkansas River Basin Roundtable, said it may be time to prioritize certain water uses over others. Having domestic water for use in homes may be more essential than ponds for aesthetic purposes, he said.
“You may want that pond and you may have enough money to purchase that augmentation plan from the district, but is that a wise use of that resource?” Scanga said. “Those are the real hard questions that need to be asked.”
Un-decreed ponds can be found throughout the state, including in the Roaring Fork watershed. Last fall, Division 5 engineers issued five cease-and-desist orders for ponds without water rights that they said were out of priority and depleting the Colorado River system.
So far, state engineers are focusing their pond-management plan on just the Arkansas River basin; it’s not yet a statewide program. Still, Tyner said it’s a big undertaking for his division. It could take five years for engineers and water commissioners to work their way through all the ponds.
“How do you eat an elephant? It’s one bite at a time,” Tyner said. “Our approach is to be systematic about it and fair as we go.”
Aspen Journalism covers water and rivers in collaboration with Swift Communications newspapers. Its water desk is supported by Sam Walton via the Catena Foundation. This story ran in the Feb. 1 edition of The Aspen Times.
Six years after the application was filed, a judge has granted a water conservancy district in northwest Colorado a water right for a new dam-and-reservoir project that top state engineers had opposed.
Rio Blanco Water Conservancy District now has a 66,720 acre-foot conditional water right to build a dam and reservoir between Rangely and Meeker, known as the White River storage project or the Wolf Creek project. The conservancy district is proposing an off-channel reservoir with a dam 110 feet tall and 3,800 feet long, with water that will be pumped from the White River.
But the decree, while granting Rangely-based Rio Blanco the amount of storage it was seeking, doesn’t allow the district all the water uses that it initially wanted. The decree grants Rio Blanco a water right for municipal use for the town of Rangely; augmentation within its boundaries; mitigation of environmental impacts; hydroelectric power; and in-reservoir use for recreation, piscatorial and wildlife habitat. The conservancy district will not be able to use the water for irrigation, endangered fish or augmentation in the event of a compact call.
For more than five years, state engineers had argued that the project was speculative and that Rio Blanco couldn’t prove a need for the water. Engineers had asked the court to dismiss Rio Blanco’s entire application in what’s known as a motion for summary judgment. Division 6 Water Judge Michael O’Hara III agreed in part with state engineers and dismissed some of Rio Blanco’s requested water uses in an order filed Dec. 23. That left the fate of just three water uses to be determined at trial: Colorado River Compact augmentation, endangered fish and hydroelectric power.
After seeing his order, the parties asked O’Hara if they could postpone the trial, which was scheduled for Jan. 4, while they hammered out a settlement agreement. The final decree and a stipulation, filed Thursday night, cancel and replace O’Hara’s Dec. 23 order and let the parties avoid a trial.
“When you come to agreements, you are much more likely to live with those than having the judge force you to do things you didn’t really want to do,” O’Hara told the parties in a Dec. 31 conference call.
Both sides said they are happy with the terms of the decree. Conservancy district Manager Alden Vanden Brink said that after six years of working out issues, the decree brought a sense of elation and a sigh of relief to the community of Rangely. The district is very pleased with the final result, he said.
“Folks kept holding their breath,” Vanden Brink said. “And now we’ve got a step forward for drought resiliency.”
Settlement and stipulation
The main issue for state engineers, who were the sole remaining opposer in this case, was whether Rio Blanco could prove it needed the water. 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. State engineers maintained that the conservancy district had not proven that water rights it already owned wouldn’t meet its demands.
But Rio Blanco said its existing water rights in their current locations were insufficient and that it needed a new reservoir on Wolf Creek to meet current and future needs. And district officials said they were wary of seeking to transfer these rights and uses to a new reservoir because that requires a water-court process whose outcome is not guaranteed; therefore they needed the new conditional storage right. Even if a water court approved the changes, Rio Blanco still said there was not enough storage in the White River basin to meet demands during a drought or for future uses.
State engineers and Rio Blanco disagreed about how much, if any, water Rio Blanco needed for Rangely, irrigation, endangered fish and other uses. Rio Blanco agreed to give up two of the three water uses left to be determined at trial: Colorado River Compact augmentation and endangered fish.
According to the decree, if Rio Blanco in the future is successful at moving any of their existing water rights to the Wolf Creek project, the same portion of water granted by the decree will be canceled, eliminating duplicate water rights in the reservoir.
A stipulation agreed to by both parties lays out further restrictions on the water use.
According to the stipulation, annual releases from the reservoir will be limited to 7,000 acre-feet for municipal and in-basin augmentation uses. Up to 20,720 acre-feet of water can be used for mitigation of the environmental impacts of building the project. But once the exact amount of water needed for future mitigation is determined, the difference between that amount and the 20,720 acre-feet will be canceled, reducing the total amount of water decreed.
State Engineer Kevin Rein said the final decree is a good outcome, reached in the spirit of cooperation. Even so, state engineers were never willing to compromise on giving Rio Blanco water for Colorado River Compact compliance.
“That’s something that we would have held fast on in trial and we held fast on discussing it with them,” Rein said. “It’s more a matter of something that does not legally occur right now with the state of Colorado water law.”
Rio Blanco had proposed 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 reservoir to meet downstream compact obligations would allow other water uses in the district to continue and avoid the mandatory cutbacks in the event of a compact call.
Many water users in the White River basin, including the towns of Rangely and Meeker, have water rights that are junior to the 1922 interstate compact, meaning these users could bear the brunt of involuntary cutbacks. Augmentation water would protect them from that.
State engineers said augmentation use in a compact-call scenario is not a beneficial use under Colorado water law and is inherently speculative. This doesn’t seem to be a settled legal issue, and O’Hara said in his motion that he would not rule on whether compact augmentation was speculative.
“We believe the augmentation for compact compliance was very difficult to allow just due to the complexities of the Colorado River Compact and the Upper Colorado River compact, and it’s gratifying that Rio Blanco listened to us and we were able to get a final decree that didn’t include that component,” Rein said.
The water-right decree represents just the first step toward constructing the project, which will need approvals from federal agencies. Every six years, in what’s known as a diligence filing, Rio Blanco must show the water court that it is moving forward with the dam and reservoir in order to keep its water right. Fort Collins-based environmental group Save the Colorado has already said it will oppose the project.
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 Jan. 9 edition of The Aspen Times.
[Rio Blanco Water Conservancy District], Colorado State and Division 6 Engineers agree on water right for the Reservoir
A little over two weeks after Division 6 Water Judge Michael O’Hara III dismissed several water uses, the Rio Blanco Water Conservancy District and the Colorado Division of Water Resources reached an agreement on a conditional water right decree for Wolf Creek Reservoir, Jan. 7.
That settlement led to a decree for the storage right in Wolf Creek Reservoir that was signed by the Division 6 Water Judge, Michael O’Hara III on January 7. As part of his rulings, Judge O’Hara vacated his December 23, 2020 order on summary judgment motions.
The decree will give the District the right to store 66,720 acre-feet of water in a new reservoir that will be constructed in Rio Blanco County near the White River and Wolf Creek confluence, approximately 15 miles upstream of the District’s Kenney Reservoir and 17 miles northeast of Rangely, according to the agreement.
The preferred reservoir site is off-channel on the normally dry Wolf Creek, with water to be delivered to the reservoir from a proposed pump station on the nearby White River.
Decreed uses for water stored in the new reservoir will include municipal water for the Town of Rangely and replacement water that can be released to offset future water uses within the District boundaries and within the Yellow Jacket Water Conservancy District (YJWCD), the conservancy said in a press release…
The District says it continues to work with the Upper Colorado River Recovery Program, the Colorado Water Conservation Board, the Nature Conservancy, the State of Utah, and the Ute Indian Tribe to determine the water needs for the recovery of endangered fish as part of the White River Management Plan…
The new reservoir will allow a small portion of the White River runoff water volume to be stored in the reservoir each year. This water will then be released from storage to offset reduced river flows during periods of droughts, meet the needs of the District’s constituents, and to help offset the effects of climate change on future river diversions.
The Rio Blanco Water Conservancy District includes about 1,300 square miles of land in western Rio Blanco County. The District is responsible for protecting and conserving water within its boundaries.
FromThe Grand Junction Daily Sentinel (Dennis Webb):
A legal settlement this week has allowed the Rio Blanco Water Conservancy District to clear a major early hurdle in its attempt to build a large reservoir 17 miles northeast of Rangely.
The agreement reached between the district and state Division of Water Resources averted a trial that was scheduled for this week and led to a decree that was signed by Division 6 Water Judge Michael O’Hara III on Thursday. It gives the district the right to store 66,720 acre-feet of water in a reservoir that would be constructed in Rio Blanco County near the White River and Wolf Creek confluence, approximately 15 miles upstream of the district’s Kenney Reservoir.
The district’s preferred reservoir site would be on Wolf Creek, with water to be delivered to the reservoir from a proposed pump station on White River.
The proposal still faces major challenges, from federal permitting, to financing, to challenges from environmentalists. But water attorney Alan Curtis, who has been representing the district on the project, said getting the water right is necessary before federal regulatory agencies will consider approving a reservoir proposal…
Decreed uses for water stored in the reservoir include municipal water for the town of Rangely, and replacement water that can be released to offset future water uses within the district boundaries and within the Yellow Jacket Water Conservancy District, which includes portions of eastern Rio Blanco County, Moffat County and the town of Meeker. Use of the water also is allowed to mitigate environmental impacts associated with the reservoir, and for hydroelectric power generation. In-reservoir use is allowed for recreation, fisheries and wildlife habitat.
Under the settlement, the Rio Blanco district dropped its proposal for some of the water to be used to benefit endangered fish in rivers. Kevin Rein, state engineer for the Division of Water Resources, said the state was concerned with preventing water speculation, which is prohibited in Colorado. To get a water right appropriated requires having a good, nonspeculative plan to put the water to beneficial use, he said. He said the district proposal lacked things such as a formal agreement with the Upper Colorado River Endangered Fish Recovery Program or a specified amount of water that would be involved.
The water district also had proposed to store water so in-basin diversions could continue should local water have to be released to downstream states if Upper Colorado River states including Colorado ever fall out of compliance with water delivery obligations under an interstate compact. The district dropped that proposal under the settlement.
As its trial date in water court approaches, hundreds of pages of depositions obtained by Aspen Journalism reveal state engineers’ sticking points regarding a proposed reservoir project they oppose in northwest Colorado.
