Here’s a guest column from Paul Bruchez that is running in Steamboat Today:
A few years ago, I saw an opportunity to fix the irrigation problems while also improving river and wildlife habitat. My family’s ranch is in one of the most intact traditional agricultural communities remaining in Colorado. Like most ranchers, we’re independent folks — but in a pinch, we know we can count on each other.
Our neighbors came together and agreed on the need for action. Our group of 11 private ranches and the Bureau of Land Management, the irrigators of lands in the vicinity of Kremmling, received a couple of grants for a pilot project to restore a riffle/pool structure on a stretch of the river. It was an exciting start.
But I quickly realized that, given the scale of the problems, we needed to think bigger.
We worked with a variety of partners — Trout Unlimited, American Rivers, the Colorado Basin Roundtable, the Colorado Water Conservation Board, Grand County government, Northern Water, Denver Water, Colorado Parks and Wildlife, the Upper Colorado River Alliance, the Colorado River District and other river stakeholders — to put together an ambitious proposal for restoring a significant stretch of the Upper Colorado River.
In December, the U.S. Department of Agriculture’s Natural Resources Conservation Service recognized that big vision, awarding ILVK and our partners $7.75 million under the Regional Conservation Partnership Program to improve irrigation systems and reverse the decline in water quality and fish habitat in the headwaters of the Colorado River.
This funding is an amazing win for all Coloradans, because a healthy Colorado River sustains all our lives.
The Colorado River Headwaters Project will install several innovative instream structures designed to improve water levels for irrigation, while enhancing critical river habitat by rebuilding riffles and pool structure. A crucial piece will be restoring approximately one mile of the Colorado River’s former channel, currently inundated by Windy Gap Reservoir. This ambitious bypass project will reconnect the river — for the first time in decades — and improve river habitat in the headwaters area.
When fully implemented, the Headwaters Project will directly benefit more than 30 miles of the Colorado River and 4,500 acres of irrigated lands and make available up to 11,000 acre-feet of water to improve the river during low-flow conditions.
What have I learned from this project? That the interests of agriculture producers can align with the interests of conservation groups, state agencies, water providers and other river users. It’s not just the waters of the Colorado River that are connected — so are the people who depend on it.
The Colorado River flows through all of our lives. By working together, we can find smart, creative solutions that keep the Colorado healthy and working for all of us.
Paul Bruchez is a rancher who lives near Kremling.
FromThe Grand Junction Daily Sentinel (Gary Harmon):
Former Mesa County Commissioner Steve Acquafresca will represent Mesa County on the agency that is on the front line defending Western Slope water rights, replacing a current commissioner, John Justman…
Acquafresca said he and Justman share many misgivings about various developments in water policy, in particular “water banking,” or paying farmers to let their land lie fallow, or unplanted and unirrigated, so that the water that would otherwise have irrigated those acres remains in the river…
Acquafresca previously represented Mesa County on the River District board while serving as a commissioner. McInnis ran for his seat when Acquafresca became term-limited in 2014 and the two are Grand Junction neighbors…
Mesa County should not be alone to contribute to keeping up the water level at Lake Powell, which has dropped in recent years, Acquafresca said…
The other 14 counties in the district and Front Range diverters must share in any efforts to increase the amount of water flowing into Utah and Lake Powell, Acquafresca said.
Officials in charge of the Windy Gap Firming Project are checking to make sure that a Dec. 7 Colorado Supreme Court decision won’t adversely affect the $387.36 million transmountain water diversion project that will benefit the Front Range…
…in December, the Colorado Supreme Court sided with western slope interests against Aurora in case that had to deal with pumping western slope water across the continental divide and storing it on the eastern slope. Aurora had a one-half interest in the Busk-Ivanhoe Diversion Project in western Colorado.
Jim Pokrandt, spokesman for the Colorado River District, said the case relied on storage rights for the water.
