Click the link to read the article on the InkStain website (John Fleck):
This was a big flow year on New Mexico’s Middle Rio Grande, but weird, in ways that highlight the challenges we face.
FLOW IN THE RIVER
Total flow into New Mexico’s Middle Rio Grande Valley (measured at Otowi) sits at 1.26 million acre feet with two more days’ flow to go, so round it off to 1.3maf.
Rio Grande flow at Otowi, with Brad Udall-style plots of 20th and 21st century means. Credit: John Fleck/InkStain
So a big year! Yay! Look at all that water in the picture above, a bank-full Rio Grande flowing past Rio Rancho, New Mexico, in December. And yet there I was in August watching dogs gamboling on the sand bed of a nearly dry Rio Grande. What’s up with that?
The answer involves the interaction between a climate change-driven megadrought, the use of the river by human communities, and the tangle of rules that govern management of the 21st century Rio Grande.
The short term tangle involves El Vado Dam, currently being renovated and therefore unusable for storage. That meant that by August the declining inflow of late summer with a lousy monsoon left the river nearly dry, regardless of the winter snowpack.
This problem, which will go on for several more years, means that irrigators will depend on run-of-the-river operations for late summer irrigation for a while yet. Given that irrigation water also supports environmental flows on its way to the irrigation diversions, this is also bad for things like the endangered Rio Grande silvery minnow and the river flowing through my city.
The longer term tangle involves competing community values among the various ways we use water, combined with a lack of tools to reduce that use.
Because, with climate change there is less water.
Albuquerque’s Rio Grande, drying September 3, 2023. Photo credit: John Fleck/InkStain
INKSTAIN IS READER SUPPORTED
Inkstain has been a Nazi-free zone for more than 20 years, mostly because it’s just my blog and I’m not a Nazi. (If you don’t know what I’m talking about, bless you. Google “Substack” and “Nazis”, it’s the latest digerati kerfuffle.)
But, like all your favorite Substackers, it is reader supported! Thanks as always to our readers. (And if you don’t know what Substackers are, again, bless you.)
THE TANGLE: MOVING WATER IN TIME
First let’s pin some data to our bulletin board:
Total storage on New Mexico’s Rio Grande and the Rio Chama, its main tributary. Credit: John Fleck/InkStain
There’s an old water management adage: Canals move water in space, reservoirs move water in time. We built them to store water in wet years, effectively moving it in time to dry years. So how much did we so move this year?
Inspired by Jack Schmidt’s monthly Colorado River posts, I spent my Saturday coffee wakeup this morning totaling up sorta year-end storage in the reservoirs I care about (from top to bottom Heron, El Vado, Abiquiu, Cochiti, Elephant Butte, and Caballo). It took longer than I expected because I was so distracted by all the amazing history embedded in this graph. 1986-87, yowza, what’s up with that?
Flow this year was ~440k acre feet above the 21st century average. Total end of year storage is up ~220k acre feet. There’s so much mixing of apples, oranges, durian, and pawpaw here that it’s not a straight up comparison, but it should give you a feel for the challenge: we only saved a part of the bonus water. We used a lot of it.
The Management Levers
Let’s imagine for a moment that we wanted to pull some water management levers to change that balance by reducing consumptive use (by “use” I mean evapotransporation, human and non-human) in the Middle Rio Grande Valley. We’ve basically got four different categories of use:
The cities, especially Albuquerque
The Middle Rio Grande Conservancy District, which manages irrigation water for some commercial farms and a lot of custom and culture/lifestyle stuff
Domestic wells
The river – evaporation and riparian consumption by our beloved bosque
Let’s take these in order of smallest to largest water use.
THE CITIES
We’ve already cranked down pretty hard on this lever. With a combination of water use reductions and a shift from groundwater pumping to imported Colorado River water, we’ve already cranked down extremely hard on this lever. This is the one area of the system that is already aggressively regulated.
If you want to crank down harder on this lever, the two points of entry in the legal/political/policy system are the Office of State Engineer/Interstate Stream Commission, which do the regulating, and the Albuquerque Bernalillo County Water Utility Authority Board, which is made up of elected city councilors and county commissioners.
THE DISTRICT
Consumptive use by the Conservancy District’s irrigators is several times larger than the cities. The District took voluntary action this year to reduce use, delaying the start of irrigation season and cutting diversions once they started by 20 percent to try to get more water to Elephant Butte Reservoir.
With federal money, the District paid folks irrigating a relatively small portion of the valley’s acreage to fallow this year, and the acreage is going up in 2024. But the numbers remain small relative to the size of the problem.
If you want to crank down harder on this lever, it’s not clear to me what the state’s legal authority might be. There may be some, but it’s not been tested. But the District is governed by an elected board. That’s a lever, though it’s worth pointing out that the board got a lot of crap this year from irrigators about they steps they did take. Incentives in all of this are weird, it’s tricky to figure out how to work this lever.
DOMESTIC WELLS
We don’t regulate these at all. We have no idea how much water they use, but it sure looks to use like there’s a lot. We don’t really even know how many there are, there seem to be a lot drilled illegally. (If you’re a UNM Water Resources Student, hit me up on this! We have some ideas for a really impactful masters degree research project.) We probably need to think about building a lever here, but we currently don’t have one. The state legislature might be a place to start? Maybe some un-exercised legal authority at the Office of State Engineer? (See NMAC 19.27.5.14, my day job, such as it is, is at a law school, though IANAL it sure looks like that could only apply to new wells, so horse out of barn etc.)
Birds and water at Bosque de Apache New Mexico November 9, 2022. Photo credit: Abby Burk
THE BOSQUE
The biggest water user, likely larger than irrigation, is the riparian corridor itself. It’s largely unnatural, vegetation exploiting a niche created when we built levees and constrained the river’s flow, but whatever. It feels like “nature”, and we love it. And even if we didn’t it’s not clear what a lever to reduce that use might look like.
VALUES
Each one of these uses is valued by some segment of our community, and we seem to lack the tools to reconcile these competing values, which is why I’m pretty excited about the 2023 Water Security Planning Act.
A NOTE ON SOURCES AND METHODS
The reservoir data is from the USBR’s reservoir data archive. The latest 2023 data is from Dec. 18, so I matched up this year’s with Dec. 18 in previous years. My quick sensitivity check led me to conclude “Meh, good enough for a blog post.” For the early years, the USBR just reports a single year-end number for El Vado. My quick sensitivity check led me to conclude “Meh, good enough for a blog post.”
It is, in fact, spelled “gage“, just ask Bob, he’ll tell you.
I currently have 26 browser tabs open, including one with an amazing list of obscure fruit, did you know that Mark Twain called cherimoya “the most delicious fruit known to men.”? I had a bunch more I wanted to say, but that’s enough, it’s time to hit “publish”. Thanks for reading.
Rio Grande and Pecos River basins. Map credit: By Kmusser – Own work, Elevation data from SRTM, drainage basin from GTOPO [1], U.S. stream from the National Atlas [2], all other features from Vector Map., CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=11218868
CPW will award over $1.1 million in funds from Great Outdoors Colorado (GOCO) and Colorado Waterfowl Stamps to projects in Colorado that support the Wetlands Program Strategic Plan’s two main goals:
Improve the distribution and abundance of ducks, and opportunities for public waterfowl hunting. Applications supporting this goal should seek to improve fall/winter habitat on property open for public hunting (or refuge areas within properties open for public hunting), or improve breeding habitat in important production areas (including North Park and the San Luis Valley in Colorado, and other areas contributing ducks to the fall flight in Colorado).
Improve the status of declining or at-risk species. Applications supporting this goal should seek to clearly address habitat needs of these species. See species list on the Wetlands Priority Species page. Also see the identified threats, recommended conservation actions and progress to date for these species in the Colorado State Wildlife Action Plan (SWAP) Conservation Dashboards.
The application deadline is Monday, Feb. 12. The Wetlands Funding Request for Applications is available on our website, and can be downloaded by clicking here.
What’s new for 2024 For projects on CPW properties (State Wildlife Areas and State Parks), CPW’s Regional Water Specialist must be consulted before applying. For additional questions, contact CPW Wetlands Program Coordinator Brian Sullivan at brian.sullivan@state.co.us.
About the program The Colorado Wetlands for Wildlife Program is a voluntary, collaborative and incentive-based program to restore, enhance and create wetlands and riparian areas in Colorado. Funds are allocated annually to the program and projects are recommended for funding by a CPW committee with final approval by the Director.
“Wetlands are so important,” said CPW Wetlands Program Coordinator Brian Sullivan. “They comprise less than two percent of Colorado’s landscape, but provide benefits to over 75 percent of the wildlife species in the state, including waterfowl and many declining species. Since the beginning of major settlement activities, Colorado has lost half of its wetlands.”
Since its inception in 1997, the Colorado Wetlands Program and its partners has preserved, restored, enhanced or created more than 225,000 acres of wetlands and adjacent habitat and more than 210 miles of streams. The partnership is responsible for more than $50 million in total funding devoted to wetland and riparian preservation in Colorado.
Click the link to read the article on the Pagosa Springs Sun website (Derek Kutzer). Here’s an excerpt:
At a Dec. 21 meeting, the Pagosa Springs Town Council voted to change the language of an amend- ment to its tap agreement with The Springs Resort and Spa. Since 2009, the agreement has provided a certain amount of “raw geothermal water” to The Springs Resort for commercial uses. The town currently obtains water rights to two geothermal wells down- town. The new language adopted by the council will leave open the possibility of raising the rate that the town charges The Springs Resort for municipal geothermal water to even higher than the $12,000 per-year rate in the current drafted amendment.
At the meeting, Town Manager David Harris said, “The existing rates are set to expire in this calendar year,” which prompted the town and The Springs Resort to draft this amendment for the council to consider.
Harris explained that this new amendment was the product of discussions with the owners of The Springs and that both parties believe it is a “fair” agreement.
A proposed state law would take aim at thirsty turf varieties planted along streets and roads in new developments. This housing project, Leyden Rock in Arvada, has less space devoted to front-yard turf than many older subdivisions. CREDIT: ALLEN BEST/BIG PIVOTS
The deepening troubles of the Colorado River, a significant source of water for most of Colorado’s 5.9 million residents, has implications for the types of grasses we grow in our yards and in street medians.
Speaking in Las Vegas recently, former Arizona Gov. and former U.S. Interior Secretary Bruce Babbitt recalled warnings of worsening drought and imbalances between supplies and demand. “There’s going to be a day of reckoning,” Babbitt, 85, told Politico’s E&E News, referring to the warnings of scientists during past decades. “Here we are. The crisis has arrived.”
Colorado’s mounting efforts to limit new expanses of thirsty turf won’t solve the Colorado River problems. Colorado is just one of seven states in the basin. And even within Colorado, agriculture consumes roughly 90% of Colorado’s water and cities about 7%. Exterior use, such as for watering thirsty Kentucky bluegrass yards, consumes 40% to 60% of municipal water.
But if this water use is on the margins, it’s one that many water managers believe must be addressed. A bill that originated in the Water Resources and Agriculture Review Committee in October has the support of two of the state’s largest cities and has sponsors from both political parties from across Colorado.
This proposal would preclude the installation of nonfunctional turf as well as artificial turf in commercial, institutional or industrial properties or in transportation corridors, such as along streets or in road medians. Nonfunctional turf is defined as grasses that are predominantly ornamental — and that few will ever walk on unless to mow, yet still require heavy watering. Think, for example, of those giant carpets of green grass that commonly surround business parks such as the Denver Tech Center or Broomfield’s Inverness business park.
The bill, however, does not address residential water use.
Many urban landscapes in Colorado are planted in Kentucky bluegrass and other thirsty species that require close to double what the semiarid climate delivers. Native grasses such as blue gramma and even some imported species can survive with far less or even no supplemental water.
Continued population growth also adds pressure to city water utilities. The Colorado Water Plan projects growth of the state’s current population to at least 7.7 million by 2050, mostly along the Front Range.
Legislators have been advised by the state’s Colorado River Drought Task Force to bump funding to $5 million per year for turf removal. In 2022, they allocated $2 million, which has now been exhausted in grants to local jurisdictions.
Also informing Colorado’s path forward will be recommendations from another task force, appointed by Gov. Jared Polis last January, to investigate opportunities for an accelerated transformation in use of water in urban landscapes. The 21 committee members were drawn from the ranks of local governments, academia, environmental advocacy groups and developers.
At their eight meetings, committee members wrestled with what should be the proper mix of incentives and mandates and ultimately just how far the state should push into matters of local land use. One member suggested that banning new turf in road medians was a no-brainer. Another member urged flexibility for local jurisdictions to achieve state goals. “We’re going to be on this journey for a long time,” said Catherine Moravec of Colorado Springs Utilities. “Less controversy will help keep us together.”
In final meetings, now concluded, members agreed on the need to support state legislation. The Colorado Water Conservation Board, which oversaw the process, emphasizes that the task force’s report will have no direct connection to legislation. The task force’s pending report “may be used by decision-makers at state, local or even neighborhood scales,” said Jenna Battson, the agency’s outdoor water conservation coordinator. “It’s a resource.” The task force recommendations are expected to be released in late January after review – and perhaps tweaking – by Polis.
Northern Water maintains a demonstration garden at its headquarters in Berthoud that illustrates various landscaping alternatives.
CREDIT: ALLEN BEST/BIG PIVOTS
Changing the status quo
Water scarcity underlies all these discussions. Specific circumstances vary. Some jurisdictions, most notably those between Denver and Colorado Springs, depend upon receding underground aquifers for most of their water. They get very little or no Colorado River water.
Most other jurisdictions do rely upon the Colorado River. Ambiguity has long dogged the Colorado River Compact, the agreement reached by delegates from the seven basin states in 1922. What if runoff declined substantially? The river since 2000 has delivered an average 12.3 million acre-feet per year, far short of the 20 million acre-feet that delegates had assumed.
Must Colorado and the three other upper-basin states — New Mexico, Utah and Wyoming — leave more water to flow downstream if runoff declines even more? That would cause curtailment of diversions with water rights after 1922. A study commissioned by the Glenwood Springs-based Colorado River Water Conservation District found that 96% of Front Range water use could be subject to curtailment.
That includes diversions by Denver Water. “It is possible that Denver Water’s deliveries of Colorado River basin supplies could be curtailed for a period of time,” advised a statement from Denver Water issued in August 2022 when the utility was issuing new water bonds.
That statement was issued the same month that Denver Water and 30 other utilities from Colorado to California that rely upon Colorado River Basin water committed to removing urban turf, with a goal of 75 million square feet in the case of Denver Water. That’s an area roughly equivalent in size to 1,800 football fields. At the current rate, that will be achieved in 100 years, according to Denver Water.
Even so, that was a sharp reversal for Denver Water, a utility that delivers water to 1.5 million people in Denver and 17 other municipalities in the metro area. Even after severe drought 20 years before, Denver made no move to remove turf. If drought got bad enough, the agency reasoned, it could ask customers to stop watering their yards. The utility now plans a pilot program in 2024 in conjunction with Resource Central to cost-share lawn removal with customers.
Greg Fisher, Denver Water’s manager of demand planning and efficiency, told legislators in October that spending money to help remove turf makes no sense if thirsty nonnative turf species are simultaneously being planted elsewhere.
“Ultimately, success for us is changing the status quo, creating a new cultural landscape that will benefit Colorado’s environment and save water at the same time,” he said. Fisher cited the ancillary benefit of providing habitat for pollinators, which is not provided by imported grasses. Denver supports the bill.
The proposed state law up for consideration in the 2024 session would also preclude artificial turf in lieu of grass. The bill says artificial turf releases harmful chemicals into watersheds and exacerbates the heat island effect compounded by rising temperatures in coming decades.
Colorado is famously a local-control state. Its towns and cities, many of them operating under home-rule charters, jealously guard local prerogatives. They, not the state, decide the speed limits on their streets and don’t like the state telling them what to do, particularly in land use. Always, there is tension.
But in water, the state has already adopted efficiency requirements. Any toilet sold in Colorado must consume no more than 1.2 gallons per flush. Colorado law also requires the most efficient pop-up sprinklers.
Should state law also override local authority in deciding landscaping choices? If still a sensitive area, even cities normally inclined to tell legislators to butt out are now more inviting of state engagement or at least inclined to remain neutral.
“Aurora will typically be one of the communities that shows up and says don’t do anything at the state level that impedes our local control,” Marshall Brown, general manager of Aurora Water, told the legislative committee in October in support of the ban on planting new vegetation with high water needs. This proposal, he added, retains local control while providing strong guidance from the state.
Real estate developers in Aurora typically created lavish areas devoted to turf along streets, including this one, but a 2022 law dramatically reduced what is permitted in future developments.
CREDIT: ALLEN BEST/BIG PIVOTS
When Aurora changed its mind
For many years, Aurora tried voluntary programs for turf removal, in order to stretch its water. It made no sense if others then planted large amounts of grass. “We didn’t have success until we mandated a ban on nonfunctional turf,” Brown said.
In September 2022, Aurora City Council adopted a wide-ranging ordinance that is among the most aggressive in Colorado. It bans Kentucky bluegrass and other thirsty cool-weather grass in front yards of new residential developments. New golf courses are allowed, but not with thirsty grasses. They must have grasses that use less water. New ornamental water features, such as fountains, are also banned.
Several decades ago, Aurora had gained a reputation for lacking greenery due to the mostly treeless landscape of newer subdivisions.
“I would ask those people to go east of Aurora and see what they see,” said Tim York, water conservation manager for Aurora. “They won’t see turf and they won’t see very many trees. Although we aren’t against trees. We definitely need trees. Just be sure to put them in the right places.”
Aurora, now with a population of 400,000, for many decades believed it needed well-watered turf in its urban landscapes. Even in the late 1980s, the city water department had just one employee devoted to conservation.
“In retrospect, installing landscapes for aesthetic purposes that require over 2 feet of water per year was probably not the right way to do it,” said York.
US Drought Monitor June 25, 2002.
The 2002 drought forced a new reckoning. That hot, dry, windy year revealed the inadequacy of Aurora’s portfolio of water rights and storage, both for that intense drought but also in regard to projected population growth. The city’s utility manager warned of dire reductions if snow didn’t arrive. It did the next spring, on St. Patrick’s Day of 2003, but the episode revealed the city’s vulnerabilities.
Both reuse and conservation became an active part of the municipal agenda. Since then, per-capita water use has declined by 36%. The population during that time has grown by 30%. The city offered rebates to residents willing to replace their thirsty turf.
In 2022, though, the city recognized the fallacy of creating a bigger problem that would have to be addressed later.
York, a landscape architect by training with experience in Las Vegas, contends that pleasant urban landscapes can be created with lesser volumes of water. It just takes more thoughtfulness about the function.
“That function should not be that ‘It looks pretty’ and that is all that it does,” York said. “A water-wise landscape, done correctly with species variation, can be far more attractive than the monotonous green carpet turf found in most places.”
Aurora Mayor Mike Coffman said homeowners resisted the ban at first, as did some members of the City Council, who saw it as going too far. They were convinced by Coffman that taking action now may prevent more dramatic actions in the future if the Colorado River situation deteriorates further. Aurora gets 25% of its water from multiple sources in the Colorado River basin.
There were also arguments that water-wise landscaping is ugly.
“I don’t think it’s ugly,” Coffman said in an interview. “What is ugly is when homeowners, because of the cost of water, give up on their yards. That’s ugly. But anyway, it’s the new reality we live in, and people have to get used to it.”
Native grasses use far less water than Kentucky bluegrass and other imported species but can look bedraggled, as was evident in September at this site near the Colorado State University Spur Campus in Denver.
CREDIT: ALLEN BEST/BIG PIVOTS
Down the Colorado River
Nevada and California have adopted far more significant restrictions.
A century ago, when the Colorado River Compact was crafted, Las Vegas had a population of little more than 2,000. The compact allocated only 300,000 acre-feet to Nevada, compared with 4.4 million acre-feet for California.
By 1996, Las Vegas was becoming a metropolitan area, and lawns replicating those found in Midwestern towns were still being planted in an environment of soaring summer heat and only 4 inches of average precipitation. The Southern Nevada Water Authority began offering incentives for turf removal. That program has since then cost $285 million, according to a January 2023 report prepared for the Colorado Water Conservation Board.
In 2021, with the notion of an empty Lake Mead becoming an all-too-real possibility, Nevada banned all ornamental turf dependent upon Colorado River water. Ornamental in this case applies to grass used in street medians, entrances to developments and office parks — in general, places where people rarely set foot except to mow. This covers about 31% of all the grass in the Las Vegas area.
California also took a very aggressive step in 2023. The law, Assembly Bill 1572, prohibits using drinking water for purely decorative grass in medians and outside business and in common areas of homeowner association neighborhoods, the Los Angeles Times reported in September. The ban will take effect in phases between 2027 and 2031. It exempts sports fields, parks, cemeteries and residences.
Metropolitan Water, the agency that supplies wholesale water to most of Southern California, estimates that the bill will save 300,000 acre-feet. That’s equal to Nevada’s Colorado River allocation.
Sterling Ranch may be Colorado’s best example of judicious water use. The development of more than 3,000 houses lies in the southwest corner of metropolitan Denver. The developer set out to do better than 0.75 acre-feet annually per single-family residence, which is Douglas County’s requirement. It aimed for 0.4 acre-feet but has come in at 0.2 acre-feet. The developer expects an apartment complex will yield even less consumption, at 0.14 acre-feet per unit.
Andrea Cole, general manager of Dominion Water & Sanitation District, the water provider at Sterling Ranch, said “conservation” is not used in messaging “because it implies that it was yours to use and we are asking you to please use less.” At Sterling Ranch, she said, developers combined demand-management techniques — including higher rates for outdoor water use — with land-use planning to dial down water use.
Several Colorado jurisdictions have taken more-limited action in the past several years. In August, for example, Broomfield adopted a code limiting new turf grass to 30% of front and side yards of detached single-family homes and commercial properties. Turfgrass must primarily consist of low-water grasses. Both a city and a county, Broomfield has 77,000 people but with expectations of growing to 125,000 as land is developed.
In Edgewater, a municipality of moderately dense neighborhoods west of downtown Denver, redevelopment will be the primary target of regulations adopted in November. The regulations limit Kentucky and other cool-weather grasses to 25% of residential areas. It also has limitations in commercial and other areas similar to what is proposed in the proposed state law.
Paige Johnson, sustainability director for Edgewater, said the primary goals are saving water and creating and sustaining robust and diverse natural ecosystems.
In Castle Rock, areas surrounding a football field are planted with native grasses that use less water. Waterwise regulations typically exempt athletic fields, parks and other common and higher-use areas from prohibitions against imported grasses.
CREDIT: ALLEN BEST/BIG PIVOTS
And in Castle Rock
Castle Rock gets virtually no water from the Colorado River except for a tiny bit of reused water. It was a late bloomer among cities of metro Denver with fewer than 4,000 residents in 1980. The limited water from Plum Creek combined with wells drilled into aquifers of the underling Denver Basin were just fine.
It now has 80,000 residents but plans for 142,000 in decades ahead. In anticipation of that much larger population, it has been offering rebates of $1.50 per square foot for replacement of water-thirsty grasses with native species that use less water. Those who replace grass with concrete or artificial turf can get only $1. Both exacerbate heat-island effects of high temperatures and create more runoff problems during rains.
Castle Rock calls these less-thirsty yards “ColoradoScapes.” Such areas must have 75% vegetation to qualify.
In October 2022, after several years of outreach, Castle Rock adopted regulations that lifted the bar several notches higher. No thirsty grasses can be planted in front yards. Backyards, where families tend to gather, can have a maximum of 500 square feet. Castle Rock also banned new ornamental turf — grass that no one actually walks on — in road medians and at entrances to housing projects.
Mark Marlowe, director of Castle Rock Water, emphasizes cost in justifying the restrictions. Building water-treatment plants and distribution to meet peak demand during the hot days of summer bears a large price tag. Getting additional water from more distant places is also expensive.
Castle Rock residents today use 118 gallons per capita on average daily. “If we can get our community below 100 gallons per capita a day, we can save upward of $70 million in long-term water rights and infrastructure,” Marlowe said.
Similar to other Colorado cities, 50% of Castle Rock’s water was devoted to outdoor landscaping. That has declined to 42%. Marlowe projects it will continue to drop as Castle Rock Water has set a goal of removing 30% of the current non-functional grass turf in the municipality and replacing it with Coloradoscape by approximately 2050.
Limiting water devoted to outdoor landscaping helps Castle Rock in another way. Water applied to outdoor landscapes mostly disappears into the atmosphere, while about 90% of water used indoors gets treated. In many places in Colorado, this treated water is released into streams and rivers to satisfy those with water rights downstream.
Because it draws the water from the aquifers, Colorado water law allows Castle Rock to reuse that water repeatedly, to “extinction.” Overall, the city hopes to achieve 75% renewable water by midcentury, reserving use of the Denver Basin aquifers to droughts.
Denver has a very different situation. A century ago, when Castle Rock was a small ranch town of fewer than 500 residents, Denver already had 256,000 people. Envisioning a far larger city, civic leaders had laid plans for Colorado’s first major transmountain diversion to take water from the Fraser River via the Moffat Tunnel.
Now, the city is landlocked, able to grow upward but not outward. Water use has leveled off. The city has a strong water portfolio but wants to help residents learn how to use less water for landscaping.
“You don’t have to have wall-to-wall grass to have an inviting city,” said Denver Water’s Fisher. He cautioned against pointing fingers at those with cool-weather turf. “I do think we’re trying to slowly change how people approach their landscapes and make that connection back to water,” he said.
Only trees get watered at the Hugo Golf Club, located in Lincoln County in eastern Colorado. The fairways consist of buffalo grass, cactus and sand.
CREDIT: COURTESY PHOTO/LINCOLN COUNTY ECONOMIC DEVELOPMENT CORPORATION
A golf course without water hazards
In Colorado Springs, the state’s second-largest city, overall water demand has remained relatively flat since the mid-1980s. During that time, the city’s population has nearly doubled. Most of that 40% decline in per-capita water use has occurred since 2001. Other Front Range cities similarly report substantial declines of 35% to 40%.
Colorado Springs Utilities has championed the use of native grasses in urban landscaping but also paid careful attention to the efficiency of preinstalled irrigation systems as it plans for a population of 800,000 in coming decades. It’s now at 500,000.
The city also wants to help residents maintain their yards using water-wise techniques. Between 25% and 30% have stopped irrigating their yards. That neglect “has a significant, negative impact on our collective quality of life and economic vitality,” said Colorado Springs Utility in a statement. “Our work is to reach those customers as well.”
The changing climate also poses challenges. Julia Galluci, supervisor of water conservation for Colorado Springs, said the city expects to have water resources available for outdoor watering about one day a week by 2050. “We are trying to implement the kinds of landscapes that can survive in that kind of climate and environment,” she said.
Colorado Springs has been moving slowly, only this year moving into its messaging of the more general population. “It’s not a quick fix,” said Galluci.
Of course, if the Colorado River situation deteriorates rapidly, city and state policies may accelerate. After last winter’s strong snowpack, the big reservoirs— Mead and Powell — rebounded slightly after dropping to perilously low levels. In April 2022, railroad tracks on a ledge of the canyon wall that had been abandoned upon completion of the Glen Canyon Dam re-emerged after being underwater since soon after the dam was completed in 1966. Those artifacts are underwater again, but no one knows for how long.
As for new golf courses, they may look different in the future. Aurora’s recent commitment to restrictions was triggered by a golf course approved long before. The golf course has been granted authority to move ahead after agreeing to use a grass variety that will cause it to use 250 acre-feet annually instead of the 400 acre-feet that would be needed by more conventional grass.
Developers of the golf course will tap an aquifer with a projected 50-year supply. When that aquifer goes dry, they will not seek to use city water, Other golf course developers may also want to study new hybrid species of grass. A new type of Bermuda grass, for example, uses 50% to 75% less water.
Colorado has two golf courses that use no more water than comes from the sky. One is a nine-hole municipal course at Springfield, in southeast Colorado. The other lies 100 miles east of Aurora, near Hugo. The Hugo Golf Club falls under the heading of “pasture golf.” It has 300 trees that get watered, but the fairways where bison once grazed now consist of native buffalo grass, cactus and sagebrush. For greens, it has sand. Naturally, it has no water hazards.
Of course, if the Colorado River situation deteriorates rapidly, city and state policies may accelerate. After last winter’s strong snowpack, the big reservoirs— Mead and Powell — rebounded slightly after dropping to perilously low levels. In April 2022, railroad tracks on a ledge of the canyon wall that had been abandoned upon completion of the Glen Canyon Dam re-emerged after being underwater since soon after the dam was completed in 1966. Those artifacts are underwater again, but no one knows for how long.
As for new golf courses, they may look different in the future. Aurora’s recent commitment to restrictions was triggered by a golf course approved long before. The golf course has been granted authority to move ahead after agreeing to use a grass variety that will cause it to use 250 acre-feet annually instead of the 400 acre-feet that would be needed by more conventional grass.