Over a few days in November, state attorneys subpoenaed and interviewed several expert witnesses and the Rio Blanco Water Conservancy District manager in the White River storage-project case, also known as the Wolf Creek project. Their questions centered on the town of Rangely’s water needs and on whether water is needed for irrigation.
The documents, obtained through a Colorado Open Records Act request, also underscore the extent to which fear of a compact call is shaping this proposed dam and reservoir project between Meeker and Rangely.
The Rangely-based Rio Blanco Water Conservancy District is applying for a conditional water-storage right to build a 66,720-acre-foot, 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.
There also is an option for a 72,720-acre-foot on-channel reservoir, although this scale of project is now rare in Colorado. Rio Blanco has said they prefer the off-channel option.
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.
Despite Rio Blanco reducing its claim for water by more than 23,000 acre-feet from its initial proposal of 90,000 acre-feet, state engineers still say the water-right application should be denied in its entirety. After failing to reach a settlement, the case is scheduled for a 10-day trial in January. Division 6 Engineer Erin Light and top state engineers Kevin Rein and Tracy Kosloff are the sole opposers in this case.
Rio Blanco already operates Kenney Reservoir, just east of Rangely on the White River. But it is silting in at an average of 300 acre-feet per year and is nearing the end of its useful life, according to court documents.
A main point of contention between Rio Blanco and state engineers is whether there will be an increased need for irrigation water in the future. Rio Blanco claims it needs 7,000 acre-feet per year for irrigation.
During the depositions, state attorneys questioned Rio Blanco manager Alden Vanden Brink about the need for irrigation water. He claimed there is a local boom in agriculture and that there is high-value farmland that is not being irrigated simply because of a lack of water. Vanden Brink said happiness for residents on the lower White River will increase with access to irrigation water from the proposed reservoir, adding that if irrigation water is made available, demand for it will increase.
“It will make water available in the lower White River so that people can increase their quality of life and have a garden, you can have a few pigs,” Vanden Brink’s deposition reads. “It’s just going to be improvement all the way around.”
But details were sketchy on what specific lands would be irrigated and the district’s plan to get water from the reservoir to irrigators. State engineers, in a subsequent trial brief, say that just because there are lands that might benefit from irrigation doesn’t mean there will be future increased demand. If you build it, they won’t necessarily come.
“Instead, the premise that there will be a demand for water if the water right is granted is exactly the sort of ‘self-fulfilling prophecy of growth’ prohibited under Colorado’s anti-speculation doctrine,” the state’s trial brief reads.
Engineers also say Rio Blanco has not identified how the reservoir, situated low in the White River basin, would serve the majority of irrigated acres located upstream.
“For instance, Rio Blanco has not identified any pipeline construction or other water project works that could run water up to these other locations,” the state trial brief reads.
Rangely’s water needs
Rio Blanco and the state also disagree about the amount of water needed for Rangely, a high-desert town of about 2,300 people near the Utah border. Rangely takes its municipal water from the White River.
In their depositions, Vanden Brink and Gary Thompson, an expert witness and engineer with W.W. Wheeler and Associates, refer to “cow water” as the source of Rangely’s water issues.
According to Vanden Brink, who also is the town’s former utilities supervisor, when flows in the White River drop to around 100 cubic feet per second, water quality becomes impaired. That can include increased algae growth, decreased dissolved oxygen, increased alkalinity and increased mineral contaminants, which require more treatment, he said.
“If you want to look at that water and how you can take that water and make it potable, forgive me, but it looks worse than cow water,” Vanden Brink said in his deposition. “I know if I was a cow, I wouldn’t want to drink it. It’s pretty degraded; it’s pretty muddy, it’s bubbly, it’s gross. And there’s a reason Rangely’s got the extensive treatment that it does.”
In an April letter to Rio Blanco, Town Manager Lisa Piering and Utilities Director Don Reed said Rangely would commit to contract for at least 2,000 acre-feet of storage for municipal use after the reservoir is built. According to expert reports, Rangely’s current demands are 784 acre-feet per year.
Project proponents say that increased flows from reservoir releases will dilute contaminants and improve water quality at the town’s intake.
But this argument doesn’t work for state engineers, who say that the water Rio Blanco says Rangely needs is not based on projected population growth and that Rio Blanco has not analyzed whether the town’s existing water supplies would be sufficient to meet future demands.
“Rio Blanco at trial may attempt to offer evidence regarding needs based on water quality, but Rio Blanco has not disclosed any evidence quantifying the amount of water Rangely would need for that purpose,” the trial brief reads.
Colorado River Compact influence
Depositions and water court documents reveal how water managers’ and experts’ fear — and expectation — of a compact call could influence the project proposal.
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 and policymakers admit that no one knows how it would play out just yet, but risk of this hypothetical scenario becoming reality is increasing as drought and rising temperatures — both fueled by climate change — decrease flows into Lake Powell.
Water managers are especially worried that those with junior water rights, meaning those later than 1922, will be the first to be curtailed. Senior water rights that existed prior to the compact are generally thought to be exempt from compact curtailment.
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 the users could bear the brunt of involuntary cutbacks in the event of a compact call.
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 Rio Blanco’s trial brief, “there is significant risk of a compact curtailment in the next 25 years that could negatively impact 45% of the water used in the district.”
In his deposition in response to questions from Rio Blanco attorney Alan E. Curtis, Thompson said drought scenarios will get worse in the future, the White River will be more strictly administered and a compact call is likely to occur.
“Things are — in my opinion — drought conditions are increasingly pervasive,” he said.
But state engineers say that augmentation use in the event of a compact call is not a beneficial use under Colorado water law and is inherently speculative. Compact compliance and curtailment are issues to be sorted out by the Upper Colorado River Commission and the state engineer, not individual water users or conservancy districts, they say. The state of Colorado is currently exploring a concept called demand management, which could pay water users to use less water in an effort to boost levels in Lake Powell.
According to their trial brief, state engineers say that while the desire to plan for compact administration is understandable, “the significant uncertainties involved in future compliance under the Colorado River Compact mean that Rio Blanco cannot show a specific plan to control a specific quantity of water for augmentation in the event of compact curtailment.”
The trial is scheduled to begin Jan. 4 in Routt County District Court in Steamboat Springs. Among the witnesses that Rio Blanco plans to call are Colorado River Water Conservation District Manager Andy Mueller, Colorado Water Conservation Board Chief Operating Officer Anna Mauss and Rio Blanco County Commissioner Gary Moyer.
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. 26 edition of The Aspen Times and the Vail Daily, and the Dec. 28 edition of Steamboat Pilot & Today.
Click here to read the update (Megan Holcomb & Tracy Kosloff):
Water Year 2020 has concluded as the 12th warmest water year on record in Colorado since 1895. The winter months presented near normal temperatures with warmer temperatures occurring throughout summer months. Water Year 2020 was the third driest water year on record, trailing only 2002 (driest) and 2018 (2nd driest). October temperatures were above normal and precipitation was below average for the majority of the month, despite a strong cold snap that hit the state just before Halloween. So far in November, eastern Colorado has experienced above average temperatures that are likely to continue, while several decent storms blanketed the mountains, resulting in average snowpack for this time of year in western Colorado. On November 30th, Governor Polis activated Phase 3 of the State Drought Mitigation and Response Plan along with a Municipal Water Impact Task Force to help water providers coordinate and prepare for a potential multi‐year drought.
A critically hot spring, high winds, dry summer, and multiple monsoon seasons with poor to no moisture have contributed to 2020’s record breaking fires. The three largest wildfires in Colorado history occurred in the summer and fall of 2020. Historically, Colorado’s largest wildfires occur in June following poor winter snowpack and an early springtime melt out. However, the Cameron Peak and East Troublesome fires experienced rapid and intense expansion in October ‐ a completely unprecedented phenomenon.
The Nov. 25 U.S. Drought Monitor logged 27% of the state in D4 (exceptional) drought conditions; D3 (extreme) drought in 47% of the state; D2 (severe) covering 19%; and D1 (moderate) drought covering 6% of the state.
The 90‐day Standardized Precipitation Index (SPI) (August 19 to Nov 16) values continue to show drier than normal conditions across the state.
The ENSO forecast predicts that moderate La Niña conditions will last through the winter. La Niña generally means an increase in moisture to the north and less to the south. Historically this pattern leads to snowier winters in the northern Rockies and less precipitation to the south.
The NOAA Climate Prediction Center three month outlook maps indicate an increased chance for above average temperatures over the winter with an equal chance (e.g. unclear trend) of precipitation.
Statewide reservoir storage is currently at 82% of average. Storage in the northern half of the state is near average while the southern basins range
Municipal water providers continue to report increased demands and most municipalities report normal to slightly below normal storage. Water providers are closely monitoring conditions due to the likelihood of extended drought to prepare for a dry spring.
An update was given on Wilson Water Group’s (WWG) efforts in completing a water use and water demand analysis for the San Juan Water Conservancy District (SJWCD) and completing a water availability analysis for the West Fork reservoir and canal water rights during a regular meeting on Monday.
WWG was hired by the SJWCD via a board decision at a Sept. 21 meeting for a cost of $19,050 and will complete the efforts by the end of 2020.
Currently, WWG has been working on its first task, which is to develop a water demand analysis strategy, Project Engineer Brenna Mefford noted, adding that the first task would be completed in the next week or so.
The next task, to complete a current water use and water demand analysis, will be completed soon after, Mefford explained.
Task three, which is to complete a water availability analysis, will be started in December, Mefford added…
If the SJWCD were to go through with diligence on the West Fork water rights, it would have to show it has a potential demand for the water and that the district needs it, Mefford explained, adding that the SJWCD needs to show water availability.
“Finally, you have to show that you have the means to develop that water and put it to that use that you had identified earlier,” she said…
“We’ve talked to most of the people we planned to try and fig- ure out how we’re going to lay out this analysis and now we’re going to move into task two, where we’re actually going to do the current water use and water demand analysis. For this task there are a few more people that we need to reach out to and have talks with about water demand,” Mefford said, adding that WWG will need to talk to PAWSD, for example.
From the Colorado Ag Alliance (Phil Brink, Greg Peterson) via The Rio Blanco Herald-Times:
Every 10 years, the Colorado Division of Water Resources’ (DWR) publishes its water right abandonment list. The list — released on July 1, 2020 — represents water rights that each division engineer is recommending for abandonment based on real or perceived non-use over the last 10 years. A water right may be placed on the abandonment list if the amount of water diverted over the past 10 years is less than the decreed amount.
The DWR defines abandonment as “the termination of an absolute water right in whole or in part as a result of the intent of the owner to permanently discontinue the use of the water under that water right.” It is rare that an agricultural water right holder actually intends to abandon their water right.
