Steamboat Springs: Hundreds of ranchers in the scenic Yampa Valley have ignored a state request to begin measuring the water they use, putting them on a collision course with regulators that will land many of them in court this summer if they don’t relent.
Division Engineer Erin Light, the top water chief in the region, said roughly 70 percent of irrigators in this remote part of northwestern Colorado have not installed measuring devices, meaning that millions of gallons of water are being consumed without oversight, something that is routine on other river systems.
“I sent out a notice in March saying, ‘I’m going to issue an order if you don’t install them now,’” she said. “It was a friendly gesture.”
No one responded.
“We have not been impressed with the response,” Light said.
On Sept. 30, she issued a formal order to 550 ranchers, which, if ignored, could result in fines of up to $500 a day and court action.
The deadline to respond this time was Nov. 30. Few did so, Light said.
Under the terms of the order, ranchers who don’t install measuring flumes or other devices to track diversion rates from the river into their irrigation systems will be cut off if they try to irrigate in the spring. They will also likely face prosecution, Light said.
“We’ll be working with the attorney general’s office to begin court proceedings,” she said.
The issue reflects an end to a gentleman’s agreement that dates back to the late 1800s, a consensus that said these tough, resourceful ranchers could manage their own water, that the state did not need to issue a direct order, and that the hay meadows, and cattle and sheep operations, could continue diverting their irrigation water as they always had.
And that’s largely because of the Yampa River’s amazing flows. Unlike almost any other place in Colorado and the West, water here was once so abundant that there was almost always plenty to go around. Measurements weren’t needed, and the state rarely had to step in to resolve disputes among water users, allowing Mother Nature free rein.
But chronic drought, climate change, and population demands have begun eroding the Yampa’s once bountiful supplies. For the first time ever, in the desperately dry summer of 2018, Light was forced to step in, cutting off some irrigators because more senior water rights holders weren’t getting their legal share of water. That sent a shock across the valley but triggered little action.
These days the Yampa River has the distinction of being the only one of Colorado’s eight major river basins that remains largely unmeasured and unregulated.
But Light said the issue has become too critical, and water too scarce, to allow that to continue.
Mike Camblin, whose family has been ranching here for more than 100 years, said he will comply with the order. But he and many of his colleagues feel the state has been too heavy handed in its approach.
“What I don’t like about the order is that it’s forcing people to install those or they are going to get fined $500 a day to run water even if it’s a free river,” he said. The term free river means that there is enough water in the stream to satisfy all water rights, and under normal circumstances people can divert as much of the excess as they want.
“I’m very disappointed,” said Dave Seely, a long-time rancher who has 11 different irrigation ditches that span Moffat and Routt counties.
Many of his ditches already have measuring devices, but the order means he will have to install at least five new ones at a total cost of more than $10,000, he estimates.
Light is aware of the anger in the ranching community and said she understands the financial burden the order will place on many irrigators.
“I’ve been trying to encourage my water users to understand that there is a value to them in measuring how much water they divert. Water is often a rancher’s most valuable asset. But many don’t want to hear that,” she said.
Seely plans to comply with the order so that he can divert in the spring. But there is a lingering resentment and sense of loss for an era that is ending.
“Historically there was never a call on the river, but now there is,” Seely said. “Now we’re under the jurisdiction of the state engineer forever.”
This four-part series contrasts the processes behind the Colorado Water Plan with four other recent western water plans: California, Texas, Montana and Oregon.
The production cycle of the Colorado Water Plan is a three-phase process, which involves regional engagement and project planning through basin roundtables and Basin Implementation Plans; statewide modeling, published in the Technical Update, and the publication of a comprehensive statewide plan. Not all states directly involve regional groups in state water plan development. Within the five Western water plans researched for this series, two states mandated the production of a high-level statewide policy document; while three states, including Colorado, mandated a regional or “basin” planning effort to inform statewide processes.
These approaches can be described as “top-down” and “bottom-up.” A top-down approach produces a water plan entirely directed and developed through state agencies, with designated periods for public comment. The final product of a top-down approach, exemplified by the California and Oregon state water plans, is described by state agencies as a high-level policy plan. In contrast, a bottom-up approach is rooted in the recruitment of regional planning groups. These groups develop unique basin plans that directly inform the content and directives of the state water plan. Examples of this planning approach include Colorado, Montana and Texas. The product of a regional approach constitutes multiple products: multiple basin plans and a single comprehensive state water plan. This idea is embodied in the figure below, which features Colorado’s nine Basin Roundtable boundaries.
A legacy of collaboration
The choice to pursue one strategy or another is rooted in the history of each states’ water governance, as well as contemporary policy and budgetary requirements. The Colorado Water Plan’s mandate for regional planning directly builds on the legacy of the basin roundtable process. The basin roundtable process was established in 2005 by the passage of House Bill 05-1177, “Colorado Water for the 21st Century Act.” This bill codified a deeply collaborative approach to addressing regional water concerns and visions for the future. This legislation also established the Interbasin Compact Committee to operate as a statewide forum for basin roundtables. The success of these volunteer groups directly informed the engagement efforts mandated in the 2013 gubernatorial executive order that called for the production of Colorado’s first statewide water plan.