Developers of the golf course will tap an aquifer with a projected 50-year supply. When that aquifer goes dry, they will not seek to use city water, Other golf course developers may also want to study new hybrid species of grass. A new type of Bermuda grass, for example, uses 50% to 75% less water.
Colorado has two golf courses that use no more water than comes from the sky. One is a nine-hole municipal course at Springfield, in southeast Colorado. The other lies 100 miles east of Aurora, near Hugo. The Hugo Golf Club falls under the heading of “pasture golf.” It has 300 trees that get watered, but the fairways where bison once grazed now consist of native buffalo grass, cactus and sagebrush. For greens, it has sand. Naturally, it has no water hazards.
The 32-foot-tall sound erected at Northglenn’s Northwest Open Space is hiding a test drill. The city is testing pumping drinking water underground to store it at the site. Credit: Courtesy / City of Northglenn
“Normally what we do is pump our water from Berthound Pass into Standley Lake, but there are evaporative losses there,” said Northglenn Water Resource Administrator Silas Adams. “What we’re testing is storing this water in case we need it. You say you plan for a rainy day, but we’re trying to set some water aside in case we have a dry day — or an extended drought period.”
Crews were set to begin drilling into the aquifers at the city’s 2350 W. 112th Ave. water treatment facility in the Northwest Open Space during the first week of January. Drilling should be finished in April…Denver Water has tested underground storage, but Northglenn is the first northern metro community to try it. The plan is to test the water’s quality before pumping it underground, beginning in April. The tests will look for trace elements, minerals and potential pollutants. Then, water will be pumped out from the aquifer a year or more later and will be tested again…
Water stored in Colorado’s Denver Basin aquifers, which extend from Greeley to Colorado Springs, and from Golden to the Eastern Plains near Limon, does not naturally recharge from rain and snow and is therefore carefully regulated. Courtesy U.S. Geological Survey.
Colorado’s Front Range sits atop several aquifers, from Wyoming south to Colorado Springs — the Dawson, Denver, Arapahoe, Laramie/Fox Hills and the Pike Rampart aquifers. Adams said Northglenn’s goal is to pump water it gets from Berthoud Pass via Clear Creek into the Arapahoe and Laramie/Fox Hills aquifers. The Arapahoe aquifer covers some 4,700 square miles and is as deep as 1,700 feet below ground. More than 1,000 wells have been drilled into the aquifer, including several Colorado municipalities. The deeper Laramie/Fox Hills aquifer covers 6,700 square miles and is 2,400 feet below ground at its deepest points — the deepest of the Front Range aquifers. Adams said Northglenn crews will need to drill about 500 feet down to reach the Arapahoe aquifer and 1,400 feet to reach the Laramie/Fox Hills aquifer…Northglenn already has the rights to pump a limited amount of water from the aquifers, but Adams said there is no limit to how much water it can pump in and then pump back out.
State Engineer Kevin Rein is retiring at year’s end and agreed to join The Valley Pod podcast for an interview with host Chris Lopez before he departs. We’re calling it an exit interview.
In it, Rein talks about the importance of bringing sustainability to the unconfined aquifer of the Rio Grande Basin, how the economic future of the San Luis Valley and its agricultural industry is at stake without a sustainable aquifer system, the unique nature of the Rio Grande compared to the Colorado River Basin and others, and the urgency of achieving sustainability in the face of prolonged drought and climate change.
“I wish there was enough water for everybody, but we developed agricultural and municipal uses in a state that is largely a desert and it often has an abundance for a couple months out of the year,” Rein said. “I think it’s good for us to at least feel comfortable that we have that structure in place. But the other thing we need to know, as I alluded to, is that that structure is going to cause us to make difficult decisions, especially as we see climate change, the effects of climate change reducing our water supply, and we see our demands grow.”
Here’s an edited version of the conversation. The full Valley Pod episode is here.
ALAMOSA CITIZEN: Thank you again for giving us some of your time as you exit. And again, congratulations on your retirement. Is the stress of the job starting to subside?
KEVIN REIN: No. The stress, if we can call it that, is not subsiding at all. This trepidation that I face with the idea of retirement and ending a job that I really love doing, weighs pretty heavily on me and wanting to get in every last bit of good work I can do. That’s weighing on me. Yes. Yeah, it’s very important for me to try to finish this. We’re doing as much as I can.
Rio Grande and Pecos River basins. Map credit: By Kmusser – Own work, Elevation data from SRTM, drainage basin from GTOPO [1], U.S. stream from the National Atlas [2], all other features from Vector Map., CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=11218868
AC: We want to start with some local issues with you of the Rio Grande Basin and then stretch more into the role of the state engineer for Colorado, if you don’t mind. First, can you sum up the importance of the upcoming year 2024 and the influence upcoming water court trials will have on the Rio Grande Basin? And we’re thinking specifically of the water trial around Subdistrict 1 Plan of Water Management, the alternative plan for operating in that particular subdistrict with the Sustainable Water Augmentation Group court filing, and then the idea of the U.S. Supreme Court weighing in on a new settlement between Texas, New Mexico and Colorado when it comes to the Rio Grande Compact. 2024 seems like a significant year in water court.
REIN: It’s going to be very significant that affects the people in the Valley to greater or lesser degrees depending on those three items that you just mentioned. And so that is critical. And Chris, I’ll apologize to you and the listeners that I’m going to be very cautious about my comments on these because of the legal implications and the fact that it’s really active litigation in three areas and regarding the lawsuit on the Rio Grande Compact with Texas and New Mexico. And then as you mentioned the United States, I will probably not say much at all about that because the facts are there and I don’t want to step in front of our good legal staff and say something that is not quite true to the case in terms of the legal implications of what’s going on. But when it comes to SWAG and that case and the groundwater management plan containing the plan of water management for Subdistrict 1, those are very important issues. And I will admit that I’m going to be a little guarded in my comments about those two because pardon me, as you know, the SWAG case was dismissed, but they have re-filed and we may see that play out in a similar fashion. And without saying too much about that and the groundwater management plan for the subdistrict, from my perspective as a state engineer, there’s one critical aspect of that for both cases and that is the sustainability of the unconfined aquifer. As we know, that’s a difficult component of groundwater management in the Valley because we have a statutorily required sustainability objective. And that has found its way into the rules and into the groundwater management plan for the subdistrict. And I’ll speak to the existing groundwater management plan that’s in place right now that has a deadline of 2031 to meet the objectives, the sustainability objectives, that that very plan sets out. As we all know, and I’ve been on record through letters and public comments, that it’s going to be very difficult to meet that sustainability objective under that existing plan of water management. And I know that the subdistrict has worked hard toward an alternative in this current plan that I approved and is before the court and the way that plays out is going to be so important to the irrigators in the Valley under the rules under their annual replacement plans. And I look forward to seeing the resolution of that. Obviously I won’t be the state engineer at the time and I’m not certain to what extent I personally will stay involved in that, but it is critical to get resolution on that for the irrigators. And since we are under active litigation, if I can use that term for the groundwater management plan component of the plan of water management, I’ll stop right there, but I will mention that as we know, the SWAG applicants have also attempted to address sustainability, at least in their previous application they did. That was dismissed. And for this upcoming application, I’ll admit that I have not reviewed that in detail yet, but that will be also very important to properly review and respond to sustainability objectives in the upcoming SWAG case.
AC:Why is it important for the water court to be dealing with these particular issues now? Can you address the importance of the court doing its work in 2024 and what’s the best scenario in terms of how the court adjudicates these trials or deals with these cases?
REIN: The importance of the water court’s involvement now is because the issue is important now in 2024. The reason it’s important right now is because we’re currently working under the 2031 deadline, and that seems, it doesn’t just seem it is seven years away, it seems like a lot of time, but as we know, we’re under sustained drought in the valley and obviously the economic future is at stake. We can’t just shut down production. So we need to find that way to address sustainability now. And as I said, we’re under sustained drought. There’s no confidence I think from anyone in saying that that will turn around and end. You have to assume a difficult case scenario. And with that seven years is not a lot of time to make up the perhaps 1 million acre-foot gain that would be necessary to get to the sustainability standard. Therefore it is timely.
AC: Do you think groundwater users as a whole in Division Three are making good or reasonable enough progress in solving our water security challenges and what stands out for you there?
REIN: Yeah, so a broader water groundwater availability use challenges, and I need to break away from this sustainability discussion for a minute and just talk about the efforts of all the water users through seven subdistricts under the rules in the Rio Grande Basin. And as we know, the rules that became final in 2019 and are now completely applicable do hold the water users to a high standard. It’s a standard that we have statewide. It’s a standard that came out of our 1969 water right Determination and Administration Act that we need to administer groundwater in conjunction with surface water in the prior appropriation system. That’s what came upon the water users in the Rio Grande gradually over the last 10 to 15 years, but again, in 2019 and certainly a couple years later, finally hit them. And what they have done is developed very comprehensive, very complex annual replacement plans that allow them to pump and comply with the law. What is compliance with the law? Basically it means replacing depletions to the stream system in time, location and amount to prevent injury to senior surplus water rights, and obviously the stay of compliance with a compact. And let me just say quickly, we have a unique situation in Division Three, the Rio Grande Basin, that instead of replacing depletions, they can enter into forbearance agreements to just compensate financially for that. But that’s what they have done to respond to this groundwater challenge is they have developed these annual replacement plans, they have gotten their sources of replacement water, they operate according to the Rio Grande decision support system to ensure that their depletions are properly recognized at the time, location, and the amount so that they can be replaced. I think it’s very gratifying. I wish I could take more credit, but I think it’s very gratifying that the water users, excuse me of the basin, have responded as they’ve needed to, but responded in such a complete and detailed and verifiable way. And I really can’t say that without also addressing the division of water resources staff in our Alamosa office, Craig Cotton and his highly competent staff, they’ve just put in countless hours to analyze and verify and approve these annual replacement plans. Without those, the wells just simply are not pumping.
AC: I want to ask you one more question about 2024 and the Rio Grande Compact because there’s a lot of people scratching their heads around the federal government’s opposition to the negotiated agreement between Texas, New Mexico and Colorado is also a party, too. And I just wonder if you’ve figured out the federal government’s motivation in that case?
REIN: Chris, that’s a very good question and if you don’t mind, I’d like to just not answer that because of the legal implications and I leave those questions to our attorney general staff.
AC: No, I appreciate that. One of the issues or one of the programs right now is the Groundwater Compact Compliance Fund and the $60 million that was put into that fund through Senate Bill 28. What should be the overall outcome of that $60 million for both the Rio Grande Basin, the Republican River Basin as it’s spent? What’s the expectation and what is the advantage gained by spending that money on those two basins?
REIN:The ultimate outcome for both basins is similar but distinct and the mechanism by which those outcomes are realized is also pretty similar. But let me just start with the end game. The outcome for the Republican River Basin, first of all, is to assist in the retirement of irrigated acres to comply with a 2016 resolution entered into by the states of Kansas, Nebraska, and Colorado. And it’s tempting to get into great detail, but just let me say at a high level that part of compact compliance in the Republican River Basin is operating a compact compliance pipeline to deliver water at the state line to make up for overuse of Colorado’s allocation in the Republican River Basin. That works well except for a detail that not all the water is delivered exactly where it should be. And to deal with that, the three states entered into a resolution that among other things, allows a consideration that Colorado is meeting the compact. If Colorado retires 25,000 acres, this began in 2016, by the year initially 2027 but now 2029, with that background, how to retire 25,000 acres, it’s very difficult because people own land, they have water rights, they want to continue irrigating. So it’s through funding. The funding is difficult, you’re assessing fees, you are asking people to help fund this out of their economic development. Senate Bill 28 for the Republican (River Basin) then brought that $30 million in to help fund the irrigated acres, the reduction of irrigated acres, and it’s just purely economic incentive. People want to do the right thing, but it’s very helpful to have that economic incentive. So thank you for letting me go into some detail, but that is the outcome. The desirable outcome is to stay in compact compliance by tying that 25,000 acres in the south port and it’s working well. We’ve met an intermediate goal for the Rio Grande. It is a similar situation as you know, with great interest toward meeting sustainability obligations in the unconfined aquifer, but in general throughout the basin, reducing groundwater usage. And then to do that, and let me just go back specifically to our sustainability discussion in the unconfined aquifer. Subdistrict 1, reduce those irrigated acres. Their current plant of water management has a goal of reducing 40,000 irrigated acres. Reduce that and then you’re going to reduce groundwater consumption. That helps the water balance so that the aquifer can begin to, and they can meet their sustainability obligation. But we have to say that it’s not limited to Subdistrict 1 or the unconfined if we are reducing groundwater usage throughout the basin. The endgame again is to meet the sustainability obligations and also it makes it easier to comply with a compact if we do that, but reduce the pumping from the aquifers and reduce that groundwater usage.
AC: Does it look to you now that that money, all $60 million, $30 million for each basin will get appropriated at this point? Does it look like the conservation districts have put in place enough of the programs for that money to get spent?
REIN: I believe first of all on the Republican (River Basin) that since they had a structure in place and were already retiring acres in the south, just not at the pace they wanted, that with that structure in place, they are on a good pace to use that funding. For the Rio Grande, they did not have as much of a structure in place and have developed that. But with that development, I believe they have the interest, the applications, I can’t quantify that or go into detail on that, but they certainly will have the interest. And I believe that I would have to really check in with some of the district and subdistrict folks to see what their projection is. But certainly the need is there and the funding is there. So we would hope those come together to see the effective use of all that funding to accomplish the goals.
AC: When you think of the work that’s been done and being done both on the Rio Grande Basin and then Colorado River Basin, what lessons, if any, can be learned from those efforts as we work to bring sustainability to our water resource, our water supply? What are the lessons or what is the work that stands out for you now.
Map credit: AGU
REIN:My role as state engineer, I like to keep my eyes on a few different things just to ensure balance. And we need to look in both the Rio Grande Basin and the Colorado River Basin, first and foremost at the importance of agriculture and how important that is in the Rio Grande Basin. It’s the culture, it’s the economy, it’s a way of life. That’s what sustains that basin. And that’s also true in the Colorado River Basin, but in different ways for the Rio Grande. We just need to balance that attention to the importance of agriculture, to compliance with the law, balance those and balance the importance of agriculture with a compact. And that’s why we have to make these difficult decisions to reduce irrigated acreage because with drought and with demands, the water is just not there. We can’t achieve a water balance. And so that’s how we do that. And I can’t therefore go to the Rio Grande Basin and encourage as much beneficial use as they can possibly accomplish because that would run counter to this effort to comply with the Arps and to achieve sustainability in a slightly different way. I have to deliver a message to the Colorado River Basin that says, yes, our balance is important to the way we regard agriculture and it’s important. And my message to them is, if you have water available and you have a beneficial use and you have the right to water as your water administrator, I’m going to tell you to divert it. I don’t have a basis to tell you to try to conserve, to try to curtail because this is important. I deliver a message of beneficial use on the Colorado River Basin. Now that’s within their water right. And within our system of prior appropriation and in consideration of the fact that in the Colorado River Basin, those tributaries in Colorado and the other three upper basin states, we use less than our allocation under the compact. But there’s no basis to tell people as the state engineer, I want you to conserve. That might be a message from someone else, but not from me. And that’s the message I have to deliver there. But at the same time, we need to be mindful of what other obligations could be put on Colorado in the future. And perhaps you or others who’ve heard me talk about that in the Colorado River Basin right now, we are well in compliance with a compact 75 million acre-feet over every running 10 years. Well in compliance. I spoke to the task force about it just a couple days ago, and we have to be mindful of that number. And if we ever do drop below that number as four upper basin states, the next question is ‘Did we cause it?’ Which really goes to the language of the compact. So it’s very complex and it’s inquiry based. I can’t really project in the near future that we would be out of compliance with a compact. So that’s that different message. But still responsible water usage is the same.
AC: I want to switch to another general topic here, and that’s water for the state of Colorado and the Front Range communities as a whole. In your judgment, have Front Range communities secured enough water for their future or what has to happen for the Front Range to be able to maintain any of its population growth?
REIN: I’m going to give you some quick background as far as our role, and then I’ll be giving you a couple of thoughts on your question. But first of all, it’s good to understand that the role of the Division Water Resources from a statutory standpoint is somewhat limited. And certainly when there’s a development in an unincorporated area, we have a statutory responsibility to provide an opinion to the county, whether the water supply for that developing area is adequate and can be delivered without causing injury. So we do that and that really helps the developments incorporated areas take the steps to ensure that they don’t overextend themselves so that they don’t develop land that has no reliable water supply. When we look at the big municipal and quasi-municipal water providers along the Front Range, it’s a different approach because we don’t have that role or that authority to review their portfolio, review their developments, and ensure that they have enough water. And my observation, even though it’s not a statutory obligation, is that their approach is to develop their water supplies, look closely at their developments, and then they have their role, to things like water and restrictions or other steps. They might take incentives for turf removal, conservation measures, funding conservation measures, or encouraging conservation measures. And that’s how they, and by they I mean greater minds than mine, run municipal water systems. That’s how they keep that balance and ensure that they’re able to provide the water they need to, for their communities in the future.
AC: We’re used to associating you with the enforcement of groundwater rules in the San Luis Valley and Rio Grande Basin. But in reality, that’s just a portion of what the state engineer’s responsible for. Explain the larger role and where the majority of the focus is in the state engineers position.
REIN:The state engineer’s role is just so interesting, and I can’t help but go back about 140 years to 1881 when the position of the state hydraulic engineer was created. And that was created largely to major stream flows so that we could implement these tenets of our prior appropriation system and know the stakes of our 10 newly appointed water commissioners, how to administer water rights that called for the state hydraulic engineer. And over time some of those responsibilities developed to approving bridge design and highway design and reviewing county surveys. But it has both narrowed and expanded in the last 140 years and actually, beginning a hundred or more years ago, to administering these water rights in prior appropriations statewide and supporting our local staff that does that. And of course our dam safety and our water information program. But to answer your question more directly, it is that oversight and support of on-the-ground, bread-and-butter water administration. We have a hundred, 120 water commissioners on the ground that do this work and do it well. What do we need to do to support them? That’s often engineering and technical support. And that comes to a large degree through our involvement in water court, ensuring that we have decrees that are administrable that can be implemented through proper accounting. And then one other facet of that that is very significant, Chris, that I’d like to highlight is what I call or what are known as administrative approvals. And those administrative approvals substitute water supply plans or in the case of the Valley, annual replacement plans, or in the case of the Arkansas, replacement plans. And these are plans that allow water users to use water out of priority, which otherwise would just be disallowed, and recognize their efforts to quantify their impacts to the stream and mitigate those impacts usually through replacement water. This is a significant matter, particularly in the South Platte, the Arkansas and the Rio Grande Basin, and it’s much of what we talked about earlier.It is recognition that groundwater, our formal recognition in 1969, groundwater impacts surface water diversions and we need to account for that in prior appropriation. So since we talked about that in depth before, I will say that much of our staff is actively reviewing the engineering and the administration and the legal aspects of these plans to use groundwater out of priority with replacement to the stream to keep the stream and therefore the other water users whole.
AC: What should the general public know about water as a resource when you think of the years ahead?
REIN: First, I would say that we’re very fortunate in Colorado that we started 150, 160 years ago with a structure in the system called prior appropriation that although it can be very rigid and very harsh, gives us structure and order in what we do so that people have a reasonable ability to project how their water supply may or may not be affected by future conditions and how it might be administered. That structure is so important. I wish there was enough water for everybody, but we developed agricultural and municipal uses in a state that is largely a desert and it often has an abundance for a couple months out of the year. I think it’s good for us to at least feel comfortable that we have that structure in place. But the other thing we need to know, as I alluded to, is that that structure is going to cause us to make difficult decisions, especially as we see climate change, the effects of climate change, reducing our water supply, and we see our demands grow.Those two curves have unfortunately crossed and when they cross, we call it over-appropriation. So we’ve got to implement that. But I think people should also know that Coloradans are smart, they’re creative, they’re solution-oriented. So a lot of these areas where we do see that crossing of those curves, that conflict of the water balance between demand and supply, we’re trying to solve that in ways that address people’s needs. And that may be, or it is so well articulated in our Colorado water plan, but it also is what you see daily on the ground as people maybe seek new initiatives to the general assembly on ways to do things or just creative ways to share water with each other all within the legal structure of our prior appropriation system. Of course. And that’s what I see for the future of Colorado water. We’ve got a difficult balance to achieve, but people are being creative within the system to achieve it.
Water sustains the San Luis Valley’s working farms and ranches and is vital to the environment, economy and livelihoods, but we face many critical issues and uncertainties for our future water supply. (Photo by Rio de la Vista.)
AC: What is the effect of these drought periods and the warming temperatures that we definitely are feeling in the San Luis Valley and across Colorado?
REIN:Let me be very specific and then work my way out to a more geographically diverse answer to that. But let’s go back to the unconfined aquifer again. Why are we struggling? The fact is that with the prolonged at this point, 20-plus year drought, oh, we’ve had a couple of good years, but the trend is, it’s a 20-year drought that reduced inflows into the unconfined aquifer. There are sources that recharge either through import or through natural inflow. These sources recharge the unconfined aquifer and provide water for the wells to pump, plain and simple. When that inflow is reduced, there’s less water to pump. And that’s also made more difficult by the fact that under these drought conditions, higher temperatures, drier climate, then those crops are going to demand more water. So we get hit twice by that climate impact, and that’s just the unconfined aquifer. If we look at the Rio Grande Basin in general and the reduced snowpack and the San Juans and the Sangres, then we’re going to see less water in the rivers available for diversion. And of course, the compact is somewhat complex in the way that flows are indexed within the state and result in the need to deliver a certain amount to the state line. That’s of course more difficult because of the prolonged drought and the climate change. That’s the impact in the Rio Grande statewide, because we are this headwater state, because we rely so heavily on snowpack that occurs in our central mountains and flows out of the state, then that reduced snowpack is a big part of what’s going to impact us and we’ll get less runoff typically. And that reduced runoff also may occur later, earlier in the season, more likely earlier, and that changes the dynamics. But then the crops are going to demand irrigation at different timing. And again, like I said, for the Rio Grande, the crops have a higher demand if we have a hot or drier climate, so we get hit twice. Again, all in all, it’s that reduced supply generally from snow, excuse me, generally from snowpack that’s going to impact our water users. Now you’ve noticed my focus is really on agriculture because as most Coloradoans know around 85 percent of our diversions go toward agriculture. Now consumption is always a different, more complex matter, but at least 85 percent or so of our diversions go toward agriculture. The municipal supplies are being managed, but that’s where we see the big impact, our lion’s share of diversions.
AC: What is the most worrisome aspect you see when it comes to water as a natural resource?
REIN: I would say that the most worrisome aspect is, again, watching your irrigators. Let me say our irrigators in the Valley. I’ve spent enough time and I seem to know those folks and have a high regard for them. So hopefully they’ll let me say our irrigators in the Valley and the impacts it has on them as they try to deal with this reduced water supply. It’s happening in the Republican River Basin, it’s happening on the South Platte, all of our irrigators in their diversions in the Colorado River Basin. And when I say that, I mean all the tributaries from the YM of the white, the Colorado main stem, the Gunison, the San Juan Animas, La Plata, Dolores, all those areas on the west slope that contribute to the Colorado River. Their irrigation diversions are incredibly important to them. They’re necessary. It’s part of the economy on the west slope. So I spent a lot of time thinking about their need for solutions and strategies and initiatives. That’s an answer to your question of what is worrisome to me. But again, I need to go back to what I said earlier, it’s worrisome but then I also watch creative people with creative solutions. So maybe that takes away some of my worry.
AC: Are there improvements that have to happen so Colorado and the Division of Water Resources get a better at reading snowpack levels with what we’re seeing in the changes of the environment? Because you hear different things about the snowpack itself and is it really as strong as it appears?
REIN:I think that Colorado can benefit from more measurement. I won’t say that Colorado has to get better because Colorado does so many things so well, but I’ll be geographically specific and address the Rio Grande Basin. Due to the nature of the compact and the way Craig Cotton has to administer the compact, I know that he is uniquely interested in good snowpack data because he needs literally to forecast amounts of water so that he knows how much will need to be delivered to the state line on a year-to-year, sorry, maybe I should say on a month-to-month basis. And in order for him to do that, he is actively curtailing water rights again, just to ensure that he comes close to hitting that target and that target is so dynamic based on the types of flows that are occurring. So he has that unique interest in being able to see what’s up in the mountains early on and what could occur as runoff around the state in general, we do have an interest in that. It helps our water users, our municipalities, our producers, forecast what they’re going to see and maybe they can make their own economic decisions too. More data is always good, so I won’t deny that, but I’ll fall short of saying Colorado needs to do better.
AC: Fair enough. Again, we really appreciate all the time you’ve given us. Let me ask you, what’s the advice you leave for your successor when dealing with the Rio Grande Basin and Colorado River issues moving forward?
REIN:My advice for my successor in the Rio Grande and the Colorado River Basin probably applies statewide, but you are right on target that those are two very sensitive areas. And my advice is we really need to give our water users the assurance that the structure I described – prior appropriation, water court decrees – are in place and they’re there for a reason. They’re there for us to abide by them, but we also need to keep one eye on solutions that are based on flexibility, technical innovation that you described, new ways of looking at old problems and being very thoughtful and deliberative about those potential solutions. Can we, under our very rigid system, entertain those solutions? And of course, the answer should be yes, but it requires a character that is willing to say, let me look at that. Let me consider, even though I have concerns right now, let me consider whether there are ways that we can make that work and not injure other water users and not step outside of our very important legal tenants that we have to follow.
AC: What’s next for you?
REIN:Oh boy. I am so looking forward to doing more things with my wife, who, of course, she’s my bride all that time and love in my life, and I have kids and a grandson. And so to have so much of my time opened up to do that is important. Will I step away from water? That would be very hard to do. Do I have a specific plan? No, but I do intend to, either as an observer or something beyond a passive participant, I plan to stay mentally engaged in water.
“I can’t downplay the frequency of the ‘bad water years’ and the fact that persistent drought has impacted both surface water users and groundwater users; that impact is felt across the Basin.” – Kevin Rein, director of the Colorado Division of Water Resources. Photo credit: Alamosa CitizenKevin Rein, Colorado state water engineer, explains why Colorado needs stepped-up measuring of water diversions in the North Park and other rivers in Northwest Colorado while Erin Light, Division 6 engineer, looks on during a meeting in Walden on Oct. 22, 2021. Credit: Allen BestThe Colorado Water Conservation Board is hoping the nine basin roundtables adopt their code of conduct. From left, back row: Steve Anderson, Dan Gibbs, Kevin Rein, Jim Yahn, Heather Dutton, Russell George, Curran Trick, Greg Felt; front row: Jessica Brody, Gail Schwartz, Celene Hawkins, Jaclyn Brown, Becky Mitchell.
CREDIT: HEATHER SACKETT/ASPEN JOURNALISMKevin Rein. Photo credit: Aspen Journalism
Millions of acres of wetlands recently lost federal protection under the Clean Water Act after a U.S. Supreme Court ruling. Some states are attempting to fill the void, but permitting programs — and the staff needed to enforce them — have proven costly. Flickr/USDA NRCS TX
Earlier this year, the U.S. Supreme Court stripped federal oversight from millions of acres of wetlands long protected under the Clean Water Act. Now, erecting safeguards to ensure those waters are not polluted, drained or filled in by developers falls to the states.
They’re finding that it’s not easy.
“States and tribes already didn’t have enough funding to support the programs they have, and now they are being put in a position where they need to step up,” said Marla Stelk, executive director of the National Association of Wetland Managers, a nonprofit group that represents state and tribal regulators.
Wetlands play a crucial role in filtering pollution and nutrient runoff. They also absorb stormwater, help to recharge aquifers and provide essential habitat for many species. When wetland areas are lost, water managers say, communities may suffer from flooding, become more vulnerable to droughts or require expensive treatment plants to make water safe to drink.
In some states, the loss of federal rules means that many waters are now largely unregulated. Some lawmakers, mostly in Democratic-led states, are looking to craft rules to replace the lost Clean Water Act protections, but they expect a yearslong process just to get new regulations on the books.
Other states have had strong rules in place even without the federal coverage. But now they can no longer rely on federal partners such as the U.S. Environmental Protection Agency to help enforce those standards. Regulators in those states are asking lawmakers for millions of dollars to hire more staff to process permits and monitor water quality.
States and tribes already didn’t have enough funding to support the programs they have, and now they are being put in a position where they need to step up.
– Marla Stelk, executive director with the National Association of Wetland Managers
Meanwhile, some conservative states view the rollback as an opportunity for developers and industry. Soon after the court decision, North Carolina passed a law eliminating all state protections that exceeded the federal standard. Environmental advocates say other business-friendly states are unlikely to enact their own protections, and fear that some will follow North Carolina’s lead by cutting existing rules.
“It ought to help with regard to costs and predictability,” said Ray Starling, president of the NC Chamber Legal Institute, the legal strategy arm of the business advocacy group, in a June interview with Stateline. “The Supreme Court knew that this would end up yielding quite a bit more jurisdiction to the states. We would argue that’s actually good.”
