Job opportunity: Colorado Division of Water Resources Augmentation Plan Auditor & Accounting Operations Specialist Team Lead for Division 1

The upper South Platte River, above the confluence with the North Fork of the South Platte. Photo: Brent Gardner-Smith/Aspen Journalism

Click here to apply. From email from DWR (Michael Hein):

This job opportunity is for a vacant Colorado Division of Water Resources Augmentation Plan Auditor & Accounting Operations Specialist Team Lead for Division 1 located in our Greeley, CO office. This position is at the Physical Science Researcher/Scientist IV level (PSRS-IV) and is currently open to the public for application through January 25, 2019 or until 50 applications are received, whichever comes first.

Here is the Link for the position: Augmentation Plan Auditor & Accounting Operations Specialist Team Lead

Description of Job

This position provides leadership, guidance and oversight as a work leader to the Division 1 operations group responsible for Augmentation Plan coordination and administration. This group supports water rights administration by developing methodologies to collect and analyze water diversion and delivery data to verify augmentation plans and water diversions are operated in compliance with all applicable court decrees, statutes, rules and regulations. This position identifies and determines applicable professional standards and concepts incorporated into governing water court decrees and provide written protocol and guidance to staff regarding proper analysis of Augmentation Plan operation in accordance with water court decree requirements. This position, when necessary, provides recommendations for new process and procedures to collect, report, analyze and coordinate practices to allow compliance of these plans with the applicable decrees. This position prepares expert reports and expert testimony in Water Court trials not related to enforcement actions. Position is the work leader of three or more full-time positions.

Employment opportunity: Professional Engineer II – Assistant Division Engineer – Water Resources, Greeley, CO @DWR_CO

The plains around DIA were parched by the scorching 2012 drought, although groundwater pumping along the South Platte River enabled some farms to continue irrigating — photo by Bob Berwyn

From email from DWR (Corey DeAngelis):

We have an opening for our DWR Division 1 Assistant Division Engineer position in Greeley, Colorado…The position is open through 01/11/2019, 5:00 pm

Description of Job

This position assists the Division Engineer in performing functions and duties as specified by state statute and to carry out duties and orders of the State Engineer within the geographical area of Water Division One. The position must direct the day to day management of work unit’s involvement in the water court; must guide and direct the allocation and distribution of water; must enforce compliance with decrees, statutes, permits, rules and regulations, and compacts; must resolve disputes concerning water rights and use; must complete and review technical studies related to water resources engineering and water rights administration; and must inform, disseminate information to, and counsel water users, professionals and staff regarding water use, water rights, water allocation and state statutes pertaining to water use. This position will assist the Division Engineer, as assigned, directing and overseeing administration and compliance of Division 1 Ground Water Measurement and Use Rules.

Click here to apply for the job.

Colorado water agencies going different ways on White River dam project — @AspenJournalism #ColoradoRiver #COriver @CWCB_DNR @DWR_CO

A view of the White River foreground, and the Wolf Creek gulch, across the river. The Rio Blanco Water Conservancy District has been using state funds, and their own, to study two dam options for this area between Meeker and Rangely on the White River. Photo credit: Aspen Journalism/Brent Gardner-Smith

From Aspen Journalism (Brent Gardner-Smith):

The Colorado Water Conservation Board has given $843,338 to the Rio Blanco Water Conservancy District since 2013 to study a potential dam on the White River, yet officials at the Colorado Division of Water Resources say the project appears “speculative” and Rio Blanco lacks evidence for its claims for municipal, irrigation, energy and environmental uses.

On Nov. 14, the CWCB directors approved the most recent grant application from Rio Blanco for $350,000 to keep studying the proposed White River dam and reservoir project near Rangely.

But while the CWCB is spending more state money to help prepare the White River project for federal approval, another state agency, the Division of Water Resources, is asking hard questions about the project in water court.

“There are concerns whether the district can show that it can and will put the requested water rights to beneficial use within a reasonable period of time and that the requested water rights are not speculative,” wrote Erin Light, the division engineer in Division 6, who oversees the White and Yampa river basins, and Tracy Kosloff, the assistant state engineer in Denver, in a report filed in water court Oct. 4.

In addition to pursuing a series of grants from CWCB, Rio Blanco applied in water court in 2014 for a new water right to store 90,000 acre-feet of water from the White River.

The two engineers in the Division of Water Resources filed their report after consulting with the state attorney general’s office. Review of water rights applications by division engineers is routine, but the report filed by the division engineer and assistant state engineer raised a higher level of concerns than normal.

Also known as the Wolf Creek project, it could store anywhere from 44,000 to 2.92 million acre-feet of water, according to the array of proposals, presentations and applications that have been made public over the project’s ongoing evolution. (Please see: Timeline: tracking the proposed White River dam and reservoir).

The water would be stored either in a reservoir formed by a dam across the main stem of the White River, or in an off-channel reservoir at the bottom of the Wolf Creek gulch.

The latest grant from the CWCB to Rio Blanco was to “finalize the preferred reservoir size and firm-up financial commitments of key project partners so that applications for federal permits can be filed,” according to a CWCB staff memo on the grant.