“There can be several reasons why the decreed amount is not diverted in a given year or for multiple years” says water attorney David Kueter of Holsinger Law in Denver. The water source may be dry, or the water right may not be in priority at times when the field needs to be irrigated. Timely precipitation may reduce the need for irrigation. Repair or replacement of irrigation infrastructure — from headgates to ditches to land application equipment — may temporarily prevent diversion of water. Economic, health or legal obstacles can all stymie intentions to fully utilize a water right. Sediment and debris flows can block diversion structures and river and stream hydrology can change, rendering a diversion structure semi-functional or even non-functional. New property owners may not be aware of their water rights.
Management changes can also impact use. A few years ago, Mike Camblin, rancher and manager of the Maybell Ditch, took over irrigation of some fields that had not been fertilized previously. The addition of fertilizer increased grass production three-fold, which also increased the field’s consumptive use of water.
Increased consumptive use may also result from warmer summers, which are predicted by climate models. CSU research has found that evapotranspiration comprises more than 99 percent of plant water use. Increased temperatures drive forage and crop consumptive use higher. Cutting ag water rights down to their current consumptive use will permanently hurt growers’ ability to adapt to a warmer climate.
Water users who wish to challenge termination of their water right due to abandonment should file a written statement of objection with the Division 6 Engineer. An objection statement is needed for each water right. The deadline for filing is July 1, 2021, but Kueter recommends getting started now as it may take time to pull together supporting evidence. “Usually there are no silver bullets,” says Kueter, “it’s more the totality of the circumstances that caused the water right to be under-utilized.”
A water right is removed from the abandonment list if the Division Engineer agrees with the supporting evidence provided. A revised abandonment list will be published by Jan. 31, 2022. Protests to the revised list must be filed with division Water Court by June 30, 2022. The Water Court will begin considering protests in October 2022.
The Colorado Ag Water Alliance will be hosting a workshop on this and other issues on Dec. 7 in Craig.
Phil Brink is the Consulting Coordinator of Colorado Cattlemen’s Ag Water NetWORK. Greg Peterson is the Executive Director of Colorado Ag Water Alliance.
Ralph Parshall squats next to the flume he designed at the Bellevue Hydrology Lab using water from the Cache la Poudre River. 1946. Photo Credit: Water Resource Archive, Colorado State University, via Legacy Water News.
Men viewing vortex tube sand trap in Jackson Ditch at Bellvue Hydraulic Laboratory, 1948. Photograph from Irrigation Research Papers, Water Resources Archive.
This recently installed Parshall flume in the Yampa River basin replaced the old, rusty device in the background. Division 6 engineer Erin Light is granting extensions to water users who work with her office to meet a requirement for measuring devices. Photo credit: Aspen Journalism/Heather Sackett
Scott Hummer, water commissioner for District 58 in the Yampa River basin, checks out a recently installed Parshall flume on an irrigation ditch. Hummer said most water users in the Yampa are complying with a state order issued nearly a year ago that requires measuring devices. Photo credit: Heather Sackett/Aspen Journalism
Colorado’s anti-speculation water laws are considered some of the toughest in the West. Still, state lawmakers worry those laws may not go far enough. That’s why an 18-member work group is exploring ways to strengthen the rules. Recommendations for proposed changes are due by August 2021.
“In my mind, I think speculation is going on,” says Sen. Don Coram, a Republican who represents several Western Colorado counties and who co-sponsored SB20-048, which directed Colorado’s Department of Natural Resources to form the work group. “There are situations that are just not meeting the smell test for me. We need to look under the tent and see what’s going on.”
With water demand and prices soaring, lawmakers worry about loopholes in Colorado’s anti-speculation laws, pointing to recent investment group purchases of farmland and their senior water rights on the West Slope and in the San Luis Valley. So far, the investors are using the water for irrigation, a legally beneficial use, but lawmakers worry they’re making a speculative play, banking on a massive increase in the value of those rights with the intention to profit from them in the future. Irrigation may just be an interim placeholder that’s part of a larger investment strategy.
So, how will the work group’s members make recommendations for improvement? They’ll likely start with a thorough history lesson and a deep dive into existing anti-speculation law, says Kevin Rein, Colorado’s state engineer. Rein leads the group alongside Scott Steinbrecher, a Colorado assistant deputy attorney general. Other participants include water engineers, attorneys, members of the Colorado Water Conservation Board, farmers and ranchers, representatives of environmental nonprofits, and water managers. Given the diversity of group members and knowledge, the group is well-poised to tackle the challenge at hand, Rein says.
But some work group members are already contemplating how changes to Colorado water law could hurt landowners. Joe Frank, general manager of the Lower South Platte Water Conservancy District in northeastern Colorado, plans to participate in the work group with an open mind but has questions: How will the changes impact an irrigator’s ability to sell their water and land? Will the value of their land or water suffer because of these changes?
“There’s this tension here, especially in our basin, but also statewide, of a high demand for water, which inflates the value of it—it’s hard to blame farmers for wanting to sell their water because of all different kinds of circumstances,” Frank says. “We would prefer them to keep their water and stay in agriculture because that’s the economic base for our area. But you can’t just go say, ‘We’re going to put a stop to it.’ Now you’re impacting somebody’s property rights.”
Frank said he also has some questions about the constitutionality of any changes the group may propose.
“I do have some reservations about whether this will actually solve a problem without causing another one,” he says. “You don’t want to cause unintended consequences here.”
Sarah Kuta, a Nebraska native and graduate of Northwestern University, is a freelance writer based in Longmont, Colo.
High Plains A&M LLC filed two almost identical applications for changes of water rights in late 2002 and early 2003. The Water Court consolidated the two cases. In its Applications, High Plains claimed to own or control of about 30% of the shares in one of the largest irrigation systems in Colorado. High Plains asked the Water Court to approve changes to its water rights from irrigation and other decreed uses in the lower Arkansas River Valley to any beneficial use, including over fifty identified potential uses, in any location within twenty-eight Colorado counties. High Plains’ applications did not identify any end users of the water besides the farmers who currently use the water. In High Plains A&M, LLC v. Southeastern Colorado Water Conservancy District, 120 P.3d 710 (Colo. 2005), Burns, Figa & Will, P.C., on behalf of our client, the Southeastern Colorado Water Conservancy District, successfully argued that High Plains’ application for a change of water right was properly dismissed because the application did not state with specificity the use or location of use of the changed water rights, thus violating Colorado’s anti-speculation doctrine.
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.
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.
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.
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.”
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.”
From email from the Arkansas River Compact Administration (Kevin Salter):
This is the preliminary notice for the upcoming Arkansas River Compact Administration Annual and Committee Meetings. The meeting specifics and draft agendas will be provided at a later date.
Please note that the meeting dates were changed at the ARCA Annual Meeting held in December 2019. And the location was changed at the ARCA Special Meeting held earlier this month (October 2020) to allow for virtual meetings.
The 2020 Annual Meeting of the Arkansas River Compact Administration (ARCA) will be held on Wednesday, December 9, 2020. The Engineering, Operations, and Administrative/Legal Committees of ARCA will meet on Tuesday, December 8, 2020. Consideration is being given to having the committee meetings start on the morning of December 8th. All meetings will be held on a virtual meeting platform. At this time, which virtual platform to be used has not been determined. Specific information on accessing the meetings will be provided along with the draft agendas later.
Meetings of ARCA are operated in compliance with the federal Americans with Disabilities Act. If you need a special accommodation as a result of a disability please contact Stephanie Gonzales at (719) 688-0799 at least three days before the meeting.
FromThe Grand Junction Daily Sentinel (Dennis Webb):
The Colorado Department of Natural Resources on Wednesday held the first meeting of the Anti-Speculation Law Work Group. The task force was established as a result of passage of a bill this year to consider ways to strengthen the current anti-speculation law and recommend any changes to a legislative committee by Aug. 15 .
The bill was sponsored by state Reps. Dylan Roberts, D-Avon and Marc Catlin, R-Montrose, and Sens. Kerry Donovan, D-Vail, and Don Coram, R-Montrose. It was inspired by a growing number purchases of agricultural land and associated water rights by investment firms, including wide-scale purchases in the Grand Valley by Water Asset Management, which is based in New York.
Current state law prohibits water speculation by requiring water to be used for a beneficial purpose. An 18-member work group made up of state agency staff, water lawyers and others will be considering how the law might be tightened.
None of the bill sponsors participated in Wednesday’s meeting. But Scott Steinbrecher, an assistant deputy attorney general co-chairing the task force, said a clear purpose of the bill is to examine how the law should be strengthened to prevent situations where water rights are bought and leased back to farmers though the intent is to use the water like an investment.
Alex Funk, a task force member who is an agricultural water resource specialist with the Colorado Water Conservation Board, a state agency, voiced concern about approaches that might limit the value of assets to agricultural producers.
“There is certainly a tension here where land and water assets are extremely valuable to producers. In some cases these are sort of their only asset,” he said…Task force member Peter Fleming, general counsel for the Colorado River District, which has been watching some of the area water-related acquisitions by investment firms with concern, said agricultural producers looking to sell their assets are entitled to do that.
“I assume we don’t want to prevent that from happening,” he said.
He said what’s important under even the current law is the intent of the buyer of water rights. He said they can profit from the water’s use but their end goal in buying rights can’t be the pure value of the water, and he’s interested in looking at ways to determine intent.
Daris Jutten, a rancher in the Uncompahgre Valley, said his interest in serving on the task force is considering impacts on property rights.
“I want to keep the land value prices where they are but I also don’t want to see buy and dry,” he said.
He was referring to situations in which transactions result in water no longer being used to irrigate agricultural land and instead going for other uses such as by municipal utilities.
Task force member Joe Frank, general manager of the Lower South Platte Water Conservancy District, said the district sees entities buying up water there with the intent to dry up land in the future.
“In addition to that we do have those who want to sell, so water is a property right. … It’s a dilemma, but we don’t want to impact people’s property rights,” he said.
A water court case is headed toward trial because the state of Colorado and a water conservancy district still cannot agree on whether the district actually needs the amount of water it claims it does for a large dam and reservoir project in the northwest corner of the state.
Expert reports from an engineering firm, an aquatic ecologist and an economics firm outline how they say the Rio Blanco Water Conservancy District can and will put its water storage rights to beneficial use. But even after Rio Blanco reduced the amount of water it’s asking for by more than 23,000 acre-feet, a report from Colorado’s top water engineers indicates the district still largely has a project in search of a need.