State leaders say they remain unclear on exactly which waters have lost federal oversight following the Supreme Court decision and a subsequent EPA rule based on it. Officials expect plenty of litigation as they attempt to make sense of murky legal definitions from the feds. Some fear that developers may take advantage of the confusion, using states’ uncertainty as implicit permission to bulldoze wetlands.
“Every state’s risk has increased,” said Julian Gonzalez, senior legislative counsel for policy and legislation at Earthjustice, an environmental law group. “The whole point of the Clean Water Act was to ensure that there’s not a patchwork of regulations. Even when EPA had full jurisdiction, there were tons of enforcement issues all across the country. This is only going to exacerbate them.”
Staffing shortfalls
In May, the Supreme Court ruled that the Clean Water Act does not cover wetlands that lack a continuous surface connection to a larger body of water, which excludes many waters that connect underground. The court also narrowed the law to exclude from protection “ephemeral” streams that flow only seasonally.
Of the nation’s 118 million acres of wetlands, more than half could lose federal protection under the new definition, Earthjustice estimated. The EPA in August issued a new rule revising its regulation known as the “waters of the United States” rule to meet the court’s limitations.
“We still don’t know how [courts] are fully going to interpret what constitutes a surface connection, but we’re still assuming that at least 50% of [Washington’s] wetlands are no longer jurisdictional [under the Clean Water Act],” said Lauren Driscoll, manager of the wetlands program with the Washington State Department of Ecology.
With the feds bowing out, Driscoll’s agency may have to process an additional 50 to 100 permits a year, up from the 12 or so it currently handles. The agency is currently enforcing state wetland standards using a customized administrative order for each permit. Regulators are asking state lawmakers to enact a dedicated permit program that would create a standardized application process.
The agency also is seeking 10 more staffers to process permits, and three more temporary workers to help develop the new program. Once established, the permit program will cost about $2.2 million per year to administer, Driscoll said.
In California, regulators say they’ll also need more funding and staff to enforce state wetlands laws. For waters that are losing federal protection, states such as California will lose access to environmental analyses, expertise and staff capacity from federal partners such as the U.S. Army Corps of Engineers.
“We are anticipating no longer having support from the [U.S.] Army Corps of Engineers for things we’ve relied on them to do on the technical side” in waters that are no longer protected as waters of the United States, said Karen Mogus, deputy director of the Division of Water Quality within the State Water Resources Control Board. “We have protections in place, we have state authority, but we are certainly seeking additional resources to cover the gap that we have estimated is going to be opened up.”
While the agency’s specific funding request remains confidential, Mogus said, the loss of federal support could delay the issuance of permits. Regulators also might have to set up a state version of a federal pollution discharge program that covers wastewater plants and other industries.
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A few states already have passed laws that are broader than the federal standard, with well-established permit programs to uphold them. In Minnesota, for instance, state officials say their efforts will be largely unaffected by the court decision. But they acknowledge that other states may be hard-pressed to enact protections such as Minnesota’s 1991 Wetland Conservation Act.
“It would be very difficult to even consider doing something like that today,” said Dave Weirens, assistant director for programs and policy with the Minnesota Board of Water and Soil Resources. “Democrats and Republicans found it easier to find common cause to solve problems than they do today.”
Last year, New York lawmakers passed a measure to expand the wetlands covered by state regulators, in part because of the pending Supreme Court case. Officials with the state Department of Environmental Conservation did not grant an interview about that effort, but supplied a statement saying the expansion would protect an additional 1 million acres of wetlands.
Making investments
Other states are working to put firmer protections on the books. In New Mexico, officials already had been working prior to the ruling to establish a surface water permitting program.
While the state currently has standards to protect wetlands, it’s enforcing them via administrative orders rather than a well-defined program. Agency officials have been coordinating with counterparts in Washington state, which is also using administrative orders, even as both states work toward a more defined program.
“We’d like to get away from boutique permits, these individual one-off permits and standardize this,” said John Rhoderick, director of the Water Protection Division within the state Environment Department. “Each permit is an adventure to say the least.”
Rhoderick said it will take about five years to get the state program fully established, requiring an additional 35 to 40 staff members and $5 million to $6 million per year. He said state lawmakers have been supportive of that effort, and he anticipates they will empower his agency to begin a rulemaking process late next year.
Colorado is among the states without strong wetlands protections. Gov. Jared Polis, a Democrat, has proposed $600,000 in his budget request as an “initial investment” toward developing a program, spokesperson Katherine Jones said in an email. The governor’s office declined an interview request seeking more details on that proposed program. Developers in the state say they’re monitoring the process, while environmental advocates say they’re working with officials to craft laws that will restore protections for Colorado’s waters.
“We are fully intent, both advocates and the government, to get a program in place that will at a minimum return us to where we were at [with federal oversight],” said Ean Tafoya, Colorado state director with GreenLatinos, an environmental justice organization. “What’s frustrating is that we could have been taking these steps a few years ago.”
While Polis’ budget request may help to kick-start a rulemaking process, Tafoya said, establishing a full regulatory program will cost millions of dollars. While specific bill language hasn’t been released, he said he expects lawmakers to consider legislation that would direct the state Water Quality Control Division to establish standards by a certain date.
Illinois activists also are pushing for legislative action.
“Wetlands are one of the few natural tools we have to filter our nutrient pollution, and they have the capacity to hold water, which helps mitigate flooding,” said Eliot Clay, land use programs director with the Illinois Environmental Council. “They are going to help us get through some of the worst impacts of climate change.”
At present, Clay said, the state’s wetlands protections are vague, and the state Department of Natural Resources is understaffed. But he believes Democratic Gov. JB Pritzker is interested in bolstering the state’s standards, and advocates expect to see a bill in the legislature next year.
Pritzker’s office did not respond to a request for comment.
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Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: info@stateline.org. Follow Stateline on Facebook and Twitter.
What a great learning experience yesterday in Greeley at the 2023 South Platte River Forum. The panels were all excellent as were the speakers (even the presentation by Brent Young about crop insurance 😊).
Myriad proposals to tap lithium deposits in southeastern Utah are progressing from the conceptual to the exploratory phases. But they are running up against a familiar obstacle in these arid parts: concern about how the projects might affect diminishing water supplies in the Colorado River Basin.
Lithium is the primary ingredient in lithium-ion batteries, which power everything from cell phones to electric vehicles to grid-scale energy storage. Demand for the stuff has shot up tremendously over the last decade, which has also elevated prices. That, in turn, has sparked interest in developing a domestic lithium industry, with projects sprouting in Nevada, at the Salton Sea and Great Salt Lake, in southern New Mexico, and in the Paradox Formation in the Four Corners Country.
The Paradox Basin and Anson/A1/Blackstone’s main target areas: A. Green River Project; B. Paradox Project; C. Wayne County water rights (and possible future processing plant?).
The Paradox Formation (or Basin), stretching from the northwestern edge of the San Juan Basin up to the town of Green River, Utah, contains oodles of lithium (along with potash and bromide and so on). That’s because some 300 million years ago a sea covered the area, then evaporated, then flooded the area, then evaporated, repeating this cycle about 29 times over the course of 15 million years. The process left behind thick deposits of salts and other materials. Over the ensuing millennia, rock piled up atop the salt, squeezing it into fault lines, where the salt was pushed up into domes that shaped the overlying landscape. Those salt deposits contain lithium.
Geologic cross-section of a portion of the Paradox Basin showing a salt dome.
Companies have poked around in the Paradox Formation in search of potash for years. Now they’re going after lithium in a big way, with several firms staking claims in the Lisbon Valley and beyond.
Anson Resources’ Paradox and Green River Projects are probably the furthest along (if investor presentations are to be believed). The Australian company and its subsidiaries — A1 Lithium, Blackstone Minerals, and Blackstone Resources — have been staking claims fervently among the sandstone formations northwest of Moab between the Green and Colorado Rivers over the last several years, amassing more than 1,000 federal mining claims. They also acquired private land surrounding the Department of Energy’s uranium tailings disposal site on the southern edge of the town of Green River as well as securing leases on Utah state land.
Conventional lithium operations pump mineral-filled water to the surface, put it in shallow ponds, and allow the water to evaporate, concentrating the lithium and associated materials. Potash is extracted like this, as well — a complex of potash evaporation ponds near Moab have gone viral as instagram targets due to their vivid colors. This method not only requires a lot of land for the ponds, but also is water-intensive, with as much as 200,000 gallons of water evaporating for each ton of material produced. Plus, the process can produce a lot of waste and takes a long time.
Anson plans a different approach. They say they will partner with China-based Sunresin and use that firm’s patented direct lithium extraction, or DLE, method. Anson would drill a well (or redrill an old oil and gas well), pump the brine to the surface, and use resin beads to extract the lithium from the water, without evaporation ponds. After the lithium is extracted, the water is injected back underground. That, in theory, makes it a non-consumptive use of the water, meaning it shouldn’t have as much of an effect on water supplies.
But direct lithium extraction is a largely unproven technology, and it’s not clear that it will work in the Paradox Basin. The technique may require fresh water to be injected into the lithium deposits before pumping it to the surface, since the minerals may not be adequately saturated. In the 1950s and 1960s, a couple of facilities in Moab pumped up brine for use in the Atlas uranium mill; they had to pump fresh water into the subterranean salt beds, first, in order to dissolve the salts. Plus, any time you drill deep into the earth and remove or inject water, you’re potentially screwing with the hydrology — and even the geology.
Paradox Valley via Airphotona.com
This has been shown in the oil and gas fields, where “produced water,” or wastewater left over from the drilling and extraction process, is often reinjected deep underground. The process has induced seismic activity, or triggered earthquakes, in the Permian Basin and elsewhere. During the coalbed methane drilling boom in the San Juan Basin in the 1990s, all sorts of weirdness occurred, from methane flowing from water taps to a freshwater spring suddenly becoming hotter — all likely the result of pumping billions of gallons of water from the coal beds to “liberate” the methane, and then shooting it back into the ground. And in the Paradox Basin, a project that captures salt before it can enter the Dolores River and then injects it 16,000 feet underground (to keep Colorado River salinity levels in check) also triggered tremors in western Colorado.
In other words, while direct lithium extraction could be a “game changer” for the industry, making it feasible to commercially extract lithium from geothermal brines under the Salton Sea, for example, many unknowns remain about the technology in general and this proposal specifically.
What we do know is that Anson is looking to secure a bunch of water for its operations. Their water right applications seek:
Dead Horse State Park panorama via the State of Utah.
19 cfs (13,755 acre-feet or 4.5 billion gallons per year) from wells located on Utah state land north of Dead Horse Point state park. The brine presumably would then be piped to a processing plant near the Colorado River, the lithium would be extracted, and the wastewater injected back underground. Intrepid Potash, the National Park Service, and a coalition of environmental groups protested the application, in part for its lack of detail and because, well, there really isn’t any extra water available.
Green River Basin
Another 19 cfs from several 8,000- to 9,000-foot deep wells on the south end of Green River adjacent to the uranium tailings depository. After extracting the lithium from a plant on this property, they would inject the wastewater into 5,000- to 7,000-foot deep wells. The Bureau of Reclamation protested this application because of its close proximity to the Green River and the potential to affect surface water supplies and quality. They also worry about direct lithium extraction, writing: “Data shows the success of DLE is hard to predict, consumes both freshwater and brine water, contaminates aquifers, reduces the groundwater table, hurts wildlife, worsens soil conditions …” Ooof.
And they leased 2,500 acre-feet (814 million gallons) per year from the Wayne County Water Conservancy District. This water may be used for processing, but it’s not clear where, yet. Anson has indicated it could have processing facilities in Green River and on the Colorado River below Moab, neither of which is near Wayne County (home of Hanksville). Perhaps they also plan on having a processing plant there.
The water rights applications are still pending.
For more information, check out John Weisheit’s post for FarCountry.org, the website of the Canyonlands Watershed Council.
Months of discussion on who will help decide the future of water supply in Douglas County have come to an end now that county leaders have chosen 11 members of a new volunteer board…The forming of the new volunteer board — the Douglas County Water Commission — comes against the backdrop of a controversial proposal to pump about 22,000 acre-feet of water per year to Douglas County from the San Luis Valley in the southern part of the state…Last year, county leaders Abe Laydon and Thomas joined together in deciding not to move forward with that project, while elected leader George Teal has continued to support it. [Sean] Tonner, one of the principals of Renewable Water Resources, attracted news media attention for throwing his hat in the ring to serve on the water commission…The water commission is expected to help create a plan regarding water supply and conservation, among other aspects of water in the county. It’ll consist of unpaid volunteers, according to the county…The main members of the water commission, named on Nov. 6, include the following.
Representing District I, or northeast Douglas County:
• James Eklund, who had worked on the state’s water plan, according to county staff.(Removing the requirement for being a landowner or a resident of Douglas County allowed for choosing Eklund, who told county leaders he is “in the city and county of Denver.”)
• Jack Hilbert, formerly one of Douglas County’s elected leaders.
• Donald Langley, who serves on the Parker Water board.
Representing District II, including central and south Douglas County:
• Clark Hammelman, a former Castle Rock town councilmember.
• James Maras, a Perry Park Water and Sanitation District board member.
• Roger Hudson, a Castle Pines city councilmember.
Representing District III, or northwest Douglas County:
• Frank Johns, who said he has worked on various water plans for communities over the years. Johns serves on the board of the Centennial Water and Sanitation District, which serves Highlands Ranch.
• Evan Ela, a longtime water attorney.
• Harold Smethills, a member of the Dominion Water and Sanitation District board and a developer of the Sterling Ranch area in northwest Douglas County.
Appointees “at large,” meaning from the county as a whole, include Tonner and Tricia Bernhardt, who has a bachelor’s degree in agricultural economics from Colorado State University and a master’s degree in environmental policy and management from the University of Denver, according to a LinkedIn page.
Potential Water Delivery Routes. Since this water will be exported from the San Luis Valley, the water will be fully reusable. In addition to being a renewable water supply, this is an important component of the RWR water supply and delivery plan. Reuse allows first-use water to be used to extinction, which means that this water, after first use, can be reused multiple times. Graphic credit: Renewable Water Resources
Creating a balance of water that’s taken from aquifers and water that replenishes aquifers is an important aspect of making sure water will be available when it’s needed.
Image from “Getting down to facts: A Visual Guide to Water in the Pinal Active Management Area,” courtesy of Ashley Hullinger and the University of Arizona Water Resources Research Center
Click the link to read the article on the Aurora Sentinel website (AP — Brittany Petersen). Here’s an excerpt:
For some pumpkin growers in states like Texas, New Mexico and Colorado, this year’s pumpkin crop was a reminder of the water challenges hitting agriculture across the Southwest and West as human-caused climate change exacerbates drought and heat extremes. Some farmers lost 20% or more of their predicted yields; others, like Mazzotti, left some land bare. Labor costs and inflation are also narrowing margins, hitting farmers’ ability to profit off what they sell to garden centers and pumpkin patches. This year’s thirsty gourds are a symbol of the reality that farmers who rely on irrigation must continue to face season after season: they have to make choices, based on water allotments and the cost of electricity to pump it out of the ground, about which acres to plant and which crops they can gamble on to make it through hotter and drier summers. Pumpkins can survive hot, dry weather to an extent, but this summer’s heat, which broke world records and brought temperatures well over 100 degrees Fahrenheit (38 degrees Celsius) to agricultural fields across the country, was just too much, said Mark Carroll, a Texas A&M extension agent for Floyd County, which he calls the “pumpkin capital” of the state…
Steven Ness, who grows pinto beans and pumpkins in central New Mexico, said the rising cost of irrigation as groundwater dwindles is an issue across the board for farmers in the region. That can inform what farmers choose to grow, because if corn and pumpkins use about the same amount of water, they might get more money per acre for selling pumpkins, a more lucrative crop. But at the end of the day, “our real problem is groundwater, … the lack of deep moisture and the lack of water in the aquifer,” Ness said. That’s a problem that likely won’t go away because aquifers can take hundreds or thousands of years to refill after overuse, and climate change is reducing the very rain and snow needed to recharge them in the arid West.
Ventucci Farm pumpkin harvest back in the day. Photo credit: Facebook.com
WASHINGTON – The Biden-Harris administration today announced next steps in the Administration’s efforts to protect the stability and sustainability of the Colorado River System and strengthen water security in the West. The Department of the Interior’s Bureau of Reclamation released a revised draft Supplemental Environmental Impact Statement (SEIS) as part of the ongoing, collaborative effort to update the current interim operating guidelines for the near-term operation of Glen Canyon and Hoover Dams to address the ongoing drought and impacts from the climate crisis.
In order to protect Glen Canyon and Hoover Dam operations, system integrity, and public health and safety through 2026 – at which point the current interim guidelines expire – an initial draft SEIS was released in April 2023. Following a historic consensus-based proposal secured by the Biden-Harris administration in partnership with states – which committed to measures to conserve at least 3 million-acre-feet (maf) of system water through the end of 2026 enabled by funding from President Biden’s Investing in America agenda – Reclamation temporarily withdrew the draft SEIS to allow for consideration of the new proposal.
Today’s revised draft SEIS includes two key updates: the Lower Basin states’ proposal as an action alternative, as well as improved hydrology and more recent hydrologic data. The release of the revised draft SEIS initiates a 45-day public comment period.
“Throughout the past year, our partners in the seven Basin states have demonstrated leadership and unity of purpose in helping achieve the substantial water conservation necessary to sustain the Colorado River System through 2026,” said Deputy Secretary Tommy Beaudreau, who led negotiations on behalf of the Administration. “Thanks to their efforts and historic funding from President Biden’s Investing in America agenda, we have staved off the immediate possibility of the System’s reservoirs from falling to critically low elevations that would threaten water deliveries and power production.”
“The Colorado River Basin’s reservoirs, including its two largest storage reservoirs Lake Powell and Lake Mead, remain at historically low levels. Today’s advancement protects the system in the near-term while we continue to develop long-term, sustainable plans to combat the climate-driven realities facing the Basin,” said Reclamation Commissioner Camille Calimlim Touton. “As we move forward in this process, supported by historic investments from the President’s Investing in America agenda, we are also working to ensure we have long-term tools and strategies in place to help guide the next era of the Colorado River Basin.”
Key Components of Revised Draft SEIS
Reclamation conducted updated modeling analyses using June 2023 hydrology for the No Action Alternative, Action Alternatives 1 and 2 from the initial draft SEIS, and the Lower Division proposal. The results of that modeling indicate that the risk of reaching critical elevations at Lake Powell and Lake Mead has been reduced substantially. As a result of the commitment to record volumes of conservation in the Basin and recent hydrology, the chance of falling below critical elevations was reduced to eight percent at Lake Powell and four percent at Lake Mead through 2026. However, elevations in these reservoirs remain historically low and conservation measures like those outlined by the Lower Division proposal will still be necessary to ensure continued water delivery to communities and to protect the long-term sustainability of the Colorado River System.
Based on these modeling results, Reclamation will continue the SEIS process with detailed consideration of the No Action Alternative and the Lower Division Proposal. The revised SEIS designates the Lower Division Proposal as the Proposed Action. Alternatives 1 and 2 from the initial SEIS were considered but eliminated from detailed analysis.
Historic Funding from Investing in America Agenda
President Biden’s Investing in America agenda is integral to the efforts to increase near-term water conservation, build long term system efficiency, and prevent the Colorado River System’s reservoirs from falling to critically low elevations that would threaten water deliveries and power production. Because of this funding, conservation efforts have already benefited the system this year.
This includes eight new System Conservation Implementation Agreements in Arizona that will commit water entities in the Tucson and Phoenix metro areas to conserve up to 140,000-acre feet of water in Lake Mead in 2023, and up to 393,000-acre feet through 2025. Reclamation is working with its partners to finalize additional agreements. These agreements are part of the 3 maf of system conservation commitments made by the Lower Basin states, 2.3 maf of which will be compensated through funding from the Inflation Reduction Act, which invests a total of $4.6 billion to address the historic drought across the West.
Through the Bipartisan Infrastructure Law, Reclamation is also investing another $8.3 billion over five years for water infrastructure projects, including water purification and reuse, water storage and conveyance, desalination and dam safety.
To date, the Interior Department has announced the following investments for Colorado River Basin states, which will yield hundreds of thousands of acre-feet of water savings each year once these projects are complete:
$281 million for 21 water recycling projects that are expected to increase annual water capacity by 127,000 acre-feet annually;
$71 million for 32 drought resiliency projects to expand access to water through groundwater storage, rainwater harvesting, aquifer recharge and water treatment;
$50 million over the next five years to improve key water infrastructure and enhance drought-related data collection across the Upper Colorado River Basin; and
The process announced today is separate from the recently announced efforts to protect the Colorado River Basin starting in 2027. The revised draft SEIS released today would inform Reclamation’s ongoing efforts to set interim guidelines through the end of 2026; the post-2026 planning process advanced last week will develop guidelines for when the current interim guidelines expire.
Updated Colorado River 4-Panel plot thru Water Year 2022 showing reservoirs, flows, temperatures and precipitation. All trends are in the wrong direction. Since original 2017 plot, conditions have deteriorated significantly. Brad Udall via Twitter: https://twitter.com/bradudall/status/1593316262041436160
Questions raised whether retirement of Trinchera wells would help reduce groundwater use
Monty Smith, president of the Trinchera Groundwater Management Subdistrict, raised objections at last week’s Rio Grande Water Conservation District quarterly board meeting with how two applications to retire groundwater wells from the Trinchera subdistrict are being reviewed through rules the water conservation district adopted to administer the Groundwater Compact Compliance Fund established under Colorado Senate Bill SB22-028.
Smith and Trinchera subdistrict engineer Jason Lorenz said Trinchera irrigators are not getting the same consideration as irrigators in the Valley’s other subdistricts to access the $30 million in the Groundwater Compact Compliance Fund due to how the subdistrict allocates groundwater each irrigation season.
“I’m kind of feeling like our applicants are being treated unfairly because they happen to be part of a subdistrict that took the bull by the horns from the beginning and did something that makes a real difference for the subdistrict as a whole,” said Smith.
The Trinchera subdistrict operates within the Trinchera Water Conservancy District and away from Rio Grande Water Conservation District governance. Two farmers operating in the Trinchera subdistrict have applied to be compensated through the Groundwater Compact Compliance Fund for retiring groundwater wells under the rules the Rio Grande Water Conservation District adopted to access money in the fund.
“You’re changing the rules for Costilla County, you are,” said Lorenz, who designed the water allocation formula the Trinchera subdistrict uses to tell farmers how much they can use each irrigation season. Like irrigators in the six subdistricts of the Rio Grande Water Conservation District, irrigators in the Trinchera subdistrict have to contribute to the overall sustainability of the aquifers under state groundwater pumping rules.
The debate centers around whether the retirement of the groundwater wells in the Trinchera subdistrict will actually contribute to the state’s overall goal to reduce the amount of groundwater pumped by Valley irrigators.
“We have not denied those applications. They are still in the line for the money,” said Amber Pacheco, deputy general manager for the Rio Grande Water Conservation District.
She said the review of the two applications from the Trinchera subdistrict are ongoing in consultation with the Colorado Division of Water Resources, which has to also approve each application to the state’s Groundwater Compact Compliance Fund.
“The state engineer does have the same concerns as the (Rio Grande Water Conservation District) board in general,” said Craig Cotten, the state water engineer in the Valley. He said State Engineer Kevin Rein is concerned whether the applications from the Trinchera subdistrict farmers will withstand state audits of the money since there are questions whether the retirement of the Trinchera wells would lead to a cutback in groundwater use.
Smith said each of the applicants is nearing retirement and could use the money to help retire farm debt since they likely won’t continue on with farm operations.
“If you don’t approve these funds, it sucks for them. You’re just hurting them. You’re not hurting the subdistrict,” said Smith. “By reading the rules, we think they are eligible for this money. The rules are clear. I think you did a good job. They are very straight forward. But when it came to the application of them, it feels like the rug got pulled back from us.”
The Rio Grande Water Conservation District has approved at least two contracts with crop producers worth $1.2 million through the Groundwater Compact Compliance Fund. While it reviews additional applications submitted initially, it has opened up a second-round of applications that allows crop producers to submit proposals to get compensated through the fund by retiring groundwater wells.
The federal government will fight the 11th hour settlement that came down last year, and will stretch into 2024 at least.
Whether the water is low or high, the Supreme Court fight over Rio Grande water stretches on.
The latest iteration of the legal fights that span decades, is the Texas claim before the U.S. Supreme Court that New Mexico groundwater pumping below Elephant Butte Reservoir shorts the downstream state its rights to the river’s water.
This would be a violation of the 1938 Rio Grande Compact, which splits the water between Colorado, New Mexico and Texas.
A recent settlement proposal between the three states was accepted by a federal judge overseeing the case as special master in July.
Not everyone is on board.
The federal government officially laid out its objections to the special master’s recommendation that the U.S. Supreme Court adopt a compromise to end the lawsuit over the Rio Grande’s water between Texas and New Mexico.
In a 96-page document, Solicitor General Elizabeth Prelogar and other Department of Justice attorneys lay out three legal arguments arguing why the high court should reject the deal.
First and foremost, they argue, settlement is impossible without the federal government’s consent.
A settlement requires consent from each party, and the agreement adds a “host of obligations,” on the federal operation of the Rio Grande Project, which delivers water in a series of canals and ditches to two regional irrigation districts and to Mexico.
Finally, the federal government argues the settlement violates the compact by moving the location of water deliveries, and fails to recognize a “1938 baseline,” of minimal groundwater pumping.
Creating a balance of water that’s taken from aquifers and water that replenishes aquifers is an important aspect of making sure water will be available when it’s needed.
Image from “Getting down to facts: A Visual Guide to Water in the Pinal Active Management Area,” courtesy of Ashley Hullinger and the University of Arizona Water Resources Research Center
The proposed settlement uses a mathematical model to determine splitting the water, based on drought conditions from 1951 until 1972, when drought and development pushed pumping to increase significantly. Much of the region’s agriculture and its entire residential use is pumped from groundwater.
The federal government argues using the model violates the Compact.
“But the baseline on which the Compact was predicated was the baseline that existed when the Compact was signed — not decades later, after groundwater pumping in New Mexico had greatly increased and drawn water away from the Project,” the federal government wrote.
The region is already expecting the state government to curb pumping – with the New Mexico Office of the State Engineer announcing the need to cut 17,000 acre feet to meet the settlement using the proposed model.
TheElephant Butte Irrigation District and El Paso County Water Improvement District No. 1 supported the federal government’s position in legal briefs of their own.
They agreed that the state compacts have no authority over the operation of the Rio Grande Project.
The Supreme Court has accepted the federal government’s arguments over a special master’s recommendation in this case before. In 2018, justices unanimously admitted the Department of Justice as a party into the case.
Additional responses and replies from the party will be collected into 2024, and there’s no expectation of scheduling a hearing with the Supreme Court until then.
Rio Grande and Pecos River basins. Map credit: By Kmusser – Own work, Elevation data from SRTM, drainage basin from GTOPO [1], U.S. stream from the National Atlas [2], all other features from Vector Map., CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=11218868
Fields in the Humboldt River Basin in Lovelock on Oct. 3, 2023. (David Calvert/The Nevada Independent)
Click the link to read the article on Nevada’s only statewide nonprofit newsroom The Nevada Independent website (Daniel Rothberg):
The Pershing County Water Conservation District’s headquarters in Lovelock sits off Interstate 80 a few miles before the Humboldt River disappears into a desert sink. Farmers here have priority rights to water in times of drought, according to the laws that govern the Humboldt River, which rises in northeastern Nevada and cuts a meandering blue line through valleys of sagebrush.
But despite their high-priority rights, these irrigators face shortage after shortage.
In three of the past 20 years, Lovelock farmers received no water from the river. In nine of those years, they received less than 50 percent of their allocations, according to a presentation the water district gave to state lawmakers in May. For some farmers, it meant no crops that year. Lovelock is a town of about 2,000 and the consequences were felt across the local economy.
Recent droughts have hit the Humboldt River hard, yet drought alone is not to blame. Officials with the district point to another factor that’s depleting the river’s flows: groundwater extraction.
As is true across Nevada and the West, groundwater and surface water — rivers, streams and springs — can act as one interconnected supply. In certain parts of the Humboldt Basin, thirsty wells intercept water that would have otherwise flowed into the river, according to the U.S. Geological Survey, which is working to model and quantify how underground pumping captures surface water.
All the while, farmers downstream are getting less water. Ryan Collins, the general manager of the water district, said that the pumps have stayed on, even in years of drought and in places where groundwater use exceeds what is considered sustainable.
When the district’s water allocations are cut to zero, “they’re still getting their full allocation,” Collins said.
Ryan Collins, manager of the Pershing County Water Conservation District in Lovelock on Oct. 3, 2023. (David Calvert/The Nevada Independent)
Since the mid-1900s, extensive groundwater pumping has become stitched into the Northern Nevada economy. It’s the backbone of vast upstream agricultural fields, drinking water supplies and the massive gold mines along I-80. State water regulators have long struggled to keep pumping in check.
The problem extends beyond the Humboldt River watershed. Groundwater stretched far beyond its limits is a nationwide issue, causing the ground to sink in some places, springs to disappear in others and river tributaries to run drier than usual.