Trends across Western water plans: expanding regional engagement, water education, and data accessibility
Regardless of the degree of regional authorship within a state water planning process, there is interest across Western state water plans in investing in locally identified water projects. For example, documents associated with California’s most recent “2018 Update” underscore a state interest in funding regional priorities. The report “Funding Mechanism Inventory and Evaluation” identifies watershed or river basin assessments as a potential vehicle for the state of California to fund locally-identified management actions.
This trend in regional engagement is concurrent with an effort to expand water education programming and water policy accessibility. To this end, state water plans including Texas, California, and Colorado have developed (or are currently developing, in the case of Colorado!) interactive online components that will accompany their water plans. While the 2019 Utah Water Plan was not explicitly examined for this blog series, it will notably prioritize a new webpage interface over traditional printing.
Recently published Western state water plans reflect an increasing emphasis on data transparency and accessibility, as well as state planning processes that better integrate stakeholder and regional perspectives into state water policy.
Hannah O’Neill is a graduate student at CU-Boulder studying environmental policy and western water management. Hannah is a fifth generation Coloradan and Denver native, who has a professional background in fossil exploration and National Environmental Policy Act compliance. Hannah obtained a BS in Geology-biology from Brown University in 2014.
Water sufficient for more than 1 million homes on the Front Range could be lost, and thousands of acres of farm land on both the Eastern and Western Slopes could go dry, if the state can’t supply enough water from the drought-stricken Colorado River to downstream states as it is legally required to do, according to a new study.
Among the study’s key findings:
+ In the next 25 years, if the state does nothing to set more water aside in Lake Powell, the Front Range could lose up to 97 percent of its Colorado River water.
+ All but two of the state’s eight major river basins, under that same “do nothing” scenario, also face dramatic water cutbacks.
+ If Colorado, Wyoming, Utah and New Mexico increase their water use by as little as 11.5 percent, as predictions indicate they will by 2037, the risk of a legal crisis spurring such cutbacks on the river doubles, rising from 39 percent to 78 percent, under one scenario, and 46 percent to 92 percent under another.
“Every water user in every river basin [linked to the Colorado] faces some risk,” said Andy Mueller, general manager of the Glenwood Springs-based Colorado River Water Conservation District, one of the sponsors of the Colorado River Risk Study, as it is known. The Durango-based Southwestern Water Conservation District also sponsored the work.
“That’s an important takeaway because when you begin to realize the extent of potential damage, whether it is on the West Slope or the Front Range, then we all come to the realization that we have a shared risk,” Mueller said.
Under the 1922 Colorado River Compact, the river’s supplies are divided between the four Upper Basin states (Wyoming, Utah, Colorado and New Mexico) and three Lower Basin states (California, Nevada and Arizona). The compact dictates that cities and farmers in the Upper Basin whose water rights were obtained after the compact was signed would have to give up some or all of their water to the Lower Basin if there isn’t enough water in Lake Powell to meet the terms of the compact. Colorado uses the most water of all the Upper Basin states and therefore faces the most risk.
The study was conducted by Boulder-based Hydros Consulting and released in June. It looked at different scenarios for the way river conditions and reductions to diversions could play out, as well as ways to reduce the risk cities and farms face, including spreading the cutbacks proportionately among all the river basins, something that isn’t typically done.
Front Range water utilities are wary of the study and have begun a new round of analysis to determine if they agree with the results.
Alex Davis is a water attorney for the City of Aurora. At a recent forum on the risk study, she said that the chances of a Colorado River crisis were being exaggerated. And the study acknowledges that under some scenarios the risk of such a legal crisis is low.
“All of this talk is helpful to get people to think about the issue, but it also seems like a bit of scare tactics. If the Lower Basin states did try to do something, there would be a whole number of reasons [they would not get far],” she said.
Including the fact that they continue to overuse their share of the river by about 1.2 million acre-feet a year. Before Colorado and its northern neighbors were asked to cut back, the Lower Basin would have to do additional cutbacks as well, she said.
West meets east
Though the Colorado River flows west, and originates in Colorado’s Never Summer Mountains in Rocky Mountain National Park, a large chunk of its flows, more than 530,000 acre-feet, are pumped east over the Continental Divide to the state’s Front Range cities, including Denver, Colorado Springs, Pueblo, Boulder, Fort Collins and Broomfield, among others. That’s enough water to supply 1.06 million homes or to irrigate more than one-half million acres of crops.
Because these water users built their tunnels and reservoirs decades after the 1922 Compact was signed, they could be among the first to be cut off. Denver’s largest storage pool, Dillon Reservoir, was completed in the 1960s. East Slope cities and farmers would lose 97 percent of their Colorado River supplies if those diversions were completely shut down, according to the study.
“You have to start with the fact that 50 percent of the water on the Front Range comes from the West Slope. Should the Upper Basin fail to meet its delivery obligation, half of water use on the Front Range would be curtailed. That’s an enormous problem,” said Brad Udall, a senior climate and water scientist at Colorado State University’s Colorado Water Center.