In their expert report submitted Aug. 31, Deputy State Engineer Tracy Kosloff and Division 6 Engineer Erin Light outline 11 instances where they say Rio Blanco has not met the requirements of state law by showing it has a specific plan and intent for the water it says it needs.
According to the report, Rio Blanco has not shown a need for water above its current supply in the categories of irrigation, municipal use, recreation, maintenance and recovery of endangered species or a back-up water supply to protect against a compact call. State engineers are asking that part or all of the water claimed for these uses be removed from the court’s final decree and deducted from the total water rights claim.
A pre-trial readiness conference is scheduled for Nov. 13. The case is scheduled to go to a 10-day trial starting Jan. 4 in Routt County District Court in Steamboat Springs, but the parties could still reach a settlement before then.
In 2014 Rio Blanco applied for a 90,000 acre-foot conditional water-storage right on the White River and proposed a dam and reservoir between Rangely and Meeker, known as the White River storage project or the Wolf Creek project. The district has now reduced that claim to either 66,720 acre-feet for an off-channel reservoir or 72,720 acre-feet for an on-channel reservoir.
There are two proposed versions of the project: one that would construct a dam and reservoir on the White River (the scale of this project is now rare in Colorado) or an off-channel reservoir at the bottom of Wolf Creek gulch, in the arid sagebrush hills just north of the river.
The conservancy district would prefer to build the off-channel option: a 66,720-acre-foot reservoir, with a dam that is 110 feet tall and 3,800 feet long. An off-channel reservoir would involve pumping water uphill from the river into the reservoir.
Rio Blanco is a taxpayer-supported special district that was formed in 1992 to operate and maintain Taylor Draw Dam, which creates Kenney Reservoir, just east of Rangely. The district extends roughly from the Yellow Creek confluence with the White River to the Utah state line.
Disputed amounts and uses
Rio Blanco says the project should store 7,000 acre-feet annually for irrigation. But Light and Kosloff’s report says according to the 2019 Technical Update to the Colorado Water Plan, the irrigated acres in the White River Basin are projected to decrease in the future, and that this storage project, because it is situated low in the basin, cannot serve the majority of the irrigated lands anyway, which are concentrated upstream along the mainstem of the White River near Meeker and along tributaries like Piceance Creek.
“Per the proposed decree, the applicant is once again requesting the court award irrigation use,” the engineer’s expert report reads. “The engineers continue to contend there is no evidence to suggest that there is a future water need for this purpose.”
Rio Blanco says some of the water would also be used in a future augmentation plan to replace depletions within the district that are out of priority due to a Colorado River Compact curtailment.
Rio Blanco is proposing that 11,887 acre-feet per year be stored as “augmentation,” or insurance in case 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.
By releasing this replacement water stored in the proposed reservoir to meet these compact obligations, it would allow other water uses in the district to continue and avoid the mandatory cutbacks in the event of a compact call.
But state engineers say compact compliance is a problem to be tackled by the state and not individual water users. And since no one knows exactly how compact compliance would unfold (that’s still to be decided by the Upper Colorado River Commission and the state engineer) it’s not possible for Rio Blanco to have a plan in place for this augmentation water.
Light and Kosloff’s report says there is no recognized beneficial use that allows a water right “to provide water to users outside of Colorado for the purpose of allowing ongoing diversions of water rights within Colorado.”
Rio Blanco claims it needs three years-worth of drought contingency storage for uses within the basin. But state engineers say that there has never been a call on the White River below the town of Meeker, even in the driest years, and the likelihood of the reservoir being able to fill during the runoff season every year is extremely high. Light and Kosloff point out that not even Denver Water or Aurora Water have three times their annual demand in reserve.
The state also says Rio Blanco has overestimated the amount of water the town of Rangely will need, and that the need for the full amount claimed for recreation water is unsubstantiated, as is the need for water for the recovery of endangered fish species.
No comment from engineers, district officials
State engineers declined to talk to Aspen Journalism about their expert report.
Rio Blanco District Manager Alden Vanden Brink also declined to comment on the state’s opposition, citing concerns about litigation. Vanden Brink also is chair of the Yampa/White/Green River Basin Roundtable and sits on the board of the Colorado River Water Conservation District.
But another roundtable member says the project doesn’t hold water. Deirdre Macnab owns 4M Ranch, which is adjacent to the proposed project site, and was until recently the sole remaining opposer in the case. She recently pulled out of the formal water court process, citing mounting legal costs, but still opposes the project.
“Families living in western Rio Blanco County should be aware that a project that the professionals say doesn’t show any justification would put them in debt for years, and not just paying for the hundreds of millions in construction costs, but also almost a million dollars every year in electricity costs to pump the water up and over the dam,” Macnab said in a written statement. “Do Rio Blanco citizens really think this is in our economic best interests?”
Despite the state opposing the current project proposal, since 2013 it has also given roughly $850,000 to Rio Blanco in the form of Colorado Water Conservation Board grants to study the project. The Colorado River Water Conservation District has also given Rio Blanco $50,000 to investigate the feasibility of the project.
River District General Manager Andy Mueller said the multi-purpose water uses outlined in the project is the way water projects should be put together.
“Identifying the right-size project for the White River is still very important,” he said. “The specifics about the White River storage project as it’s currently proposed I think are things that still need to be worked out.”
Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with The Steamboat Pilot & Today and other Swift Communications newspapers. This story ran in the Oct. 6 edition of The Steamboat Pilot & Today.
Here’s the release from Aurora Water (Greg Baker):
Reservoir release being made in cooperation with State Engineers Office
Beginning Wednesday, September 23, 2020, the Homestake Partners, which is comprised of Aurora Water and Colorado Springs Utilities, will make a one-time release of approximately 1,800 acre feet of water from Homestake Reservoir in Eagle County. The objective of this reservoir release is to determine the effectiveness of current administrative practices in shepherding released water from Homestake Reservoir, located south of Minturn, CO, downstream to the Colorado State Line.
This pilot project was developed by the Front Range Water Council and utilizes water contributed by Aurora Water and Colorado Springs Utilities, as well as by the Pueblo Board of Water Works. This water will be released from Homestake Reservoir into Homestake Creek, which is tributary to the Eagle River and the Colorado River.
The pilot release protocols were developed cooperatively with the Colorado State Engineer’s Office, with the release expected to provide the State and Division Engineers, as well as water users on the West Slope and East Slope, with valuable information related to compliance with the Colorado River Compact and the Upper Colorado River Compact. The project will test important aspects of administration practice. It will also provide data on hydrologic influences that would affect the timing and amount of the arrival of the released water at the state line.
“For municipalities that rely either wholly or partially on the Colorado River for their drinking water, it’s critical to understand all of the potential aspects a compact curtailment could have on our supplies,” said Pat Wells, General Manager for Water Resources and Demand Management for Colorado Springs Utilities. “Gathering this data before we get to that point will help us all plan for the future.”
As the water is released into Homestake Creek and travels downstream to the Eagle River and the Colorado River, the State Division of Water Resources will “shepherd” or facilitate the released water to the state line. The release of 1,800 AF represents contributions of 600 AF each by Colorado Springs Utilities, Pueblo Board of Water Works, and Aurora Water. This will not put any of the entities’ storage at risk; for example, 600 AF represents less than 0.3% of current system-wide storage in Colorado Springs Utilities’ raw water system and less than 0.4% of Aurora’s storage.
“The timing is perfect for this sort of investigation,” stated Alexandra Davis, Deputy Director for Water Resources for Aurora Water “Our reservoirs are well positioned at this time, even with the current drought conditions, and the lower flows in the rivers mean we will generate valuable information regarding protocols and practices currently in place for releasing stored water.”
The release is scheduled to occur Sept 23 – Sept. 30 and will produce flows of less than 175 cfs (cubic feet/second). These flows are higher than normal for this time of year in Homestake Creek and Eagle River, but within normal spring/summer runoff levels. There is no inundation concern for property adjacent to the tributaries.
The project also has the support by Boulder-based Western Resource Advocates.
“We are pleased these Front Range communities are taking a proactive step to address questions about conserving municipal water and shepherding saved water downstream,” Laura Belanger, senior water resources engineer and policy advisor with Western Resource Advocates said. ”This test release will help us understand potential benefits for water security and streams and demonstrates that all Colorado communities have an important role to play in ensuring a sustainable water future for Colorado.”
Here’s the release from the Colorado Department of Natural Resources:
The Department of Natural Resources released the names of a 18-member Anti-Speculation Law Work Group (Work Group) whose objective is to explore ways to strengthen current Colorado water anti-speculation law. The Work Group arose out of passage of Senate Bill 20-048 sponsored by Senators Donovan and Coram and Representatives Roberts and Catlin and signed by Governor Polis on March 11, 2021.
“I’m encouraged by the participation in the Work Group, which represents diverse stakeholders from all across the state,” said Dan Gibbs, Executive Director, Colorado Department of Natural Resources, who appointed the Work Group members. “Our goal is to have a transparent and thoughtful process over the next year.”
Senate Bill 20-048 requires the Executive Director of the Colorado Department of Natural Resources to convene a work group to explore ways to strengthen current anti-speculation law and to report to the water resources review committee by August 15, 2021, regarding any recommended changes. Colorado water law prohibits speculation by requiring water to be used for a beneficial purpose.
The Work Group will be co-chaired by Kevin Rein, State Engineer, and Scott Steinbrecher, Assistant Deputy Attorney General. Meetings will be noticed to the public via the Colorado Water Conservation Board website and will be open to the public. Meeting summaries will be posted publicly, and opportunities will be available for the public to review and comment on the recommendations of the Work Group before the written report is finalized.
The Work Group membership consists of:
Kevin Rein (Co-Chair), State Engineer, Division of Water Resources
Scott Steinbrecher (Co-Chair), Assistant Deputy Attorney General, Attorney General’s Office
Tracy Kosloff, Deputy State Engineer, Division of Water Resources
Erin Light, Division 6 Engineer, Division of Water Resources
Lauren Ris, Deputy Director, Colorado Water Conservation Board
Amy Ostdiek, Deputy Section Chief, Colorado Water Conservation Board
Alex Funk, Agricultural Water Resource Specialist, Colorado Water Conservation Board
Justice Gregory Hobbs Jr., Colorado Supreme Court Justice (ret.)
Joe Bernal, Bernal Farms
Daris Jutten, Lazy K Bar Land and Cattle Co.
Joe Frank, General Manager, Lower South Platte Water Conservancy District
Larry Clever, General Manager, Ute Water Conservancy District
Alex Davis, Water Resources Division Manager, Aurora Water
Peggy Montaño, Trout Raley
Peter Fleming, General Counsel to the Colorado River District
Adam Reeves, Maynes, Bradford, Shipps and Sheftel LLP
Drew Peternell, Colorado Director, Trout Unlimited
Kate Ryan, Senior Attorney, Colorado Water Trust
The first meeting of the Work Group will be held virtually this fall.