Asked about the apparent conflict between CWCB and DWR on the White River project, CWCB Director Becky Mitchell said she was aware of the concerns voiced by the division and state engineers and was confident that the next phase of study supported by CWCB would help answer some of the questions raised.

“All of the grants given to Rio Blanco thus far have been all about feasibility, so we are not necessarily in disagreement with DWR, but it needs to trued up,” Mitchell said Tuesday. “There may be concerns with what DWR is stating and the grant will help us evaluate those concerns.”

In another sign of CWCB’s support for the potential project, the agency’s finance section has added a potential $100 million loan to Rio Blanco on a list of potential loans it compiles and publishes as part of the CWCB director’s reports to the agency’s directors.

Brad McCloud of EIS Solutions in Grand Junction is serving as Rio Blanco’s project manager for the White River project.

When asked Tuesday about the contradictory messages sent by the two state agencies, McCloud said, “I think one side is working on one end and the other is doing the other and it’s a good check and balance and the way the system is supposed to work. And there are probably things that will get worked out along the way.”

A view looking downstream of the White River in the approximate location of the potential White River dam and reservoir. The right edge of the dam, looking downstream, would be against the brown hillside to the right of the photo. Photo credit: Aspen Journalism/Brent Gardner-Smith

State questions

In their report filed in water court, the state’s water engineers challenge Rio Blanco oft-stated claim it is seeking the new storage facility at Wolf Creek in order to meet the future water needs of the Town of Rangely, which today takes its water directly from the White River.

“While every case is different and may require evidence tailored to the particular facts of the case, the engineers have not received sufficient evidence to support the district’s claimed water demands for Rangely nor evidence that Rangely intends to rely on water storage in one of the Wolf Creek Reservoirs to meet its demand,” the report from Kosloff and Light says.

The engineers’ report also questions the demand for water in the potential new reservoir from the energy sector.

They said Rio Blanco should, at a minimum, show how much of the 45,800 acre-feet of industrial demand it is claiming is located within the district’s boundaries.

They also say Rio Blanco should make public how much of the demand from the energy sector within the district’s boundaries can be satisfied by the existing water rights of the district.

In addition to challenging Rio Blanco’s claims for municipal and industrial use of water in their 2018 report, Light and Kosloff also question Rio Blanco’s claims for irrigation and environmental uses.

They said a storage report prepared for the project “notes that irrigated acreage and irrigation water demand is projected to decrease in the future” in the area downstream of the reservoir.

And the engineers said they “do not believe that a water right for irrigation use should be awarded in this case.”

And the engineers question Rio Blanco claim that it will release up to 42,000 acre-feet of water from its proposed reservoir to the benefit of endangered fish downstream on the White and Green rivers.

They say an ongoing study has yet to make clear how much water is needed for the endangered fish.

“Long story short, it is still unclear what flows should be used when determining if or how much water needs to be stored to assist with meeting the recommended flows,” the report says. “Until these numbers are known, claiming any quantity of water for these uses is speculative.”

Consultants for the Rio Blanco Water Conservancy presenting a slide earlier this year showing how a dam could be built across the main stem of the White River between Rangely and Meeker. A report from engineers at the Division of Water Resources is questioning the claims made in a water court case in which Rio Blanco is seeking new water rights for the project.

Size in flux

The White River project has a wide range of potential uses, according to Rio Blanco, and it also has a wide range of potential sizes, as various presentations and applications have included potential sizes from 44,000 acre-feet to 90,000 acre-feet to 400,000 acre-feet to 2.92 million acre-feet.

Alden Vanden Brink, the manager of the Rio Blanco district, told the CWCB directors Nov. 14 that his district is not seeking to build a 400,000 acre-foot reservoir, despite the reference in Rio Blanco’s grant application to study a reservoir between 44,000 acre-feet and 400,000 acre-feet.

“The 400,000 is maximum size,” Vanden Brink said. “That is not what the Rio Blanco Water Conservancy District is looking to build. It’s going to take somebody from a way outside source to come to the table for that.”

Vanden Brink said the district was seeking to store “anywhere from 44,000 to about 130,000” acre-feet of water.

However, the grant application from Rio Blanco notes that a 400,000 acre-foot reservoir might have some benefit to the state.

“If the higher end of the storage is implemented, the project has tremendous potential to help the majority of the state of Colorado address Colorado River Compact administration issues,” the grant said.

An earlier study on the dam by W.W. Wheeler and Associates for the Rio Blanco district found it was possible to build a dam on the White River at Wolf Creek that would hold 2.92 million acre-feet of water.

The latest grant application to CWCB from the Rio Blanco district says “the preferred reservoir size will be developed based on the amount of water needed and committed to by key project stakeholders.”

Wade Cox, the president of the Rio Blanco Water Conservancy District, discussed the project in October with the board of the Colorado River District, and referenced the varying potential sizes of the reservoir.

“There is never going to be enough water,” Cox said. “I don’t care how big you build it. Whatever you do, it’s never going to be enough. Somebody somewhere is going to utilize it.”

Also, please see related stories:

Economic feasibility of White River off-channel dam and reservoir questioned

Honing in on options for a potential White River Dam near Rangely

Editor’s note: Aspen Journalism covers water and rivers in collaboration with The Aspen Times and other Swift Communications newspapers. The Times published the story on Thursday, Nov. 29, 2018.