“The big crux of the Aurora case is that they didn’t have the storage rights for the transmountain water that they took,” Pokrandt said. “So I’m sure what a lot of folks are doing is looking at their water decrees and seeing if they actually have decreed storage rights for transmountain water. That’s the question for the Windy Gap Firming Project.”
Pokrandt said that in the Colorado River District’s view, the court made the right decision.
“Our position is that water law is water law and under ordinary water law, you need a water right to store water. And Aurora argued that transmountain water didn’t need an exact water right to store it,” Pokrandt said. “But, no you do need that because water law is water law and there’s nothing special about transmountain water.”
The municipal subdistrict of the Northern Colorado Water Conservancy District is leading the Windy Gap Firming Project.
Eric Wilkinson, general manager of the municipal subdistrict, said they have staff researching to make sure the Aurora decision is unique to the case and to verify that the Windy Gap Firming Project is on legally stable ground moving forward.
“The Busk-Ivanhoe decision has a very significant application statewide … what the (Colorado) Supreme Court decision did is apply, in essence, 2016 water rights administration and laws to a decree that is dated 1928,” Wilkinson said.
Wilkinson added that staff are verifying that they have the water decrees to store Windy Gap water on the within the basin of use, which would be on the western slope.
Northern Spokesman Brian Werner said they are fairly certain the Colorado Supreme Court decision shouldn’t have major impacts on the Windy Gap Firming Project, which has been in the works since 2004.
“I want to emphasize that intent to store, we’ve had that all along with the Windy Gap Firming Project,” Werner said. “So if you’re asking what the impact (of the decision) is on the Windy Gap Firming Project, I can tell you there shouldn’t be any.”
Wilkinson added that with Colorado water law, nothing is certain forever.
“That’s the intent of our research to get to that point (of certainty),” Wilkinson said.
“But in Colorado water law and some of the interpretations that come out, there is not such a thing as absolute certainty. This Busk-Ivanhoe decision introduced some change in thought that didn’t exist before so say ‘here’s how it will be always and forever in absolute certainty’ is probably unreasonable, but we’re trying to get to a reasonable amount of certainty.”
Coyote Gulch contributor Brent Gardner-Smith took a deep dive into the decision to extract a summary of the water court process for a change of use. Below is his email:
You might appreciate this. In the midst of the Busk opinion is summary of the factors that go into changing a water right. I’ve stripped it of the legal references, but otherwise, it’s the court’s words. Thought you might appreciate it. Not sure what else to do with it yet.
Under Colorado’s doctrine of prior appropriation, a water right is a usufructuary right that affords its owner the right to use and enjoy a portion of the waters of the state.
One does not “own” water, but owns the right to use water within the limitations of this doctrine.
The touchstone of Colorado’s prior appropriation doctrine is beneficial use. That is, an appropriator perfects a right to use water by applying a specified quantity of unappropriated water to a beneficial use.
“Beneficial use” is “that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.”
Colorado water law has long recognized the right of water users to make changes to the terms of their decrees—including changes to the type, place, or time of beneficial use; changes to the points of diversion; changes to storage; and changes from direct flow to storage and subsequent application and vice versa.
Permanent changes to a water right must be decreed through the adjudication process established by the legislature … and … parties wishing to change the use of a water right must obtain a water court decree allowing the change in use.
It is inherent in the notion of a ‘change’ of water right that the right itself can only be changed and not enlarged.
This is a basic predicate of water law dating to the nineteenth century; a change application merely continues the rights decreed in the original appropriation in a new form and may not expand the amount of water actually used under the original decree.
In other words, “the right to change a water right is limited to that amount of water actually used beneficially pursuant to the decree at the appropriator’s place of use.”
Thus, in order to determine that a requested change of a water right is merely a change, and will not amount to an enlargement of the original appropriation, the court must quantify the historic use of the right to some degree of precision.
Quantification of the amount of water beneficially consumed pursuant to the decree guards against rewarding wasteful practices or recognizing water claims that are not justified by the nature or extent of the appropriator’s actual need.