The second-ever call on the Yampa River was lifted [August 3, 2020] morning after a trio of water providers announced the release of up to 1,500 acre-feet of water from Elkhead Reservoir to support irrigators in the Yampa River Valley and endangered fish.
The latest call was placed on the Yampa River on Aug. 25. The first call was in the late summer of 2018, also after an uncommonly hot, dry summer. The release of the water has ended the immediate need for water administration, allowing irrigators who had been legally prevented from taking water to resume diversions.
Tri-State Generation and Transmission Association has begun releasing 500 acre-feet of its water, and the Colorado River District is releasing another 750 acre-feet of water that it controls from the reservoir near Hayden.
A third organization, the nonprofit Colorado Water Trust, will use money from the Colorado Water Conservation Board to support the upper Colorado Endangered Fish Recovery Program’s contract for additional water in Elkhead in 2020. The Colorado Water Trust also has raised private funds to support a potential release of 250 acre-feet of water to provide in-channel flows for endangered fish species in the Yampa.
Water will continue to be released from Elkhead Reservoir, as necessary, through September. Rain, snow and cloud cover could suppress demand.
Irrigators, fish feeling the heat
A statement from the River District and Tri-State emphasized the intention of helping irrigators.
“Agriculture producers in the western U.S. currently are being hit with the triple threat of drought, low prices and pandemic restrictions, so anything we can do to ease the burden of farmers and ranchers in the Yampa Valley is something we are willing and honored to do,” said Duane Highley, CEO at Tri-State, the operator of coal-fired power plants near Craig.
Andy Mueller, the general manager of the River District, echoed that theme.
“We hope these actions help alleviate the depth and severity of ranchers being curtailed and allow some of them to turn their pumps back on to grow more forage before winter,” he said.
“It was a crazy hot and dry summer,” said Andy Schultheiss, the executive director of the Colorado Water Trust. “There was just nothing left in the river — or, at least, very, very little.”
Schultheiss said the trust was interested in preserving habitat for fish and other species in the river, including fish in the lower reaches of the Yampa that are on the endangered species list. In August, the organization also contracted to release 500 acre-feet of water from the Stagecoach Reservoir, near Oak Creek, to ensure flows through Steamboat Springs.
Impact of the releases was reflected Thursday afternoon at stream gauges maintained by the U.S. Geological Survey. The river above the confluence of Elkhead Creek was running 102 cubic feet per second. Bolstered by the reservoir releases, however, it was running 125 cfs downstream at Maybell. It was 95 cfs at Deer Lodge, located 115 river miles downstream from Elkhead Reservoir at the entrance to Dinosaur National Monument, below several agricultural diversions.
A warming climate of recent decades and the weather of the past year probably both played a role in 2020’s second-ever Yampa call.
“August likely will end in the top 10 hottest and driest on record in the Yampa basin,” state climatologist Russ Schumacher said during an Aug. 25 webinar. “You see warmer-than-average temperatures everywhere except a couple of pockets in North Park.”
Many areas were 4 to 6 degrees above average, and some pockets were even hotter. Fall and winter temperatures are more variable, which summer’s are much less so, said Schumacher. “Having 5 or 6 to 8 degrees above average in summer is quite remarkable,” he said.
The River District’s Mueller nodded to this broader context.
“As drought and low flows promise to persist, today’s cooperative actions could help us learn and plan for an uncertain water future,” he said.
Regulation is new reality
What sets the Yampa River apart from other rivers in Colorado is its storied tradition: a river without administration. The contrast may be most stark with the South Platte, which drains the heavily populated towns and cities and still abundant farms on the northern Front Range. There, it’s barely an exaggeration to say that every drop is measured, ensuring that diverters are taking only as much water as to which they have rights.
The Yampa has typically met the needs of all diverters, including those of irrigators, who are responsible for nearly all the water consumed in the Yampa River basin on an annual basis. Diverters were on an honor system to take no more than their allocated share of water.
Putting a call on a river requires the sorting out of water rights under Colorado’s first-in-time, first-in-right hierarchy. Those with mostly older — and, therefore, senior rights — have first dibs but only to the amount they are allocated.
The call placed on the river Aug. 25 was triggered by agriculture users lower on the river, at Lilly Park near Dinosaur National Monument. They were failing to get the river’s native flows to which they were entitled within their priority of 1963.
To honor the seniority of those water rights, Erin Light, the division engineer, initiated a call on the river to ensure that the more senior right would get delivery of the water.
Those affected were all water users upstream, even to the headwaters, with junior or more recent allocations. Junior water users are cut off to the amount necessary to satisfy the call, which could be partially or completely, as per the needs of the downstream user with the senior but unsatisfied allocation.
Light last year announced that all water diverters must install headgates and measuring devices, to allow withdrawals to be controlled and measured. Some have done so, others have been given extensions and some others have failed to comply, she said. Those without headgates and measuring devices — even if they have a more senior water right — risk being cut off entirely when a call occurs.
This push to measure diversions began at least a decade ago, after Light arrived in the Yampa Valley. One of those she persuaded was Jay Fetcher, who ranches along the Elk River, northwest of Steamboat Springs. He remembers some grumbling. The informal method had always worked. Now he’s glad he can prove he’s taking his allocated water — and no more.
“Once we changed, we realized that it was a real plus,” Fetcher said. “We knew what we were doing with our water, and we could justify (our diversions), not only to ourselves, but to Erin and the state.”
Jim Pokrandt, the director of community affairs for the River District, echoed that sentiment.
“It’s in everybody’s best interest,” Pokrandt said, “to foster a solution that recognizes the reality, that doesn’t put agriculture out of business, while we are on the pathway to better water administration.”
Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with Steamboat Pilot & Today and other Swift Communications newspapers. This story ran in the Sept. 7 edition of Steamboat Pilot & Today.
FromThe Denver Post (Bruce Finley) via The Brush News-Tribune:
How to survive in hotter, drier world a focus as 93% of state bakes in “severe,” “extreme” or “exceptional” drought
The sun beat down, baking Colorado’s bone-dry, cracking San Luis Valley, where farmers for eight years have been trying to save their depleted underground water but are falling behind.
They’re fighting to survive at an epicenter of the West’s worsening water squeeze amid a 20-year shift to aridity. Federal data this past week placed 93% of Colorado in “severe,” “extreme” or “exceptional” drought .
And Gov. Jared Polis was listening now, as a group of farmers sat around a patio shaking their heads, frowning, frustration etched on their faces — down by 150,000 acre-feet of water below their aquifer-pumping target as the driest months begin.
“We’re about as lean as we possibly can be. We’ve re-nozzled our sprinklers. Our pumping is as efficient as it possibly can be. We’re trying different crops,” said Tyler Mitchell, who had cut his water use by 30% after installing soil moisture sensors and shifting from barley to quinoa. “But, at the end of the day, we have too many businesses that are trying to stay in business. I don’t know how we can reduce pumping more than we already have.”
How to adapt to a hotter, drier world is emerging as a do-or-die mission for people living around the arid West. Polis was in the San Luis Valley on Tuesday, embarking on a potentially groundbreaking statewide effort to explore solutions amid increasingly harsh impacts of climate warming, including wildfires burning more than 300 square miles of western Colorado.
Average temperatures will keep rising for decades, federal climate scientists say, based on the thickening global atmospheric concentration of heat-trapping carbon dioxide, now around 412 parts per million, the highest in human history. Heat is depleting water across the Colorado and Rio Grande river basins, where more than 50 million people live.
Nowhere have climate warming impacts exacerbated local difficulties more than here in the Massachusetts-sized, predominantly Hispanic, low-income San Luis Valley between the Sangre de Cristo and San Juan mountains of southern Colorado…
This year, the winter mountain snowpack that determines surface water flow in the Rio Grande River measured 33% of normal in spring. Rainfall so far, 2.7 inches, lags at around 38% of average.
And the Rio Grande barely trickles, at 7 cubic feet per second, leaving Colorado toward New Mexico and Texas. Those similarly drought-stricken states count on shares of surface water in the river under a 1938 interstate legal agreement.
Colorado farmers’ fallback habit of pumping more from the aquifers connected to the river — water use that is restricted under a locally-run, state-ordered conservation plan — has obliterated water savings painstakingly gained since 2012.
The 150,000 acre-feet draw-down this year hurled farmers practically back to their starting point. And a state-enforced deadline of 2030 for restoring the aquifer to a healthy level looms. If not met, state authorities could take control over wells.
Rio Grande Water Conservation District manager Cleave Simpson said recovery now requires a snow-dependent gain of 680,000 acre-feet — 4.5 times this year’s draw-down…
“A drier and hotter world”
Polis looked out the windows of a black utility vehicle and saw devastation spreading as climate warming impacts hit home. Hot wind churned dust around farms now abandoned and rented to newcomers struggling to get by. San Luis Valley leaders have estimated that low flows and falling water tables may lead to the dry-up of 100,000 irrigated acres, a fifth of the farmland in a valley where residents depend economically and culturally on growing food.
He saw farm crews toiling, coaxing the most from their heavy machinery, after flows from some wells had diminished and even reportedly pulled up just air.
He said he sees different dimensions of problems around climate warming.
On one hand, human emissions of planet-warming greenhouse gases “are going up,” Polis said. “But, then, here in this world, it is about adapting to what is happening. I mean, the global effort needs to succeed. Climate change needs to slow down. Colorado is just a teeny piece of that — a fundamental issue affecting the entire world. America never should have pulled out of the Paris accords. I hope we return, and have a concerted international effort.
“But it is also a reality for how these farmers put food on their plate, for how their communities thrive in a drier and hotter world. … The same crops we have been growing, with one water and warm temperature profile, don’t work with the way things are now.”
Colorado agriculture commissioner Kate Greenberg said state leaders also will hear from producers enduring dry times on the Eastern Plains, where wheat harvests are expected to suffer. Agriculture statewide “is hurting” and the San Luis Valley stands out as “ground zero” in a water squeeze due to low snow, shrinking aquifers, drought and competing demands from inside and outside the valley. Legal obligations to leave water for New Mexico and Texas compel cuts that complicate solutions, Greenberg said…
Few of the farmers on the patio meeting with the governor saw much that state governments can do in the face of a possible environmental collapse.