Delving deeper into ‘anticipatory mandatory curtailment’ in Colorado — @AspenJournalism #ColoradoRiver #COriver #aridification

An irrigation ditch on Orchard Mesa in the Grand Valley, bringing water from the Colorado River to orchards and fields. If Colorado fails to send enough water downstream to meet the terms of the Colorado River Compact, could the use of water in ditches such as this be curtailed?

From Aspen Journalism (Brent Gardner-Smith):

When uttered in regard to the Colorado River Compact, the phrase “anticipatory mandatory curtailment” of water diversions makes Western Slope irrigators shudder.

And while a policy adopted last week by the state might reduce some of the fear and anxiety among irrigators about being forced to someday soon send water downstream, it’s still a lively subject of discussion.

To set the table, here’s how Andy Mueller of the River District described the situation to his board of directors, in an October 5 memo.

He was describing events at the September meeting of the CWCB, in Steamboat.

“Certain water users are calling for the potential implementation of a demand management program which includes uncompensated anticipatory mandatory curtailment of water rights within the state,” Mueller wrote.

“The Front Range representatives affirmed their position that no Colorado Water Conservation Board action was needed, that a voluntary program was a fine goal but that they believed the state needed to roll out a program which includes rules and requirements for mandatory anticipatory curtailment.

“The presentation from the string of Front Range entities confirmed the River District Staff’s concerns that major water users in the state would like the Upper Basin demand management pool established quickly with the intent that it be filled with water from a program highly or exclusively dependent upon water contributed via uncompensated, anticipatory, mandatory curtailment of water rights in the Colorado River Basin.”

Muller also said in the memo, “ … we recognize that the overuse in the Lower Basin, coupled with the continuation of extremely poor hydrology may, in the future cause us all to support or at least be willing to endure an anticipatory mandatory curtailment.”

That seems to duly raise the question, does the state of Colorado even have the authority to curtail water rights, in an anticipatory fashion, so as not to violate the Colorado River Compact?

A headgate on an irrigation ditch on Maroon Creek, a tributary of the Roaring Fork River.

State have the power?

First, consider this nugget of state law (CRS 37-80-104): “The state engineer shall make and enforce such regulations with respect to deliveries of water as will enable the state of Colorado to meet its compact commitments.”

And then there is the 1938 U.S. Supreme Court decision, Hinderlider v. La Plata and Cherry Creek Ditch Co., which found that the state pretty much has the authority to do what it takes to meet agreements, or compacts, it has made.

There is a worthwhile explanation of the case, and the decision, in “Vranesh’s Colorado Water Law.”

“Interstate compacts, and the equitable apportioning of water among various states, are necessities, especially in times of water shortage. If interstate allocation is subordinated to individual rights, interstate compacts would be valueless,” Vranesh writes.

“Allocation establishes a state’s right to a given amount of water. The right of an individual to use water in a particular state is thus limited by the physical availability of water minus the amount of water allocated to the state.

“The amount allocated to an upper basin state such as Colorado is that amount of water physically available minus that amount which must be delivered at the state line.

“Any regulation by the state engineer within this limitation, with the goal of maximizing beneficial use is a valid exercise of police power, barring other constitutional complications,” Vranesh, a well-respected water attorney, concluded.

The diversion structure for the Maybell Canal on the Yampa River east of Maybell.

Compact commisison

Eric Kuhn, the former general manager of the Colorado River District, was familiar with the Hinderlider case, but said he’s an engineer and not an attorney.

Attorney or not, Kuhn is still an expert on the 1922 Colorado River Compact, and he pointed to the 1948 Upper Colorado River Basin Compact as also being relevant to the discussion.

That compact created the Upper Colorado River Commission and gave it the authority to take steps to avoid violating the 1922 compact, including notifying the individual upper basin states if they are are close to doing so.

“The purpose of the commission is to always be in compliance with the compact,” Kuhn said. “When I read the minutes, they weren’t talking about that you go into a hole and then you do a curtailment to catch back up, they were always saying that you take action ahead of time to make sure you are always in compliance.

“They don’t use the word ‘pre-compact curtailment’ or anything like that in the record of the commission, but it’s pretty clear that the reason the commission exists is that you needed to have somebody that would say ‘we’re making the call that we need to curtail in order to not be in violation of the compact.’ And it’s the commission that makes that call.”

Today, based on the ten-year running average used as a measure of the upper basin’s compliance with the compact, the upper basin looks comfortably in compliance. But Kuhn said the running average is being propped up by the big water year of 2011, and once that falls off the list, things will look different.

And currently, the bigger threat isn’t so much the ten-year average, it’s that if water levels in Lake Powell fall too much further, it will be physically impossible to deliver, through the outlets in the dam, the required amount of water to meet the compact’s obligations.

James Eklund, who is an attorney, and the former director of the Colorado Water Conservation Board and the state’s representative on the Upper Colorado River Commission, was willing to discuss the issues raised by the prospect of mandatory curtailment on Wednesday, during a stopover en route from Denver to his family’s ranch on the lower slopes of the Grand Mesa.