After prodding, lawsuits and rulings (many of which have generated more litigation), the state is trying to do something about the issue of groundwater depletion in the Humboldt and elsewhere, from the Walker River Basin to central Nevada. Exactly how to curtail groundwater pumping has proven to be a headache. Regulatory rules are often contested, and the law is far from settled.
Now, armed with $25 million in federal funds, the state is trying a different tack: Pay irrigators to voluntarily cut back.
Following a handful of other states, Nevada officials are now looking to fund entities that want to facilitate the buyback and retirement of state-issued water rights. Where there is simply not enough water to go around, policymakers want to take water allotments off the balance sheets.
Six entities, from the Southern Nevada Water Authority to the Nevada Land Trust, applied to the state program earlier this month, requesting a total of just over $65 million in funding.
An advisory committee plans to review the applications and provide feedback to the state’s natural resources agency and Conserve Nevada, which is responsible for allocating the grants. The state expects to issue the grants shortly after the advisory board meets Oct. 26.
The grant applications exceed the funding budget by $40 million, demonstrating the high interest in addressing groundwater overuse across the state. In Southern Nevada, the water authority and Clark County are looking for $18 million to address water rights involved in the Lower White River Flow System, which feeds the Muddy River, a tributary to the Colorado River. The area is the subject of a contentious groundwater dispute before the Nevada Supreme Court.
What happens next is being closely watched by water users in overextended aquifers. Many water managers see the program as a test for a permanent buyback program.
Entity
Project Name
Funds Requested
Central Nevada Regional Water Authority
Water Right Retirement Program
$15,000,000.00
Nevada Land Trust
Forest Legacy Eastern Sierra
$950,000.00
Humboldt River Basin Water Authority
Water Right Retirement Program
$10,000,000.00
Nevada Land Trust
Carson River – Ricci Ranch
$3,091,500.00
Walker Basin Conservancy
Walker Groundwater Retirement
$15,292,570.00
Southern Nevada Water Authority
LWRFS Water Rights Retirement
$3,000,000.00
Nevada Land Trust
Red Rock Water Retirement
$3,150,000.00
Clark County Desert Conservation Program
Muddy River Acquisition
$15,000,000.00
Grant requests totaled more than $65 million. (Source: Department of Conservation and Natural Resources)
“This is an opportunity to demonstrate that it’s an effective tool for addressing water shortages in the state,” said Jeff Fontaine, who submitted applications on behalf of the Humboldt River Basin Water Authority and Central Nevada Regional Water Authority, two organizations that he leads.
“We’re looking at the long-term here,” he added.
The concept of using public funds to retire water rights is not new. Colorado, Kansas and Oregon have set up similar programs. Such buyback programs are meant to provide financial incentives to willing sellers, what Sen. Pete Goicoechea (R-Eureka) has referred to as a “soft landing” for irrigators in areas where groundwater tables are dropping.
When lawmakers met in Carson City earlier this year, Goicoechea introduced legislation to create a permanent water buyback program. It received little formal opposition and backing from a coalition of agricultural and environmental interests. Even though legislators failed to advance the proposal, the state was able to fund a temporary program using $25 million in conservation funds, allocated to Nevada as part of the federal American Rescue Plan.
“There’s probably a number of different scenarios” that would motivate an agricultural user to participate in a program, according to Doug Busselman, who leads the Nevada Farm Bureau.
One scenario could be a farmer close to retirement, looking to cash out as they wind down their operation. Another might be someone who sees an opportunity to continue farming with less water. Another reason looming in the background: state action. If the water rights are at risk of being cut-off as state regulators crack down on overuse, irrigators might be willing to sell now.
Photo from the Smith Valley, Walker River, Yerington area with a focus on the Anaconda copper mine site taken on Thursday, Aug. 15, 2019. (David Calvert/The Nevada Independent)
Infrastructure associated with a groundwater well in the Lower White River Flow System on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)
The federal funding is a one-time allocation, and even supporters acknowledge that $25 million is not enough to fix the larger problem. State officials are going to have to make difficult choices about how to prioritize the limited funding. Still, Peter Stanton, executive director of the Walker Basin Conservancy, said the program could ease some pressures groundwater overuse puts on a watershed.
“I see this largely as a demonstration program,” Stanton said . “It’s going to take more work like this — with local solution, state support and probably bringing in federal support — to make long-term movement on the withdrawal [of water] within these groundwater basins.”
The goal of the conservancy is to secure water to restore Walker Lake, and addressing groundwater overuse is a part of those efforts. The Walker River starts in the eastern Sierra and flows through the Nevada communities of Smith Valley, Yerington and Schurz, until it reaches Walker Lake. Once a critical habitat for birds and a tourist draw for Mineral County, the lake has shrunk to a fraction of its former size due to agricultural diversions.
Over time, groundwater withdrawals have depleted water stored underground and affected the river’s efficiency. That could make it harder to move water downstream in the future.
“We want to work with farmers and ranchers who are already at points of transition [and] are facing increased pressure — whether we’re talking about economic development or climatic variation and challenges in farming — to identify willing sellers” of groundwater, Stanton said.
Several other conservation groups have backed the concept of water buybacks.
If the pilot program is well-executed, the Nature Conservancy’s Laurel Saito said she sees an opportunity to develop a permanent and long-term program in the state. Saito, the group’s water strategy director for Nevada, has advocated for a program that considers ecosystems naturally dependent on the way groundwater interacts with wetlands, springs, playas, rivers and streams.
“If it’s done right, it could be a stepping stone,” she said.
There are many ways in which future programs could address overuse while prioritizing ecosystem restoration. Oregon’s program in the Harney Basin, just north of the Nevada border, includes incentives for retiring water rights that affect groundwater-dependent ecosystems — a structure she said that the nonprofit could potentially help seek funding for in Nevada.
In this pilot phase, though, those larger conversations are constrained by a key factor: time.
With limits on federal funding, the $25 million must be spent on a tight turnaround. The state is aiming to have seller contracts in place for the transfer of water rights by next fall.
One year might sound like a lot of time, yet in the world of water rights, that deadline is already fast-approaching. Once awarded the grant, entities will have to work on developing a price for the water. They will also have to conduct outreach to get the word out that a program is in place. Then they will have to prioritize how to divide up funds.
Figuring out the value of water can be extremely hard, said Fontaine, whose organizations have looked to what other states have done and have worked with a consulting group to model prices.
“That’s the tricky part here,” Fontaine said. “We have to be good stewards of these dollars … We need to make sure we’re not overvaluing the water and paying more than they’re really worth. On the other hand, we want to be fair and respectful to those who are considering selling their water rights — and purchase water rights so we can make a difference in these basins.”
In recent years, state and federal agencies have often looked to publicly funded conservation as a way to address water shortages in the West, particularly in the Colorado River Basin. Many of these programs have implemented temporary conservation measures, such as paying irrigators to fallow their land or to improve farming efficiency when drought conditions were most severe.
What makes buyback programs different is that they are permanent cutbacks to supply in places where there is a structural imbalance, with more rights to water than there is water to go around.
Low-elevation sprinklers irrigate a field in Diamond Valley in August 2020. Under a management plan, farmers in the valley are required to cut use. (Daniel Rothberg/The Nevada Independent)
Springs on the north side of Diamond Valley on Aug. 26, 2020. The state allowed for pumping water to offset losses to the spring’s natural flow. (Daniel Rothberg/The Nevada Independent)
Taking water rights off the books, Goicoechea said earlier this year, is “better than just ignoring it and looking the other way, and that’s what we’ve kind of been doing over the last 40 years.”
In many places, state and federal officials allowed for excessive water use by issuing rights that exceeded the supply and incentivizing farmers to move to areas where water was scarce. Even when the issue was identified, state regulators sometimes turned a blind eye, deferring action.
This was particularly pronounced in Diamond Valley outside of Eureka. In 2015, Diamond Valley was designated the state’s first critical management area, and irrigators had to come up with a plan to cut back. Some are eyeing the buyback program as one way to get there.
“They see this as an opportunity to reduce some of the conflict, where the state buys back the water and they are out of the game,” said Jake Tibbitts, who serves as the natural resources manager for Eureka County. “But it’s all going to come down to the dollars and cents.”
Some groundwater users in Diamond Valley are waiting to see what price the buyback program offers and have voiced different opinions about what their water rights are worth. Tibbitts noted that there’s also “concern from quite a few of the agricultural water rights holders about establishing a value for water outside of a typical real estate transaction.”
As for the Humboldt River, the Pershing County Water Conservation District has backed water buyback programs as one potential solution for reducing groundwater use.
During the drought, the district petitioned the state to regulate upstream groundwater overuse, linked to diminishing streamflow in the Humboldt River. But it has also continued to pursue its case through the courts, said Collins, the district’s general manager.
Sitting at a conference room table in the district’s office building — filled with old maps and a bulletin board displaying the ever-important amount of water held in upstream reservoirs — he was hopeful that the buyback program could be one part of the solution.
“It can be a piece of the puzzle,” he said. “But it’s not the silver bullet.”
Union Canal in Lovelock on Oct. 3, 2023. (David Calvert/The Nevada Independent)
Map of Nevada’s major rivers and streams via Geology.com.
San Luis Valley center pivot. Photo credit: Chris Lopez/Alamosa Citizen
From email from the Alamosa Citizen (Chris Lopez):
When it meets this week, the Rio Grande Water Conservation District Board will announce it has closed on its first two deals with crop producers to purchase groundwater wells that will be permanently retired. The deals are part of the $30 million earmarked to the Rio Grande Water Conservation District under state Senate Bill 28, which was adopted to pay Valley irrigators for their groundwater wells as part of Colorado’s efforts to reduce groundwater usage among Valley farmers and save the Rio Grande Basin. The Rio Grande Water Conservation District is paying $1.2 million to two crop producers in the first of the deals. The district opened up a second-round of applications on Oct. 10 that allows crop producers to submit a proposal for the state dollars. The second-round application period ends on Dec. 29.
One of the large bodies of water in Douglas County, the Rueter-Hess Reservoir is a drinking-water storage facility owned and operated by the Parker Water and Sanitation District, the entity that provides drinking water to much of Parker and some nearby areas. Photo credit: Parker Water & Sanitation
More than 50 people applied to serve on the Douglas County Water Commission, a new entity that is expected to help shape the future of water supply in a continually growing county. After county leaders narrowed the pool of applicants down to 12 whom they wanted to bring in for interviews, the applicants fielded questions, including ones about their connections and any conflicts of interest they might carry. The water commission is expected to help create a plan regarding water supply and conservation, among other aspects of water in the county. It’ll consist of unpaid volunteers, according to the county’s elected leaders.
The forming of the new body comes against the backdrop of a controversial proposal to pump about 22,000 acre-feet of water per year to Douglas County from the San Luis Valley, a region of Southern Colorado. Renewable Water Resources is the private company that proposed the project. Last year, county leaders Laydon and Lora Thomas joined together in deciding not to move forward with that project, while county leader George Teal has continued to support it.
Potential Water Delivery Routes. Since this water will be exported from the San Luis Valley, the water will be fully reusable. In addition to being a renewable water supply, this is an important component of the RWR water supply and delivery plan. Reuse allows first-use water to be used to extinction, which means that this water, after first use, can be reused multiple times. Graphic credit: Renewable Water Resources
In response to claims by principals of Renewable Water Resources, officials this week with the Colorado Division of Water Resources reiterated that the Upper Rio Grande Basin is over-appropriated and has no surface or groundwater available for a new appropriation.
The reply from state water officials came in response to questions from Alamosa Citizen after the Douglas County Future Fund made a series of claims in a recent newsletter it publishes to influence decision-makers in Douglas County.
RWR principals, who include former Colorado Gov. Bill Owens and political strategist Sean Tonner, have been working to convince Douglas County commissioners that there is water available in Rio Grande Basin that Douglas County could own and pump into the Front Range bedroom community.
The search for a future water source by suburban communities like Douglas County is one of the pitched battles of the climate-influenced 21st century. The storyline goes like this: Sprawling suburban communities that blew up during the 1980s and ’90s and first decades of the 21st century are on the hunt for new water sources as periods of extreme drought and intensified changes to surface temperatures reduce the availability of water as a natural resource.
The agricultural corridors of America, meanwhile, are working to reduce their own consumption of water through technological advances and through reducing the amount of acreage used to grow crops.
Potential Water Delivery Routes. Since this water will be exported from the San Luis Valley, the water will be fully reusable. In addition to being a renewable water supply, this is an important component of the RWR water supply and delivery plan. Reuse allows first-use water to be used to extinction, which means that this water, after first use, can be reused multiple times. Graphic credit: Renewable Water Resources
It’s a classic new battle: population centers vs. rural regions, and there is no clearer example of the conflict than Renewable Water Resources and its efforts to export 22,000 acre-feet of water from the Upper Rio Grande Basin to Colorado’s Front Range on a perpetual basis.
“The San Luis Valley has 1.02 billion acres of unused water, because it sits over the second-largest aquifer in the United States,” is one of the claims RWR made in a Douglas County Future Fund newsletter in September.
Another claim it made as fact: “The RWR project proposes to use 22,000 acre-feet. This water would come from the confined aquifer in the San Luis Valley, which is fully renewable within five days of runoff from the San Luis Valley mountain ranges.”
Neither is the case and both claims fly in the face of state groundwater rules governing irrigators’ use of water in the Valley. The lack of recharge and dropping levels of the confined and unconfined aquifers of the Rio Grande Basin have pushed state water engineers to develop specific groundwater usage rules in an effort to restore the aquifers and save the Rio Grande Basin. Each irrigation season, the state curtails water usage along the Rio Grande Basin, which impacts farming and ranching production in the Valley as Colorado works to control the water availability and meet its own obligations to New Mexico and Texas under the Rio Grande Compact.
“At this time the Division of Water Resources is not going to comment on the specific details included in the newsletter produced by the Douglas County Future Fund. However, due to the over-appropriated nature of our water system, there is no surface or groundwater available for a new appropriation in Water Division 3, the Rio Grande Basin in Colorado,” said state water Division 3 Engineer Craig Cotten.
Douglas County recently created a 12-member water commission to advise it on water issues. The new committee includes Tonner, who uses the Douglas County Future Fund newsletter to make the case for Renewable Water Resources’ water exportation proposal.
The Douglas County water commission members include:
District 1 Merlin Klotz, James Myers, Donald Lagley
District 2 Clark Hammelman, James Maras, Roger Hudson
District 3 Frank Johns, Evan Ela, Kurt Walker, Harold Smethillis
At-large Seats Sean Tonner, Tricia Bernhard
Water managers on the Rio Grande Basin continue to monitor the efforts in Douglas County. The county government in Douglas County is not set up to be a water provider and is dealing with its own conflicts.
The Douglas County commissioners have been advised by attorneys that the Renewable Water Resource concept is littered with problems and would have difficulty gaining traction in state district water court.
Any effort to export water from the San Luis Valley would get tied up for years in state water court. The six counties in the San Luis Valley also recently banded together to create local planning rules that local officials believe would block a water exportation plan from moving forward.
Potential Water Delivery Routes. Since this water will be exported from the San Luis Valley, the water will be fully reusable. In addition to being a renewable water supply, this is an important component of the RWR water supply and delivery plan. Reuse allows first-use water to be used to extinction, which means that this water, after first use, can be reused multiple times. Graphic credit: Renewable Water Resources
Click the link to read the article on the Colorado Politics website (Marianne Goodland). Here’s an excerpt:
A Douglas County commissioner recommended individuals who contributed to his campaign to sit on a new water commission that would be tasked with ensuring sufficient future water supply for the county. The individuals included two principals of a water development firm that has been trying to get buy-in for a proposal to pipe water from the San Luis Valley into Douglas County, a move that has been met with stiff opposition from governments in the valley.
Douglas County commissioners, from left: George Teal, Lora Thomas and Abe Laydon. Courtesy Douglas County
Douglas County’s commissioners met earlier this week to begin deciding who they would put on the new 11-member water commission, which will include three representatives of each district and two at-large members. The nominees were among those who submitted applications for the water commission, a list that has been kept confidential.
During Monday’s discussion, Commissioner George Teal announced his eight picks for members: Three for his district, three for another district, plus two at-large members. Five of his picks have made substantial contributions to his political campaigns, including two principals from Renewable Water Resources, the firm that pitched moving water from San Luis Valley’s groundwater to Douglas County…On Aug. 13, 2021, Renewable Water Resources principals, their spouses and friends contributed to pay down Teal’s 2020 campaign debt. The contributions totaled $16,000. Among the funders were Tonner and John Kim, both RWR principals, and Craig Broughton, an associate of Tonner’s. All three are on Teal’s list for the water commission. He also named Castle Pines City Councilman Roger Hudson, who is deputy chief of staff for the House Minority caucus at the state Capitol and who also made several contributions to Teal’s campaign for the 2020 election. Teal also recommended Harold Smethills, who doesn’t live in Douglas County but owns property in Sterling Ranch. Smethills has also contributed to Teal’s campaign. In a previous discussion, Teal had proposed allowing people who don’t live in the county but own property there to apply for the water commission.
The U.S. Forest Service-owned parcel known as Janeway is adjacent to the Crystal River. A potential nature-based aquifer recharge project could reconnect the historic floodplain to the river and retime spring flows as part of a water supply replacement plan. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
Two studies have shown that a large meadow on the east side of the Crystal River known as Janeway shows promise as a potential site for a water-replacement project. But at least one Pitkin County official is questioning the need for a basin-wide water replacement plan at all.
Engineers say the 50-acre, 1,000-foot-wide historic floodplain just downstream of the Crystal’s confluence with Avalanche Creek could work as a location for a project to help junior water users solve shortages in dry years. One study looked at inundating that floodplain with water from the Crystal River during spring runoff, which would percolate through layers of earth and be stored as groundwater before seeping back to the river days, weeks or even months later.
This type of nature-based aquifer recharge project that retimes water from spring runoff could also have added benefits for the riparian ecosystem by reconnecting the floodplain to the river, which has been channelized by decades of development in the Crystal River Valley including the construction of Highway 133 and the railroad before that. The historic Janeway townsite is marked by the ruins of a log structure and old railroad grade, but the U.S. Forest Service parcel is now dominated by native grass, potato cactus, mountain mahogany, sagebrush and juniper.
“I think the Janeway is of particular interest given its location,” said Fay Hartman, southwest regional program conservation director with environmental group American Rivers, who worked on the nature-based solutions study. “It’s a pretty good-sized floodplain, which is obviously important. In the initial analysis it seems like it’s the best fit.”
Janeway was also one of the sites considered by Colorado River Engineering, which is the engineering firm that conducted an analysis for the West Divide Water Conservancy District and the Colorado River Water Conservation District of potential water-supply replacement options. This draft study considered more traditional water-replacement methods that are not natural-process based. If the nature-based concept does not move forward at Janeway, West Divide may explore the construction of a recharge pond at the same location.
“It is a similar concept with a more simplified approach,” the study reads. “It would not provide the riparian floodplain benefits that the nature-based solutions project does, but would have reduced costs for construction, operation and maintenance.”
The Crystal River flowing in late June just downstream of Janeway. Studies have identified the historic floodplain as a potential site for aquifer recharge as part of a valley-wide augmentation plan.
CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
Historic call spurs studies
The two studies aimed at finding replacement water came at the direction nearly five years ago of engineers from Division 5 of Colorado’s Division of Water Resources. During the hot, dry summer of 2018, the Ella Ditch, which pulls water from the Crystal River and irrigates hayfields south of Carbondale, placed a call on the river for the first time. That means the Ella Ditch wasn’t getting the full amount to which it is entitled and upstream junior water users had to stop taking water so that the Ella could get its full amount.
The Ella Ditch, which irrigates agricultural land south of Carbondale, placed a call on the Crystal River for the first time ever in 2018. Photo credit: Brent Gardner-Smith/Aspen Journalism
The Ella Ditch has water rights that date to 1902, and any water rights younger than that — including those held by the town of Carbondale, the Marble Water Company and several residential subdivisions along the Crystal River — were subject to being shut off under a strict administration of the river by DWR. Under Colorado’s system of water law known as prior appropriation, those with the oldest water rights have first use of the river.
Most junior water rights holders have what’s known as an augmentation plan, which allows them to continue using water during a call by releasing water from a backup source, such as a nearby reservoir. The problem is that some of the in-home water users on the Crystal don’t have an augmentation plan.
The goal of the two studies, which were largely funded by grants from the state of Colorado and the River District, was to find potential sources of augmentation water. The initial study by Colorado River Engineering looked at traditional sources of replacement water like off-channel storage ponds.
A second study by American Rivers and others looked at nature-based solutions like aquifer recharge. That study looked at four potential project sites — Thompson Creek Open Space, Avalanche Creek confluence, Coal Creek and Janeway — with the Janeway site being the most promising. To address environmental concerns from Pitkin County and others, the River District has promised that any storage constructed as part of an augmentation plan will not happen on the main stem of the Crystal River.
Finding potential augmentation supply sites in the Crystal River Valley has been difficult, said Brendon Langenhuizen, director of technical advocacy at the River District.
“It’s a really tight basin. It’s really narrow with lots of steep tributaries, which means there’s not a lot of off-channel reservoir sites,” he said. “There’s not a lot of valley bottom where we could develop something.”
Source: Crystal River Augmentation Plan Feasibility Study. Credit: Laurine Lassalle – Aspen Journalism
Amount of water needed
Although Janeway is the most promising area for a nature-based solution and the one overlapping potential project site of the two studies, it still has drawbacks. The aquifer recharge project with additional environmental benefits is estimated to cost $1.5 million. The project could include a 765-foot excavated channel at the south end of the floodplain so it could be hydrologically connected to the river. Small porous wood structures across the floodplain would aid in ponding and water retention and revegetation efforts could include willows, cottonwoods and wetland sedges.
But this project wouldn’t meet all of the augmentation needs. And there are also still unanswered questions about the retiming of flows: The lagged natural return flows may not align with when water is needed. According to the Colorado River Engineering study modeling, the Janeway project site could provide up to 60 acre-feet of lagged return flows to the river over the course of the summer, with the most occurring in June. But the highest water demands are in July and the most likely months for a call are July, August and September, so the Janeway site is estimated to only provide 10 to 20 acre-feet toward solving a shortage.
Engineers are applying to the U.S. Forest Service for permits to install measurement devices known as piezometers to gather more information about the groundwater on the site.
“We have a request in to run some localized tests on the aquifer to see how fast water could move back to the Crystal River,” Langenhuizen said. “What we are looking for is some delay. Our peak demands are in July and if we could get two to three months delay that would be really helpful.”
According to the study, the total replacement water needed is 105 acre-feet. An acre-foot is the amount of water needed to cover an acre of land to a depth of one foot and could supply one to two families a year. July’s potential requirement is 34 acre-feet.
Other sources of augmentation water could be up to 38 acre-feet from Beaver Lake, which is located in Marble and managed by Colorado Parks and Wildlife; 10-15 acre-feet from Upper Basin Pond, a small, off-channel pond on private land upstream of Marble; and about 10 acre-feet from Rapid Creek Pond, a small off-channel parcel on private land downstream of Marble.
Other sites like the Orlosky Reservoirs in Marble, upper Coal Creek and lower Avalanche Creek were deemed not workable for a variety of reasons. The study also says that irrigators were approached about an agreement where they could temporarily cease irrigation to make water available to other users, but there was limited interest.
All four identified supplies would need to be built at their maximum capacities to meet a potential 20% future increase in demand of 11 acre-feet, according to the study.
This illustration from the study from Colorado River Engineering shows four potential sources of augmentation water and their general location in the Crystal River basin. The Janeway site would involve an aquifer recharge project that supplies 10 to 20 acre-feet of replacement water during the time it’s needed most.
Pitkin County concerns
Assistant Pitkin County Attorney Laura Makar is skeptical that an expensive, complicated augmentation plan for junior water users on the Crystal is necessary.
“We are talking about such a small amount of water that is needed so it still seems to me there is a pretty substantial flaw in not looking to see if there is any use of water on the Crystal that shouldn’t be occurring or isn’t occurring legally right now,” Makar said.
Like most places on the Western Slope, agriculture is king on the Crystal, with ranches on the lower reaches using far more water to grow hay and alfalfa than what’s needed to keep residential taps flowing.
Making sure all water users on the Crystal are held to the same standard should be the first step toward finding water to meet demands, Makar said.
“Why would we not want to look at low-hanging fruit that might be politically difficult but is actually engineering-wise and physically easy?” Makar said. “Instead we are looking at very difficult physical engineering solutions because we aren’t looking at what exists in the system.”
According to Division 5 Engineer James Heath, the wells for indoor water use that triggered the augmentation plan studies use less than 1% of the water used by agriculture on the Crystal. He said he has never shut off wells for in-home domestic use due to them using water out of priority, and probably would not in the future. His office has said it will not shut off indoor use as long as water users are working toward finding a solution, although outdoor watering of lawns, gardens and landscaping may be curtailed.
“Generally, what we try to do is limit the outdoor use and allow for indoor use to continue,” he said. “We can get the biggest bang for the buck by curtailing the outdoor use, which is where most of the consumption happens.”
The Crystal River at the fish hatchery just south of Carbondale was running at about 10 cubic feet per second on Oct. 13, 2020, much lower than the state’s instream flow standard of 60 cfs. Rivers in the Roaring Fork watershed have seen below-average streamflows in water year 2020, which ended Oct. 1, despite a slightly above-average snowpack. Dry soil conditions threaten to bring a similar scenario in water year 2021. Photo credit: Heather Sackett/Aspen Journalism
Heath said in general agricultural water users are not wasting water on the Crystal. The problem, he said, is that there is sometimes not enough water in the river to meet demands, especially in late summer of dry years. He said during the summers of 2020, 2021 and 2022, some irrigators were not getting their full share and could have placed a call, but chose not to.
But waste has occurred at least once in recent years. In 2018 — the same year as the first-ever call on the Crystal — a water commissioner from the Division of Water Resources turned down the headgate of the Lowline Ditch for what he said was waste, based on state guidelines.
During the 2018 call, the East Mesa Ditch loaned 1 cubic foot per second of water to the town of Carbondale — under an emergency substitute water-supply plan that allowed a temporary change in water use from agriculture to municipal — so it could continue to legally supply about 50 homes on the Nettle Creek pipeline with water. Makar said there’s no legal reason water users couldn’t craft a similar more permanent agreement, which could be activated if a call ever comes on again.
“It certainly has been done and done successfully,” she said.
“Whether we had a good (water) year or not, we know there’s a lot to address and deal with … I encourage you to continue with your discussions and continue talking.” Those were the final words from District 3 Water Court Judge Michael Gonzales just before adjourning court last Thursday in the Sustainable Water Augmentation Group case. The water court trial may have ended suddenly, but the issues surrounding the unconfined aquifer do not, and therein lies the problem. The irrigators in Subdistrict 1, who are responsible for restoring the unconfined aquifer and feel the pressure of the clock running on a state engineer order to make it happen by 2031 or else, just did adopt and the state engineer approved, a new strategy to recover the aquifer. Problem is the plan, called the Fourth Amended Plan of Water Management for Subdistrict 1, will undoubtedly end up in District 3 Water Court due to objections. And once it lands there, it’s likely to be a couple of more years before the chief water judge makes a decision on whether to approve, according to the experts. In the meantime, expect more retired acres to permanently retire water. It seems to be the only way.
WHEN the town of Del Norte terminated its agreement this week to lease water to the Sustainable Water Augmentation Group, it effectively killed the SWAG’s efforts to get an alternative augmentation plan through state District 3 Water Court.
Sustainable Water Augmentation Group withdrew its application Thursday for its own augmentation plan separate from Subdistrict 1 of the Rio Grande Conservation District, whose rules SWAG operators have been following and now will continue to follow in the irrigation seasons ahead. The owners of SWAG irrigate 17,255 acres in Alamosa, Rio Grande and Saguache counties and had proposed fallowing 5,014 under the plan.
The withdrawal of SWAG’s application was a sudden end to a water court trial that had been scheduled to last five weeks by Chief District Water Court Judge Michael Gonzales due to the technical and complicated issues of managing the supply of water for irrigators in the San Luis Valley.
Gonzales’ ruling earlier in the day Thursday, in which he denied a motion by SWAG on how it wanted to address the loss of the Del Norte water in its application, convinced members of SWAG to withdraw.
Since it had lost the Del Norte water as a replacement source for groundwater pumping, SWAG attorneys had proposed that they be allowed to update their application with data from the 2023 water year to demonstrate how the SWAG plan never really needed the Del Norte water to begin with.
Gonzales ruled that wouldn’t be fair to water users and the state Division of Water Resources opposing the plan. Gonzales said SWAG knew going into the water trial that the Del Norte water may not be legally available to it and could have anticipated that before Del Norte actually took the water away.
“The Del Norte lease went away on the second day of trial through no fault of the applicant. I realize that,” Gonzales said. SWAG at that point, he said, had an option to “simply remove reference to the Del Norte water” from its application and provide updated numbers for the trial to move forward.