An absolute decree confirms that a right of appropriation has vested; the decree entitles the appropriator to use that right through its decreed point of diversion in a specified amount, usually expressed as a flow rate (for a diversion right) or in acre-feet of water (for a storage right).
The term “historic use” refers to the “historic consumptive use” or “historic beneficial consumptive use,” attributable to the appropriation of that quantity of water historically consumed by applying the water to its decreed beneficial use.
However, because “the period and pattern of use are not known with certainty at the time a water right is adjudicated,” the decreed flow rate at the decreed point of diversion is not the same as the matured measure of the water right.
Rather, over an extended period of time, “a pattern of historic diversions and use under the decreed right for its decreed use at its place of use” will become the true measure of the mature water right for change purposes, typically quantified in acre-feet of water consumed.
Crucially, proper analysis of the historic consumptive use of a water right measures the amount of water both actually and lawfully used in accordance with the decree.
Because beneficial use defines the genesis and maturation of every appropriative water right in this state, every decree includes an implied limitation that diversions are limited to those sufficient for the purposes for which the appropriation was made.
Importantly, the actual historic diversion for beneficial use may be less than the decreed rate because, for example, “that amount has simply not been historically needed or applied for the decreed purpose.”
Indeed, we have often observed that when an appropriator exercises the right to change a decreed water right, he runs the real risk that the right will be requantified at an amount less than his original decree, based on the actual historic consumptive use of the right.
In short, an initial change application reopens the original decree for determination of the true measure of the appropriative right’s consumptive use draw on the river system.
In sum, “the fundamental purpose of a change proceeding is to ensure that the true right — that which has ripened by beneficial use over time — is the one that will prevail in its changed form.”
The decision is actually a page-turner for water wonks.
This graphic shows the transmountain diversions in Colorado. The Bousted Tunnel, at 53,871 AF, the Twin Lakes Tunnel, at 46,930 AF, and the Busk-Ivanhoe Tunnel, at 4,123 AF, have taken (in this data set) a combined average of 105,024 AF a year from the top of the Roaring Fork and Fryingpan rivers headwaters.
A map of the Busk-Ivanhoe system, with Ivanhoe Reservoir on the left side of the map and Turquoise Reservoir on the right.
Here’s a guest opinion (Eric Kuhn, Jim Light, Rick Lofaro, Louis Meyer) running in the Glenwood Springs Post-Independent:
In the Roaring Fork Valley, water is everyone’s business. Winter and summer, it fuels our economy and our fun.
The Roaring Fork, Crystal and Fryingpan rivers feed the Colorado River. Today, the Colorado River system supplies drinking water, irrigation, snowmaking, recreation and economic activity to 38 million Americans. It irrigates 4 million acres of rich farm and ranchlands and provides power to seven states. These rivers are everyone’s business.
And that system is in trouble. For 16 years, the Colorado River basin has seen dramatic drought. That, and overallocation of the river’s water, means that, since 2003, the demand for Colorado River water has consistently exceeded available supply. The few exceptional years, such as 2011, have saved the system – so far. Storage in lakes Powell and Mead has dropped to levels that threaten hydroelectric-power production and dramatic cuts in water deliveries to Arizona and Nevada by the end of 2017.
Simply put, if water in the West were a small business, we would be heading for bankruptcy.
And, yes, these challenges impact life here in the valley. Interstate agreements dictate Colorado can keep only a third of the water originating in our headwaters. Additionally, water rights owned by Denver Water and other Front Range water providers allow 30 diversions to send water from the Roaring Fork and other rivers through the Continental Divide to satisfy the Front Range thirst. Fill a glass of water in Denver and roughly half of the water started as snow on the Western Slope. In Colorado Springs it’s closer to 80 percent.
Our water future is challenged, a challenge we must address as a community, as a state and with our downstream neighbors. We must be water smart, and we have to do more with less.