He said that the Hinderlider decision is “one of the most venerable cases in this legal space” and that the common takeaway from the case is that “the Supreme Court said the sovereign state can bind private property owners in its state.”

He noted, however, that how people view the force of the decision, or how to respond to it, sometimes turns on a subtle distinction in Colorado water law that is often overlooked by some water rights owners: a water right is a right to use a set amount of water, not a claim to the water itself.

“The state constitution says the molecules of water are owned by the people of the state of Colorado,” he said. “But the right to use the molecule, that’s a private property right. That’s a use right, not a right to the actual molecule.”

As such, Eklund said ‘you’ve got this body of case law that says that the state is pretty empowered to do what it feels is necessary. The question that you bleed right into, however, is the question of ‘Well, you can, but should you?’ Then it’s a policy question.

“Then you are going to have somebody along each part of the spectrum line up on that. You’ll have the really hardcore hawks say ‘The state has absolute authority, the court has spoken. The state should go do whatever it can to reduce the risk to the state as a whole, to the economy, and to water users generally.’

“And then you’ve got the other end of the spectrum that says ‘No, no, no, the state should always be deferential to a private property right and should not make policy that supersedes that.’ And that the Hinderlider line of cases and philosophy is only meant to be deployed in an emergency, catastrophic, threat-to-public-health-and-human-safety situation.”

Inflows to Lake Powell in 2018 were among the lowest since Glen Canyon dam was built, and giant sandbars are visible in the Green and Colorado rivers above the reservoir.

What about the DCP pools?

Notably, Mueller, the current River District general manager, said the district does not fully share the opinion of others when it comes to the state’s authority to avoid violating the compact by curtailing water use, especially when it comes to new pools of water now being proposed to be legally created in Lake Powell in order to keep Glen Canyon Dam functioning as intended, under “drought contingency planning.”

“We would agree that he has compact compliance authority if we are in violation,” Muller said, referring to the state engineer, during an interview after last week’s CWCB meeting in Goldend. “And where the difference of opinion may lie within our state, still, and frankly, probably will for a long time, is can he curtail water rights in anticipation of a compact violation, and put that water in a pool down in Lake Powell? And we would say, we don’t think that that is a legal right that our state engineer has today. I think there are others who think that the state engineer could curtail water in an anticipatory fashion. We would disagree with that.”

Mueller, during an interview on Nov. 15, also said “there is a difference in administering water rights to keep us in compliance with the compact, where that water is flowing down into a river, not into a (new drought contingency) pool. It’s very different to store it in a pool that may someday keep us in compliance. So there are fine distinctions in there that I think lots of lawyers will argue about one day if we get to that point.”

Mueller was willing to put that debate aside, at least for the moment, and openly consider how the state might eventually go about an anticipatory curtailment if it decided to do so.

“It is probably a rule making,” Mueller said. “But I don’t think they can, through rule making, change some inherent rights associated with water rights. So I think it would require, frankly, a state law change, and some may argue that it may even require a constitutional change. It’s not a small matter.”

Mueller added that if “worst-case-scenario hydrology stays really bad, we’ll all be talking about mandatory. We’ll figure out, I hope, in a very public process, what that looks like. Because there are lots of different ways that mandatory could roll out. Unfortunately, there are probably winners and losers in each way.”

Part of the machinery that controls how much water is diverted out of the Colorado River for use on Orchard Mesa in the Grand Valley. If the state needed to meet its obligations under the Colorado River Compact, it would be up to the state engineer to decide how to curtail water use.

Next question

So, if the dreaded anticipatory, mandatory, curtailment were to happen, how would it happen?

It’s up to the state engineer, who serves as the state’s water referee, to figure that out.

And Kevin Rein, the state engineer, prefers the term “compact administration in the absence of a violation” when discussing the concept.

Will the state engineer use the prior appropriation system, where junior water rights are cut off before senior water rights?

That’s not clear.

Prior appropriation is probably what most people expect the state engineer would use to administer an actual violation of the Colorado compact.

In a water meeting held by the Grand Valley Water Users Association, in Grand Junction on October 23, Rein told about 250 water users that “If I found out today that our agency needs to administer a compact call tomorrow, then that’s where we go, priority of administration. Then we go through that list of priorities. That’s the way we are going to go. And of course, the pre-compact rights would not be impacted.”

So those are the current rules in place, to be deployed by the state engineer if, in fact, Colorado violates the compact, but many wonder if those rules will stay in place because of the now heavy reliance by Front Range cities on junior, post-compact, water rights.

A strict administration of the priority system would cut off almost all of the transmountain diversions to the Front Range from the Colorado River system, and some experts say that could prompt the Front Range interests to buy-and-dry land with pre-compact water rights on the Western Slope, or prompt the Front Range to seek exceptions to the priority system.

As of today there is no specific set of tools, or rules, for the state engineer to use to cut back water rights that technically are not yet in violation of the Colorado River Compact, just because some day they might be, or more precisely, because the state as a whole might be.

“If I’m concerned that in a few years, we might be out of compliance, that’s a personal concern I may have, but I can’t go out and do some administration to build a buffer, to accomplish what they are trying to do through demand management,” Rein, the state engineer said during a short interview after the CWCB had adopted its new policy, in Golden, on Nov. 15.