Instead, said Gonzales, “the applicant made what may be a strategic decision … to amend their disclosures to not only reflect that they would no longer be relying on the Del Norte water, but in addition to that to incorporate the 2023 numbers from the subdistrict and to ultimately change their theory of the case. I think that’s the best way to summarize it.”
“That I find significant. That is significant and substantial,” Gonzales said.
The district court judge told applicants and opposers that it was unfortunate for the trial to come to such a sudden end given the important and complicated issues facing irrigators in Subdistrict 1 as they work to restore the unconfined aquifer of the Rio Grande Basin.
“I’m sorry we’re at this point … I think our issues that we as a community and we as a district number three have to address, those don’t end today. We know that full well. Whether we had good (water) year or not, we know there’s a lot to address and deal with … I encourage you to continue with your discussions and continue talking.”
Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
Looking to oversee hundreds of streams and wetlands left unprotected by a recent U.S. Supreme Court ruling, Colorado water quality officials have taken emergency action to provide at least temporary protections while a more permanent program can be set up.
The move comes just weeks after a U.S. Supreme Court decision sharply reduced the number of wetlands and streams protected under the Clean Water Act.
“We will rely on this temporary policy while we work out something longer term,” said Nicole Rowan, director of the Colorado Department of Public Health and Environment’s (CDPHE) Water Quality Control Division.
Under the new policy, the CDPHE is requiring notice of discharge into state waters and it will use its new authority to guide its enforcement actions when unpermitted dredge and fill materials are discharged into state waters, according to Kaitlyn Beekman, a CDPHE spokesperson.
Members of a working group, which includes environmental and agricultural interests, as well as water utilities and mining companies, have been working with the state to explore how to create a permanent mechanism to protect Colorado’s streams and wetlands in the future.
At issue is how the U.S. EPA defines so-called Waters of the United States (WOTUS), which determines which waterways and wetlands are protected under the federal Clean Water Act. The definition has been heavily litigated in the nation’s lower courts since the 1980s and has changed dramatically under different presidential administrations.
But on May 25 in Sackett v. EPA, the U.S. Supreme Court decided, among other things, that the WOTUS definition that included wetlands adjacent to streams, was too broad.
In its ruling, the court said only those wetlands with a direct surface connection to a stream or permanent body of water, for instance, should be protected.
The court decision has far-ranging implications for the environment, as well as agriculture, construction and mining, all major parts of Colorado’s economy, officials said.
The decision may also have more impact in semi-arid Western states, where streams don’t run year round and wetlands often don’t have a direct surface connection to a stream.
“Although the court’s decision directly addresses only the scope of ‘adjacent wetlands,’ its description of ‘waters of the United States’ as including only relatively permanent bodies of water connected to traditional interstate navigable waters will likely result in ephemeral and intermittent waters, which constitute the majority of Colorado’s stream miles, being outside the scope of federal Clean Water Act jurisdiction,” the CDPHE said in a statement on its website.
Under the Clean Water Act, the EPA and the U.S. Army Corps of Engineers are responsible for issuing permits and enforcing violations when dredge and fill activities associated with construction and road projects, among others, harm wetlands and waters considered to be waters of the United States.
Right now, though, as a result of the new Supreme Court decision, no agency has the authority to issue a permit or take enforcement action on these newly unprotected wetlands, according to Trisha Oeth, CDPHE’s director of environmental health and protection programs.
“There are waters that used to be protected under federal law and you used to be able to get a permit [for dredge and fill work]. Now there is no protection and no way to get a permit,” Oeth said.
Alex Funk, director of water resources and senior counsel at the Theodore Roosevelt Conservation Partnership, said he was pleased the state was moving quickly to fill in the regulatory gap.
“We were not excited about Sackett,” Funk said. “But we’re glad Colorado is doing something about it.”
Funk is hopeful that the CDPHE and lawmakers will move to introduce legislation next year that will create a wetlands law specific to Colorado that will offer broad, lasting protections. Funk said a handful of states, including Ohio and New York, have taken similar action to address the changes to the Waters of the U.S. rule.
Agricultural interests have long been worried about the WOTUS rule, because irrigators routinely work with streams and irrigation systems on their lands, where wetlands also exist.
Austin Vincent, general counsel and policy director for the Colorado Farm Bureau, said his members are comfortable with the approach the CDPHE is taking in part because there are critical exemptions for on-farm work, such as irrigating, plowing and irrigation system maintenance.
Part of the problem in the past is that the law changed so frequently, that it was difficult to know with certainty where and when permits were needed, Vincent said.
“It’s a big, big issue,” he said. “We want to make sure that the definition the state comes up with doesn’t encompass an overly broad number of waterways … Certainty is difficult in water. But we want as much certainty as we can get from the regulatory community.”
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.
Ephemeral streams are streams that do not always flow. They are above the groundwater reservoir and appear after precipitation in the area. Via Socratic.org
THE eyes of the San Luis Valley water world will be on state District 3 Water Court on Monday, where District Water Court Judge Michael Gonzales begins to hear testimony on an augmentation plan filed by a group of ag producers in Subdistrict 1 of the Rio Grande Water Conservation District.
The group of 12 – umbrellaed under the name SWAG or Sustainable Water Augmentation Group – is seeking the first group augmentation plan filed under the Colorado Division of Water Resources’ 2015 Groundwater and Irrigation Season Rules. The rules govern groundwater withdrawals in the San Luis Valley and are a constant source of state government oversight on the Valley’s groundwater and surface water users.
Opposing the SWAG application is the influential Rio Grande Water Conservation District, which applies the state groundwater rules through a formation of subdistricts with oversight from farmers and ranchers who own water rights and wells within a subdistrict. The Colorado Water Conservation Board and host of local water users have also filed objections to the SWAG plan.
The fact Chief Water Court Judge Gonzales set five weeks to hear from the applicants, and water managers and users in opposition, speaks to the weight of the case, both in substance and precedence, to the arguments and the sheer volume of court documents associated with the SWAG case.
There are 1,946 scanned documents and over 1,000 exhibits in the voluminous court file – all part of a water augmentation plan that has the potential to upend the years of collaboration that Colorado Attorney General Phil Weiser applauded during a recent trip to the Valley.
“This community has shown the state of Colorado what collaboration looks like,” he said. “The Rio Grande Basin issues related to groundwater really have called for people figuring out how we work together.”
That notion of collaboration and everyone-in-it-together gets flipped on its head with the SWAG case.
What it’s all about
SWAG producers are part of Subdistrict 1, the Valley’s most lucrative for crop sales of the six subdistricts, but also the most challenged when it comes to reaching the state engineer’s order to achieve and maintain a sustainable water supply.
In this case that means bringing stability to the unconfined aquifer of the Rio Grande Basin, a directive the subdistrict has been working on since it first formed in 2006 only to find itself continuing to fight an uphill battle.
Here’s the problem: The state engineer has given the subdistrict until 2031 to reach the sustainable benchmark, but during the past 12 years that subdistrict irrigators have been reducing groundwater pumping and retiring once-productive land, the bar to water sustainability has hardly moved.
OW time is ticking and Subdistrict 1 has moved to adopt even more restrictive groundwater pumping measures under its Fourth Amended Plan of Water Management, which the state engineer blessed on June 20, some 13 years after approving the first plan. It’s an amended document the farmers and ranchers in the subdistrict spent the past 18 months discussing, crafting and sending to the full Rio Grande Water Conservation District board and state engineer’s office for review and approval.
It’s also the document that pushed the SWAG to develop and file its own augmentation plan in state District 3 Water Court. Its big objection to the Subdistrict 1 plan is a new groundwater overpumping fee of $500 per acre-foot, up from $150 and the subject of lengthy debate during formation of the plan.
Farm operators would pay the hefty overpumping fee any time they exceed the amount of natural surface water tied to the property of their operation. The whole point of the Fourth Amended Plan of Water Management is to let Mother Nature dictate the pattern of how irrigators in Subdistrict 1 restore the unconfined aquifer and build a sustainable model for farming in the future.
The plan relies on covering any groundwater withdrawals with natural surface water or the purchase of surface water credits, which is a game-changer particularly for farm operations like those in SWAG which have little to no natural surface water coming into their land.
SWAG says it owns 257 member wells covering 17,317 irrigated acres. Its augmentation plan relies on purchasing land for the surface water and retiring the acres. The finer arguments – on whether SWAG is contributing its “proportional” share to creating a “Sustainable Water Supply” and not interfering with the state of Colorado’s obligations under the Rio Grande Compact – will define the case.
Members of the SWAG Board of Directors attend the Rio Grande Water Conservation District Board meeting on July 14: Les Alderete, left, Asier Artaechevarria and Willie Myers.
The finer arguments to be made
To wade a bit deeper into the mud, the state engineer’s 2015 groundwater rules added more responsibility to the Valley’s groundwater users beyond making sure senior surface water rights aren’t harmed. The rules also require augmentation plans like the one being sought by SWAG to “bear proportionally the obligation to replace or Remedy Injurious Stream Depletions and for achieving and maintaining a Sustainable Water Supply.”
And the rules say groundwater irrigators can’t “prevent unreasonable interference with the State of Colorado’s ability to fulfill its obligations under the Rio Grande Compact.”
The directive to bear proportional share in achieving and maintaining a “Sustainable Water Supply” and not interfering with the state’s obligations under the Rio Grande Compact to New Mexico and Texas is what makes the SWAG application and the preceding weeks of testimony and evidence a water case to watch.
“This will be up to the court to finally figure out what do these (augmentation plans) look like going forward?’” said Cleave Simpson, the Rio Grande Water Conservation District General Manager and state senator representing the SLV. “As expensive as it is and as divisive as it is, it’s kind of a necessary step I guess.”
STORY GLOSSARY
Augmentation Plan: Historically required of junior water users on over-appropriated streams, like those in the Rio Grande Basin, to obtain sufficient replacement water to offset any injurious depletions to senior water rights. Under the state Department of Water Resources 2015 Groundwater and Irrigation Rules, an augmentation plan also must help achieve and maintain a sustainable water supply and not interfere with Colorado’s obligations under the Rio Grande Compact and annual water delivery to New Mexico and Texas.
Subdistrict – A defined territory within the Rio Grande Water Conservation District that helps promote local interests and accomplish improvements within that defined “special improvement district” or “subdistrict.” Currently there are six subdistricts, numbered consecutively as they were created. Subdistrict 1 was formed in 2006, and others subsequently after. Participation among crop producers is voluntary. Each subdistrict has a board of managers. Their decisions are voted on by the Rio Grande Water Conservation District’s Board of Directors.
SWAG – A group of groundwater users within Subdistrict 1 who have crafted their own augmentation plan rather than participate in the subdistrict’s Plan of Water Management and Annual Replacement Plan that have been approved by the state. The group says it has 257 member wells covering 17,317 irrigated acres.
Fourth Amended Plan of Water Management – Specific to Subdistrict 1, it establishes how irrigators will meet the state Division of Water Resources order to recover and create a sustainable unconfined aquifer. The first Plan of Water Management was approved in May 2010, and there were subsequent amendments to the plan approved in June 2017 and August 2018. The fourth amended plan was approved by Colorado Division of Water Resources in June 2023 and final by the Rio Grande Water Conservation District Board on July 14. There is a 10-day period from when the RGWCD board gave final approval that allows irrigators to challenge the plan in district water court and there are already challenges, meaning it won’t go into effect until it’s approved by the water court.
From the “Monday Briefing” newsletter from the Alamosa Citizen:
The start of an El Niño period was acknowledged in June by the National Oceanic and Atmospheric Administration and the World Meteorological Organization. As it forms in July and August we’ll have a better sense of the impacts to the Valley lands and the Rio Grande Basin. Some global experts are beginning to suggest a moderate to strong El Niño increases the chance that 2024 will be the warmest on record. We’re paying attention to the condition of the Rio Grande Basin and in particular the change in the unconfined aquifer storage after what’s been a strong runoff from the winter snowpacks. It’s a critical indicator on the overall health of the Rio Grande Basin and one that ultimately determines the state of agriculture in the SLV.
San Luis Valley Groundwater
It is irrigators in Subdistrict 1 of the Rio Grande Water Conservation District who shoulder the greatest responsibility for recovering the ailing unconfined aquifer. To that end, the Rio Grande Water Conservation District Board of Managers will hold a public hearing this week on the Subdistrict 1 Fourth Amended Plan of Water Management to manage groundwater pumping in the unconfined aquifer area. It’s been a year or so in development with lots of difficult conversations on how to reduce groundwater irrigation in the Valley’s most lucrative agricultural subdistrict. The state Division of Water Resources has signed off on the plan and now comes the final public comments. The idea of a lawsuit challenging the Fourth Amended Plan of Water Management also hangs out there. The meeting is scheduled for 1 p.m. on Friday, July 14.
The Rio Grande Water Conservation District is moving forward on two major fronts: It’s ready to open the application window for Upper Rio Grande irrigators to apply for some of the $30 million set aside under state legislation, SB 22-028, to permanently retire irrigated acres in the San Luis Valley. The money sits in the Groundwater Compact Compliance and Sustainability Fund, and Valley farmers can submit applications beginning Thursday to access it. The RGWCD is also moving to implement its Fourth Amended Plan of Water Management for its Subdistrict 1. The board of the Rio Grande Water Conservation District is accepting public comments on the amended plan, with a public hearing slated for July 14. Both the Groundwater Compact Compliance Fund and the Fourth Amended Plan of Water Management are key to the Valley’s efforts to restore and bring sustainability to the Rio Grande Basin.
Potential Water Delivery Routes. Since this water will be exported from the San Luis Valley, the water will be fully reusable. In addition to being a renewable water supply, this is an important component of the RWR water supply and delivery plan. Reuse allows first-use water to be used to extinction, which means that this water, after first use, can be reused multiple times. Graphic credit: Renewable Water Resources
2. Douglas County plans for water commission
Up north, Douglas County commissioners this week will continue their discussions around establishing a Douglas County Water Commission to assist in the broader effort to bring more water into the sprawling Front Range county. Douglas County has been reaching out to water providers and residents to pitch the idea and plans this week to continue those conversations around initially establishing a Technical Advisory Committee. In the background of it all is Douglas County’s interest in Renewable Water Resources and the Rio Grande Basin as a source of water. We’ll keep tracking to see where it all goes.
Graphic credit: Alamosa Citizen
3. The Valley’s water checkmate
The various county commissions in the San Luis Valley have been working to put in place their own checkmate when it comes to pumping water out of the Upper Rio Grande Basin like the RWR proposal to Douglas County. We first told you about it back in January, and now Alamosa County last week adopted the “Intergovernmental Agreement to Protect Water Resources” and the Valley’s other county and municipal governments are expected to become signatories to the agreement as well. The agreement establishes the San Luis Valley Joint Planning Area to protect surface water and groundwater resources. The essence of the agreement is that anyone looking to transfer water out of the San Luis Valley would have to apply for a 1041 permit from each of the county and municipal governments and get sign off from all local governments to move a project forward. “This might be our best opportunity to stop water exportation,” Saguache County Commissioner Tom McCracken, who chairs the San Luis Valley Regional Council of Governments board, said at the time of our first article. “I’m feeling really excited about it.”
Rio Grande and Pecos River basins. Map credit: By Kmusser – Own work, Elevation data from SRTM, drainage basin from GTOPO [1], U.S. stream from the National Atlas [2], all other features from Vector Map., CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=11218868
North Lake Powell October 2022. With the Colorado River’s woes, Boulder County towns are looking to diversify their water sources Photo credit: Alexander Heilner via The Water Desk
This winter dropped a lot of snow on the mountains above Boulder. Our reservoirs are in good shape for now as Boulder Creek babbles. But that’s not our only water source.
Boulder and many other cities along the Front Range rely, at least in part, on water from the strained Colorado River. Younger cities with fewer senior rights for local water sources — like Superior and Erie — rely on it almost entirely.
Because every city is responsible for its own water portfolio, as the Colorado River becomes a potentially unreliable source, wholly dependent cities could be far worse off than others. This isn’t a far-fetched idea. A Colorado State University study shows that for every degree Fahrenheit of global warming, flows of the Colorado River decrease by 4%. And already, the Windy Gap Project — responsible for supplying a portion of Colorado River water to Front Range cities — sometimes doesn’t provide any water at all.
Yet for now, many municipalities in the Boulder County area seem reluctant to even discuss sharing water.
“Right now, we’re all trying to do the best job for our [own] residents and our customers,” said Melanie Asquith, the water resources manager for the City of Lafayette. “Everybody’s situation is different. Everybody’s storage is different. Everybody’s rights are different.”
Interviews with water managers across the county revealed potential stage-setting for a “Mad Max” situation. Each municipality is concerned only with securing water rights for its own residents. This means that unless the mindset in Colorado changes to one of greater collaboration, it’s safe to assume future droughts will hit some communities harder than others. And those hard-hit communities may be on their own.
“The citizens and businesses of Louisville are paying their water bills to ensure their supplies are covered — not necessarily Lafayette’s or Broomfield’s or anybody else in the region,” said Cory Peterson, the City of Louisville’s deputy director of utilities. “There’s not a regional or state presence that would do those types of activities. That’s just the way the system is set up.”
Where do Boulder County communities get their water from?
Peterson of Louisville said a foreshadowing of droughts’ impacts in Boulder County happened in 2001.
“You had some communities that were doing very aggressive water restrictions, had very low water supplies, and were really struggling to make it through,” Peterson said. “And you had other communities that had very light restrictions and had, I don’t want to say an easy time, but they were able to manage through those impacts.” (We saw a lesser instance of this last summer when Lafayette imposed year-round water restrictions while Boulder didn’t.)
This has led to water resource managers up and down the Front Range to chase water diversity to ensure they’re not the worst off. If one water source fails, it’s good to have another to lean on.
“Our biggest gift is our diversity, that we are not wholly dependent on the [Colorado River], that if we had to rely only on eastern water, we could do it,” Asquith of Lafayette said.
Age matters for water rights
Because of the way Colorado water rights work, it pays to be old. The “prior appropriation doctrine” — summed up as “first in time, first in right” — heavily favors cities that started getting water for their residents earlier. Being first has landed them “senior” water rights from local sources like Boulder Creek or St. Vrain Creek.
“Longmont is fortunate that a majority of the water rights in our water rights portfolio are very senior water rights,” said Wes Lowrie, a water resources analyst for the City of Longmont. “We feel very strong in our ability to meet our future demands for Longmont.”
Boulder, Louisville and Longmont have senior rights to local creeks, requiring them to get only a third of their water from the Colorado River. That insulates them from future uncertainty on the Colorado River and provides some resilience against climate change through diversification. Lafayette gets less than a quarter of its water from the Colorado River.
Pretty much all of Erie’s water, on the other hand, comes from the Colorado River. All of Superior’s does as well.
California, Nevada and Arizona recently reached an agreement to temper their use of water from the Colorado River. With federal assistance, the worst repercussions of overuse from the river will hopefully be avoided, for now. But Colorado wasn’t a part of the recent Colorado River agreement, because Colorado is part of the Upper Basin states: those using water above parched Lake Powell. Unlike the Lower Basin, Upper Basin states have thus far used less water than is available to them. But that could change as the river reduces more.
Looking west across the 445 acre-foot Windy Gap Reservoir, which straddles the Colorado River (Summer 2011). Photo By: Jeff Dahlstrom, NCWCD via Water Education Colorado
When a water source is diminishing, you want a senior right on that source to make sure you get your water before it runs out. Yet some of the water coming from the shrinking Colorado River to the Front Range isn’t even close to a senior right. The Windy Gap project, a water right that provides some cities with a considerable chunk of their water, only dates back to 1968 — very young by Colorado River standards.
“The Windy Gap water right is a very junior water right on the Colorado River,” said Jeff Stahla, a public information officer at Northern Water, which manages Windy Gap. “The Windy Gap Project in some years yields zero water.”
The project — which includes a diversion dam and reservoir on the Colorado River — is just one of the water rights allotting Colorado River water to eastern cities. Originally funded by Boulder, Estes Park, Fort Collins, Greeley, Longmont and Loveland to cope with booming populations, the project started delivering water across the Continental Divide in the 1980s.
Today, some Front Range municipalities are investing further in Windy Gap water. By building a new reservoir in southern Larimer County, the cities hope to store Windy Gap water from wet years to get them through the dry ones when Windy Gap may provide no water.
Site of Chimney Hollow Reservoir via Northern Water.
Called the Chimney Hollow Reservoir, the project broke ground in 2021 and is on track to cost upwards of $700 million. A dozen different water districts are funding the reservoir to add an additional fail-safe to their water supply. Involved cities include Louisville, Lafayette, Longmont, Erie and Superior. Broomfield is leaning especially heavily on the new reservoir, voting in 2021 to foot $176.4 million of the bill. (Boulder is not involved in the Chimney Hollow project.)
According to City of Broomfield staff, this investment will increase Broomfield’s reliance on Colorado River water from 60% of their source water to 70%. Broomfield’s water not delivered by Northern Water comes from Denver Water, which also gets a portion of its water from a tributary of the Colorado River. Piped through the Moffat Tunnel, water previously destined for the Colorado River is stored in Gross Reservoir that recently began a controversial expansion project.
Yet Windy Gap water isn’t the only water coming from the Colorado River. The Colorado-Big Thompson Project, or C-BT, has been pumping water east since 1947. With its right dating to the 1930s, that water “is much more guaranteed,” according to Stahla.
Almost all cities who get Windy Gap water also get a portion of C-BT water.
Pete Johnson, a water attorney for the town of Erie, said the town’s water comes from a mix of C-BT water and Windy Gap water with an investment in the Chimney Hollow project — all Colorado River water.
“The long term goal is to diversify the town’s portfolio,” Johnson said.
But C-BT water isn’t infallible either. “The CB-T water right, I don’t want to say it’s junior, junior,” Stahla said. “But certainly a 1930s water right is not senior in the state of Colorado.”
Water stored in Colorado’s Denver Basin aquifers, which extend from Greeley to Colorado Springs, and from Golden to the Eastern Plains near Limon, does not naturally recharge from rain and snow and is therefore carefully regulated. Courtesy U.S. Geological Survey.
Setting up a Mad Max future
Robert Crifasi, a former City of Denver hydrologist and Boulder Open Space and Mountain Parks water resources administrator, and author of a new book “Western Water A to Z: the History, Nature and Culture of a Vanishing Resource,” said one of the most important steps to avoiding a Mad Max future is ensuring water availability before building new developments. Because of overzealous development companies, Crifasi said, some Denver suburbs are now reliant on nonrenewable Denver Basin groundwater. What will those communities do when the aquifer runs dry? Rely on the Colorado River?
“There is no magic bullet in any of this,” Crifasi said. “But I do think the most important action is to legislatively require vigorously integrated water and land-use planning.”
Kim Hutton, the City of Boulder’s water resources manager, said in addition to conservation and planning, there’s a need for collaboration and coordination among municipalities around water. As it currently stands, it’s every city for itself.
“Right now, with the water rights system, individual water users really are responsible for developing a supply to meet their needs,” she said.
Lowrie of Longmont, for instance, said that Longmont has always required that developers prove a reliable water source before moving forward into construction. “And that planning has served us well,” he said.
When asked if Longmont had talked about possibly sharing with other municipalities that might, in the future, not have enough water for their residents, he suggested that long-term aid would be viewed very differently than short-term aid.
“The decision to share water on an ongoing basis might be a different conversation than if there was an emergency situation, like if somebody’s water treatment plant went out,” he said. “That’s a different scenario than saying, ‘Hey, we didn’t plan as well as Longmont, and now we don’t have enough supply.’”
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Updated Colorado River 4-Panel plot thru Water Year 2022 showing reservoirs, flows, temperatures and precipitation. All trends are in the wrong direction. Since original 2017 plot, conditions have deteriorated significantly. Brad Udall via Twitter: https://twitter.com/bradudall/status/1593316262041436160
Real estate developers interested in exporting water they own from the San Luis Valley to fast-growing, water-short Douglas County have contributed thousands of dollars to candidates for the Parker Water & Sanitation District Board, one of the largest water providers in the county.
Last month, Robert Kennah won a seat on the Parker water board and had received two donations from partners in Renewable Water Resources, a real estate development group whose principals include former Colorado Governor Bill Owens. The contributions were made by RWR principals John Kim and Hugh Bernardi, according to filings at the Colorado Secretary of State’s office.
A second RWR-backed candidate, Kory Nelson, also received $10,000 in donations from RWR, but did not win a seat on the Parker water board. Nelson is contesting the results of the election. If Nelson had won, RWR would have ties to three members of the five-member board, according to Parker Water and Sanitation District Manager Ron Redd.
Parker board member Brooke Booth is related by marriage to RWR principal Sean Tonner, Redd said.
Big money
Neither Booth, Kennah nor RWR responded to a request for comment. Nelson could not be reached for comment.
Such large contributions are unusual in low-profile water district board elections, where candidates often provide their own funding for their campaigns of a few hundred dollars, rather than thousands, according to Redd.
“That’s a lot of money for a water board race,” Redd said.
The donations come after Douglas County Commissioners last year declined to invest in RWR’s controversial $400 million San Luis Valley pipeline proposal using COVID-19 relief funding. Douglas County Commissioners Lora Thomas and Abe Laydon voted against the funding, while Commissioner George Teal supported the proposal.
San Luis Valley Groundwater
Among other objections, the county said that RWR’s claim that there was enough water in the San Luis Valley’s aquifers to support the export plan, was incorrect, based on hydrologic models presented over the course of several public work sessions.
The county’s attorneys also said the proposal did not comply with the Colorado Water Plan, which favors projects that don’t dry up productive farmland and which have local support.
Opposition to the proposal in the San Luis Valley is widespread. The Rio Grande Water Conservation District in Alamosa argues that no water should be taken from the San Luis Valley because it is already facing major water shortages due to the ongoing drought and over-pumping of its aquifers by growers. The valley faces a looming well shutdown if it can’t reduce its water use enough to bring its fragile water system back into balance.
Out of compliance
That lack of compliance means that Douglas County would likely not win any potential state funding for the export proposal.
Last year, after the county rejected the San Luis Valley proposal, RWR said it would continue to work with Douglas County to see if its objections could be overcome. It has also maintained that the agricultural water it owns in the San Luis Valley would be pulled from a portion of the valley’s aquifer system that is renewable, minimizing any damage that might occur from the project, and that even though farmlands would be dried up when the water is exported, the valley’s water situation would benefit from a reduction in agricultural water use.
RWR’s water rights, however, have not yet been converted to municipal use, as is required under Colorado law. That process could take years to complete and would likely be fiercely contested by farm interests in the San Luis Valley, as well as other opponents.
Still RWR continues to deepen its ties to Douglas County water districts. RWR principal John Kim, one of the contributors to the Parker water board elections, won a seat last year on the Roxborough Water and Sanitation District Board, according to the district’s website. Kim lives in that district. He declined a request for comment.
Douglas County government does not deliver water to its residents, but relies on more than a dozen individual communities and water districts to provide that service. Fast-growing towns and water districts early on simply drilled wells into aquifers, but the aquifers have been declining and water districts have been forced to implement aggressive water conservation programs, water reuse programs, and use of local surface supplies to meet their needs.
Lawn sizes in Castle Rock are sharply limited to save water, with some homeowners opting to use artificial turf for convenience and to help keep water bills low. Oct. 21, 2020. Credit: Jerd Smith, Fresh Water News
No support
Two of the largest water providers in Douglas County, Parker Water and Sanitation District and Castle Rock Water, have said they would not support the RWR proposal because they had already spent millions of dollars developing new, more sustainable, politically acceptable projects. Those projects include a South Platte River pipeline that is being developed in partnership with farmers in the northeastern corner of the state.
A host of politicians across the political spectrum came out against the RWR proposal as well, including Gov. Jared Polis and Rep. Lauren Boebert, who represents the San Luis Valley.
Still, Douglas County’s Teal, who has also received funding from RWR principals, said he believes the RWR water could have a role to play in helping ensure the county has enough water to grow over the next 50 years.
“I don’t know [if we have enough water,]” Teal said. “That is part of what makes me wonder if we do have enough. Water projects take time. There is no snapping your fingers and then delivering 10,000 acre-feet of water.”
But Douglas County Commissioner Lora Thomas says the county’s water providers are well prepared for the future and there is no need to spend money on a project that has little public support and which may never come to fruition.
“We are secure without it,” Thomas said. “But I think that RWR is doing everything it can to get Douglas County to buy into their scheme.”
Long shot?
Floyd Ciruli, a pollster and veteran observer of Colorado politics who has done extensive work in the past for Douglas County water providers, said the RWR initiative faces an uphill battle.
“They have resistance at both ends,” Ciruli said, referring to opposition in the San Luis Valley and in the metro area. “It’s interesting that [RWR] is contributing to these boards. It’s is a real long shot.”
Parker Water and Sanitation District says it plans to continue its development of the South Platte pipeline project in northeastern Colorado and to craft deals with farmers so that agricultural water won’t be removed from farmlands, helping preserve the rural economy there. Most of Parker’s water rights have already been approved for municipal use, according to Redd.