That means being at the table where water decisions are being made. We need a Roaring Fork voice – and business is key to our voice. Why? Because when business talks, politicians and policymakers listen. Our Colorado River system supports a $26 billion recreation economy, with $3.8 million in local revenues from fishing on the Fryingpan alone. Elected officials and water managers from Aspen to Aurora to Anaheim need to know that.
That is why we sponsored the Business of Water summit here in the Roaring Fork Valley, gathering more than 50 business, nonprofit and community leaders to advance engagement on sustainable water practices and policies, and healthy rivers. We believe any plan to get the Colorado River out of the red must rely first on conservation, efficiencies and the full participation of the business community.
These facts are not lost on Gov. John Hickenlooper and the Colorado Water Conservation Board, who crafted our first state water plan highlighting the community and economic importance of our rivers and the need to invest in them. The Colorado Water Plan outlines projected shortfalls in water supply in the state by 2050 and how to address them, including a conservation goal of saving 130 billion gallons of water a year from municipal and industrial efficiencies (the equivalent of just 1 percent per year).
We can do this. Alpine Bank, with 36 West Slope locations, cut water use by 18 percent, while saving money. Denver Water customers use the same amount of water today as they did in 1973.
Finally, implementation of the Water Plan and safeguarding our water future will require money. Current state funding for critical water and stream restoration programs is limited by declining severance tax revenues. New funding mechanisms must be found.
Our Business of Water summit was the first step, and we will keep going — working with chambers of commerce and business leaders to host sessions on water education and engagement, linking businesses to share water-saving innovations and technologies, educating those who travel here on what a precious resource water is in the West.
If you own or operate a business and would like join us, please contact: email@example.com.
Eric Kuhn is general manager of the Colorado River District; Jim Light is chairman of Chaffin Light Management; Rick Lofaro is executive director of the Roaring Fork Conservancy; and Louis Meyer is co-founder of SGM.
A long-awaited ruling issued Monday by the Colorado Supreme Court sends Aurora back to court to discern exactly how much water the municipality can divert from the headwaters of the Fryingpan River through the Busk-Ivanhoe Tunnel under Hagerman Pass.
And the ruling clarifies that transmountain water rights under the Continental Divide in Colorado do not automatically come with a right to store water in a reservoir, anymore than other water rights do.
Aurora had argued there had always been an implied right in its decree to store water from the Fryingpan headwaters in Turquoise Reservoir. But the court didn’t agree.
“The supreme court concludes that the right to store water in the basin of import prior to use is not an automatic incident of transmountain water rights, but rather, must be reflected, or at least implied, in the decree,” the court’s majority opinion stated. “In this case, the decree is silent with respect to storage of the water on the eastern slope prior to use for supplemental irrigation and, on the facts of this case, the record does not support the water court’s finding of an implied right in the decree for such storage. To the extent that unlawful storage of the water on the eastern slope expanded the decreed rights, such amounts cannot be included in the quantification of those rights.”
The Colorado River District, which represents 15 Western Slope counties, said Tuesday in a statement it is “very pleased with the supreme court’s well-reasoned opinion in which it reversed the Division 2 water court. In particular, we are pleased with the court’s recognition that transmountain water rights are subject to the same legal principles as all other water rights in the state.”
As might be expected, Aurora officials were less pleased.
“The city is disappointed with [Monday’s] supreme court opinion reversing the trial court’s earlier decision,” said an Aurora representative in a statement. “The city regrets the departure from what it believed to be settled law regarding use of transbasin waters.
“Additionally, it appears due consideration was not given to aspects of the trial court’s determinations regarding the state of the law when the water rights were originally requested,” the statement said. “Aurora is currently evaluating its possible next steps.”
One possible next step is for Aurora to file a petition within 14 days for the supreme court to rehear the case.
If Aurora does not petition for a rehearing, the case will be sent back to water court in Pueblo for a recalculation of how much water Aurora is allowed to divert via the Busk-Ivanhoe Tunnel for municipal purposes, instead of for irrigation purposes.