“Demand management” is a new program the CWCB plans to set up, in order to send water to the new regulatory pools in Lake Powell.

Instead of “anticipatory mandatory curtailment,” or AMC, the demand management program’s mantra is “voluntary, temporary and compensated,” or VTC, and that’s the approach the state says is the best place to start when it comes to sending water down Colorado’s rivers.

“Right now, it’s the drought management plan,” Rein said. “But if somehow the state engineer is tasked with some focus on that (referring to AMC), it would be through outreach, and a well-contemplated approach that complies with the law. But for right now it appears the drought management plan is the best effort to do that.”

Rein declined to speculate on how, exactly, AMC might someday, or somehow, be implemented, other than to re-affirm that it would be a stakeholder-driven process and it would be, again, a “well-contemplated” approach.

Others expect that any future anticipatory mandatory curtailment would be based, but perhaps to varying degrees, on cutting back junior rights over senior rights.

“The question is which one is most consistent with the prior appropriation doctrine, while still being most equitable to folks,” Mueller said, during an interview in Golden, about the available options. “And hopefully designed in a way to cause the least economic damage to not only the state as a whole, but to one segment of the state, or one industry, or one region.”

And Eklund, during Wednesday’s discussion in Glenwood Springs, observed that despite all the unknowns that could come with implementing anticipatory mandatory curtailment, it is likely to be the case that owning pre-compact rights (pre-1922 or 1929) will still be better than owning post-compact rights.

But, as Kuhn said on Wednesday during an interview, “There are not firm guarantees. It’s not your water, it’s the state’s water. And if the state doesn’t have a right to that water under an interstate compact, then your place in line, whether it’s pre or post compact, well, it’s not going away, but there’s just going to be nothing there when you get there. If the state doesn’t have any legal right to the water, you have nothing to divert, whether you have a pre or post compact rights.”

An irrigation ditch off the Crystal River used to irrigate fields. Many such ditches have senior, pre-compact water rights, but it's increasingly unclear how much that may matter in a future with less water, and compact obligations for the state to meet.

Free hand?

So, can the state engineer just cut back on water use however they want to meet the state’s compact obligations?

No. The engineer has the authority to initiate a rule-making process, but he, or she, would have to go through some sort of public process that includes talking to water users.

In regard to other compacts on other rivers in the state, such as the Rio Grande River, the state engineer has used a stakeholder-driven process that includes submitting proposed rules to water court so others can respond to them.

Eklund noted that, as such, Rein was looking at the issue from a “practical standpoint.”

“He’s looking down the long road of what it would take to produce a rule, and go through a rule-making process that would satisfy people and not just get them all riled up and ticked,” Eklund said. “As he stares down that road, there are multiple obstacles that he will hit. He has to go out and do a real-hard listening session, a whole bunch of them, across a number of water divisions. Every basin in the state, with the exception of the N. Platte and the Republican rivers, sees water, in one shape or form, from the Colorado River basin.

“And he would have to adopt a new rule that says, ‘Here is how I’m going to honor the differences and the unique attributes of each of those basins,’ because state law says he has to do that.”

Asked why the state hasn’t already developed such a plan, Eklund said “it’s such a painful process, that you don’t do something like that unless you have to. It’s like going in for elective surgery, ‘I’ll do it when my knee is hurting so bad that I can’t walk anymore, then I’ll go in and do the surgery.’”

Also of note here is how Karen Kwon, first assistant attorney general of Colorado, described how the state might be forced to move from voluntary to mandatory compliance, in her remarks to the CWCB board in Golden on Nov. 15.

“While demand management activities would be intended to try avoid that situation, and provide a proactive mechanism for Colorado to be going forward, there is no guarantee that demand management will work to the level that we need it to to completely avoid curtailment,” Kwon said. “Whether it is because hydrology persists and gets worse immediately and we’re not ready to stand up a demand management program, or that there is not enough money to fund a demand management program, or there is not enough interest in participation, whatever it is, there are lots reasons why we might not have a full operational demand management in the appropriate time.”

Kwon then drew the distinction between actually violating the compact, and working to avoid doing so.

“If we are in compact violation, the Division of Water Resources has to act,” Kwon said. “Outside of a compact violation, there is a situation where people are concerned that the Division of Water Resources is going to act in a vacuum. I have every assurance that is not going to be the case. We would have an open process going forward.”

A map of Colorado showing the urban areas of the state in red.

Divided state?

The ongoing situation, driven by poor hydrology, has, perhaps not surprisingly, opened up a new chasm between water interests on the Western Slope and those on the Front Range.

On Nov. 15, after the CWCB meeting, Mueller of the River District, which is chartered to protect Western Slope water, said “We do talk a lot with the Front Range. This isn’t going to come out of left field. But we want our water users on the West Slope to know that these are the issues that are being talked about. Because it is their water rights that people are talking about.”

And in an interview in September, Jim Lochhead, the CEO of Denver Water and the president of the Front Range Water Council, shared his thoughts on the relationship between a voluntary and a mandatory effort to send water to Lake Powell.

“I think that what we need to do is just proceed step by step,” he said. “The first step is to finalize the drought contingency planning. The next step is to create the demand management pool in Lake Powell, because without that it doesn’t matter what we do. And the third step is to work on a program where, if needed, we can use voluntary, temporary, compensated means to put water in that pool.”