Other parts of the state also face risk, some more than others. The Yampa River Basin, home to Steamboat Springs, would lose slightly more than 70,000 acre-feet of water, or 30 percent of its Colorado River supplies.
The Gunnison Basin, where agriculture controls historic water rights that pre-date the compact, is better protected, with the potential to lose just over 57,000 acre-feet of water, or 10 percent of its share of the river.
But a large swath of the southwestern part of the state would also be hard hit. Despite the historic farm water rights in this region, several small communities and irrigation districts built reservoirs after the compact was signed, just as cities did on the Front Range, meaning that those stored water supplies are also at high risk. In this basin, 178,000 acre-feet of water, roughly 36 percent of its Colorado River supplies, could be lost, according to the study.
The likelihood of ongoing drought and hotter summers only deepens the uneasiness over the river’s ability to produce the amount of water the state once relied on.
“We don’t expect to see cooler temperatures in the future, we expect to see warmer temps,” Mueller said. “If that is true, then we have to plan on reduced water supplies within our state.”
Saving more water?
The study comes as the Colorado Water Conservation Board (CWCB), the lead water policy agency in the state, is examining whether to launch a massive, voluntary conservation program that would allow the state and its neighbors to save some 500,000 acre-feet of water and store it in a newly authorized drought pool in Lake Powell. The pool, to be used only by the Upper Basin states, could help protect Colorado and its neighbors if drought and climate change continue to sap the river’s flows.
Michelle Garrison is a modeler with the CWCB who has analyzed the study’s results. She said the scenarios it considered are important for comparative purposes and may help the West Slope and Front Range collaborate on any water cutbacks, something that hasn’t always occurred in the past.
“It’s a tough one,” she said. “The hydrology in the Colorado River has always been extremely variable and it’s predicted to become even more variable. But I’m really pleased to see them sharing their results.”
In places like the Yampa Basin, if the state cut back water use based strictly on prior appropriation, where water right dates determine who gets water first in times of shortage, Stagecoach Reservoir, the most significant storage pool in the valley, could be shut off because its storage rights date only to the 1980s. And residents would be hard pressed to cope if another long-term drought drained the river and their only source of stored water was no longer able to refill.
Kevin McBride is manager of the Upper Yampa Water Conservancy District, which owns Stagecoach. He, like dozens of other water managers across the state, is still contemplating the options. (Editor’s note: McBride serves on the board of Water Education Colorado, which houses Fresh Water News.)
“Generally being safe from drought is what it’s all about,” McBride said. “But how do you get there?
“It’s complicated and it comes down to how it’s done.”
McBride and others on the West Slope are asking for another round of modeling that would examine more equitable ways to cut back water use, so that no one takes the brunt of the reductions.
With insurance, or without?
Others have suggested that the state should let the rules embedded in the 1922 Compact and Colorado’s water rights system play out, rather than creating an expensive, legally complex water conservation program.
Anne Castle is a senior fellow at the University of Colorado’s Getches-Wilkinson Center for Natural Resources who specializes in Colorado River issues. Going without a major conservation program carries its own set of very high risks, such as decades of expensive lawsuits or unplanned water shortages.
Over the next several months, the state will continue to examine how best to protect its Colorado River water as part of drought planning work it is engaged in with the other Upper Basin states. Late next year, all Colorado River Basin states will begin negotiating a new set of operating guidelines for the entire river system, designed to bring it back into balance and slash the risk of major cutbacks.
“Truly one of the points of this risk study is to make sure that anyone who is at risk understands the risk,” Mueller said. “If you’re a water planner, it may set off some alarm bells. But we don’t want people to panic. The hope is people will look at this and say, ‘Our community is at risk…what are we going to do about it?’”
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.
While the ink was still drying on the final draft of the Colorado River Drought Contingency Plan (DCP), policy makers in Colorado were turning their attention to the bigger challenge ahead.
With the agreement’s signing in May 2019, the state and its neighboring upper Colorado River Basin states of New Mexico, Utah and Wyoming were granted the ability to bank conserved water in Lake Powell and other upper basin reservoirs in case of a future water crisis—but only if the states agree on an upper basin demand management program. Getting all the parties on the Colorado River to agree to that so-called “drought pool” in Lake Powell was difficult, but designing the demand management program to get water into the pool will be much harder. Determining when to release water from the pool could also prove challenging.
Demand management is water conservation on such a large scale that it reduces the amount of water drawn from the river in a significant, measurable way. If the upper basin states develop a demand management program, they will collectively use less water, then track, deliver and bank those savings in upper basin reservoirs. That water could be sent downstream when flows are low to meet the upper basin’s commitment to the lower basin states and Mexico, as outlined under the 1922 Colorado River Compact and subsequent agreements.
The compact stipulates that the upper basin states must not deplete the flow of the river at Lee Ferry below 75 million acre-feet based on a 10-year running average. Although the upper basin is a long way from running out of water, if the future brings more dry years and low reservoir levels, as is projected, it will become increasingly difficult to send water downstream while still meeting upper basin water needs. If the lower basin does not receive its share of water, a legal battle could ensue, threatening water rights in the upper basin—so the upper basin complies with the compact to maintain control over its own water supply.