Many have concluded that, as Jim Erlich said, “we’re going to be farming less here.” Some anticipated an agricultural landscape looking more like western Kansas…
Polis called climate warming “the new normal.” He asked the farmers: “Where does it lead? Do you see a way forward?” State projections show conditions for at lest 15 years will be “likely hotter and drier… What does that mean in terms of crop mix? What does it mean in terms of sustainability? What does it mean in communities?”
The farmers, about a dozen, said they’ll push ahead in the “sub-districts” they’ve formed to encourage saving groundwater — as an alternative to state engineer authorities controlling wells. They now pay fees for pumping and pooled funds can be used to pay farmers for leaving fields fallow…
An entrepreneurial businessman, Polis pushed toward what might be done to create better markets for crops, such as “Colorado quinoa” that use less water, giving a global perspective. “I mean, agriculture does occur in dry parts of the world. It has to work from a water perspective…
At another farm, Brendon and Sheldon Rockey showed Polis around. They’ve reduced their use of water from wells by 50% and prospered, growing 25 types of potatoes, shifting off water-intensive crops such as barley and planting more “Colorado Quinoa” along with a half dozen other growers.
Fallow fields fertilized with cows and planted with restorative “cover crops” help boost productivity by improving soil, Brendon Rockey told the governor. “I don’t have a mono-culture anywhere on this farm.”
As president of the potato producers’ council and leader of a water-saving sub-district, Sheldon Rockey is encouraging other farmers — optimistically despite increased stress around the depletion of aquifers. “We can still make it back,” he said, “if we have snow.”
Polis also suggested a relaxed state approach to the 2030 deadline for replenishing the shrinking aquifer. “It is about the long-term trends. … whether goals are being met. There’s nothing that would ever be done based on one bad year.”
The farmers were hanging on that.
“He is genuinely interested in providing what support the state can to help with our water balance challenges,” Simpson concluded following this first meeting.
But “farmers are frustrated,” he said, emphasizing that aquifer recovery can happen only “if mother nature brings snow.”
And Polis left with a more detailed sense of the stakes.
“What we want here is sustainability. That’s why I oppose trans-basin water diversions,” he said. “But we have to make sure that farmers here today don’t live at the expense of farmers here tomorrow and the next decade. This valley is about agriculture. If the water is sold off, or the water is used up, it will become a dust bowl.”
Nearly one year after the state ordered Yampa River water users to begin measuring their diversions from the iconic river, local community groups have raised more than $200,000 to help cash-strapped ranchers and others install the devices needed to comply with the law.
According to Erin LIght, the top water regulator in the region, roughly 60 percent of diversion structures, about 1,760 in total, remain out of compliance in what is known as Colorado’s Water Division 6, which includes the Yampa, North Platte, White and Green river basins.
Under state law, water users who do not measure their diversions can be subject to prosecution and have access to their water rights suspended, something the state has threatened to do but has not yet implemented.
Local groups, including the Upper Yampa Water Conservancy District and the Yampa/White/Green Basin Roundtable, have stepped up to help, creating a $200,000 grant fund to ensure those who are trying to comply can afford to do so.
“Everyone is interested in getting the best infrastructure we can into the river,” said Holly Kirkpatrick, who is overseeing the grant program for the conservancy district. “A lot of different organizations are working very hard on this.”
The Yampa River Fund, spearheaded by The Nature Conservancy, also plans to step in with funding should the need arise.
“I envision that there will be a request for funding,” said fund manager Andy Baur, “and we are here to help.”
This remote region in the northwest corner of the state for decades has had so much water that regulators rarely had to step in to ensure the rivers’ supplies were being properly distributed in accordance with state water law, something it does routinely in Colorado’s other major river basins. But as water shortages loom in the state, the Yampa is coming under increasing scrutiny.
“People need to understand that if we find ourselves in another administrative situation [where the Yampa runs dry as it did in 2018], people need to know they will be shut off,” said Light, who oversees the region for the Colorado Division of Water Resources.
The picture is much different than even 20 years ago, when Yampa Valley ranchers and other water users with water rights were often able to divert as much as they wanted whenever they wanted because the river had huge flows and relatively few demands.
Light, who oversees the Yampa and North Platte basins, as well as the Green and White river sub-basins, said the White River region has the most work to do to comply with the state’s order, with 83 percent, or 596, of its diversion structures taking water that is not being measured.
On the Yampa River, 50 percent of diversion structures, or 900, remain unmeasured, Light said. In the North Platte, 34 percent, or 190, lack measuring devices, while in the Green 74, or 69 percent, of devices remain unmeasured, Light said.
Because the White and Green sub-basins are so remote, and installing measuring devices can cost thousands of dollars, Light said she is giving water users there another year to comply with the order.
At the same time, she said she has granted more than 100 extensions to water users who are trying to comply to give them more time to find funds and get the work done.
Light said she is hopeful ranchers and others will begin to understand that measuring is no longer optional, and that those who begin recording their water use will have new opportunities as the entire Colorado River system, to which the Yampa, White and Green rivers are tributary, moves into a water-short future.
Under at least one scenario now being studied, a large, statewide conservation program called demand management would pay ranchers and others to voluntarily forego their water diversions for a period of time. Options to receive payment for suspending use would only be available to those who have diversion records that demonstrate how much water they’ve historically used.
“If someday we have an opportunity to [temporarily] dry up lands under a demand management program, their [actual water] use will be greatly in question because they have not measured their water. As demands get higher in the Colorado River, it’s going to behoove them to measure,” Light said.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at firstname.lastname@example.org or @jerd_smith.
From email from the Colorado Division of Water Resources (Erin Light via Scott Hummer):
Right in step with the unprecedented year of 2020, the Yampa River is going on call for the second time in three years. And once again, the structures located at the bottom of the system do not have enough natural flow to meet their diversion demands.
We, the Division of Water Resources, are currently protecting reservoir water released from Elkhead Creek Reservoir for the protection of the endangered fish species. The amount of reservoir water currently being released for the Endangered Fish Recovery Program is 75 cfs. This in turn requires that there is 61 cfs at the Yampa River at Deerlodge Park gage station. The flow this morning is hovering around 50 cfs which means reservoir water is being diverted by water users upstream.
The entire Yampa River system is under administration for several reasons, the most obvious of which is that if the reservoir water was not in the system the structures at the bottom of the system would have no water and we would be instituting what one might consider a standard or more typical call that would encompass the entire Yampa River and its tributaries. Additionally, the water users on the mainstem of the Yampa River between Elkhead Creek and its confluence with the Green River should not have to bear the brunt of the entire Yampa River being short of water simply because their structure is located within the Critical Habitat Reach (the protected reach for the Endangered Fish).
Actions have already been put in place to institute the call and as of 12:00 PM today, the Yampa River and all of its tributaries are considered under administration. The Calling Priority right (or most junior water right that may divert at this time) is located at the Craig Station Power Plant with an administration number of 37149.00000 (this water right has an adjudication date 9/1/1960 and an appropriation date of 9/17/1951). This Calling Priority may change as the call progresses. In order to follow the call you may visit the following website: https://dwr.state.co.us/Tools/AdministrativeCalls/Active?submitButton=Submit&SelectedWaterDivisionId=6
If you have a water right junior to the above listed priority and you are diverting water, please cease your diversions unless your diversion can operate under a decreed augmentation plan or substitute water supply plan approved by the State Engineer. Also, if you are the owner of a pond, you are required to bypass all out of priority inflows.
If you have any questions or concerns please feel free to contact me or your water commissioner.
Erin Light, P.E.
Division Engineer, Water Division 6
State regulators in the Yampa River basin say most water users are now willingly complying with an order to measure how much water they are taking — an order once greeted with suspicion and reluctance. But challenges to compliance remain, including the cost of installing equipment.
Last fall, the Colorado Division of Water Resources ordered nearly 500 water users in the Yampa River basin to install measuring devices to record their water use. Nearly a year later, most of those water users are embracing the requirement, according to water commissioner Scott Hummer.
“I am fully confident that over 90% of the people who have orders pending have either complied, are in the process of complying or have asked for an extension,” Hummer said. “So we are getting the cooperation and buy-in that we are requesting from our water users. They are understanding why we are doing it, at least in my area.”
Hummer is the water commissioner for Water District 58, which spans 400 square miles and includes all the water rights above Stagecoach Reservoir. He oversees between 350 and 400 diversion structures.
Measuring water use is the norm in other river basins, especially where demand outpaces supply. But the tightening of regulations is new to the Yampa River basin, and the order was initially met with resistance from some ranchers.
John Raftopoulos, whose family ranches along the Little Snake River, a tributary of the Yampa in Moffat County, said he thinks most irrigators are complying. His cattle ranch has about 15 measuring devices, and he has to install a few more to be completely compliant.
“I know (the state) has to use them. There’s no other way they can control the water; they’ve got to have the measuring device,” Raftopoulos said. “You just got to bite the bullet and install them.”
State law requires water users to maintain measuring devices on their canals and ditches, but this rule was not enforced in Division 6 — consisting of the Yampa, White, Green and North Platte river basins — because historically there was plenty of water to go around in the sparsely populated northwest corner of the state. Long seen as the last frontier of the free river, there has been little regulatory oversight from the state when it came to irrigators using as much water as they needed. But that changed in 2018 with the first-ever call on the river.
A call is prompted when streamflows are low and a senior water rights holder isn’t receiving their full amount. They ask the state to place a call, which means upstream junior water rights holders must stop or reduce diversions to ensure that the senior water right gets its full amount.
Although the order for a measuring device comes with a deadline and the threat of fines, Division 6 engineer Erin Light has been lenient with water users and willing to give them extra time to get into compliance. The process to request an extension is simple: A water user can simply email Light.
“If a water user is working with our office, we are not going to go shut their headgate off,” she said. “We are going to work with them.”
Light doesn’t have an exact count on how many water users have complied so far — water commissioners are working in the field this summer and haven’t had time to enter the most current information into the division’s database yet — but as of January, the Yampa had 49% compliance.
“I am not hearing anything (from water commissioners) about concerns of noncompliance. If there were problems, they would let me know,” Light said. “I have a fair amount of confidence that things are going well in all my areas as to compliance.”
Still, some worry that the cost of installing the devices — which in most cases are Parshall flumes — is too big a financial burden for some water users. The devices, which channel diverted water and measure the flow below the headgate, can cost thousands of dollars, which adds up for water users who need to install multiple devices.
The Upper Yampa Water Conservancy District and the Yampa-White-Green Basin Roundtable have teamed up in recent months to create a $200,000 grant program to help water users with infrastructure-improvement expenses. According to Holly Kirkpatrick, the communications manager for the conservancy district, water users so far have completed about $3,500 worth of work. That money will be reimbursed through the grant program.