But beyond that, Lochhead said that “Colorado River compact compliance” is a “state responsibility.”

“If we’re in trouble from a compact standpoint, the state is going to have to exercise its authority,” Lochhead said. “I also don’t think that by not talking about mandatory curtailment we can pretend the problem will go away. We need to be thinking about it, and we need to be thinking about it proactively.”

And Bennett Raley, the general counsel for the Northern Water Conservancy District, told the CWCB directors in September that mandatory curtailment may be necessary in Colorado.

“If the drought continues, there are two paths,” he said. “If there is an infinite source of money, then voluntary works. Great, we’re all happy. If the drought continues and there is not an infinite source of money, then the state will go to mandatory. The Supreme Court will ensure that, sooner or later, it’s not a question.”

The Weaver Ditch as it winds through Sopris Park in Carbondale. While the ditch is an a

State policy

Now, let’s go back to where this started and consider a relevant portion of the state’s new policy.

The policy speaks to what the state, via the CWCB, may do someday, if the now still-conceptual demand management program, designed to be voluntary, temporary, and compensated (VTC), does not end up sending enough water downstream.

“If the quantity of conserved water made available through the demand management strategies described in this policy is not sufficient to ensure Colorado’s compliance with the Colorado River Compact, it will be the Board’s policy to encourage and collaborate with the Division of Water Resources to engage in timely and extensive public outreach regarding development of any alternative measures or rules for compact compliance administration to fully inform and seek input from intrastate water rights holders and stakeholders with interests in the Colorado River.

“Such process would be with the goal, but not the requirement, of achieving general consensus within the state, without constraining the Division of Water Resources’ lawful administration of water rights in order to meet Colorado’s compact obligations.”

There are three key clauses of note in there.

The first is, “the Division of Water Resources’ lawful administration of water rights in order to meet Colorado’s compact obligations.”

The second clause is “alternative measures or rules for compact compliance.”

And the third is to “seek input from intrastate water rights holders and stakeholders with interests in the Colorado River.”

Related stories:

Colorado voices support for regional drought contingency plans,” Nov. 16, 2018;

Western Slope wants limits on water sent to Lake Powell in response to drought, Oct. 30, 2018;

Colorado River District wants state policy on potential water-use cutbacks, Oct. 18, 2018;

Colorado River District leaders to discuss mandatory water cutbacks, Oct. 16, 2018;

Mandatory curtailment of water rights in Colorado raised as possibility, Sept. 20, 2018; and

Colorado River district GM unveils manifesto on water-use reductions, Sept. 18, 2018.

Editor’s note: Aspen Journalism is covering water and rivers for The Aspen Times and other Swift Communications publications. The Times published a version of this story on Thursday, Nov. 22, 2018.

@CWCB_DNR/@DWR_CO: November 2018 #Drought Update

From the Colorado Water Conservation Board (Taryn Finnessey/Tracy Kosloff):

In response to persistent and prolonged drought conditions throughout the southern half of the state and along the western border, the Governor activated the Colorado Drought Mitigation and Response Plan for the agricultural sector on May 2, 2018, additional counties in northwest Colorado were added in September; information can be found HERE

The 2018 Water Year (which ended on September 30) was the warmest and second driest in 124 years of records for the state of Colorado. Water Year 2019, which began on October 1st, has seen above normal precipitation and below average temperatures across most of the state. This is the first time in over a year that the statewide average monthly precipitation was above average and monthly temperature was below average. Recent precipitation gains have helped to relieve some drought conditions in Southeastern and Northwestern Colorado; and have led to a good start to the snowpack accumulation season. Cold temperatures and above average precipitation has continued in the first half of November, however, precipitation has not benefited southwestern Colorado as much.

■ As of November 13th, exceptional drought, D4, continues to affect southern Colorado covering 13 percent of the state, extreme drought, D3, covers 21 percent of the state; severe drought 21 percent and 12 percent is classified as moderate drought. An additional 17 percent of the state is currently experiencing abnormally dry conditions.

■ An El Niño watch remains in effect, with a greater than 80 percent chance of an El Niño developing by the end of the calendar year, which could bring an increased chance of wet extremes for southern Colorado.

■ SNOTEL water year to-date precipitation statewide is 124 percent of average, but ranges from 92 percent of average in the Southwest basins to 170 percent of average in the South Platte River Basin. The Arkansas is at 163 percent, while the Colorado is at 134. The Rio Grande and Yampa- White are at 115 and 113 percent of average, respectively; while the Gunnison is at 96 percent.

■ Reservoir storage, statewide is at 81 percent of normal, with the Arkansas, Rio Grande, Yampa-White, and South Platte all above 90% of average for the end of October. Storage in the Colorado River basin is 89% of normal. The Southwest basins of the San Miguel, Dolores, Animas & San Juan, and Gunnison are now at 55 and 53 percent of normal, respectively.

■ Ridgway Reservoir is currently at its lowest point since it was first filled. Recovering from the rapid reservoir declines seen during the summer of 2018 will likely take some time. As of November 1, reservoir storage levels vary widely from near record high to near record low levels, with the Colorado, Gunnison and Southwest basins all below normal.