The DCP lays out processes for how this might be achieved but is only in effect through 2026, at which time the federal government, in consultation with all Colorado River Basin states, will reconsider how the system should be operated.
Exploring demand management is just one of the upper basin’s commitments under the DCP—the other two elements include a new plan to move water from smaller upper basin reservoirs to Lake Powell, and finally, water supply augmentation. As a whole, the upper basin’s DCP aims to maintain storage volumes at Lake Powell, enabling continued hydropower generation, thereby funding continued operation of the reservoir system and use of Colorado River water in the upper basin. But demand management could be part of the upper basin’s strategy. So work is underway to determine what demand management might look like, if a program is developed. “There are still a lot of big ifs,” said Brent Newman, the former interstate and federal section leader for the Colorado Water Conservation Board, during a presentation in August.
Newman was addressing about a dozen people gathered in the Summit County Library in Silverthorne for the first meeting of the Economic and Local Governments Working Group on demand management. The group of county commissioners, lawyers, consultants and utility managers will spend the next year identifying critical issues for the feasibility of a demand management program.
As the meeting closed, the group filled three large boards with sticky notes of questions and possible problems with demand management, issues to be hashed out in the coming months. Similar brainstorming sessions are playing out across the state in eight other working groups, each dedicated to exploring demand management from a different perspective, like agriculture and the environment. Simultaneously, each of the other upper basin states is also examining how it could approach demand management. Unless all four upper basin states agree, there will be no demand management program.
This massive planning effort from four different states will cost millions of dollars and require tough negotiations. And while each upper basin state is putting its best foot forward to create a plan, there is no guarantee that conditions will get bad enough that it will be needed. There’s also no guarantee that a demand management plan will be adopted—and even if adopted, will it be adopted in time to make a difference?
The DCP and Colorado
Over the last 20 years, the Colorado River has experienced extreme drought, unprecedented in modern history. Now, states throughout the West are planning for a future with less water, and for good reason—modeling shows an increasing likelihood of water shortage in the basin. According to Phase III of the Colorado River Risk Study, an effort completed in June 2019, the upper basin faces a 45 percent chance of a water shortage in the next 25 years at current water use levels. If upper basin water use increases by just 11.5 percent, that risk doubles, creating a 90 percent chance of coming up short, the study says. Instead of tumbling unprepared into shortage, representatives from the seven states that rely on the Colorado River created the DCP to stave off a future water crisis by readying for dry times.
The objective of the DCP, which is really two plans, one for the upper basin and one for the lower, is to prevent water in the river system and its two primary reservoirs—Lake Powell and Lake Mead —from dropping too low. Reaching these critical levels would trigger a crisis-level response in the region with some states taking significant reductions in their water allocations and some areas losing access to clean power due to the loss of production from the reservoirs’ hydroelectric dams. The revenue earned from hydropower contracts is used to fund conservation for rivers and programs like endangered fish recovery. The loss in funding would also limit the government’s ability to run the dams and distribute any water remaining in storage.
The lower basin’s DCP laid out cuts in lower basin water use that are tied to projected reservoir levels. But the upper basin is in a different position. Its DCP gives the upper basin tools to manage its water supply in case of shortage, which should help it meet its obligations under the 1922 compact and avoid involuntary cutbacks. The first of these tools, which is really the basin’s first line of defense in protecting Lake Powell’s storage levels, is a new mechanism to move water from upstream reservoirs down to Powell when Lake Powell is facing a critically low level, what is known as the Drought Response Operations Agreement. The second is a 500,000 acre-foot storage pool in upper basin reservoirs, which the basin can use to store water from a demand management program, if such a program is deemed feasible and adopted. The third, known as augmentation, which is already in use, is a combination of cloud seeding to stimulate precipitation, and the control of phreatophytes like tamarisk and Russian olive, which are deep-rooted non-native plants that soak up water from riverways.
Over the next several years, the upper basin will use these tools and determine whether to bank water for shortage. While the upper basin’s work is just beginning, it could shift the way water has been managed in the West for more than a century.
This possible shift matters to water users across Colorado, that’s why the scene of the demand management workgroup in Summit County yielded three boards covered in questions and concerns. The Colorado River starts as snow high in Colorado’s Rocky Mountains. In the spring, it melts down into a web of tributaries that flow across the upper basin states into the river’s mainstem. Each of the basin states relies heavily on water from the river, but Colorado, in particular, plays an outsized role in how the Colorado River water system works. Colorado snowmelt contributes about 70 percent of the total flow of the Colorado River.
But Colorado also gets the lion’s share of the upper basin’s water—it can use 51.75 percent of the upper basin’s allocation per the Upper Colorado River Basin Compact of 1948. Colorado’s average annual consumptive use of Colorado River water is about 2.5 million acre-feet, according to the Colorado River Risk Study. And though only about 20 percent of the state’s population lives in the greater Colorado River Basin—which in Colorado includes not only the Colorado Basin but all West Slope rivers such as the Gunnison, Yampa, White, San Juan, San Miguel, and other smaller tributaries—more than 570,000 acre-feet of Colorado River water is piped across the Continental Divide each year, reaching the Rio Grande, South Platte and Arkansas basins. More than 80 percent of the state’s population lives along the Front Range, where transbasin diversion water accounts for about 60 percent of water use. Users of Colorado River water range from municipalities to farmers to industrial users like oil and gas operations.