The supreme court said the new calculation should include the 22 years from 1987 to 2009 when Aurora used the water for municipal purposes without a decreed right to do so.
And by factoring in those 22 years of “zero use,” the new calculation is expected to lower the amount of water the Front Range city can divert from the Fryingpan in the future.
Another aspect of the ruling could also reduce the size of Aurora’s water right, as the court found that much of the water diverted through the Busk-Ivanhoe Tunnel since 1928 had been stored without a decreed right to do so.
“Because undecreed storage of a direct flow water right may amount to an expansion of that right, any expansion of the Busk-Ivanhoe water rights resulting from the unlawful storage of those rights on the eastern slope cannot be included in an historic consumptive use analysis,” the ruling stated.
The court also suggested that harm may have been caused to junior water rights owners on the Western Slope by undecreed diversion and storage of the Busk-Ivanhoe water.
“Storage of a decreed direct flow right can potentially expand that right by permitting the diversion of available water not immediately needed for beneficial use — water that would otherwise be left in the stream for junior water users,” the ruling said. “This impact on junior users does not cease to exist just because the water is diverted for export to another basin. Junior users in the basin of export have a right to divert and use water not lawfully diverted in the first place under a senior water right, regardless of whether that water is diverted for transmountain use.”
Worth the fight
Pitkin County has been opposing Aurora in the case since 2009 and has now spent $353,000 in the process.
“It was worth it,” said John Ely, Pitkin County attorney. “It was important for Pitkin County to assert that transmountain diverters are subject to the same legal consideration as any other water diverter or water user, because Pitkin County hosts two of the larger water diversions in the state.”
In addition to the relatively small level of diversions through the Busk-Ivanhoe Tunnel by Aurora and Pueblo, significant amounts of water are diverted off the top of the Fryingpan and Roaring Fork rivers to the Front Range as part of the larger Fry-Ark and Twin Lakes projects.
Aurora still has a valid water right from 1928 to divert 2,416 acre-feet of water through the tunnel for irrigation uses in the Arkansas River basin.
But officials now want to use the same water for municipal purposes in Aurora, which is in the South Platte River basin.
And when the growing Front Range city came into the court in 2009 seeking a change to its water right, it admitted it was already using the Fryingpan water for municipal purposes without a decreed right to do so, and had been doing so since 1987.
However, Aurora told the court that that fact should not count against it in its change case. It also said it shouldn’t matter to the Western Slope how it used its water once it was sent under the Continental Divide, including if the water was stored in an East Slope reservoir or not.
A judge in Division 2 water court in Pueblo agreed with Aurora and ruled in its favor in August 2014. That decision was appealed by a list of Western Slope interests directly to the supreme court, which issued its opinion on Dec. 6, 2016.
Both the broad ruling, that storage is not an inherent right for transmountain diversions, and the narrow ruling, that Aurora needs to recalculate its historic consumptive use, were welcome news for Western Slope water interests.
“The reason our clients stayed involved is [that] from the get-go, Aurora was asserting some untenable legal positions that seemed to rely in large part on the concept that, ‘Well, we’re a transmountain diverter, so we look at things differently,’” said Kirsten Kurath, an attorney in Grand Junction.
She represented the Grand Valley Water Users Association, the Orchard Mesa Irrigation District, and the Ute Water Conservancy Districts in the case.
The other Western Slope parties in the supreme court case were Eagle and Grand counties and the Basalt Water Conservancy District.
The Colorado state engineer, and engineers in Divisions 1 and 5, were also in the case, and had sided with the arguments made by the Western Slope.
On the Front Range side of the arguments were Aurora, Colorado Springs, Denver Water, Pueblo Board of Water Works, Greeley, Northern Water, Southeastern Water Conservancy District, Twin Lakes Reservoir and Canal Co., Lower Arkansas Valley Water Conservancy District, Busk-Ivanhoe Inc., Cache La Poudre Water Users Association, and the city of Northglenn.