■ Long term forecasts indicate an increased likelihood of above average temperatures statewide November through January. Southwestern Colorado is forecast to continue to benefit from moisture as a result of the developing El Niño and has an increased likelihood of above average precipitation over the same time period.

■ Water providers are seeing decreased demands consistent with typical winter demands.

■ Fall moisture has helped with winter wheat planting and limited prevented acres were reported.

Widespread precipitation in October helped to alleviate drought conditions in some areas. Many areas of the state saw more precipitation in October than they saw collectively in the first half of Water Year 2018.

Colorado basin-filled snowpack map November 19, 2018 via the NRCS,

Snowpack is off to a good start with most areas of the state seeing above average accumulation in October and the first half of November.

Colorado Drought Monitor November 13, 2018.

Despite recent precipitation, Western Colorado is still dealing with severe, extreme and exceptional drought. Continued above average snow accumulation may help to alleviate these conditions as the winter progress and will be closely monitored.

“We ought to be able to figure out a way to get some water into #LakePowell without doing harm to anyone” — Patti Wells @AspenJournalism @cwcbbecky #ColoradoRiver #COriver #aridification

Looking upriver at the confluence of the Green and Colorado rivers in late September, one of the driest years on record for the Colorado River system. Water managers in both the upper and lower basins are working to get more water to this point in order to bolster the low level of Lake Powell, which is not far downstream.

From Aspen Journalism (Brent Gardner-Smith):

The state of Colorado is now officially on board with a regional water strategy designed to keep enough water in Lake Powell behind Glen Canyon Dam to avoid violating the Colorado River Compact and keep generating hydropower at the dam.

At a meeting Thursday in Golden, the directors of the Colorado Water Conservation Board unanimously adopted a state policy giving its “full support” to proposed drought-contingency plans and agreements now being reviewed in both the upper and lower Colorado River basins.

“I think we’ve really done something important for the state today,” Russ George, a CWCB director from Rifle who represents the Colorado River basin within Colorado, told a meeting room filled with water managers, water users and water attorneys from around the state.

The new policy means Colorado, along with the other upper basin states of Utah, Wyoming and New Mexico, can declare its support for the drought-contingency plans (DCP) and agreements at a mid-December meeting in Las Vegas of the Colorado River Water Users Association.

The lower basin states of California and Nevada also are in support of the agreements, but water managers in Arizona are still working through a series of contentious, complicated issues and have yet to reach consensus.

If consensus in both basins can be reached by mid-December, legislation may be introduced during the current lame-duck session of Congress.

A sense of urgency to do something about the falling water levels in Lake Powell has been growing, and was heightened in Colorado in 2018 by the hot and dry conditions.

Lake Powell on Friday, November 15 was at 44 percent full and at an elevation of 3,588 feet above sea level on the upstream face of Glen Canyon Dam. That’s 98 feet above the “minimum power pool” level of 3,490 feet.

The reservoir level has dropped by 38 feet in the last year, and water officials are concerned if dry conditions persist, the reservoir could reach the minimum power pool level within three years.

Operations, and reservoir levels, in Lake Powell are tied by regulatory guidelines with levels in Lake Mead, which is 38 percent full today. The new DCP storage pool in Lake Powell would be exempt from the operating guidelines, however, and would serve as a secure, and separate, savings account within Lake Powell for the upper basin states.

A graphic showing the 38-foot-drop in the surface level of Lake Powell over the last year, from the website, Regional water managers want to keep the reservoir above minimum power pool level of 3,490 feet.

Bridging the divide

The new Colorado state policy adopted Thursday was crafted by staff members at the CWCB, a state agency within the Dept. of Natural Resources, and the attorney general’s office to bridge the latest chasm that had emerged between water managers on the Western Slope and the Front Range.

Water officials on both sides of the Continental Divide want to store water in Lake Powell in a regulatory pool controlled by the upper basin, with the goals of first, keeping the reservoir levels high enough to keep producing hydropower at the dam, and second, high enough to continue to release enough water from the dam to meet the upper basin’s downstream obligations under the Colorado River compact.

But exactly how water that is now being consumed by farmers and ranchers and city dwellers will be conserved and sent downstream to fill the new pool in Lake Powell is uncertain, and a key issue is whether the state might require mandatory cuts in water use to fill the new pool to avoid a compact call.

The Western Slope, lead by the Colorado River District in Glenwood Springs, also wanted the state to help ensure that the creation of the new pool of water didn’t lead to a buy-and-dry of irrigated agriculture on the Western Slope.

And they wanted assurances that the state would use a public process to devise any new rules or laws requiring mandatory cutbacks in water use, should low water conditions persist.

Meanwhile, Front Range water interests wanted to make sure that the state didn’t tie its own hands and restrict its abilities to take steps to avoid a compact.

The confluence of the Green and Colorado rivers, in September 2018. Most of the water that flows into Lake Powell each year flows past this remote spot in Canyonlands National Park.

Responsive to concerns

The state’s new policy says it will use an open public process to create a “demand management,” or water-use reduction, program that incentivizes water users — primarily irrigators — to temporarily cut back on their consumptive use of water, in exchange for monetary compensation.