If a severe water shortage resulted in the upper basin not meeting its compact obligations, water rights across the state would be at risk of curtailment. Although no curtailment procedure has been decided upon, water rights adjudicated after 1922, the year the compact was signed, are often considered to be more at risk than pre-1922 rights. In Colorado, transbasin diversions serving the state’s population center constitute more than half of the state’s post-compact depletions, which means that Front Range municipal water users, though geographically disconnected from the Colorado, have an extreme interest in protecting the river and Lake Powell reservoir levels—thus in seeing the upper basin DCP succeed. If the actions in the upper basin’s DCP aren’t sufficient to protect reservoir levels in Lake Powell and if releases below Lee Ferry were too low and violated the compact, a compact deficit could result and lead to involuntary curtailment.
Drought Response Operations Agreement
Rather than a step-by-step plan, the upper basin’s DCP is all about process. The new elements of the DCP, the Drought Response Operations Agreement and demand management, are plans to create a plan if conditions warrant it. The plan first lays out strategies to maintain water levels in Lake Powell during a drought. If those operations are not enough, the agreement describes how water from the three federal storage projects in the upper basin—Fontenelle in Wyoming, Flaming Gorge in Wyoming and Utah, Navajo in New Mexico and Colorado, and the Aspinall Unit which is composed of Blue Mesa, Crystal and Morrow Point reservoirs in Colorado—could be used to bolster storage volumes in Lake Powell.
The agreement does not designate how much water will be sent downstream or specify which reservoir will make the release, it simply says those negotiations will begin once the Bureau of Reclamation’s 24-month study models indicate that Lake Powell might fall below the target elevation of 3,525 feet mean sea level.
The three reservoir units, along with Glen Canyon Dam in Arizona, were authorized with the Colorado River Storage Project (CRSP) Act in 1956 to stabilize the upper basin’s water supply against variability in the Colorado River. Since the CRSP units were built, their water has been used to fulfill water rights throughout the upper basin, satisfy increasing water demand, and meet environmental standards for river flows. The U.S. Interior Secretary oversees the reservoirs and determines their operations every year.
While the original CRSP Act was designed with the idea of storing and releasing water to meet the compact agreements, it does not clarify the states’ roles in this process. By laying out this process in the Drought Response Operations Agreement, the upper basin states and the federal government clarified how they would interact—hopefully avoiding future conflict—if reservoir releases become necessary to protect Lake Powell storage.
“But if we have 10 years of hydrology just like this [year], it may never come to pass”, says Amy Haas, the executive director and secretary of the Upper Colorado River Commission.
The agreement also sets ground rules for how those negotiations would play out. First, any water releases from the reservoirs would need to fit within the existing records of decision and biological opinions, including each reservoir’s existing environmental impact study in accordance with the National Environmental Policy Act (NEPA). Any reservoir releases also must come with a plan to refill the water that was released to Lake Powell once hydrological conditions improve. The agreement also stipulates that if a facility makes a release one year, the other two facilities will be considered first if further need arises, before tapping the same reservoir twice.
The Drought Response Operations Agreement is the first plan of attack for the upper basin in case of a shortage. While this could be executed without too much controversy, there are still some concerns with the agreement.
The first concern is that while the agreement places three of the upper basin’s federal water storage projects on the table for water releases, both the Aspinall Unit and Navajo Reservoir have very little additional water available each year. This puts a burden on Flaming Gorge as the reservoir most likely to make a release. The second issue is that, while all of the states’ attorney general’s offices call for actions taken under the Drought Response Operations Agreement to fit in existing NEPA permitting, some believe that a new environmental impact study under NEPA might be required before releases can be made to Lake Powell. Even with these issues, the Drought Response Operations Agreement is mostly uncontested. It’s the second element of the Upper Basin DCP—demand management—that could mark a paradigm shift in Western water law.
When people think of water conservation, they typically think of home-grown efforts to take shorter showers. But with a demand management program, the upper basin states would work collectively to use less water and bank those savings in Lake Powell or other CRSP reservoirs. If necessary, that water could be sent to the lower basin to comply with the compact. Although this may seem like a common-sense solution, it’s complicated by the laws surrounding water rights.
“The reason that it is a problem legally is that our whole water law framework is set up to encourage maximum utilization of water,” says Anne Castle, senior fellow at the University of Colorado’s Getches-Wilkinson Center for Natural Resources, Energy, and the Environment and former assistant secretary for water and science with the Department of the Interior. “So the way our laws work is that if you’re not using your full entitlement of water then other people get to use it.”