“We’re concerned because Parker water has no interest in the RWR project and we basically stated that a year ago when Douglas County was looking at their project. It has no clear path to being done. It’s years if not decades before they could even get started,” Redd said.
“We have a clear path. We already have the water. I am not sure what the intent was to try and get people on our board. It is just concerning.”
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.
Potential Water Delivery Routes. Since this water will be exported from the San Luis Valley, the water will be fully reusable. In addition to being a renewable water supply, this is an important component of the RWR water supply and delivery plan. Reuse allows first-use water to be used to extinction, which means that this water, after first use, can be reused multiple times. Graphic credit: Renewable Water Resources
Ephemeral streams are streams that do not always flow. They are above the groundwater reservoir and appear after precipitation in the area. Via Socratic.org
Like icebergs and human beings, waterways are made up of more than what’s visible on the surface. Take Lapwai Creek, near Lewiston, Idaho: At a casual glance, it’s a ribbon of cool water, shaded by cottonwood trees and alive with steelhead and sculpin, mayfly and stonefly larvae. An adult could wade across it in a few strides without getting their knees wet. But that’s just the part people can see. Beneath the surface channel, coursing through the rounded cobbles below, is what scientists call the hyporheic zone: water flowing along underground, which can be a few inches deep, or 10 yards or more, mixing with both surface water and groundwater. Microbes that purify water live down there, and aquatic insects — food for fish and other animals — can use it as a sort of underground highway, traveling more than a mile away from a river.
A creek, in other words, is more than just the water in its channel; it’s also the water underground, and it’s connected to everything else in its watershed, including wetlands and channels upstream that might dry up during some years, or perhaps go years between getting wet. Whatever happens there — pollution or protection — happens to the entire creek. In the case of Lapwai Creek, which flows into the Clearwater River and then the Snake River, it’s a small but fundamental part of the complex ecosystem that salmon, humans and countless other creatures in the Pacific Northwest rely on.
Lapwai Creek, Idaho, which flows into the Clearwater River and then the Snake River. Photo credit: USGS
But those ecological realities are strikingly absent from last week’s U.S. Supreme Court decision in Sackett v. EPA.The ruling strips federal protections from all ephemeral streams and, as reported by E&E News, more than half of the previously protected wetlands in the U.S. It limits Clean Water Act protections to “relatively permanent, standing or continuously flowing bodies of water.” That includes some wetlands — those that are “indistinguishable” from protected oceans, lakes, rivers and streams “due to a continuous surface connection.”
“It doesn’t reflect reality, or the scientific understanding of how watersheds and the river networks within them function,” said Ellen Wohl, a river researcher and professor in the Geosciences Department at Colorado State University. Wohl helped review the scientific evidence used to develop an earlier, and much more expansive, Obama-era definition of which bodies of water fall under the jurisdiction of the Clean Water Act.
The act itself says it covers “the waters of the United States,” often abbreviated WOTUS, but what exactly that means has been the subject of decades of litigation and conflicting rule-making by federal administrations. In this decision, the Supreme Court took up the question in the context of a lawsuit Michael and Chantell Sackett brought against the Environmental Protection Agency in 2008. The case concerned whether or not there were protected wetlands on a property the couple owns near Priest Lake, Idaho. If there were, the Sacketts would have needed to get a Clean Water Act permit before filling the lot with dirt, and would now owe the agency hefty fines for having filled it without one; if there weren’t, then they could proceed with building a house on the lot without the permit.
All nine Supreme Court justices agreed that there were no protected wetlands on the property. And five of them — Justices Samuel Alito, John Roberts, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett — went further. The majority opinion, written by Alito, focused in part on defining the word “adjacent” — as in, wetlands adjacent to protected waterbodies — to mean inseparable. That’s a stricter interpretation of the law, and leaves more wetlands unprotected, than any definition put forth by a federal administration since 1977, including the Trump administration’s 2020 rule. The remaining four justices spell that out in a concurring opinion, written by Justice Brett Kavanaugh: “The Court’s ‘continuous surface connection’ test disregards the ordinary meaning of ‘adjacent.’ … As a result, the Court excludes wetlands that the text of the Clean Water Act covers — and that the Act since 1977 has always been interpreted to cover.”
Sunrise March 10, 2023 Alamosa Colorado with the Rio Grande in the foreground. Photo credit: Chris Lopez/Alamosa Citizen
In addition to wetlands, the decision excludes many — or perhaps most, or even all; the ruling is unclear — temporary streams. These include ephemeral streams, which flow only after snow- or rainfall — such as floodingdesertwashes — and intermittent ones, which sometimes go dry, often seasonally, like the Rio Grande in New Mexico.
Temporary streams and rivers exist primarily in the arid West, particularly in the Great Plains and the Great Basin. And they’re important for both ecosystems and humans: According to EPA data, 70% of the miles of streams supplying public water systems that more than 3 million people in Arizona’s Maricopa County relied on in 2009 were ephemeral or intermittent. In fact, 96% of Arizona’s total stream mileage is ephemeral or intermittent; New Mexico, too, has very few relatively permanent waterways. “So, arguably, (nearly) all the rivers and streams in those two states are no longer protected by the Clean Water Act,” said Mark Ryan, a retired EPA lawyer who specialized in the act and represented the EPA in the Sackett case until he left the agency in 2014.
That “arguably” is important. It’s now up to the EPA to interpret the ruling and define what exactly “relatively permanent” means, because the majority opinion itself is silent on the matter. In fact, it doesn’t mention intermittent or ephemeral streams at all, though it does say, in reference to protected waters, that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” The phrases “temporary interruptions” and “dry spells” seem to leave the door open for protecting some intermittent streams, but the absence of details — like how long of a dry spell is acceptable — leaves the matter up to agency rules, and litigation over them.
Weaker protections mean that more wetlands and temporary streams will be destroyed, filled in with dirt for houses or other development. Ecosystems and people alike will lose the benefits they provide: biodiversity and abundance of species; space to absorb extra water during storms, preventing deadly floods; natural storage of that same water, so it’s available later, during dry times; the natural purification that occurs when water is filtered through the ground.
Take, for example, a desert playa in the Great Basin, which might be dry for years at a time. When rainwater falls on it or snowmelt flows into it, it acts like “a big sponge,” Wohl said. A sponge that can store water for later, and clean it, too. But if you turn it into a parking lot by filling or building on it, as the Supreme Court ruling makes it easier to do, water will pour off it, rather than soak in. And what was once a playa — part of an intricate system changing across space and time — will become simply an asphalt wasteland.
The tallest dunes in North America are the centerpiece of a diverse landscape of grasslands, wetlands, forests, alpine lakes and tundra at Great Sand Dunes National Park in Colorado. Photo credit: The Department of Interior
Comb Wash and tributaries in southeastern Utah, all of which are undeserving of Clean Water Act protection according to the majority of Supreme Court justices. Jonathan P. Thompson photo.
THE NEWS: The U.S. Supreme Court hands down a ruling in the long-running Sackett v. Environmental Protection Agency case that significantly alters and narrows the scope of the Clean Water Act.
THE CONTEXT: Sometimes it feels like the Supreme Court doesn’t like — or maybe just doesn’t get — the arid Western U.S. Last week’s ruling is a prime example: It potentially removes federal protections from thousands of miles of Western waterways, making it far easier for developers to pollute or destroy arroyos, wetlands and ephemeral streams.
The specific case dates back to 2007, when EPA officials ordered Chantell and Michael Sackett to stop backfilling their soggy half-acre lot on the shores of Idaho’s Priest Lake, where they wanted to build a cabin. The EPA had determined that since the wetlands were adjacent to a navigable, interstate water (Priest Lake), it could be classified as “waters of the United States,” or WOTUS, and was therefore protected by the Clean Water Act. The Sacketts disagreed and took the feds to court. As the case wound its way through the legal system, the Sacketts’ cabin site transformed into the front line of a 50-year ideological battle over the definition of what constitutes legally decreed “waters.”
For years, the Environmental Protection Agency and Army Corps of Engineers—the agencies charged with enforcing the CWA—considered WOTUS to include everything from arroyos to prairie potholes to sloughs to mudflats, so long as the destruction or degradation thereof might ultimately affect traditionally navigable waters or interstate commerce (which could include recreation, sightseeing, or wildlife watching). It was a broad definition that gave the agencies latitude to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” as Congress mandated when creating the law in 1972.
Property rights ideologues pushed back on the definition, saying it was too broad and therefore gave the feds too much power to curb pollution or restrict development. Occasionally a developer would use this rationale to flout the rules, and a few of the cases made their way to the Supreme Court. In the 1985 Bayview case, the justices upheld the broad definition of WOTUS, and in the 2001 SWANCC case they left the definition alone but found that isolated ponds were not protected by the Clean Water Act simply because they were migratory bird habitat.
Then, in his plurality opinion on the 2006 Rapanos case, the late Justice Antonin Scalia wrote what would become the right-wing’s preferred definition of waters of the U.S. He argued that they should include only “relatively permanent, standing or continuously flowing bodies of water … described in ordinary parlance as streams[,] . . . oceans, rivers, [and] lakes.” Scalia’s definition emphatically excluded “ephemeral streams” and “dry arroyos in the middle of the desert.” (He also referred to the “immense arid wastelands” of the Western U.S., giving an idea of where this guy’s coming from.)
Justice Scalia’s opinion in the Rapanos case, and now Alito’s in the Sackett decision, would remove most or all intermittent or ephemeral streams from Clean Water Act protections. That would leave 94% of Arizona’s streams more vulnerable to development. Source: U.S. EPA.
Justice Anthony Kennedy disputed Scalia, saying instead the CWA should extend to any stream or body of water with a “significant nexus” to navigable waters, determined by a wetland’s or waterway’s status as an “integral part of the aquatic environment.”
The two conflicting Rapanos opinions have guided the agencies’ enforcement of the CWA ever since, with the George W. Bush and Trump administrations leaning toward Scalia’s narrow, anti-arroyo definition, and the Obama and Biden administrations adopting Kennedy’s “significant nexus” test.
Fast forward to the recent Sackett decision, which has two parts. First, the justices all agreed that the EPA should not have fined the Sacketts for filling in their wetland, because it does not fall under the Clean Water Act’s jurisdiction. But the wider ramifications come from Justice Samuel Alito’s rewriting of the definition of “waters of the U.S.” in his majority opinion — and the debate among justices it sparked.
Sackett overtly focuses on wetlands, as did most of the back-and-forth between the disagreeing justices, who sparred over the definition of “adjacent.” Alito and the majority essentially believe “adjacent” and “adjoining” are synonymous, which removes any wetland lacking a continuous surface connection to a navigable body of water from federal jurisdiction. He also puts the kibosh on the “significant nexus” test. (Justices Clarence Thomas and Neil Gorsuch go even further, trying to reduce waters of the U.S. to rivers or lakes that can actually be navigated by ships.) Even Justice Brett Kavanaugh disagreed with Alito’s narrow definition, pointing out that “adjacent” is not the same as “adjoining.”
You might be wondering how any of this effects the arid West, where wetlands — either adjacent or adjoining — aren’t all that common. After all, intermittent streams only got passing mentions in the opinions and not once does the term “arroyo” appear. But there’s little question that arroyos and ephemeral streams will end up suffering collateral damage. The Sackett majority defers to Scalia’s Rapanos definition, writing: “ … we conclude that the Rapanos plurality was correct: the CWA’s use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams oceans, rivers and lakes.’”
So, yeah, we Southwesterners do refer in our ordinary parlance to many an intermittent stream as a “river,” e.g. the Santa Fe River, the Santa Cruz River, the Rio Puerco(s), and so forth. But I doubt that would have been adequate for Scalia and now for Alito and friends.
It’s not clear yet how all of this will play out on the ground, except that the Sacketts can finally build their cabin without fear of an EPA fine. The Clean Water Act, one of the nation’s most important environmental laws, is now weaker than it was a couple of weeks ago, and countless wetlands, sloughs, arroyos and ponds are now more vulnerable to development and pollution. Justice Elena Kagan summed it up in her response to Alito: “The majority thus alters—more precisely, narrows the scope of—the statute Congress drafted,” she wrote, adding that the opinion “ … is an effort to cabin the anti-pollution actions Congress thought appropriate.”
Steve Bannon, former President Donald Trump’s right-hand man, once said the goal of the administration was the “deconstruction of the administrative state. He wanted to eviscerate regulations protecting human health and the environment so they would no longer “burden” corporations or stand in their way of reaping boundless profit. Trump may no longer be president, and both he and Bannon may be headed to jail soon. But their agenda lives on among the majority of the nation’s highest court, which, Kagan wrote, has appointed “itself as the national decision-maker on environmental policy.”
She continued, referring to last year’s decision that hindered the EPA from enforcing clean air laws: “So I’ll conclude, sadly, by repeating what I wrote last year, with the replacement of only a single word. ‘[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.’ Because that is not how I think our Government should work — more, because it is not how the Constitution thinks our Government should work …”
Read more of my writing on Sackett, WOTUS, Rapanos, and SCOTUS in High Country News at the Landline and in the Land Desk:
The Arikaree River in 2000 in early summer, when water is near its maximum extent. Photo: Kurt Fausch
From email from Governor Polis’ office:
YUMA – Today [June 3, 2023], Governor Polis is signing legislation into law.
“Water is the lifeblood of our state, which is why I was proud to be in Yuma County today to sign legislation right here in the Republican River Basin that builds upon our data-driven approach to preserving and protecting our precious water resources,” said Gov. Polis. “Making sure that Coloradans can access high-quality, affordable health care has been our top priority since day one, and I look forward to signing legislation today at Byers Health Care Clinic to save people money on health care and cut red tape.”
This morning in Yuma, Gov. Polis signed the bipartisan HB23-1220 Study Republican River Groundwater Economic Impact sponsored by Representatives Richard Holtorf and Karen McCormick, Senators Byron Pelton and Rod Pelton, to take a data-driven approach to understanding the economics of groundwater conservation in the Republican River Basin, while helping to ensure that Colorado continues meeting the obligations spelled out in our interstate compacts.
At the Byers Health Care Clinic in Byers, Gov. Polis will sign the bipartisan SB23-298 Allow Public Hospital Collaboration Agreements – Representatives Karen McCormick and Rod Bockenfeld, Senators Bob Gardner and Dylan Roberts to encourage collaborative agreements between rural hospitals while maintaining adequate oversight to ensure rural Coloradans can maintain needed hospital services in their local areas. Rural hospitals provide lifesaving access to care for Coloradans and are often hubs for local economies and crucial job-providers, and ensuring they can work together helps to cut red tape and save Coloradans money on health care.
New Mexico’s state leaders criticized the Republican-led U.S. Supreme Court for a recent decision that could limit protections for waterways throughout the arid state. The Supreme Court issued a judgement on May 25 in Sackett vs. the U.S. EPA, ultimately finding the Clean Water Act (CWA) only applied to wetlands that are directly connected to permanent bodies of water…The opinion was written by Justice Samuel Alito, with the other members issuing concurring opinions in the case.
“In sum, we hold that the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that they are ‘indistinguishable’ from those waters,” read Alito’s opinion. “This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.”
But New Mexico Gov. Michelle Lujan Grisham contended the decision weakened the Clean Water Act and could put many of New Mexico’s fragmented rivers and streams at risk. In a statement following the verdict, Lujan Grisham said she was “appalled” and contended the ruling would leave 90 percent of New Mexico’s waters without federal protection from development. Lujan Grisham said her administration planned to study how state law could be used to fill any “regulatory gaps” created by the Supreme Court ruling to protect the state’s limited water resources.
Click the link to read the article on the Field & Stream website (Travis Hall). Here’s an excerpt:
On May 25, 2023, the Supreme Court of the United States (SCOTUS) issued a ruling that could ultimately rescind federal protections from more than 50 percent of the nation’s wetlands. With its 5-4 ruling in a case known as Sackett v. EPA, SCOTUS declared that the Clean Water Act—a measure long-regarded as the most impactful clean water safeguard ever enacted—no longer applies to isolated wetlands that aren’t visibly connected to larger water bodies by continuous, surface-level flows. According to sportsmen’s groups, the ruling will leave these isolated wetlands unprotected from development, drilling, and other sources of pollution. While the decision will be a boon to the homebuilding and extraction industries, it could have far-reaching and detrimental repercussions for wildlife species that rely on cold, clean water sources—like trout and waterfowl.
“It’s bad news for hunters and anglers,” Alex Funk, Director of Water Resources and Senior Counsel for the Theodore Roosevelt Conservation Partnership (TRCP), tells Field & Stream. “Everything from ducks to cold-water fish species like trout rely on headwater streams and headwater wetlands, like fens, to help maintain water temperatures—those are at risk now.”
[…]
The Clean Water Act’s stated goals were beautifully simple: Make America’s rivers and wetlands “swimmable and fishable” again. For fifty years, throughout the administrations of six different U.S. Presidents, the federal rule worked well. And it reversed some of the country’s most egregious environmental sins. Then, in 2001 and again in 2006, SCOTUS began taking court cases with huge implications for the future of the Clean Water Act. Its rock-solid protections were eroded by unfavorable court decisions, and the clarity that had made the CWA such an effective safeguard for so many years was muddied…
In response to the confusion brought about by these court cases, the Obama-era EPA proposed the so-called Waters of the U.S. Rule—commonly known as WOTUS. This 2015 rule sought to clarify and re-establish lost protections for hundreds of thousands of miles of ephemeral streams and tens of thousands of acres of wetlands. It was widely supported by the vast majority of America’s hunting and angling conservation groups. But its opponents had immense power in the mining, agribusiness, and development sectors. That lobby’s boisterous campaign to undermine WOTUS was widely successful, and in 2019 President Trump decried the rule as “horrible”, scaling back its protections for ephemeral streams and isolated wetlands once again. Then, when current President Joe Biden took office, his EPA administrator rebuilt WOTUS, restoring its protections to pre-Trump levels. That’s more or less where the rule remained until yesterday…
“The wetlands on the Sackett property are distinguishable from any…waters [that are covered under the CWA],” wrote Justice Samuel Alito, because they aren’t visibly connected to them. Writing for the majority, Alito went on to say that, in order to be eligible for federal protections under the Clean Water Act, a wetland must have a “continuous surface connection with water, making it difficult to determine where the water ends and the wetland begins.”
Creating a balance of water that’s taken from aquifers and water that replenishes aquifers is an important aspect of making sure water will be available when it’s needed.
Image from “Getting down to facts: A Visual Guide to Water in the Pinal Active Management Area,” courtesy of Ashley Hullinger and the University of Arizona Water Resources Research Center
“The Court is basically making the assumption that water only flows on the surface,” Trout Unlimited President and CEO Chris Wood tells F&S. “They’re making the assumption that there’s no such thing as groundwater, no such thing as sub-surface flow. It totally flies in the face of the scientific reality, and it’s a dangerous reading of the Clean Water Act.”
[…]
According to TRCP’s Funk, the onus will now fall on individual states to enact whatever clean water protections they see fit. “Most states don’t have the resources to set up clean water programs and enforce those safeguards,” says Funk. “The whole model of the Clean Water Act was that the feds would provide that cooperative base level of protection for the states. With this ruling, that base just dropped considerably.”
The U.S. Supreme Court has ruled in Sackett v. EPA that federal protection of wetlands encompasses only those wetlands that directly adjoin rivers, lakes and other bodies of water. This is an extremely narrow interpretation of the Clean Water Act that could expose many wetlands across the U.S. to filling and development.
Under this keystone environmental law, federal agencies take the lead in regulating water pollution, while state and local governments regulate land use. Wetlands are areas where land is wet for all or part of the year, so they straddle this division of authority.
Swamps, bogs, marshes and other wetlands provide valuable ecological services, such as filtering pollutants and soaking up floodwaters. Landowners must obtain permits to discharge dredged or fill material, such as dirt, sand or rock, in a protected wetland.
This can be time-consuming and expensive, which is why the Supreme Court’s ruling on May 25, 2023, will be of keen interest to developers, farmers and ranchers, along with conservationists and the agencies that administer the Clean Water Act – namely, the Environmental Protection Agency and the U.S. Army Corps of Engineers.
For the last 45 years – and under eight different presidential administrations – the EPA and the Corps have required discharge permits in wetlands “adjacent” to water bodies, even if a dune, levee or other barrier separated the two. The Sackett decision upends that approach, leaving tens of millions of acres of wetlands at risk. https://www.youtube.com/embed/bFGMoFIjKRM?wmode=transparent&start=1 The U.S. has lost more than half of its original wetlands, mainly due to development and pollution.
The Sackett case
Idaho residents Chantell and Mike Sackett own a parcel of land located 300 feet from Priest Lake, one of the state’s largest lakes. The parcel once was part of a large wetland complex. Today, even after the Sacketts cleared the lot, it still has some wetland characteristics, such as saturation and ponding in areas where soil was removed. Indeed, it is still hydrologically connected to the lake and neighboring wetlands by water that flows at a shallow depth underground.
In preparation to build a house, the Sacketts had fill material placed on the site without obtaining a Clean Water Act permit. The EPA issued an order in 2007 stating that the land contained wetlands subject to the law and requiring the Sacketts to restore the site. The Sacketts sued, arguing that their property was not a wetland.
In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA’s order and sent the case back to the lower courts. After losing below on the merits, they returned to the Supreme Court with a suit asserting that their property was not federally protected. This claim in turn raised a broader question: What is the scope of federal regulatory authority under the Clean Water Act?
The Supreme Court has previously recognized that the “waters of the United States” include not only navigable rivers and lakes, but also wetlands and waterways that are connected to navigable bodies of water. But many wetlands are not wet year-round, or are not connected at the surface to larger water systems. Still, they can have important ecological connections to larger water bodies.
In 2006, when the court last took up this issue, no majority was able to agree on how to define “waters of the United States.” Writing for a plurality of four justices in U.S. v. Rapanos, Justice Antonin Scalia defined the term narrowly to include only relatively permanent, standing or continuously flowing bodies of water such as streams, oceans, rivers and lakes. Waters of the U.S., he contended, should not include “ordinarily dry channels through which water occasionally or intermittently flows.”
Acknowledging that wetlands present a tricky line-drawing problem, Scalia proposed that the Clean Water Act should reach “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right.”
In a concurring opinion, Justice Anthony Kennedy took a very different approach. “Waters of the U.S.,” he wrote, should be interpreted in light of the Clean Water Act’s objective of “restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters.”
Accordingly, Kennedy argued, the Clean Water Act should cover wetlands that have a “significant nexus” with navigable waters – “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
Neither Scalia’s nor Kennedy’s opinion attracted a majority, so lower courts were left to sort out which approach to follow. Most applied Kennedy’s significant nexus standard, while a few held that the Clean Water Act applies if either Kennedy’s standard or Scalia’s is satisfied.
The Biden administration responded with its own rule defining waters of the United States in terms of the presence of either a significant nexus or continuous surface connection. However, this rule was promptly embroiled in litigation and will require reconsideration in light of Sackett v. EPA.
The Sackett decision and its ramifications
The Sackett decision adopts Scalia’s approach from the 2006 Rapanos case. Writing for a five-justice majority, Justice Samuel Alito declared that “waters of the United States” includes only relatively permanent, standing or continuously flowing bodies of water, such as streams, oceans, rivers, lakes – and wetlands that have a continuous surface connection with and are indistinguishably part of such water bodies.
None of the nine justices adopted Kennedy’s 2006 “significant nexus” standard. However, Justice Brett Kavanaugh and the three liberal justices disagreed with the majority’s “continuous surface connection” test. That test, Kavanaugh wrote in a concurrence, is inconsistent with the text of the Clean Water Act, which extends coverage to “adjacent” wetlands – including those that are near or close to larger water bodies.
“Natural barriers such as berms and dunes do not block all water flow and are in fact evidence of a regular connection between a water and a wetland,” Kavanaugh explained. “By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
The majority’s ruling leaves little room for the EPA or the Army Corps of Engineers to issue new regulations that could protect wetlands more broadly.
The court’s requirement of a continuous surface connection means that federal protection may no longer apply to many areas that critically affect the water quality of U.S. rivers, lakes and oceans – including seasonal streams and wetlands that are near or intermittently connected to larger water bodies. It might also mean that construction of a road, levee or other barrier separating a wetland from other nearby waters could remove an area from federal protection.
Congress could amend the Clean Water Act to expressly provide that “waters of the United States” includes wetlands that the court has now stripped of federal protection. However, past efforts to legislate a definition have fizzled, and today’s closely divided Congress is unlikely to fare any better.
Whether states will fill the breach is questionable. Many states have not adopted regulatory protections for waters that are outside the scope of “waters of the United States.” In many instances, new legislation – and perhaps entirely new regulatory programs – will be needed.
Finally, a concurring opinion by Justice Clarence Thomas hints at potential future targets for the court’s conservative supermajority. Joined by Justice Neil Gorsuch, Thomas suggested that the Clean Water Act, as well as other federal environmental statutes, lies beyond Congress’ authority to regulate activities that affect interstate commerce, and could be vulnerable to constitutional challenges. In my view, Sackett v. EPA might be just one step toward the teardown of federal environmental law.
This is an update of an article originally published on Sept. 26, 2022.
The Wood River Wetland in southern Oregon is home to an array of biodiverse vegetation and is a freshwater ecoregion. Photo credit: Bureau of Land Management
Experts in environmental law said the decision would leave many wetlands subject to pollution without penalty, sharply undercutting the E.P.A.’s authority to protect them under the Clean Water Act…Kevin Minoli, who worked as a senior E.P.A. lawyer from the Clinton through the Trump administrations, overseeing the enforcement of Clean Water Act regulations, said the decision would have enormous practical consequences and estimated that it would affect more than half the nation’s wetlands…
The decision was nominally unanimous, with all the justices agreeing that the homeowners who brought the case should not have been subject to the agency’s oversight because the wetlands on their property were not subject to regulation in any event. But there was sharp disagreement about a new test the majority established to determine which wetlands are covered by the law. Justice Brett M. Kavanaugh, joined by the three liberal justices in a concurring opinion, said the decision would harm the federal government’s ability to address pollution and flooding.
“By narrowing the act’s coverage of wetlands to only adjoining wetlands,” he wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
[…]
“There,” she wrote, “the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.”
Wetlands, which are havens of biodiversity, offer priceless ecological benefits. As wetlands are lost to development nationwide, critics of the dam project worry about its local impact.
(Photo Credit: John Fielder via Writers on the Range)
In today’s [May 25, 2023] ruling on Sackett v. EPA, the Supreme Court dramatically narrowed the scope of the Clean Water Act, undoing protections that have safeguarded the nation’s waters for over 50 years. Because it erases critical protections for tens of millions of acres of wetlands, the court’s ruling threatens the clean drinking water sources for millions of Americans.
Overturning federal protections for wetlands makes them vulnerable to pollution and harmful development, which impacts water quality, groundwater supplies, flood protection, and habitat for plants, fish, and wildlife. It will also make it more expensive to treat our water, driving up costs for millions of people. The court’s ruling will allow further destruction of wetlands, which will increase the rate and severity of flooding and flood damages in many places.
Tom Kiernan, President and CEO of American Rivers, made the following statement:
“The court’s ruling is a serious blow to wetlands, which are essential to clean, affordable drinking water, public health, and flood protection. Today’s ruling puts rivers and people at greater risk from pollution and harm. We urge state officials, the Biden Administration, and Congress to act quickly to safeguard rivers, wetlands, and streams that are so vital to our health and safety, environment, and economy. Rivers should unite us, not divide us.”
“Without strong, science-based protections, the rivers and wetlands that are the lifeblood of our nation will suffer irreparable harm. We risk going backwards to a time of beach closures and rivers choked with pollution. This ruling will exacerbate environmental injustices as the worst impacts harm communities of color. American Rivers will continue to stand with local partners and frontline communities to secure equitable protections for rivers and clean water nationwide. ”
Sources/Usage: Public Domain.
Research Hydrologist Martin Briggs (USGS) collects ground-penetrating radar (GPR) data. He is wearing special ice cleats on his shoes to have better traction walking on the ice. (April 2017)
Click the link to read the article on the USGS website:
What is Hydrology?
Water is one of our most precious natural resources. Without it, there would be no life on earth. Hydrology has evolved as a science in response to the need to understand the complex water system of the earth and help solve water problems. This hydrology primer gives you information about water on Earth and humans’ involvement and use of water.
Introduction
Hydrology is the study of water
Water is one of our most important natural resources. Without it, there would be no life on earth. The supply of water available for our use is limited by nature. Although there is plenty of water on earth, it is not always in the right place, at the right time and of the right quality. Adding to the problem is the increasing evidence that chemical wastes improperly discarded yesterday are showing up in our water supplies today. Hydrology has evolved as a science in response to the need to understand the complex water systems of the Earth and help solve water problems. Hydrologists play a vital role in finding solutions to water problems, and interesting and challenging careers are available to those who choose to study hydrology.
Water and People
Estimates of water use in the United States indicate that about 355 billion gallons per day (one thousand million gallons per day, abbreviated Bgal/d) were withdrawn for all uses during 2010. This total has declined about 17 percent since 1980. Fresh groundwater withdrawals (76.0 Bgal/d) during 2010 were 8 percent less than during 1980. Fresh surface-water withdrawals for 2010 were 230 Bgal/d, 18 percent less than in 1980.