“We expect to see a huge influx of applications as the season comes to an end,” she said.
In March, Light issued notices to water users in the other Division 6 river basins — White and Green — but decided to delay sending orders after talking with some who had concerns over the economic crisis caused by the COVID-19 pandemic.
In a June letter to Light, signed by four water conservancy districts — White River, Rio Blanco, Yellow Jacket and Douglas Creek — representatives said they would be interested in seeking opportunities for financial assistance for their water users. Under the best-case scenario, it would take until spring to secure grant money and begin installing devices, the letter said.
“This year is a tough year to try and ask people to do anything above and beyond what they already have to do,” said Callie Hendrickson, executive director of the White River and Douglas Creek Conservation Districts. “I know (Light is) willing to give extensions, but right now, our folks don’t need that additional financial or emotional stress.”
Colorado River Compact influence
Some water users have questioned why, after years of not enforcing requirements for measuring devices in Division 6, the state is now doing so. One answer is that more and better data about water use is becoming increasingly necessary as drought and climate change reduce streamflows, create water shortages and threaten Colorado’s ability to meet its Colorado River Compact obligations.
Division 6 has traditionally enjoyed abundant water and few demands, but as state regulators saw with the 2018 call, that dynamic is no longer guaranteed every year. As the threat of a compact call and the possibility of a state demand-management program grow, state officials say the need to measure water use grows, too.
A major unknown is what would happen in the event of a compact call. A compact call could occur 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 — California, Arizona and Nevada — as required by the 1922 compact. Colorado water managers desperately want to avoid this scenario, in part because it could trigger mandatory cutbacks for water users.
State engineer Kevin Rein said that without knowing how much water is being used, it’s a blind guess as to which junior water users would have to cut back.
“We could see the (cubic feet per second) amount that the water right is decreed for, but we don’t know how much is really being diverted and we don’t know how much is really being consumed, so we don’t know what effect it’s going to have on meeting our compact obligations,” Rein told Aspen Journalism last week.
It’s a similar scenario with a potential demand-management program. At the heart of such a program is a reduction in water use in an attempt to send as much as 500,000 additional acre-feet of water downstream to Lake Powell to help the upper basin meet its compact obligations. Agricultural water users could get paid to take part in the temporary, voluntary program to fallow fields and leave more water in the river.
But before they could participate in a demand-management program, the state needs to know how much water that an irrigator has been using.
“The first thing we need is diversion records,” Rein said. “If there’s no measuring device, no record of diversions and somebody wants to participate, they are simply not going to have the data to demonstrate their consumptive use.”
Since nearly everyone is making progress, Hummer said he doubts that enforcement will reach a point where he has to fine someone for not measuring their water use. Still, the transition is a tough one for an area not accustomed to state government oversight of their ditches.
“We are just dealing with difficult circumstances within the whole Colorado River basin system that dictates change, and folks don’t like change, especially in rural areas,” Hummer said. “But it’s here and it’s not going away. The demand for measurement will become more stringent in the future, not less.”
Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with The Aspen Times, along with other Swift Communications newspapers. This story ran in the Aug. 15 edition of the Steamboat Pilot & Today and the Aug. 17 edition of The Aspen Times.
The race against time continues for farmers in southern Colorado’s San Luis Valley, with the state’s top water regulator warning that a decision on whether hundreds of farm wells will be shut off to help save the Rio Grande River could come much sooner than expected.
July 28, at a virtual symposium on the Rio Grande River, the state warned growers that they were running out of time to correct the situation.
“We’ll see in the next couple of years if we can turn around this trick,” said State Engineer Kevin Rein. “If we’re not turning it around, we need to start having that more difficult conversation.”
The valley is home to the nation’s second-largest potato economy and growers there have been working voluntarily for more than a decade to wean themselves from unsustainable groundwater use and restore flows in the Rio Grande. Thousands of acres of land have been dried up with farmers paying a fee for the water they pump in order to compensate producers who agree to fallow land.
The San Luis Valley, which receives less precipitation than nearly any other region in Colorado, is supplied by the Rio Grande, but under the river lies a vast aquifer system that is linked to the river. It once had so much water that artesian springs flowed freely on the valley floor.
As modern-day farmers began putting powerful deep wells into the aquifer, aquifer levels declined, and flows in the river declined too as a result, hurting the state’s ability to deliver Rio Grande water downstream to New Mexico and Texas, as it is legally required to do.
Between July 2019 and July 2020 the valley’s unconfined aquifer, which is fed by the Rio Grande River, dropped by 112,600 acre-feet. All told the aquifer has lost around 1 million acre-feet of water since the drought of 2002.
Through a plan written by growers in the valley and approved by the state in 2011, farmers had 20 years, from 2011 to 2031, to restore the aquifer. But multiple droughts in the past 19 years have made clear that the region can’t rely on big snow years to replenish the valley’s water supplies because there are fewer of them, thanks to climate change.
“So what is the future, the short-term future, if we can’t count on climate? And let’s admit we can’t,” Rein said. “If climate’s not cooperating the only thing that can be done is consuming less water.”
Adding to pressure on the region is a proposal by Denver developers to buy thousands of acres of the valley’s farm land, leaving some of the associated water rights behind to replenish the aquifer, while piping thousands of acre-feet of water northeast to the metro area.
Rein said drastic steps, like drying up more fields and sharply limiting how much growers can pump, are needed. But this could result in bankruptcies and could cripple the valley’s $370 million agriculture economy, which employs the majority of workers in the region. Worse still, though, would be the shutdown of all wells in the region, which is what could occur if farmers aren’t able to make progress toward aquifer sustainability.
While the deadline to restore the aquifer is set for 2031, if it becomes clear before then that growers aren’t able to restore groundwater levels, Rein will be forced to take action early by turning off all wells.
Rein said his decision likely won’t come as early as next year. But, he said, “Do we wait until 2031, the deadline? Probably not.”
The groundwater challenges and associated deadline stem from Colorado’s historic 2002 drought which led to more groundwater pumping than ever before and resulted in a falling water table, decreases in water pressure, and failing wells.
Groundwater declines have been so severe that they’ve affected surface water levels in parts of the valley. In 2004, state lawmakers passed a bill requiring the state to begin regulating the aquifer to make it more sustainable.
Landowners within the Rio Grande Water Conservation District (RGWCD) responded by forming a groundwater management district known as Subdistrict 1—that was just the first of what will soon be seven approved subdistricts.
Subdistrict 1 set goals and developed a plan of water management in late 2011 that spelled out how to reduce groundwater depletions and recharge the aquifer.
In 2012 they began paying a fee for every acre-foot of water used. That revenue helps pay irrigators who elect to participate in voluntary fallowing programs and other efforts to replenish the river and reduce stress on the aquifer.
And by 2017, irrigators had restored 350,000 acre-feet of water in the aquifer, halfway to their goal. But drought and disaster struck in 2018. With less surface water available and high temperatures, irrigators pumped heavily to maintain their crops. And by September 2018, farmers had lost about 70 percent of the groundwater gains they had worked so hard to recover.
“2018 was extremely frustrating,” said Cleave Simpson, manager of the RGWCD who is also a fourth-generation grower. ”It really kind of set us back to where we were when we started this in 2012.”
It’s not over yet. Some of that groundwater lost in 2018 has been recovered and this year participation in the fallowing program is higher than ever, with more than 13,000 acres enrolled, according to Amber Pacheco who manages the RGWCD’s subdistrict programs—that’s in addition to the 8,800 acres fallowed through the conservation programs that have been running since 2012.
Simpson and others, faced with another severe drought year, are deeply worried about the success of their conservation efforts, but dire times are also boosting motivation to solve the problem, Simpson said.
“There’s a sense of urgency from the board of managers that we’ve got to keep doing more,” Simpson said. “We’ve got to get back what we lost.”
Caitlin Coleman is the Headwaters magazine editor and communications specialist at Water Education Colorado. She can be reached at email@example.com.
Paonia, a small town in western Colorado with a handful of mesas rising above it, wouldn’t green-up without water diverted from a river or mountain springs. The lively water travels through irrigation ditches for miles to gardens and small farms below. But this summer, irrigation ditches were going dry, and one, the Minnesota Canal and Reservoir Company, stopped sending water down to its 100-plus customers as early as July 13.
Drought was hitting the state and much of the West hard, but a local cause was surprising: Water theft.
Longtime residents who gather inside Paonia’s hub of information trading, Reedy’s Service Station, have a fund of stories about water theft. It’s not unusual, they say, that a rock just happens to dam a ditch, steering water toward a homeowner’s field. Sometimes, says farmer Jim Gillespie, 89, that rock even develops feet and crosses a road.
But this is comparatively minor stuff, says North Fork Water Commissioner Luke Reschke, as stealing ditchwater is a civil offense. Stealing water from a natural waterway, however, is a crime that can bring fines of $500 per day and jail time. That’s why what was happening to people who depend on the Minnesota Canal company for their fields or gardens was serious: Water was being taken from Minnesota Creek before it could be legally diverted for irrigation to paying customers.
Once the ditch company “called” for its water as of June 8, only holders of patented water rights could legally touch the creek. Yet during three trips to the creek’s beginning, starting in mid-June, and then in mid-July, I noticed that two ranches – without water rights — were harvesting bumper crops of hay. How could that have happened unless they’d illegally diverted water to their fields?
At first, no one would talk about the early-drying ditch except to hint broadly that it wasn’t normal. Then one man stepped up: Dick Kendall, a longtime board member of the Minnesota canal company, and manager of its reservoir. “On July 5,” he told me, “I saw water diverted from the creek onto one of the rancher’s land. And I wasn’t quiet about it.”
Kendall reported what he saw to Commissioner Luke Reschke, who oversees the area’s 600 springs, ditches and canals. Reschke dismissed it, he told me, because “The rumor mill is something else on Minnesota Creek. The only people who give me trouble are the new people who don’t know how the system works.” But locals say that four years back, Reschke’s predecessor, Steve Tuck, investigated when locals complained.
Though it may not be neighborly, stopping any illegal diversion is important, said Bob Reedy, owner of Reedy’s Station: “Without water, you’ve got nothing around here.” Annual rainfall is just 15 inches per year, and without water flowing into irrigation canals from the 10,000-foot mountains around town, much of the land would look like the high desert it truly is.
But it’s not just a couple of high-elevation ranchers dipping into the creek. The West Elk Coal Mine runs large pumps that supply water for its methane drilling and venting operations in the Minnesota Creek watershed.