Because of the legal framework surrounding Western water, water conservation is not simply a matter of turning off the taps. Large-scale conservation only occurs when conserved water is accounted for and, in the case of demand management, that water must also reach its target area without being diverted by a downstream user, a process known as shepherding. This is more complicated when moving water through multiple states, as the water authorities in each state must shepherd the water downstream. Calculating the quantity of conserved water is also challenging. Some of the water saved through demand management will evaporate or be lost through transit as it moves down the river, and lost water isn’t considered conserved.
These legal and technical issues must be solved before a demand management program is implemented, but the DCP didn’t create a program, the DCP simply makes exploring such a program possible.
Before diving into the details of how to conserve water, the upper basin needed the ability to bank its savings in a CRSP reservoir. While there is room in Lake Powell—which has been hovering at around 50 percent full—prior to the DCP, any water in Lake Powell was considered unused by the upper basin and therefore was subject to release to the lower basin. But the DCP authorized a pool of up to 500,000 acre-feet for the upper basin to store water in CRSP reservoirs to be used, if needed, to comply with the compact. This water can be tracked and accounted for, and cannot be called for by the lower basin.
“This is a big change to the Law of the River, and a new wrinkle in the way the river is managed,” says Newman, who was leading the demand management work for the CWCB. “But there is a lot to do before one drop of water can be stored in that pool.”
First, each state must assess the feasibility of a demand management program. The states are considering everything from specifying how much water each state would need to contribute to the pool, to identifying what laws to modify, if any. Each state also needs to ensure that water users participating in the program can do so voluntarily and temporarily and will be compensated for the water they conserve. The costs of such a program are still unclear, but the four-year System Conservation Pilot Program, which ended in 2018 and can be likened to demand management, paid an average of $205 per acre-foot for conserved water. The pilot program was implemented on the ground in various places, including with the Grand Valley Water Users Association, where 10 members took more than 1,000 acres of land out of production and, in 2017, received $560 per acre to help make up for the crops they would have grown otherwise. That year, the project returned an estimated 3,200 acre-feet of water to the Colorado River—a drop in the bucket.
That program and the Colorado River Water Bank Workgroup, which started in 2009 and has since evolved, gave Colorado a head start into considering some of these questions. But there’s more to learn, says Taylor Hawes, Colorado River Program Director for The Nature Conservancy, who has long been involved with these water banking discussions.
Even after years of studies, the workgroup made the most significant progress when the System Conservation Pilot Program put water banking to the test on the ground. So Hawes recommends piloting demand management. “It’s in our best interest to have a program up and running, to see what the kinks are and what the critical needs are, to be in a better position to negotiate for that,” Hawes says. Negotiations to determine what will happen in 2026 could begin next year, so there’s reason for Colorado and the other upper basin states to get practice. “We could easily overcomplicate it. We need to be really systematic in our thinking on how to work through these issues. It is feasible so I hope we can put a plan in place and start to test it a little bit to make sure it can work for all sectors in the long run.”
In addition to the technical logistics, the upper basin states must account for attitudes about demand management. “There’s a general curiosity about what demand management will or could be,” says Kelsea Macilroy, a Ph.D candidate in Sociology at Colorado State University. Macilroy, in a project for The Nature Conservancy, spoke with 34 West Slope agricultural stakeholders in May 2019 to hear about perceptions and barriers to demand management. She heard from an equal number of people who said they would never participate in a demand management program and people who were excited about it. She heard people question if demand management is an opportunity, a burden, or both.
She also unveiled cultural beliefs that shape how the West Slope responds to the idea of demand management. “When the demand management conversation arises, it triggers these historical injustices,” Macilroy says, like loss of other natural resource industries such as logging in southwestern Colorado, for example. “I heard, almost unanimously, people referencing buy and dry. Not only that water could be taken away but that a way of life is under attack. That this is just the next thing that threatens the way that we live that’s coming from the Front Range,” she says.
But Front Range water managers are eager to share in demand management. “From a Front Range perspective, this problem of reducing demand is not a Front Range [versus] West Slope issue. It’s a whole state issue. It’s an upper basin issue,” said Jim Lochhead CEO/manager of Denver Water at the Society of Environmental Journalists conference in October 2019. Denver Water, which receives about 50 percent of its supply from Colorado River sources developed after the 1922 compact and serves about a quarter of the state’s entire population, has a lot to lose if supplies are curtailed without a plan in place. Thus, the utility plans to cut water use along with other water users if a demand management program is created. “Our participation is not just funding someone else to use less water,” Lochhead says. “Our obligation is to participate equitably with other geographic regions in Colorado to create wet water that will get to Powell.”
Questions around demand management are deep and many, but for the time being, each state has separated to internally assess whether a program is feasible. In Colorado, the process is with the CWCB’s nine workgroups. The CWCB has $1.7 million for demand management at its disposal, which will be used for meeting logistics, for commissioning some consulting work to study feasibility for demand management, and for other relevant needs. This first round of funding expires in June 2020.
As every state conducts its own process, interstate issues are also being discussed through the Upper Colorado River Commission. If any one state decides that demand management is not feasible, it could serve as a veto for the entire basin.
While there is no hard deadline for the formation of a demand management program, the DCP agreements expire in 2026, and the availability of the 500,000 acre-foot conservation pool arrangement for upper basin use is only guaranteed until then.