Much of our water use is hidden. Think about what you had for lunch. A hamburger, for example, requires water to raise wheat for the bun, to grow hay and corn to feed the cattle and to process the bread and beef. Together with french fries and a soft drink, this all-American meal uses about 1,500 gallons of water — enough to fill a small swimming pool. How about your clothes? To grow cotton for a pair of jeans takes about 400 gallons. A shirt requires about 400 gallons. How do you get to school or to the store? To produce the amount of finished steel in a car has in the past required about 32,000 gallons of water. Similarly, the steel in a 30-pound bicycle required 480 gallons. This shows that industry must continue to strive to reduce water use through manufacturing processes that use less water, and through recycling of water.
What is Hydrology?
Hydrology is the science that encompasses the occurrence, distribution, movement and properties of the waters of the earth and their relationship with the environment within each phase of the hydrologic cycle. The water cycle, or hydrologic cycle, is a continuous process by which water is purified by evaporation and transported from the earth’s surface (including the oceans) to the atmosphere and back to the land and oceans. All of the physical, chemical and biological processes involving water as it travels its various paths in the atmosphere, over and beneath the earth’s surface and through growing plants, are of interest to those who study the hydrologic cycle.
There are many pathways the water may take in its continuous cycle of falling as rainfall or snowfall and returning to the atmosphere. It may be captured for millions of years in polar ice caps. It may flow to rivers and finally to the sea. It may soak into the soil to be evaporated directly from the soil surface as it dries or betranspired by growing plants. It may percolate through the soil to ground water reservoirs (aquifers) to be stored or it may flow to wells or springs or back to streams by seepage. The cycle for water may be short, or it may take millions of years.
People tap the water cycle for their own uses. Water is diverted temporarily from one part of the cycle by pumping it from the ground or drawing it from a river or lake. It is used for a variety of activities such as households, businesses and industries; for irrigation of farms and parklands; and for production of electric power. After use, water is returned to another part of the cycle: perhaps discharged downstream or allowed to soak into the ground. Used water normally is lower in quality, even after treatment, which often poses a problem for downstream users.
The hydrologist studies the fundamental transport processes to be able to describe the quantity and quality of water as it moves through the cycle (evaporation, precipitation, streamflow, infiltration, groundwater flow, and other components). The engineering hydrologist, or water resources engineer, is involved in the planning, analysis, design, construction and operation of projects for the control, utilization, and management of water resources. Water resources problems are also the concern of meteorologists, oceanographers, geologists, chemists, physicists, biologists, economists, political scientists, specialists in applied mathematics and computer science, and engineers in several fields.
What Hydrologists Do?
Hydrologists apply scientific knowledge and mathematical principles to solve water-related problems in society: problems of quantity, quality and availability. They may be concerned with finding water supplies for cities or irrigated farms, or controlling river flooding or soil erosion. Or, they may work in environmental protection: preventing or cleaning up pollution or locating sites for safe disposal of hazardous wastes.
Persons trained in hydrology may have a wide variety of job titles. Scientists and engineers in hydrology may be involved in both field investigations and office work. In the field, they may collect basic data, oversee testing of water quality, direct field crews and work with equipment. Many jobs require travel, some abroad. A hydrologist may spend considerable time doing field work in remote and rugged terrain. In the office, hydrologists do many things such as interpreting hydrologic data and performing analyses for determining possible water supplies. Much of their work relies on computers for organizing, summarizing and analyzing masses of data, and for modeling studies such as the prediction of flooding and the consequences of reservoir releases or the effect of leaking underground oil storage tanks.
The work of hydrologists is as varied as the uses of water and may range from planning multimillion dollar interstate water projects to advising homeowners about backyard drainage problems.
San Luis Valley. Photo credit: The Alamosa Citizen
Surface Water
Most cities meet their needs for water by withdrawing it from the nearest river, lake or reservoir. Hydrologists help cities by collecting and analyzing the data needed to predict how much water is available from local supplies and whether it will be sufficient to meet the city’s projected future needs. To do this, hydrologists study records of rainfall, snowpack depths and river flows that are collected and compiled by hydrologists in various government agencies. They inventory the extent river flow already is being used by others.
Managing reservoirs can be quite complex, because they generally serve many purposes. Reservoirs increase the reliability of local water supplies. Hydrologists use topographic maps and aerial photographs to determine where the reservoir shorelines will be and to calculate reservoir depths and storage capacity. This work ensures that, even at maximum capacity, no highways, railroads or homes would be flooded.
Deciding how much water to release and how much to store depends upon the time of year, flow predictions for the next several months, and the needs of irrigators and cities as well as downstream water-users that rely on the reservoir. If the reservoir also is used for recreation or for generation of hydroelectric power, those requirements must be considered. Decisions must be coordinated with other reservoir managers along the river. Hydrologists collect the necessary information, enter it into a computer, and run computer models to predict the results under various operating strategies. On the basis of these studies, reservoir managers can make the best decision for those involved.
The availability of surface water for swimming, drinking, industrial or other uses sometimes is restricted because of pollution. Pollution can be merely an unsightly and inconvenient nuisance, or it can be an invisible, but deadly, threat to the health of people, plants and animals.
Hydrologists assist public health officials in monitoring public water supplies to ensure that health standards are met. When pollution is discovered, environmental engineers work with hydrologists in devising the necessary sampling program. Water quality in estuaries, streams, rivers and lakes must be monitored, and the health of fish, plants and wildlife along their stretches surveyed. Related work concerns acid rain and its effects on aquatic life, and the behavior of toxic metals and organic chemicals in aquatic environments. Hydrologic and water quality mathematical models are developed and used by hydrologists for planning and management and predicting water quality effects of changed conditions. Simple analyses such as pH, turbidity, and oxygen content may be done by hydrologists in the field. Other chemical analyses require more sophisticated laboratory equipment. In the past, municipal and industrial sewage was a major source of pollution for streams and lakes. Such wastes often received only minimal treatment, or raw wastes were dumped into rivers. Today, we are more aware of the consequences of such actions, and billions of dollars must be invested in pollution-control equipment to protect the waters of the earth. Other sources of pollution are more difficult to identify and control. These include road deicing salts, storm runoff from urban areas and farmland, and erosion from construction sites.
Researchers with the University of Nebraska-Lincoln take groundwater samples from the Loup River in the Sandhills of Nebraska in September 2018. By sampling groundwater and determining its age, they hope to determine whether predictions for groundwater discharge rates and contamination removal in watersheds are accurate. Photo credit: Troy Gilmore
Groundwater
Groundwater, pumped from beneath the earth’s surface, is often cheaper, more convenient and less vulnerable to pollution than surface water. Therefore, it is commonly used for public water supplies. Groundwater provides the largest source of usable water storage in the United States. Underground reservoirs contain far more water than the capacity of all surface reservoirs and lakes, including the Great Lakes. In some areas, ground water may be the only option. Some municipalities survive solely on groundwater.
Hydrologists estimate the volume of water stored underground by measuring water levels in local wells and by examining geologic records from well-drilling to determine the extent, depth and thickness of water-bearing sediments and rocks. Before an investment is made in full-sized wells, hydrologists may supervise the drilling of test wells. They note the depths at which water is encountered and collect samples of soils, rock and water for laboratory analyses. They may run a variety of geophysical tests on the completed hole, keeping and accurate log of their observations and test results. Hydrologists determine the most efficient pumping rate by monitoring the extent that water levels drop in the pumped well and in its nearest neighbors. Pumping the well too fast could cause it to go dry or could interfere with neighboring wells. Along the coast, overpumping can cause saltwater intrusion. By plotting and analyzing these data, hydrologists can estimate the maximum and optimum yields of the well.
Polluted groundwater is less visible, but more insidious and difficult to clean up, than pollution in rivers and lakes. Ground water pollution most often results from improper disposal of wastes on land. Major sources include industrial and household chemicals and garbage landfills, industrial waste lagoons, tailings and process wastewater from mines, oil field brine pits, leaking underground oil storage tanks and pipelines, sewage sludge and septic systems. Hydrologists provide guidance in the location of monitoring wells around waste disposal sites and sample them at regular intervals to determine if undesirable leachate — contaminated water containing toxic or hazardous chemicals — is reaching the ground water.
In polluted areas, hydrologists may collect soil and water samples to identify the type and extent of contamination. The chemical data then are plotted on a map to show the size and direction of waste movement. In complex situations, computer modeling of water flow and waste migration provides guidance for a clean-up program. In extreme cases, remedial actions may require excavation of the polluted soil. Today, most people and industries realize that the amount of money invested in prevention is far less than that of cleanup. Hydrologists often are consulted for selection of proper sites for new waste disposal facilities. The danger of pollution is minimized by locating wells in areas of deep ground water and impermeable soils. Other practices include lining the bottom of a landfill with watertight materials, collecting any leachate with drains, and keeping the landfill surface covered as much as possible. Careful monitoring is always necessary.
Careers in Hydrology
Students who plan to become hydrologists need a strong emphasis in mathematics, statistics, geology, physics, computer science, chemistry and biology. In addition, sufficient background in other subjects — economics, public finance, environmental law, government policy — is needed to communicate with experts in these fields and to understand the implications of their work on hydrology. Communicating clearly in writing and speech is a basic requirement essential for any professional person. Hydrologists should be able to work well with people, not only as part of a team with other scientists and engineers, but also in public relations, whether it be advising governmental leaders or informing the general public on water issues. Hydrology offers a variety of interesting and challenging career choices for today and tomorrow. It’s a field worth considering.
Source: Hydrology: The Study of Water and Water Problems A Challenge for Today and Tomorrow, a publication of the Universities Council on Water Resources
Dawn Buehler, chairwoman of the Kansas Water Authority, presides over a meeting Wednesday in Colby. The authority voted to adopt language saying Kansas should not deplete the Ogallala Aquifer. (Allison Kite/Kansas Reflector)
COLBY [December 15, 2022] — Kansas should scrap its de facto policy of draining the Ogallala Aquifer, a state board decided Wednesday.
Instead, the board said, the Kansas government should take steps to stop the decline of the aquifer and save it for future generations.
“It has taken decades for this to be said formally in writing by an official state body,” said Connie Owen, director of the Kansas Water Office. “… This is nothing less than historic.”
Saving the water source that supports Western Kansas’ economy and communities may seem like an obvious stance to take, but for about 70 years, the state’s policies and management decisions have reflected the idea that eventually, the Ogallala would dry up, said Earl Lewis, Kansas’ chief engineer.
The Kansas Water Authority, which is made up of agricultural and industrial water users and utilities, wants to chart a new course. It voted almost unanimously Wednesday to recommend that the state scrap the policy of “planned depletion.”
“It’s time to deal with this while we still have some choices,” said John Bailey, a member of the Kansas Water Authority from Pittsburg. “If we don’t, we’re going to find ourselves in a very bad situation.”
Ogallala Aquifer. Credit: Big Pivots
The Ogallala Aquifer, one of the world’s largest underground sources of fresh water, stretches across parts of eight states from South Dakota to Texas. After World War II farmers started pumping water from it to irrigate crops in arid western Kansas, establishing the region as a booming farming economy. For decades, the water was used with little thought of ensuring enough remained for future generations.
Draining the aquifer would fundamentally change life in western Kansas. Farm properties would lose their value if there’s no water to grow a crop. Families could lose their livelihoods and communities could disappear.
But while it’s widely accepted that the Ogallala is essential to western Kansas, Kansas Water Authority chairwoman Dawn Buehler said many farmers have been waiting on the government to tell them it’s time to do something.
“We’ve heard that over and over from people — that, ‘Well, you know, we’re not at a dangerous zone yet because they’ll let us know when it’s time,’ ” Buehler said.
She continued: “I think the importance of today was saying, ‘It’s time.’ ”
Kansas Geological Survey at the University of Kansas is embarking on a two-year study of playas that hold water during wet periods in Scott County and elsewhere to better understand their role in recharge of the underground Ogallala aquifer. (Bill Johnson/Kansas Geological Survey)
A vote to change course
The Kansas Water Authority, which meets roughly every two months in different locations around the state, voted Wednesday to place language in the body’s annual report to the governor and legislature saying the “policy of planned depletion of the Ogallala Aquifer is no longer in the best interest of the state of Kansas.”
The report will also recommend the state create a formal process to establish goals and actions to “halt the decline of the Ogallala Aquifer while promoting flexible and innovative management within a timeframe that achieves agricultural productivity, thriving economies and vibrant communities — now and for future generations of Kansans.”
It had wide support among the authority members.
“My opinion of this is that it should have been done 15 years ago or 20,” said Lynn Goossen, a farmer from Colby who serves on the Kansas Water Authority and the board of the groundwater management district in northwest Kansas.
Goossen said there are parts of Kansas where the aquifer still has abundant water left but that people are “sticking their heads in the sand” rather than saving it.
Kansas Aqueduct route via Circle of Blue
Some water users have pursued a longshot idea to draw water from the Missouri River via an aqueduct to southwest Kansas. They trucked 6,000 gallons of water from northeast Kansas across the state as a “proof of concept.”
The goal to “halt” the decline of the aquifer gave pause to one member of the authority who asked that the statement instead say officials should “address” the decline of the aquifer.
Randy Hayzlett, a farmer and rancher from Lakin who serves on the authority, was the lone vote against the language, though the subsequent vote to send the full annual report to policymakers was unanimous.
Hayzlett said he couldn’t support establishing the goal without details about what it would mean to “halt” the decline of the aquifer.
“That’s a pretty strong word, and it’s going to affect a lot of people,” he said.
Hayzlett said he wanted to do everything possible to remedy the decline of the Ogallala but didn’t want to throw a word out there without a plan to achieve it.
“Is it going to halt declining the aquifer? Is it going to halt the economy of western Kansas?” he said. “Just what’s it going to put a cap on and then how are we going to get there?”
Lewis said Kansas has talked about the issue of the Ogallala Aquifer for 50 years. If authority members wait for a plan, he said, they’ll get bogged down in the details.
“What you’re doing is really setting a course,” Lewis said. “You’re saying, ‘I want to go in that direction. … I don’t know how I’m going to get there and it’s going to take a lot of us working together to get there.’ ”
Click the link to read the release on the USDA website:
The U.S. Department of Agriculture (USDA) and the State of Colorado are continuing and strengthening their Conservation Reserve Enhancement Program (CREP) partnership to support and empower Colorado’s agricultural producers and landowners in reducing consumptive water use and protecting water quality, while conserving critical natural resources. Specifically, the newly revised Colorado Republican River CREP project, now available through USDA’s Farm Service Agency (FSA) and the Colorado Department of Natural Resources, will offer producers a dryland crop production practice on eligible cropland. This option will give producers meaningful tools to continue farming as they work toward permanently retiring water rights and conserving the Ogallala Aquifer for future generations.
“This project is an example of how targeted and thoughtful federal-state partnerships can help address local natural resource concerns,” said FSA Administrator Zach Ducheneaux. “The Colorado Republican River Conservation Reserve Enhancement Program (CREP) will help us meet an intertwined and complex set of challenges head-on, providing opportunities for producers to keep working lands working while reducing their water use and adapting climate-resilient agricultural practices. With the new dryland crop production practice provided through this agreement, producers with eligible land will have both the authority and access to the necessary technical assistance to successfully transition away from irrigated production while maintaining soil health and wildlife habitat. I am deeply grateful for the State of Colorado’s commitment to not just reaching an agreement but reaching the right agreement and strengthening a long-term partnership that will support Colorado producers into the future.”
Through the revised Colorado Republican River CREP, USDA and the State of Colorado will make resources available to program participants who voluntarily enroll in CRP for 14-year to 15-year contracts. This CREP provides participants with two ways to enroll eligible land. Producers can enroll eligible land in “CP100, Annual Crop Production, Non-Irrigated.” This practice transitions irrigated cropland to non-irrigated crop production and establishes complimentary wildlife habitat in and along the cropland. Additionally, participants within the Republican River CREP project area may enroll eligible land in “CP2, Permanent Native Grasses,” “CP4D, Permanent Wildlife Habitat,” and “CP23 or CP23A, Wetland Restoration.” These conservation practices remove cropland from agricultural production and convert the land to an approved conservation cover.
Through both enrollment options, producers will earn an annual rental payment and cost share on eligible components of the practice.
Crop residue November 4, 2021. Photo credit: Joel Schneekloth
The dryland crop production practice is unique because producers will be able to keep these lands working while they implement conservation-minded agricultural practices including no till farming, cover crop installation and wildlife-friendly harvesting. USDA’s Natural Resources Conservation Service (NRCS) will work with eligible producers to develop conservation plans which include an approved annual crop rotation, minimum crop residue requirements, and management practices that support erosion mitigation and wildlife habitat. Unlike continuous and general CRP enrollment, participants with land enrolled in the CP100 may earn additional income from crops harvested from this acreage.
“By leveraging this CREP program, we can combine significant long-term reduction of consumptive water use and conservation-based dryland crop production when drought and water conservation resource concerns exist, as they so currently do,” said Kent Peppler, FSA’s Colorado State Executive Director. “This approach showcases that when we work to promote both production and conservation hand-in-hand, we have the capacity to create unique partnerships that benefit our economies, landscapes, and communities.”
Dan Gibbs, Executive Director, Colorado Department of Natural Resources, highlighted the positive impact this agreement will have on conservation efforts in the basin. Gibbs said, “We are excited about the outcome of this collaborative effort with the U.S. Department of Agriculture’s Farm Service Agency. This agreement will help Colorado continue to advance its conservation efforts that are leading the basin toward a sustainable future in agriculture. The dryland production alternative provides more options that attract greater participation in the reduction of irrigation while helping preserve the economy and culture of the local region.”
“Through partnership with DNR and USDA, Colorado farmers and ranchers will have the opportunity to continue production while focusing on conservation efforts,” said Kate Greenberg, Colorado’s Commissioner of Agriculture. “This agreement dovetails with CDA’s STAR Soil Health program, which helps bring financial and technical assistance to producers interested in expanding or introducing new climate smart practices into their operations,” said Colorado Commissioner of Agriculture Kate Greenberg. “Farmers and ranchers are experiencing first-hand the impacts of drought and climate change. Tools such as dryland CREP that focus on farmer-led solutions to healthy soils and water conservation are key to mitigating these effects in agricultural landscapes and providing producers options.”
Interested farmers, ranchers, and agricultural landowners are encouraged to contact FSA at their local USDA Service Center to learn more or to participate. Find contact information at farmers.gov/service-locator.
More Information
Currently, CREP has 35 projects in 27 states. In total, more than 784,800 acres are enrolled in CREP. The Colorado Republican River CREP is part of USDA’s broader effort to leverage CREP as an important tool to address climate change and other natural resources challenges while expanding opportunities for producers and communities, especially those historically underserved by USDA. In December 2021, USDA announced improvements to the program as well as additional staff to support the program.
USDA touches the lives of all Americans each day in so many positive ways. Under the Biden-Harris administration, USDA is transforming America’s food system with a greater focus on more resilient local and regional food production, fairer markets for all producers, ensuring access to safe, healthy and nutritious food in all communities, building new markets and streams of income for farmers and producers using climate smart food and forestry practices, making historic investments in infrastructure and clean energy capabilities in rural America, and committing to equity across the Department by removing systemic barriers and building a workforce more representative of America. To learn more, visit usda.gov.
USDA is an equal opportunity provider, employer and lender.
The LMDT is west of Hwy. 91 north of Leadville. Forest, wetlands, and a small neighborhood are located nearby. Photo credit: Reclamation
Click the link to read the release on the Reclamation webiste (Anna Perea and Elizabeth Smith ):
LOVELAND, Colo. — The Bureau of Reclamation announces a $56 million investment from the President’s Investing in America agenda for the construction of a replacement Leadville Mine Drainage Tunnel Treatment Plant. Originally built in 1991, the plant removes heavy metals from contaminated water caused by mining operations in the Leadville area. It has since reached its service life, and this investment from the Bipartisan Infrastructure Law will ensure the plant continues to protect water supply
The Department of the Interior recently announced a nearly $585 million investment from the Bipartisan Infrastructure Law for infrastructure repairs on water delivery systems. Funds will support 83 projects across all five Reclamation regions, including the Leadville Mine treatment plant.
Since 1991, the treatment plant has operated to remove lead, zinc, manganese, iron, and other heavy metals from contaminated water that flows from the 2-mile-long Leadville Mine Drainage Tunnel. The plant sends 650 million gallons per year of treated, clean water to the headwaters of the Arkansas River in accordance with Environmental Protection Agency guidelines.
“The replacement of the treatment plant represents one of the key priorities that the Bipartisan Infrastructure Law is intended to accomplish, protecting our water supplies for people and the natural environment,” said Jeff Rieker, Eastern Colorado Area Office Manager. “This funding will allow us to replace aging infrastructure that is critical for continued protection of the water resources of the Arkansas River, benefitting both the river itself, as well as the people who rely on it for a wide range of activities and uses.”
At present, the treatment plant has surpassed its expected service life of roughly 30 years. Over the next several years, Reclamation will construct a new treatment plant that incorporates knowledge gained over the past three decades, focuses on safety and improves the plant’s visual impact.
“The new plant will provide a longer service life and continue Reclamation’s commitment to community safety and producing clean water for the Arkansas River,” said Plant Supervisor, Jenelle Stefanic. “There will also be more maneuverability within the floor plan and additional safety features such as fall protection and noise reduction technology.”
Prior to mining, snowmelt and rain seep into natural cracks and fractures, eventually emerging as a freshwater spring (usually). Graphic credit: Jonathan Thompson
Click the link to read the article on the InkStain website (John Fleck):
After a couple of years of setback, the aquifer underneath the University of New Mexico neighorhood is rising again.
The spring measurement shows that it’s risen three feet since last year around this time.
The annual variability (the graph’s ups and downs) are the result of regional groundwater pumping for our municipal supply – more pumping in summer, less in winter. It’s fun to see how the regional aquifer responds, like a big bathtub filled with gravel and sand.
The long term upward trend, beginning in 2006-08-ish, is the result of a) significant conservation reducing overall municipal demand, and b) a shift to imported surface water via the San Juan-Chama Project.
The dip in 2020-21 is because we had a badass drought that required us to shift a significant amount of our supply off of that imported surface water and increase our groundwater pumping. The aquifer here dropped five feet from 2021 to 2022, for example.
This is a great example of polycentric governance. Absent a top-down (read state government) regulatory framework, our local water utility, the Albuquerque Bernalillo County Water Utility Authority, has taken it upon itself to serve as a sort of de facto manager of this aquifer – not because it’s our legal responsibility (though there are some legal entanglements with the state water rights regime) but because we, as a community, concluded a number of years ago that it was in our best interest to take care of the aquifer. (Disclosure: I serve on the ABCWUA Technical Customer Advisory Committee.)
This is just one measurement point, because one of my intellectual tricks is to pick a gage (usually a river gage, but also this one for groundwater) and pay attention to it. This is tricky, because what if it’s not representative? But there’s been a lot of work by the USGS and others looking at our groundwater network as a whole, and the trend holds in general in the big, deep aquifer beneath Albuquerque. (One of my other favorite wells, City #2, which goes back to the 1950s, is up 6 inches year-over-year. Another favorite is City #3, which is located at the heart of one of the thick geographies I’m writing about for the new book, and is really close to one of the ABCWUA well fields, which tells another fabulous story as a result, but I’ve got a chapter to finish today so I’ll leave that for another day.)
Rio Grande overbanking, Albuquerque, April 22, 2023. By John Fleck
Click the link to read the article on the Inkstain website (John Fleck)
In the early 1990s, a group of New Mexico scientists set up experimental plots at the Bosque del Apache National Wildlife Refuge on the Rio Grande south of Albuquerque for in an effort to determine what might happen when water was reintroduced to the flood-starved woods flanking the river. Their description of what happened is a delight:
From time immemorial, this must have been a near-annual event, as the crickets and spiders scurried ahead of rising water each spring as the Rio Grande spread across the valley floor – bad for people trying to live here, great for the flora and fauna. From the same group of authors:
This changed in the early 1930s, dramatically, in an ecological instant as the newly formed Middle Rio Grande Conservancy District dug drainage ditches on either side of the Rio Grande and across the valley floor, throwing up the excavated dirt in spoil bank levees flanking the river’s then-main channel.
We understand what happened next thanks to a University of New Mexico biology student named Marjorie Van Cleave, who for her 1935 masters thesis documented the change. In that historic moment, plants and animals dependent on the wetlands spread across the valley floor disappeared.
Cattails – gone. Sedges, with deeper roots, hung on for a bit longer before fading into the ecological mists. Cocklebur, Russian thistle, lamb’s quarters, sunflowers, and pigweed colonized the old marshlands of the valley floor. We are forever in Van Cleave’s debt.
What we’re seeing this spring on the fringes of the Rio Grande bears so little resemblance to the valley-wide ecosystem that it seems cheap to even compare, but the careful work of Cliff Crawford, Manual Molles, and their colleagues three decades ago trying to address this question – What would happen if we reintroduced just a bit of flooding to the forests on the river’s edges? – nevertheless draws a critical connection between the Rio Grande and the community that surrounds it.
For our forthcoming book Ribbons of Green, Bob Berrens and I are interested in that critical moment in the 1930s when, with levees and drains, the valley floor around Albuquerque was disconnected from the river. The ecology was changed, suddenly, as was the connection between human communities and their river.
Much of our modern understanding of the bosque ecosystem is built on the work of Crawford and Molles, who started taking students down to the river in the 1980s. For much of the time between Van Cleave’s exhaustive work and the return of Crawford, Molles, and their students in the 1980s, little scientific attention seems to have been paid to the riverside ecosystem.
I can’t find the newspaper story I wrote based on a visit to the bosque with Cliff Crawford and his then-grad student and now my good friend Mary Harner. But I did find the obituary I wrote when Cliff died in 2010.
It’s a model in my mind for public-facing science, and I’ve been thinking about it a lot as Bob and I wrestle with how to explain, in our book, Albuquerque’s modern relationship with the Rio Grande.
Mary has done an amazing job with her Witnessing Watersheds project of thinking about and documenting Albuquerque’s historic relationship with the river, and the time I have spent with her – mostly walking in the bosque, some to think of it – has been a huge influence on how I think about and approach this question.
Given flood control flow constraints, it’s hard to to get enough water through town to rise up out of the main channel and get back into the woods these days, to get it to “come alive with hopping crickets and running spiders,” but with 2023’s big snowpack, but there enough low spots providing delightful exceptions, and we’re already starting to see it rising up into those. Lissa and I were on a bosque trail near downtown Saturday when we were stopped by the water you see in the picture at the top of the blog.
There’s a sciency thing going on here – nutrient cycling, clearing out all the dry crud built up on the forest floor that in a more “natural” system would be wetted most years. (It was, in fact, Mary Harner who turned me on to the Molles et al paper I quoted above, with the hopping crickets and running spiders, when I asked for help running down the nutrient cycling piece. It turns out to be super nerdy and I probably won’t put it in the book.)
But it’s the cultural piece that I’m more interested in – the way we as a community have shifted from a desire in the 1930s to fence ourselves off from the river completely, to embracing overbanking with delight.
As often happens with these little mini-essays – sketches, really, for the book – this didn’t end up where I expected. I started with the intention of writing about nutrient cycling – printouts of research papers scattered across my desk, underlined bits, an excessive number of browser tabs.
But I realize that this is, in fact, a story about the relationship between a community and its river.
A cottonwood forest in Bosque del Apache National Wildlife Refuge. Credit: Matthew Schmader/Open Space Division
COLORADO is estimating 750,000 acre-feet on the Rio Grande and 405,000 acre-feet on the Conejos River, both dramatically up from a year ago thanks to healthy snowpack in the San Juan Mountains, State Engineer Kevin Rein told the Rio Grande Compact Commission on Friday.
“Forecasted river flows are much better this year, especially for the rivers starting in the San Juan Mountains,” Rein said. “Streamflows from the San Juan Mountains are estimated to be 130 to 250 percent of the last 30-year average.”
The Sangre de Cristo Mountains are at near average snowpack conditions, but still better than recent years, Rein said.
Streamflows on the Trinchera, Culebra, and Crestone creeks are forecasted at 90 to 120 percent of the last 30-year average, he said.
In 2022, the Rio Grande had 442,000 acre-feet and the Conejos 266,000 acre-feet for a third straight year of below average stream flows.
Rein’s presentation to the Rio Grande Compact Commission, which manages water on the Rio Grande for the states of Colorado, New Mexico and Texas, included a report on the San Luis Valley’s subdistrict system and Colorado’s groundwater pumping rules that Valley irrigators have to follow.
Subdistrict 1, which is the biggest land subdivision in the San Luis Valley with 3,000 water wells and where farmers hold contracts with entities like Coors, Walmart and Safeway, has submitted a fourth plan of water management to Rein and the Colorado Division of Water Resources in its effort to meet the sustainability requirements for Upper Rio Grande’s unconfined aquifer.
“It is struggling with meeting its sustainability requirements in the unconfined aquifer,” Rein told the Rio Grande Compact Commission.