Mine spokesperson Kathy Welt, said the diversion is legal, and that they only take early-season water when the creek water isn’t on call. That early water, however, is what begins to fill the Minnesota ditch’s reservoir.
In other ways, the mine has damaged the watershed by building a sprawling network of roads in the Sunset Roadless Area (Threats at West Elk Mine). A cease and desist order from the State Division of Reclamation, Mining and Safety on June 10, sought by environmental groups, halted the building of an additional 1.6 miles of new roads this spring (Colorado Sun). Satellite images of the road network resemble a vast KOA Campground: Where trees once held back water and shaded snowpack from early melting, their replacement — gravel roads –- shed water and add to early runoff.
For all of Minnesota Ditch’s challenges, warming temperatures brought about by climate change could be the real challenge. Kendall said that this spring, when he plowed out the Minnesota Reservoir road, dust covered the parched ground beneath the snow.
Water — so precious to grow grapes, hay, organic vegetables and grass-fed beef, and to keep the desert at bay — had vanished early on Lamborn Mesa above Paonia. Farmer Gillespie summed it up, “there’s just no low-snow anymore — and it’s not coming back.”
David Marston is a contributor to Writers on the Range, (writersontherange.com), a nonprofit dedicated to spurring lively conversation about the West. He lives part-time in Colorado.
From email from the Colorado Division of Water Resources (James Heath):
This is a notification that the Shoshone Power Plant is going down to one unit and their call will be released from the stream. The Shoshone Outage Protocol will not operate due to the target flow of 1250 cfs being insufficient to maintain flows in the Grand Valley to prevent a call from the irrigation water rights. Therefore, the call will be placed tomorrow morning at Cameo under a junior swing or bypass right.
Starting at 8:00 am on Thursday, July 30, 2020 the calling location will be the Grand Valley Canal (WDID 7200645), with the Con-Hoosier Tunnel water right (Admin Number 35927.00000).
The vast Ogallala Aquifer has been on the minds of growers in many states but it certainly has been on the minds of growers in Colorado, Kansas and Nebraska who share the crucial resource with differing regulations. We all share a common bond to try to preserve it for future generations.
Timothy Pautler became involved with water conservation district matters with the settlement of the Arkansas River Compact dispute between Colorado and Kansas. The state of Colorado was in litigation with Kansas and Nebraska on the Republican River Compact. The state decided to approach the defense of this conflict differently than the Arkansas River Compact, so through legislation, Colorado created an entity to assist the state in achieving compact compliance and in August 2004 the Republican River Water Conservation District was formed.
The board members represented, at the time, seven counties, seven Ground Water Management Districts and one member from the Colorado Ground Water Commission. Pautler was appointed by the Kit Carson County Commission.
“My understanding of what was happening to the Ogallala Aquifer in my area of the basin was the driving force behind my desire to participate in the decision to assist the state,” he said. “The economy that was created by the state, in its determination to allow the mining of the Aquifer, and the resulting decline, was a concern.”
In 2019, the boundary for the RRWCD was expanded, to include all the irrigated acres that are actually contributing to the compact issue. This change affected folks in the southeast part of Kit Carson County and the northern part of Cheyenne County and in the East Cheyenne Ground Water Management District. This change created two more board member positions, representing those two new entities. This expansion added approximately 45,000 new irrigated acres to the RRWCD fee assessment.
The RRWCD assists the state in reaching compact compliance on the Republican River Compact that was signed in 1942. In the beginning, the state told growers that if they retired 30,000 acres from irrigation the state would be in compliance. To fund the required budget that was going to be needed, the RRWCD assessed all irrigated acres a fee of $5.50 per irrigated acre. At that point in time, the basin did not have meters on any of the wells, so a per acre charge was really the only option and was easy to do, using county assessors’ records. The RRWCD worked with the Natural Resources Conservation Service and the Farm Service Agency, to create programs that would financially compensate producers for voluntarily retiring some of their irrigated lands.
Over time the district has been actively involved with purchasing surface water rights on the Arikaree and the North and South Forks of the Republican. It was involved with the Pioneer and Laird ditch rights. When they were purchased by the Yuma County Water Authority, the RRWCD leased those rights from the YCWA for $5 million for 20 years. This transaction leaves water in the North Fork of the Republican, and is accounted for at the gauging station located just east of Wray, Colorado
“We are continually working with surface water folks, in order to acquire their rights, this practice is ongoing,” he said. “Because of the way surface water irrigation is accounted for under the compact the retirement of these water rights is very helpful in achieving compliance.
He noted the 15-member board showed tremendous leadership in helping stakeholders understand what was at stake.
“As we moved through time, the collective efforts started to bring results for the basin. We were well on our way to retiring the 30,000 acres of irrigated land. The programs were working rather smoothly, and the process was a success,” Paulter said. “But then our general manager, Stan Murphy, and our engineer, Jim Slattery, started to look at the numbers and realized that the retirement of acres alone, was not going to get us where we needed to be, in order to be in compliance.”
The acreage retirements were coming so far from the three streams—the North Fork, the Arikaree, and the South Fork—to achieve the goal. The retirements were still a good concept and leaving water in the hole is always a positive, the producer and board member said. But the lagged depletion effect that existed in the aquifer was not allowing the impact of acreage retirement to result in immediate stream flow. The lagged depletion, describes the impacts that distant well pumping has on stream flow. As a result of the lag effect, the impact of present day pumping will have negative effects for 30 to 50 years, according to the engineers, even though a well has been retired. The effects that those distant retired wells created, prior to retirement, continued to haunt the long-term goals of the RRWCD.
In 2002, the Republican River settlement had been signed. The final settlement stipulation agreed that Kansas, Nebraska and Colorado would not fight about water use that was in the past, but only work toward achieving future compliance with the compact that allocates how much water each state is entitled to use, he said. As part of the stipulation between the states, the accounting for all three states started at zero, it also allowed that any one of the states could use a pipeline to get additional water to the river in order to get into compliance.
So that became the next challenge for the board. Where do we get enough water to make a difference?
“We started looking at an exhausting list of possibilities, including The Dakota formation below the Ogallala, areas of the basin that were under appropriated, and imports from the South Platte at the time we left no stone unturned. Every idea had issues that came along with it,” Pautler said.
The Dakota was going to be too salty and too costly to bring to the surface and not enough water. The unappropriated area was going to require too many easements and a pipeline of extreme length. The South Platte was too expensive.
“In the end we were able to make a deal with one family. Their water rights were located northeast of Wray. This area of the basin has absolutely the greatest amount of saturated thickness.”
It was far enough away from the North Fork to minimize effect on stream flow, but yet close enough that the pipeline length was a doable deal, approximately 13 miles, he said. About 13,500 acre feet of historical consumptive use, from 62 permits, were acquired.
The Colorado Ground Water Commission then approved the RRWCD application, allowing it to consolidate the 62 existing wells into 15 wells to be used for compact compliance, without any injury to surrounding water rights. Along with the water purchase, the district negotiated easements from the landowners for the pipeline route. The cost of the water and easements was $50 million. The engineers designed a pipeline system that cost $20 million.
Informational meetings were key because a $70 million project was not an easy sell, especially when budgets were compiled. The $5.50 per acre assessment needed to go to $14.50. This created a budget of $7 million. A loan from the Colorado Water Conservation Board for the $60 million, at an interest rate of 2% was secured and the 20-year note will be paid off in 2028. “The public acceptance of the concept, came with a lot of questions,” Pautler said. “As their understanding of the entire compact issue increased, so did their support.”
Not so fast
Even with the pipeline it did not mean going back to old practices, Paulter said. Wells in every county and management district that once pumped 800 to 1,000 gallons per minute had diminished to 200 to 500 gpm.
When the pipeline was completed and functioning, the board started to hear comments like, “now we can pump it till it is dry.”
“The pipeline did give us all a false sense of security that nothing else has to change; the perception was the economies of the communities can now continue as always; the threat of shut downs is taken care of,” he said. “But in reality, our small communities are changing so slow we don’t even see it happening, especially in areas of the basin that never did have sufficient saturate thickness, to expect life to go on as usual, or forever.”
A safe statement would be, “most wells in the basin, do not have the yield they originally had.” Conservation has always been an underlying effort, but the urgency to get into compact compliance was paramount and trumped conservation.
The fee assessment has been a problem for the basin, in terms of conservation. For $14.50 per acre, a producer can pump all he wants, up to his permitted amount. Paulter said a per acre foot charge would have been better formula to achieve conservation. The meters did not come into existence until about 2010. Meters alone will not create conservation, although the irrigators, today, do pay more attention to the amount pumped. They are required to stay within their annual appropriation.
What has worked
Conservation has been attained in the areas where irrigated acres were retired. That unused volume assures more water for domestic and livestock use. That is vital for those areas long term. Travel west of the RRWCD boundary and there are large ranches with very limited water resources. Pipelines have been installed with USDA cost share dollars to move the water for miles. And now, even those pipelines are in jeopardy of not having enough water for livestock numbers to adequately make an economic enterprise work.
When the pipeline was completed, the RRWCD’s Conservation Committee started looking at ways to encourage meaningful conservation. They formed a subcommittee made up of members from all the Ground Water Management Districts.
The basin is very different north to south and east to west. Saturated thicknesses vary from having very little left to those areas that still have a 40-year supply left. Soil types very vastly as well.
“We have good heavy soils that will support dry land farming, to sugar sand that without water becomes rangeland. It is a classic case of the ‘haves and the have nots,’ depending on where you are located,” Pautler said. “We are all human, and no one wants to limit their neighbor’s ability to have an economic gain. Admittedly, a tough issue to struggle with.”
Another problem is the fact that the RRWCD has no statutory authority to impose water use restrictions on the basin. That is under the authority of the GWMD. By design, when the RRWCD was given statutory authority to help the state get into compact compliance, GWMDs were very outspoken and insisted that the RRWCD should not be allowed to take over the authority that the management districts already had. These are some of the challenges in trying to achieve meaningful and measureable conservation.
“I would hope that we in the Republican basin can come up with a fair and equitable solution that fits the needs of all water users in the basin. The list of water users has to include discussion with the municipalities, domestic users, commercial interests, and livestock folks. Finding agreement affects everyone, not just the ag irrigators,” he said. “We all have economic interests that are effected by the discussions moving forward. The emotional part of the discussion, kind of stems from the fact that, if we do nothing, ever so slowly, the water passes by our neighbors and we don’t care until it is our turn. A restriction that imposes conservation on all water users happens immediately. The economic impact is immediate.”
This was edited by Dave Bergmeier who can be reached at 620-227-1822 or firstname.lastname@example.org.