If the states reach consensus and create a program, it will be reviewed by the lower basin, and subject to approval from the Upper Colorado River Commission and the Department of the Interior. The DCP also requires the upper basin to create a plan for verifying the amount of water conserved by demand management. The plan could then move forward only if the Upper Colorado River Commission determines that conservation is necessary in order to maintain compact compliance.
If the region has another series of wet years, the plan may never go forward. But in the face of climate change, many believe demand management is critical.
As demand and prices for Colorado water rise, state lawmakers are concerned that Wall Street investment firms and even local finance groups may seek to circumvent state laws designed to prevent water profiteering.
Last month, the Colorado Legislature’s Interim Water Resources Review Committee initially approved a bill authorizing a study to determine whether the state’s anti-speculation laws, already considered among the strongest in the West, need to be further strengthened.
“The reason I drafted it is because I’m hearing stories from the West Slope and the San Luis Valley of outside groups coming in and buying water rights. While we’re not entirely sure if this is speculation, some of these companies are more like financial and hedge fund institutions instead of agricultural interests. That seems to have the color of water speculation,” said Sen. Kerry Donovan, a Democrat who represents several West Slope counties and who is chair of the interim committee. (Editor’s note: Sen. Donovan sits on the board of Water Education Colorado, which sponsors Fresh Water News.)
Under Colorado law, water is considered a public resource, but the legal right to take it and use it toward some beneficial purpose must be approved in water court. Once obtained, water rights are considered a private property right, one that can be bought and sold as long as water courts approve the transaction.
Water has always been a scarce resource in Colorado and in the 1800s, as miners and farmers were moving in, the courts developed a system so that no one could hoard water and profit from its sale. To combat the problem, they required that water rights be granted only to those who could put them to beneficial use, whether in farm fields or mines, or in people’s homes and businesses.
The anti-speculation laws have been challenged and upheld many times in water court, leading several water experts to question the need to amend them.
Dave Taussig, a Denver water attorney, said he was surprised to see lawmakers move in this direction.
“This is one of the few areas of Colorado [water] law that is pretty well defined and established,” Taussig said. “I don’t see the need for this.”
For many transactions, as long as the water is being put to use, the deal is not considered speculative.
On the West Slope for instance, New York City-based Water Asset Management has purchased ranches with valuable, senior water rights. Right now, the company continues to operate the farms and the water is still being used as it had been before the purchase, so it is not considered speculative. That’s because, under existing law, there is nothing to prevent someone from buying water rights with an eye toward a future sale, where the interim use is just a placeholder.
Water Asset Management could not be reached for comment. But its website spells out a clear investment strategy that includes acquiring Western farm water and holding onto it until it appreciates in value, at which point it could be leased or sold for a profit.
Closer to home, Denver-based Renewable Water Resources has assembled an investment group which intends to purchase farm water in the San Luis Valley and pipe it to the Front Range.
Sean Tonner, a principal in RWR, said the proposal isn’t a buy-low, sell-high proposition because his company is offering $2,500 to $2,800 an acre-foot for the farm water, which normally sells locally for much less, around $65 to $200 an acre-foot, according to San Luis Valley water officials.
Tonner declined to provide a sales price, but Front Range developers routinely pay $20,000 an acre-foot and more for water.
RWR has not yet identified an end-user for the project, but has committed to do so before it seeks approval from state water court.
“Colorado has great anti-speculation laws. If there is a way to make them stronger, I’m all for it,” Tonner said. “But I would disagree with the assertion that what we’re doing is buy-low, sell-high.”
Still lawmakers are concerned. Sen. Don Coram, R-Montrose, is also on the interim water committee and said the state needs to be vigilant about how its agricultural water rights are being bought and sold.
“Yes we do have strong anti-speculation laws,” Coram said, “but hedge funds also have very good attorneys. There are ways to work around [the laws].”
According to the initial bill draft, the Colorado Department of Natural Resources would form a work group next year to examine what the state can do to ensure its market-based water management system isn’t manipulated by moneyed interests. The bill directs the group to report back to lawmakers in August of 2021.
The committee will vote Oct. 24 on whether the bill should advance further. If approved, it will be introduced during the regular session that opens Jan. 8, 2020.
Donovan is hopeful the process will uncover new tools, even beyond the anti-speculation laws, to help the state prevent profiteering.
“Water speculation is something we need to ensure we have a firm grip on as a state. I expect there will be a lot of conversations in upcoming years about how we make sure that water isn’t exploited and doesn’t become a way for people to make a quick dollar,” Donovan said.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at email@example.com or @jerd_smith.
The 37th Annual Water Seminar will be kicked off by SWCD’s new executive director, Frank Kugel. He has a strong track record of building partnerships and leveraging local resources for collaborative water solutions. Frank will speak to some of the challenges SWCD sees facing water management in southwestern Colorado, and opportunities for our communities to proactively address them.
Anxious for winter storms? First, we’ll hear about the forecast from KKTV meteorologist Brian Bledsoe, and cutting-edge methods for snowpack measurement from Jeff Deems of the National Snow & Ice Data Center.