The proposed fourth plan of water management by Subdistrict 1 would require irrigators to cover groundwater withdrawals with natural surface water or through the purchase of surface water credits. The plan calls for a 1-to-1 augmentation, meaning for every acre-foot of water used, an acre-foot has to be returned to the unconfined aquifer through recharging ponds.
In the San Luis Valley, well owners must replace their injurious river depletions by participating in a subdistrict or by getting a court-approved augmentation plan. The subdistricts, governed by the Rio Grande Water Conservation District, must get state approval for annual replacement plans that show how farmers and ranchers are covering their water depletions.
There are three upcoming state water court cases involving irrigators in Subdistrict 1 who filed their own augmentation plans in an effort to stay out of the subdistrict.
The largest of the three cases involves the Sustainable Water Augmentation Group (SWAG), which consists of 17,000 irrigated acres in Subdistrict 1. That case is set for a five-week trial in July and will be closely watched to see how a proposed augmentation plan this large is reviewed by state water court.
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THE federal government’s Closed Basin Project reared its head at Thursday’s special meeting of the Rio Grande Water Conservation District board.
In question was whether Closed Basin water could be included in annual replacement plans as a potential resource for subdistricts to help offset winter depletions to the Rio Grande and Conejos River basins.
The majority of the board answered in the affirmative, with some dissent, and approved resolutions to that effect and then separately approved the respective annual replacement plans of the six subdistricts. Those now get filed with the state Division of Water Resources for review and sign-off and are key plans to show the state how Valley irrigators are replacing the water they pump out in efforts to bring sustainability to the Upper Rio Grande aquifers.
The meeting drew a crowd of water users along the Rio Grande and Conejos River basins, who had heard the subdistrict annual replacement plans were in jeopardy of not being approved because the plans included potential use of Closed Basin water. Without a board-approved annual replacement plan in place, irrigators wouldn’t be able to begin groundwater pumping, hence the turnout and pleas to the board to vote for the plans.
No annual replacement plan, no groundwater pumping, no Valley ag economy was the message the Rio Grande Water Conservation District board members heard.
The U.S. Bureau of Reclamation-managed Closed Basin Project, positioned in the northern end of the Valley, pools surface water and groundwater and pumps the water into a canal to meet Rio Grande Compact and Treaty of Mexico requirements.
In rulings from the Colorado Supreme Court, the water also can be prioritized for private use if there’s water left after meeting annual downstream obligations to New Mexico, Texas and Mexico, and delivering water to the Valley’s wetlands and wildlife refuges.
But rarely is that the case.
With the persistent drought conditions, the Closed Basin Project has reduced its pumping to about 12,500 acre-feet of water a year, said Amber Pacheco, acting general manager of the Rio Grande Water Conservation District. Of that, about 4,000 acre-feet is used to protect the wetlands areas and the rest of the water, or around 8,000 acre-feet, heads downstream.
The Closed Basin has an absolute water right of 42,000 acre-feet annually if conditions allow for it, and pumping is constantly monitored because under federal statute the Closed Basin Project cannot withdraw water to a level two feet below the area being pumped.
“They can’t pump it dry,” Pacheco said. “The Closed Basin Project can’t operate that way.”
Pacheco said the Rio Grande Water Conservation District cannot use Closed Basin water for anything other than wintertime depletions. “We pay all our irrigation-season depletions by other means. We don’t use the Closed Basin for that.”
And despite there being plenty of water users who would like to see the Closed Basin Project shut down and the water kept in the San Luis Valley, including some members of Rio Grande Water Conservation District board, a vote to shut it down isn’t within the boards power.
“This board can’t shut down the Closed Basin. It’s a federal project. They can ask and make comments, but they can’t vote to shut it down.”
But the Rio Grande Water Conservation District can approve an annual replacement plan for a subdistrict that includes the option of using Closed Basin water to offset winter depletions. The meeting at least made that clear.
SLV WATER
Find more coverage of the RWR plan and other Valley water issues HERE
The headwaters of the Rio Grande River in Colorado. Photo: Brent Gardner-Smith/Aspen Journalism
Researchers with the University of Nebraska-Lincoln take groundwater samples from the Loup River in the Sandhills of Nebraska in September 2018. By sampling groundwater and determining its age, they hope to determine whether predictions for groundwater discharge rates and contamination removal in watersheds are accurate. Photo credit: Troy Gilmore
Groundwater levels have declined in most of Nebraska following multiple years of below-average precipitation, University of Nebraska–Lincoln scientists found in a new statewide analysis. About three-quarters of the 4,787 observation wells across the state experienced groundwater level declines during 2021-22.
The Conservation and Survey Division, the natural resource survey component of the School of Natural Resources, compiled the findings in its latest groundwater level report.
For most of the observation wells, the net change in groundwater level was less than 20 feet since predevelopment times — before the widespread use of groundwater for irrigation.
Nebraska still retains a relatively abundant share of the High Plains aquifer system, in contrast to the situation in areas such as western Kansas and northern Texas, where the depletion of the aquifer has been severe, with major negative consequences for local agriculture.
But the survey’s findings highlight the direct negative effects that prolonged below-average precipitation can have on groundwater levels. During the 2020-21 period, 96% of weather reporting stations in Nebraska (166 out of 172) reported below-average precipitation. During the 2021-22 period, 68% of the stations (122 of 179) reported precipitation levels below the 30-year average.
The below-average precipitation values, combined with increased need for irrigation water to maintain crop yields, resulted in groundwater-level declines of more than 10 feet in some parts of the state, university scientists found.
“Changes in groundwater levels in Nebraska are largely dependent on annual fluctuations in precipitation,” said Aaron Young, survey geologist with the School of Natural Resources. “The hotter and drier a growing season is, the less water is available for aquifer recharge, and more water is required for supplemental irrigation of crops, resulting in groundwater-level declines.”
In contrast, wetter years mean that less supplemental irrigation water is required and more water is available for aquifer recharge.
Nebraska’s recent groundwater-level declines are concerning, Young said, in that some wells may need to be drilled deeper if drought conditions persist.
Although Nebraska has, on average, not seen declines in groundwater levels like those seen in Kansas or Texas, the degree of groundwater level change in Nebraska since predevelopment has varied greatly among individual areas, ranging from increases of more than 120 feet to declines of about 130 feet. For most of the state, the net change in groundwater level since predevelopment times has been less than 20 feet.
Parts of Chase, Perkins, Dundy and Box Butte counties, in contrast, have experienced major, sustained declines in groundwater levels due to a combination of factors. Irrigation wells are notably dense in these counties, annual precipitation is comparatively low, and there is little or no surface-water recharge to groundwater there.
The Conservation and Survey Division report was authored by Young and University of Nebraska–Lincoln colleagues Mark Burbach, Susan Lackey, Matt Joeckel and Jeffrey Westrop.
A free PDF of the report can be downloaded here. Print copies can be purchased for $7 at the Nebraska Maps and More Store, 3310 Holdrege St. Phone orders are accepted at 402-472-3471.
Nebraska Rivers Shown on the Map: Beaver Creek, Big Blue River, Calamus River, Dismal River, Elkhorn River, Frenchman Creek, Little Blue River, Lodgepole Creek, Logan Creek, Loup River, Medicine Creek, Middle Loup River, Missouri River, Niobrara River, North Fork Big Nemaha River, North Loup River, North Platte River, Platte River, Republican River, Shell Creek, South Loup River, South Platte River, White River and Wood River. Nebraska Lakes Shown on the Map: Harlan County Lake, Hugh Butler Lake, Lake McConaughy, Lewis and Clark Lake and Merritt Reservoir. Map credit: Geology.com
Interesting tidbit from the Substitute Water Supply Plan Notification List (K.C. Cunillio):
Please find the attached Type B Geothermal Well permit application package and cover letter describing the applications of Geothermal Technologies, Inc.
As part of this permit package, the Applicant is seeking a nontributary determination pursuant C.R.S. 37-90-137(4) for the Lyons Formation (approximate depth 9000’).
Republican River in Colorado January 2023 near the Nebraska border. Photo credit: Allen Best/Big Pivots
Click the link to read the article on the Big Pivots Website (Allen Best):
Climate scientists issue their latest, stern warning while farmers in Colorado’s Republican River Basin grapple with how to be sustainable
The International Panel on Climate Change this week [March 20, 2023] issued its latest report, warning of a dangerous temperature threshold that we’ll breach during the next decade if we fail to dramatically reduce emissions. A Colorado legislative committee on the same day addressed water withdrawals in the Republican River Basin that must be curbed by decade’s end.
In both, problems largely created in the 20th century must now be addressed quickly to avoid the scowls of future generations.
The river basin, which lies east of Denver, sandwiched by Interstates 70 and 76, differs from nearly all others in Colorado in that it gets no annual snowmelt from the state’s mountain peaks. Even so, by tapping the Ogallala and other aquifers, farmers have made it one of the state’s most agriculturally productive areas. They grow potatoes and watermelons but especially corn and other plants fed to cattle and hogs. This is Colorado without mountains, an ocean of big skies and rolling sandhills.
Republican River farmers face two overlapping problems. One is of declining wells. Given current pumping rates, they will go dry. The only question is when. Some already have.
More immediate is how these wells have depleted flows of the Republican River and its tributaries into Nebraska and Kansas. Those states cried foul, citing a 1943 interstate compact. Colorado in 2016 agreed to pare 25,000 of its 450,000 to 500,000 irrigated acres within the basin.
Colorado has a December 2029 deadline. The Republican River Water Conservation District has been paying farmers to retire land from irrigation. Huge commodity prices discourage this, but district officials said they are confident they can achieve 10,000 acres before the end of 2024.
Rod Lenz and siblings moved to the Republican River Basin in 1974 to take advantage of new technology that allowed them to draft the then-vast stores of the Ogallala and other High Plains aquifers. Top, the main stem of the Republican River flows into Nebraska augmented by water from special wells and a pipeline constructed at a cost of $60 million. January 2023 photos/Allen Best
Last year, legislators sweetened the pot with an allocation of $30 million, and a like amount for retirement of irrigated land in the San Luis Valley, which has a similar problem. Since 2004, when it was created, the Republican River district self-encumbered $156 million in fee collections and debt for the transition.
It’s unclear that the district can achieve the 2030 goal. The bill unanimously approved by the Colorado House Agriculture, Water and Natural Resources Committee will, if it becomes law, task the Colorado Water Center at Colorado State University with documenting the economic loss to the region – and to Colorado altogether – if irrigated Republican River Basin agriculture ceases altogether. The farmers may need more help as the deadline approaches.
This all-or-nothing proposition is not academic. Kevin Rein, the state water engineer, testified that he must shut down all basin wells if compact requirements are not met. The focus is on the Republican’s South Fork, between Wray and Burlington.
Legislators were told that relying solely upon water that falls from the sky diminishes production 75 to 80 percent.
In seeking this study, the river district wants legislators to be aware of what is at stake.
Rod Lenz, who chairs the river district board, put it in human terms. His extended-family’s 5,000-acre farm amid the sandhills can support 13 families, he told me. Returned to grasslands, that same farm could support only two families.
An “evolution of accountability” is how Lenz describes the big picture in the Republican River Basin. “We all knew it was coming. But it was so far in the future. Well, the future is here now.”
Much of the agricultural production in the Republican River Basin supports livestock sectors, including this dairy near Holyoke. Photo/Allen Best
The district has 10 committees charged with investigating ways to sustain the basin’s economy and leave its small towns thriving. Can it attract Internet technology developers? Can the remaining water be used for higher-value purposes? Can new technology irrigate more efficiently?
“We do know we must evolve,” Lenz told me. The farmers began large-scale pumping with the arrival of center-pivot sprinklers, a technology invented in Colorado in 1940. They’re remarkably efficient at extracting underground water. Aquifers created over millions of years are being depleted in a century. Now, they must figure out sustainable agriculture. That’s a very difficult conversation.
The Republican River shares similarities with the better-known and much larger Colorado River Basin. The mid-20th century was the time of applying human ingenuity to development of water resources. Now, along with past miscalculations, the warming climate is exacting a price, aridification of the Colorado River Basin.
Observed (1900-2020) and projected (2021-2100) warming relative to pre-industrial temperatures (1850-1900). Projections relate to very low emissions (SSP1-1.9), low emissions (SSP1-2.6), intermediate emissions (SSP2-4.5), high emissions (SSP3-7.0) and very high emissions (SSP5-8.5). Temperatures are colour-coded from the pre-industrial average (blue-grey) through to current warming of 1.1C (orange) and potentially more than 4C by 2100 (purple). Source: IPCC (2023) Figure SPM.1
Globally, the latest report from climate scientists paints an even greater challenge. To avoid really bad stuff, they say, we must halve our greenhouse gas emissions by 2030. They insist upon need for new technologies, including ways to suck carbon out of the atmosphere, that have yet to be scaled.
We need that evolution of accountability described in Colorado’s Republican River Basin. We need a revolution of accountability on the global scale. [ed. emphasis mine]
Yuma and adjoining counties routinely rank among Colorado’s top producers of corn. Photo/Allen Best
On a day in late May [2022] when wildfire smoke obscured the throat of an ancient volcano called Shiprock in the distance, I visited the Ute Mountain Ute farming and ranching operation in the southwestern corner of Colorado. Photo credit: Allen Best/Big Pivots
More than 150 years ago, the U.S. government and the tribe signed treaties that promised the tribe a “permanent home” — a promise the Navajo Nation says includes a sufficient supply of water. The tribe says the government broke its promise to ensure the tribe has enough water and that people are suffering as a result. The federal government disputes that claim. And states, such as Arizona, California and Nevada, argue that more water for the Navajo Nation would cut into already scarce supplies for cities, agriculture and business growth…
The high court will hold oral arguments Monday in a case with critical implications for how water from the drought-stricken Colorado River is shared and the extent of the U.S. government’s obligations to Native American tribes. A win for the Navajo Nation won’t directly result in more water for the roughly 175,000 people who live on the largest reservation in the U.S. But it’s a piece of what has been a multi-faceted approach over decades to obtain a basic need…
DigDeep, which filed a legal brief in support of the Navajo Nation’s case, has worked to help tribal members gain access to water as larger water-rights claims are pressed…
Installing pipe along the Navajo-Gallup Water Supply Project. Photo credit: USBR
Extending water lines to the sparsely populated sections of the 27,000 square-mile (69,000 square-kilometer) reservation that spans three states is difficult and costly. But tribal officials say additional water supplies would help ease the burden and create equity.
“You drive to Flagstaff, you drive to Albuquerque, you drive to Phoenix, there is water everywhere, everything is green, everything is watered up,” said Rex Kontz, deputy general manager of the Navajo Tribal Utility Authority. “You don’t see that on Navajo.”
[…]
For decades, the Navajo Nation has fought for access to surface water, including the Colorado River and its tributaries, that it can pipe to more remote locations for homes, businesses and government offices.
Many Indian reservations are located in or near contentious river basins where demand for water outstrips supply. Map courtesy of the Bureau of Reclamation.
Colorado Springs Utilities is fighting to keep conditional water rights tied to three small reservoirs in the headwaters of the Blue River. Photo credit: Denver Water.
A Front Range water provider is entering its eighth year of trying to keep water rights alive for three small reservoirs in the headwaters of the Blue River in Summit County to take more water from the Western Slope.
Colorado Springs Utilities has been mired in water court since 2015, fighting for its conditional water rights, which date to 1952 and are tied to three proposed reservoirs: Lower Blue Lake Reservoir, which would be built on Monte Cristo Creek with a 50-foot-tall dam and hold 1,006 acre-feet of water; Spruce Lake Reservoir, which would be built on Spruce Creek with an 80- to 90-foot-tall dam and hold 1,542 acre-feet; and Mayflower Reservoir, which would also be built on Spruce Creek with a 75- to 85-foot-tall dam and hold 618 acre-feet.
An acre-foot is the amount of water needed to cover an acre of land to a depth of 1 foot.
The water rights case has eight different opposers, including the town of Breckenridge; Summit County; the Colorado River Water Conservation District; agricultural and domestic water users in the Grand Valley; the Lower Arkansas Water Conservancy District; and a private landowner who has mining claims in the area. Most of the opposers say they own water rights in the area that may be adversely impacted if the Blue River project’s conditional rights are granted.
Representatives from the town of Breckenridge, Summit County and Colorado Springs Utilities all declined to comment on the case to Aspen Journalism.
The proposed reservoirs would feed into Colorado Springs’ Continental-Hoosier system, also known as the Blue River Project, which takes water from the headwaters of the Blue River between Breckenridge and Alma, to Colorado Springs via the Hoosier Tunnel, Montgomery Reservoir and Blue River Pipeline. It is the city’s first and oldest transmountain diversion project. The Hoosier Tunnel takes an average of about 8,000 acre-feet of water a year, according to state diversion records.
Colorado transmountain diversions via the State Engineer’s office
Each year, transmountain diversions take about 500,000 acre-feet from the Colorado River basin to the Front Range. Colorado Springs is a large part of this vast network of tunnels and conveyance systems that move water from the west side of the Continental Divide to the east side, where the state’s biggest cities are located.
Colorado Springs Utilities, which serves more than 600,000 customers in the Pikes Peak region, takes water from the headwaters of the Fryingpan, Roaring Fork, Eagle and Blue rivers — all tributaries of the Colorado River. Colorado Springs gets 50% of its raw water supply — about 50,000 acre-feet annually — from the Colorado River basin, according to Jennifer Jordan, public affairs specialist with Colorado Springs Utilities. The existing Blue River system represents about 9% of Colorado Springs’ total raw water supply, she said.
These wetlands, located on a 150-acre parcel in the Homestake Creek valley that Homestake Partners bought in 2018, would be inundated if Whitney Reservoir is constructed. The Forest Service received more than 500 comments, the majority in opposition to, test drilling associated with the project and the reservoir project itself. Photo credit: Heather Sackett/Aspen Journalism
CSU and the city of Aurora are working on another potential transmountain diversion project: a reservoir on lower Homestake Creek in the Eagle River basin that would hold between 6,850 acre-feet and 20,000 acre-feet.
The River District, which was formed in 1937, in part, to fight transmountain diversions that take water from the Western Slope, is opposing the Blue River water rights case.
“We are open to hear what the applicants have to say about the project, what their needs are and if they can provide meaningful compensation and mitigation of the impacts,” said Peter Fleming, River District general counsel. “At the end of the day, there might be a deal where the West Slope gets a result that hopefully makes sense.”
Proposee Blue River headwaters reservoirs. Credit: Colorado Springs Utilities via Laurine Lassalle/Aspen Journalism
A water rights place holder
In Colorado water law, the prior appropriation doctrine reigns supreme. Those with the oldest water rights get first use of the water, making the oldest rights the most valuable, or senior. Under the prior appropriation system, a water user has to simply put water to “beneficial use” — for example, irrigating land or using water in a home — to get a water right. The user can then ask a court to make it official, securing their place in line.
Conditional water rights are an exception to this rule, letting a water user, such as Colorado Springs Utilities, save their place in line in the prior appropriation system while they work to develop big, complicated, multiyear water projects. But they must file a “diligence” application with the water court every six years, proving that they have, in fact, been working toward developing the project and that they can and will eventually put the water to beneficial use. Hoarding water rights with no real plan to put them to beneficial use amounts to speculation and is not allowed.
In its 2015 diligence filing, CSU said during the previous six years that it had hired consultants — Wilson Water Group and its subcontractors — to do a water supply assessment; an engineering and geotechnical evaluation of each reservoir site; and an investigation of potential environmental effects of development of the reservoirs. CSU said it also acquired 28 undeveloped parcels of land to protect the project’s infrastructure and also performed maintenance work on other parts of the Blue River system that contributed to more than $4.2 million in spending on the overall Blue River Project.
Assistant Pitkin County Attorney Laura Makar is not involved in the Blue River case, but she is a legal expert in conditional water rights.
“The idea is that every six years, you address what the needs are, so you don’t have someone out there parking themselves in line for 100 years,” Makar said. “They must show that the project can and will be completed with diligence in a reasonable time and applied to the beneficial uses in the amounts they have claimed.”
The Wilson Water Group study concludes there is enough water physically and legally available to fill the reservoirs.
Declining snowpack will lead to more variable and unpredictable streamflow. Some of the snowmelt flowing in the Blue River as it joins the Colorado River near Kremmling, Colo., will reach the Lower Basin states. Dec. 3, 2019. Credit: Mitch Tobin, the Water Desk
Ancient fens and endangered species
According to the Wilson Water Group study, there are several environmental considerations. Soil samples indicate that at least a portion of the wetlands near the Lower Blue Lake Reservoir site contain fens, ancient and fragile groundwater-fed wetlands with organic peat soils.
“The presence of fen wetlands may result in permitting challenges,” the report reads.
The report also says the three reservoir sites may be home to endangered species, including Canada lynx and Greenback cutthroat trout. Construction access to the Spruce Lake Reservoir would be challenging and would require a new 2-mile-long road. A new 1.5-mile-long road would be needed for access to Mayflower Lake Reservoir.
The project would need permits from the U.S. Army Corps of Engineers, the Colorado Department of Public Health and Environment and the U.S. Forest Service, and a 1041 permit from Summit County.
Kendra Tully, executive director of the Blue River Watershed Group, said her organization’s main concern with the project is its potential impacts to the already-low flows in the Blue River.
“We do feel like there is an environmental concern already with how much water is allotted for environmental flows in the river, and if we remove anymore from the very, very top, we are just going to affect everything downstream,” she said.
Although the Blue River Watershed Group is not an opposer in the water court case, Tully said the group is encouraging Summit County to do its own environmental impact study of the project and to potentially use their 1041 powers, which allow local governments to regulate development. In 1994, Eagle County stopped Colorado Springs and Aurora from building the Homestake II reservoir project using its 1041 powers to deny permits.
“What we are asking (Summit County) to do is make sure they are really taking into consideration all the power they have with the 1041 permit, which is what CSU will need to actually develop any of their water right,” Tully said.
Timeline
But before permitting and construction of the reservoirs could begin, CSU first has to secure another six-year extension on its conditional storage rights. It has been eight years since CSU filed the diligence case — a lengthy but not totally unusual period of time, according to Makar. If CSU can’t work out agreements with each of the opposers with the help of a water referee, the case may go to a trial, which is not an ideal situation for any water user, Makar said.
“When you get on a trial track, then you are forced into discovery and a standard litigation posture, you’re taking depositions of everyone’s witnesses, and it tends to make people clam up,” she said. “It’s not a great model to allow for discussion and resolution of issues.”
The next status conference in the case is scheduled for April 13.
Aspen Journalism covers water and rivers in collaboration with The Aspen Times.
There’s a bit of a lull in the multiple conversations up and down the Colorado River Basin, with some positions staked out, while the Bureau of Reclamation initiates an ‘emergency environmental impact statement’ to ascertain, supposedly by late summer, what resolution it will either accept from the seven Basin states, or impose on the states, to reduce consumptive use throughout the Basin by two million acre-feet or more.
All of this is of course being covered in the mainstream media as a ‘water war,’ in their constant efforts to pump any cultural exchange up to a ‘let’s you and him fight’ situation. To call cultural negotiations a ‘war,’ even noisy negotitions among parties with interests at stake, both trivializes the terrible nature of ‘war’ and casts the exchange in an often exaggerated aspect of belligerent violence.
Arizona Navy photo via California State University
If you want to read about a Colorado River water war – fictional of course – pick up a copy of The Water Knife by Paolo Bacigalupe. Or if you like the comic opera version of a Colorado River water war, find an account of the 1934 incident when Arizona’s governor called out the Arizona National Guard to go occupy the site where California was beginning construction of Parker Dam and its Colorado River Aqueduct. Once you’ve got that warlust out of your system, come back to where the seven states and the feds are working on negotiated solutions, to avoid war.
Meanwhile, back in Central Arizona…. In my January 4 post on this site, I wrote about one of my favorite tributaries of the Colorado River, ‘the fabled Hassayampa’ in central Arizona, the waters of which, according to desert writer Mary Austin, will cause anyone who drinks to ‘no more see fact as naked fact, but all radiant with the color of romance.’
I opined much earlier here that there were probably more Colorado River tributaries than just that one which had that effect on those drinking from them, as evidenced by the extent to which the naked facts have obviously been left shivering in the dark as the development and management of the entire river has galloped along on the winged steeds of a romantic optimism. A romantic optimism that 6,000 years of both history and prehistory suggest should probably be taken carefully into the desert regions of the world, if at all – as, yes, Major John Wesley Powell tried to say 130 years ago, before he was booed off the stage at an Irrigation Congress pep rally around the turn of the century.
The earlier post was about the fact that the lower Hassayampa River Basin has been in the news as the site of a yet another proposed major new real estate development, Teravalis, in the desert west of Phoenix. If built out, Teravalis would add another 300,000 people to the 5 million already in the Phoenix metropolitan area. It would be competing with an already booming development just to its south in the same basin, the city of Buckeye (see its billboard above), which has gone from a farm village of 6,500 in 2000 to over 100,000 today. Here’s a map that gives you the general lay of the land in the Phoenix area:
The Hassayampa River bed is at the far left, north to south, with no surface flow; a small desert river keeps most of its water underground in the sand, gravel and cobble that protect it from the desert sun. The larger Salt River runs right to left through Phoenix, to its confluence lower center with the Gila River coming up from the south. The proposed Teravalis development lies just west (left) of the White Tank Mountains in the lower Hassayampa Basin. All the little green squares there are agricultural land, mostly irrigated now from groundwater.
But, as noted in the earlier post, Teravalis is temporarily on hold until it can prove that it controls enough water for a 100-year supply, most of which would be groundwater from the Hassayampa Aquifer. At that time, the Arizona Department of Water Resources was reportedly conducting a study of the aquifer, the results of which would also impact the future growth of Buckeye.
As it turns out, that study was already completed, last year! But then-Governor Doug Ducey decided not to release it, apparently under T.S. Eliot’s caution that ‘human kind cannot bear very much reality.’ The new governor Katie Hobbs has released the report, which concludes that, if the proposed development in the west valleys occurs, there will be a cumulative shortfall near the end of the hundred years of more than four million acre-feet of water.
‘I just think there was a lack of real honesty with the people of Arizona about the situation we’re in,’ Governor Hobbs said in an interview for a National Public Radio story. But at the same time, she said she doesn’t think it is necessary at this point to put the brakes on future development. ‘I think if we don’t really address these issues head on, look at the reality of the situation with water, look at how quickly we’re growing, then we will get to that point.’
This is, recall, part of the water supply in a river system whose managers have said at least two million acre-feet in consumptive use have to be cut in the very near future to save the water supply, which drives farmers and cities alike to pumping more groundwater from aquifers, with less renewable water to recharge the aquifers. When groundwater is pumped from an aquifer and not recharged fairly quickly, the ground begins to compress and close up the often tiny spaces from which the water has been drawn; the surface subsides, and the rechargable part of the aquifer disappears, generally forever. Parts of the Salt-Gila river system have already experienced subsidence of a dozen feet or so.
We should also note that a ‘100-year water supply’ depending mostly on groundwater is not necessarily a ‘renewable water supply.’ If the recharge rate is less than the withdrawal rate, it is still water-mining.
But the developers are relatively unfazed by the report. Buckeye Mayor Eric Orsborn, who also owns a construction company, told NPR that the report will help his city in its future water planning. Construction can continue now because the existing development has proved its 100-year supply. And for other developers: ‘I don’t think we want to shut off all of the growth trying to figure out the solution for all the growth. We can do this in an incremental approach.’
The plan to increase the water supplies is basically to go out into the region and look for water to import from other basins. The 100-year rule only applies in the metropolitan corridor; in ‘rural’ Arizona there are still no limits on groundwater pumping. At the extreme, there has been talk of building a big desalinization plant in Mexico and piping the water to Central Arizona – a fantastically expensive idea with current technology. But this is now, that will be then, and who knows what might be possible then? The beat goes on.
The developers, realtors, construction companies and community boosters that make up the growth economy of the Southwest say, of course, that the people are coming, so we have to keep on building for them; we can’t just shut them all out because we aren’t certain how much water we’ll have a hundred years down the road! That the people will keep on coming is undoubtedly true to some extent, but – do we have to keep luring them into the desert with promises of green oases? Looking at Buckeye’s billboard at the beginning of this post, should we maybe consider some ‘truth in advertising’ measures?
For example: how about making the entire growth industry, realtors to builders, do what tobacco purveyors have to do now. Make them put on billboards, brochures and advertisements like Buckeye’s, in letters large enough to read with the naked eye, warnings like these:
SITTING OUTSIDE ON THE LAWN IN XX% OF PHOENIX’S SUMMER DAYS WILL KILL YOU IN X HOURS FROM EXTREME HEAT
or
LAWNS LIKE THE ONE PICTURED ARE NOW ILLEGAL FOR RESIDENCES
or
THIS IS A DESERT WITH STRESSED ENERGY RESOURCES, AND YOU MIGHT DIE HERE IF AIR CONDITIONING FAILS
Just a thought. Next post, we’ll take a gingerly look at appropriation law, and muse on how, or if, it can still function in a situation where there’s nothing left to appropriate.