Deadline for submission of a grant application is January 31, 2017
Grant applications for projects that protect, enhance or develop water resources in the 15-county area covered by the District are eligible for funding consideration. This includes all watersheds in north- and central- western Colorado, except the San Juan River basin.
Eligible projects must achieve one or more of the following:
develop a new water supply
improve an existing water supply system
improve instream water quality
improve water use efficiency
implement watershed and riparian management actions
Past projects have included the construction of new water storage, the enlargement of existing water storage or diversion facilities, rehabilitation of non-functioning or restricted water resource structures, implementation of water efficiency measures and other watershed improvements. Such projects that utilize pre-1922 water rights will be given additional ranking priority over similar projects that do not. Each project will be ranked based upon its own merits in accordance with published ranking criteria.
For more information please contact Dave Kanzer or Alesha Frederick at 970-945-8522; Colorado River District, 201 Centennial St., Glenwood Springs, CO 81601 or by e-mail to firstname.lastname@example.org.
Please note: The River District is not responsible for lost and/or undelivered applications. The sponsor of the application will receive a confirmation from the River District when an application is received.
FromThe Grand Junction Daily Sentinel (Dennis Webb):
The head of the Colorado River District is defending an ongoing water study from Front Range concerns about its intent and possible regional bias.
Eric Kuhn, the district’s general manager, says while Front Range water interests view the project as a water supply study, that’s not the case.
“It was a how-should-we-be-prepared-for-another-drought study,” he said Monday in providing an update to the Colorado Basin Roundtable water group.
The first phase of a study undertaken by the four Western Slope river basin roundtables, with the leadership of the river district and Southwestern Water Conservation District, found that another severe drought such as the one in the early 2000s could cause enough of a drop in Lake Powell to jeopardize Glen Canyon Dam’s ability to generate electricity. It also could create a risk of Colorado and other Upper Colorado River Basin states being unable to meet their downstream water delivery obligations under a 1922 interstate compact and under guidelines established in 2007. That could result in a cutback in Upper Basin water uses.
The Western Slope is now planning a second phase of the study that would cost about $90,000. The goal is to further quantify the drought risks to water users in the state by looking at use-reduction scenarios for making up for a deficit of water in Powell.
Four Western Slope roundtables are asking the Colorado Water Conservation Board for $10,000 apiece, or $40,000 total, for the study’s second phase, with the river district and Southwest district splitting the difference. But Jim Lochhead, chief executive officer and manager of Denver Water and president of the Front Range Water Council utilities group, has written a letter arguing that such a study would be best conducted at a statewide or Upper Colorado River Basin level, “with all interested water users represented, rather than by particular sub regions or individual roundtables.”
Some of the proposed involuntary water-use curtailment alternatives in the study’s second phase “potentially favor limited special interests,” Lochhead wrote, stressing the need instead for a state-led discussion that considers all interests.
He also voiced the council’s concern that assumptions used in phase one “may be creating biased impressions regarding the amount of the remaining developable water” in the Colorado River Basin, and that phase one may be viewed by some outside the state “as representative of the State of Colorado’s position on remaining developable water.”
How much of that water remains to be developed is a sensitive issue for the Western Slope, where most of Colorado’s water originates, and for the Front Range, which diverts a substantial amount of Colorado River water and wants to divert more.
Kuhn says the study is simply intended to contribute toward developing a collaborative program for avoiding Colorado River compact problems for existing uses and some reasonable amount of new uses on the Western Slope. Collaboration aimed at heading off such curtailments on use due to interstate obligations was identified in the new state water plan as one of seven principles for guiding any discussions of new transmountain diversions out of the river basin.
The CWCB’s director, James Eklund, has agreed to head up meetings aimed at resolving Front Range concerns about the study and its funding. Kuhn said he sees the result being that the state has a bigger say in the study’s scope of work, not that it takes over the study altogether.