No water seminar in 2019 would be complete without a discussion of the state’s current feasibility investigation of a demand management program. Mark Harris, Grand Valley Water Users Association, will moderate a panel of heavy hitters on the topic: Colorado Water Conservation Board Director Becky Mitchell, The Nature Conservancy Water Projects Director Aaron Derwingson, and Colorado River District General Manager Andy Mueller.
Further expanding on the subject, we’ll hear a proposal from local economist Steve Ruddell and consultant Dave Stiller which challenges the notion that a successful *and* voluntary, temporary, compensated demand management program would be impossible. State Senator Don Coram and State Representative Marc Catlin will react to this proposal and provide their thoughts more generally on funding water management in Colorado.
And if you haven’t heard the latest results of the West Slope Risk Assessment, John Currier, Colorado River District, will be summarizing the report for southwestern Colorado and taking questions. Jayla Poppleton, Water Education Colorado, will also preview several exciting programs and content making waves across the state. Watch your inbox for the final program, coming soon!
Reserve your seat now. Registration includes catered breakfast and lunch. Click here to register or call 970-247-1302.
Colorado residents sobered by years of drought are learning to take shorter showers and use low-flow toilets, water-saving habits that have helped the state reduce its domestic water use 5 percent, according to a new report released last week by the state’s lead water agency.
The report, a technical update to the Colorado Water Plan, shows that household water use statewide has dropped from an average of 172 gallons per person per day in 2010 to 164 gallons per day in 2015, the latest year for which data was analyzed.
Those numbers could continue to drop under various planning scenarios developed by the Colorado Water Conservation Board, with one scenario indicating that the statewide average for individual water use could fall as low as 143 gallons per person per day by 2050 as the public continues to embrace conservation and as water-saving technologies improve.
The idea behind the new water study is to help better guide the state’s efforts via the state water plan to stave off water shortages over the next 30 years, and to understand the impact of climate change on various population growth scenarios.
Despite the decline in average daily use, the state still faces future water shortages that could surge to more than 750,000 acre-feet annually if the economy and climate heat up dramatically.
But under a hypothetical scenario where the economy slows significantly and climate change moderates somewhat, Colorado’s urban areas could face shortages of just 245,000 acre-feet each year.
“We looked at five different scenarios, taking into effect climate change,” said Becky Mitchell, executive director of the Colorado Water Conservation Board, which sets state water policy. “It’s a creative and innovative way to be looking at our [water supply] gaps,” she said.
So how much water do these shortage forecasts represent? A lot.
Right now, most urban households in Colorado use about ½ acre-foot a year, so a 245,000 acre-foot shortfall equals the amount 490,000 homes would use annually, while a 750,000 acre-foot shortfall equals the amount 1.5 million homes would use in that same time period.
Shortages are also projected for the state’s farms, with irrigated agriculture facing massive shortfalls ranging from 2.2 million acre-feet to 3.4 million acre-feet, depending on how population, economic growth and climate change play out.
But that’s not the case in the South Platte River Basin, where 85 percent of Colorado residents live. Though agricultural water use statewide is growing overall, in the South Platte that use is projected to shrink as cities expand onto neighboring farm lands. According to the new forecast, the South Platte’s farm economy uses about 774,000 acre-feet of water annually. But under all five planning scenarios, that number drops. Under the most extreme, “hot growth” scenario, for instance, agricultural water use in that river basin would decrease to 665,400 acre-feet annually.
In the Arkansas Basin, which is home to Colorado Springs and the state’s second-largest farm economy, agricultural water use is projected to drop under two scenarios, and increase under three. Under the “hot growth” scenario, for instance, demands for farm water are expected to surge to 819,500 acre-feet, up from 617,300 currently, a 33 percent jump, primarily because crops will consume more water as conditions become drier and growing seasons lengthen.
The report also examines how Colorado’s fish and rivers will cope as water shortages become more pronounced. Streams across the state are likely to see spring runoff from snowmelt come earlier, leaving the late summer months much drier than they are now.
And that’s bad news for fish, increasing the risk to both cold water and warm water species, the report said. But on streams where dams and reservoirs exist, some of the damage could be offset by intentional releases from reservoirs.
The state has been criticized in the past for failing to focus adequately on the water needs of the environment in its planning. A new tool the state has developed, which is designed to help analyze stream water needs by region and season, among other things, is a step in the right direction, but will need more refinement, according to Mely Whiting, an attorney for Trout Unlimited.
“I’m pleased that the tool and the review of the environmental and recreational [E&R] needs continues to be updated. But we still have a lot of catching up to do in understanding those needs,” Whiting said.
That understanding, she said, “will help us focus our efforts on cooperative projects that benefit not only E&R, but agricultural, and municipal and industrial needs as well.”
Still to come in the effort to quantify looming water shortages is work at the local level, where nine public river basin roundtables will now take the new data and tools and determine how best to reduce any forecasted regional shortages. Their work will eventually feed into an update of the Colorado Water Plan, first released at the end of 2015 and scheduled to be updated by 2022.
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.