And if mandatory cutbacks in water use are ever necessary, “any alternative measures or rules for compact compliance administration” will be developed after “timely and extensive public outreach” and with “the goal, but not the requirement, of achieving general consensus within the state,” the policy says.

“The CWCB was very responsive to our request that they display state leadership in establishing a policy that going forward provides some security for the Western Slope and other regions of the state, and that no one region is going to suffer the brunt of a demand-management program,” said Andy Mueller, the general manager of the Colorado River District, after the meeting.

Mueller also said the CWCB “clearly separated demand management from some form of involuntary curtailment. It was very important to do that, as they are two different things.”

Both Mueller and Bruce Whitehead, the general manager of the Southwestern Water Conservation District in Durango, thanked the CWCB board for listening to their concerns, and drafting a policy that attempted to address them.

“This was a hot topic,” said Whitehead.

Between the two, the Colorado River District and the Southwestern District represent all of the Western Slope. Both Mueller and Whitehead said they will recommend to their boards that they formally endorse the state’s policy at their upcoming board meetings.

The Front Range Water Council, an ad hoc group that includes the major municipal water providers between Fort Collins and Pueblo, sent the CWCB a letter of support for the DCP policy, urging adoption “without any changes.”

“Thank you for your thoughtful consideration of public input on this topic of critical importance to Colorado, and for developing a policy that will allow Colorado to engage in further processes that will protect our collective interests in the Colorado River and Upper Colorado River compacts,” said the letter, which was signed by Jim Lochhead, the CEO of Denver Water and the head of the Front Range Water Council.

Patti Wells, who represents the Denver metro area on the CWCB, said it was important that Colorado not be split by differences between the east and west slopes.

“There clearly is more that unites us in the ability for Colorado not to be subject to a compact call, then there is in the details of how we might avoid that,” she said.

She also challenged water managers to come up with a demand-management program that “makes everyone better off.”

“We ought to be able to figure out a way to get some water into Lake Powell without doing harm to anyone, and really making it a program that will benefit all the participants to the extent that we can,” said Wells, who recently retired as the general counsel for Denver Water. “I see no reason why we can’t approach this in that way, because we are Coloradans for God’s sake, and we are not anyone else.”

Still in drought, Colorado sees snowy, cold start to 2019 water year — @AspenJournalism @DWR_CO @CWCB_DNR

US Drought Monitor November 13, 2018.

From Aspen Journalism (Lindsay Fendt):

Colorado closed out its second-driest water year on record Sept. 30, with 72 percent of the state in some level of drought.

The water year, which started October 1 of 2017, was marked by abnormally high temperatures, low precipitation and some of the largest fires in Colorado history, but state climate scientists and hydrologists say the 2019 water year, which began Oct. 1, is off to a much better start.

“We are trending towards the path of a good or near-average water year,” Becky Bolinger, a research associate with the Colorado Climate Center, said at a statewide water-availability task force meeting Tuesday in Denver.

Colorado Drought Monitor November 13, 2018.

Still dry

October and the first half of November saw above-average precipitation and below-average temperatures in most of the state. While much of this precipitation along the Front Range will have little bearing on the water year as a whole, the heavy snowfall in the mountains near Grand Junction, on the Western Slope, will probably stick around until spring.

Despite a good start to the 2019 water year, water managers warn that a few early snowstorms will do little to lift Colorado from its water problems. The state has been in water-shortage conditions for almost two decades.

“I continue to be skeptical,” Russ George, a board member representing the Colorado River basin on the Colorado Water Conservation Board, said during the board’s meeting Thursday. “We know — and we need to keep telling the public — that this moisture doesn’t solve the Lake Powell problem.”

Lake Powell, the largest reservoir on the Colorado River, has dropped more than 94 feet since the year 2000 and is now 44-percent full.

If the reservoir falls much further, it will be below “minimum power pool,” and water will not be able to flow through the penstocks in the upstream face of the dam down to turbines near the base of the dam.

And if water levels drop even further, the surface of the reservoir will be below the level of the outlet pipes in the dam, and not enough water will be sent downstream to meet the legal obligations of the upper basin states as required by the Colorado River Compact of 1922.

The threat of El Niño has also tempered water managers’ celebration about recent snowfall.

Climate models show an 80 to 90 percent chance for a winter El Niño. The weather phenomenon typically causes drier weather in the northern part of North America and wetter weather in the south.

Since Colorado falls in the middle of the continent, El Niño weather patterns are hard to predict for the state, but past El Niños have left most of the mountains on the Western Slope drier than normal and sent large amounts of snow to the state’s southeastern corner.

Although an El Niño could be bad news for Western Slope ski resorts and limit the mountain snowpack that feeds the rest of the state, it could help alleviate drought conditions in the Four Corners region.

This section of the state experienced its worst drought this year since the Dust Bowl of the 1930s. To meet summer demand, the region drew down its reservoir storage to record levels and will need a wet winter to recoup those reserves.

“There’s a lot of winter to come, but that’s an encouraging start,” said Karl Wetlaufer, a hydrologist with the Natural Resources Conservation Service, which is part of the U.S. Department of Agriculture.

Westwide SNOTEL basin-filled map November 14, 2018 via the NRCS.