Water quality is a sticking point for Thornton, which faces challenges getting all its water to drinking quality standards. Much of the city’s water comes from the South Platte River and requires extensive treatment because it’s diverted downstream of many areas of runoff and pollution, [Emily] Hunt said.
If Thornton drew the water from the Poudre near Windsor as suggested, the city would end up with water run downstream of three wastewater treatment plants and numerous runoff areas, [Mark] Koleber said.
“Urban runoff, agricultural runoff, wastewater plants, industrial discharge — it’s just not what you do for a municipal drinking water supply,” he said.
Especially considering Thornton bought the [rights to divert] because of its high quality, Hunt added.
A yearlong study centered on a decades-long trend of Colorado sending too much water to Nebraska via the South Platte River yielded dozens of potential storage projects.
But high costs, potential environmental impacts, and bureaucratic and regulatory hurdles could doom the road ahead for any of those possibilities, according to a study presented Tuesday night at the South Platte Basin Roundtable meeting in Longmont.
Further, even if several of the identified projects happen, they would barely put a dent in what’s expected to be a Front Range water needs gap of 500,000 acre feet per year.
The $200,000 study, ordered by the Colorado State Legislature and paid for by the Colorado Water Conservation Board, looked at the South Platte from Greeley to the state line and identifyed potential storage solutions along the way.
Putting any of those solutions — with costs estimates ranging from $190 million to $1 billion — to work most likely will take more time, money and study…
Consultants from Stantec Consulting Services and Leonard Rice Engineers completed the study in December and have toured the state making presentations. The Legislature has yet to get a presentation, but here are the key points legislators will hear:
A large amount of water is physically and legally available but only during wet years and during short periods.
Mainstream options have the most benefit but likely are not permittable and have significant social impacts.
Many off-channel options appear to be feasible and could be combined in different concepts.
Even multiple projects won’t make a big dent in the supply gap.
One reason for the lack of impact is how the South Platte works. When farmers divert water from the South Platte to irrigate crops, some of that water soaks underground and slowly moves back to the river. That’s called a return flow, and return flows feed the South Platte to allow it to flow long after snowmelt water is gone for the season.
That’s why the Sterling No. 1 ditch can completely dry out the river with a diversion and then a mile downriver it’s flowing again.
That’s why the best possible place for a reservoir would be near the Colorado-Nebraska border, and the best solution for keeping as much water as possible — a mainstream reservoir — is the solution that likely never will happen.
A mainstream reservoir along the South Platte essentially would be a lake on the South Platte, with the western portion feeding into the lake and the eastern portion running when the lake releases water.
Water experts agree that would be nearly impossible to get approved.
But the consultants did identify storage options away from the river, including old gravel pits.
Still, building ditches or pipes to fill those gravel pits would prove costly.
The consultants also talked about the 2013 flood and high flows in 2015, which ended up sending 1.9 million acre feet of water to Nebraska — exponentially more water than Nebraska is entitled to via the 1923 compact with Colorado.
But managing or diverting water during a flood event like that would take technology water experts said just doesn’t exist. Instead, ditch companies did everything they could to keep the flood water out of their ditches, lest they get damaged by the torrent.
Groundwater storage also was touched on, but concerns were raised about water losses and the co-mingling of other water rights. Once the water flows under another landowner’s property, for example, they would have the right to pump that water to irrigate crops.
The conversation circled back to the reason for the study. Essentially, lawmakers on the Western Slope long have pointed to the excess water the Front Range sends to Nebraska. Rather than divert more water from the Western Slope, the argument goes, Front Range farmers and municipalities need to figure out how to keep what they have.
Mike Schimmin, a water rights attorney on the roundtable, said his fear is the study will reinforce those feelings and that people will ignore the high cost to capture the extra water.
There is a new way to put water back in Colorado’s parched rivers.
After more than a year of back and forth with Pitkin County officials, the nonprofit Colorado Water Trust announced Tuesday a pilot agreement with a Carbondale rancher to increase streamflows in the Crystal River during dry years.
The three-year agreement will compensate Bill Fales and Marj Perry, who own the 600-acre Cold Mountain Ranch just west of Carbondale, for retiming their irrigation practices to leave water in the Crystal River when it needs a boost.
Although the Water Trust has spearheaded water leasing arrangements to benefit other rivers in Colorado, the Cold Mountain Ranch deal is the first to involve the timing of irrigation diversions.
For Zach Smith, a staff attorney for the environmental nonprofit Water Trust, the pilot agreement is an important test for whether this type of conservation program can work for ranchers and rivers.
“That’s great for the Crystal itself,” Smith said, “and it’s also great for the Water Trust as we try to figure out how to design projects for working ranches.”
Under the terms of the agreement, the Water Trust will monitor flows in the river and, if flows fall to 40 cubic feet per second (cfs), the ranch may voluntarily shift its diversion scheduling. The Water Trust will then measure the changes in the ranch’s irrigation practices and pay Fales and Perry $175 per cfs per day to encourage that shift. Once streamflows reach 55 cfs, the payments would cease.
The pilot agreement can restore as many as 6 cfs per day in the Crystal River for a maximum of 20 days in August and September (no other months are included), offering a maximum payout of $21,000 per year to Cold Mountain Ranch.
The new deal is the culmination of a multi-year effort to help boost streamflows in the Crystal River, which runs from the Elk Mountains above Marble to its confluence with the Roaring Fork River at Carbondale.
During the drought of 2012, demand for water outpaced supply and the Crystal went dry, prompting the Water Trust to look for new sources of water for the river’s benefit.
Although the Colorado Water Conservation Board has an environmental instream flow right on the Crystal, the water right dates from 1975, far lower in priority than the major agricultural water rights on the Crystal — and thus is of little to no use when the river most needs water.
The Water Trust began consulting with local ranchers and farmers whose senior water rights could be useful during times of drought, asking whether they would be willing to lease some of their irrigation water for the Crystal’s benefit. And many were.
However, most of them, including Fales, were wary of arrangements that involved too much bureaucracy. So the Water Trust devised a more flexible deal, requiring no filings in water court.
Fales was the first to volunteer. He offered to let some of his water rights from the Helms Ditch, which dates from 1899, for the Crystal’s benefit and assumed Pitkin County would be on board, as well. (The county co-owns a conservation easement on Cold Mountain Ranch and had to approve the deal with the Water Trust.)
Instead, the rancher found himself embroiled in a frustrating disagreement with Pitkin County officials who insisted that Fales’ willingness to forgo some of his water when the river needed a boost would put his water rights at risk.
For John Ely, the Pitkin County attorney, the biggest problem was that if Fales kept producing the same amount of alfalfa with less water, his water rights could one day be diminished in water court under the “use it or lose it” principle. This was especially concerning to Ely because the county had paid $7.5 million for the conservation easement on Cold Mountain Ranch.
“If you’re preserving agricultural property, you’re not preserving much if you don’t have the water that goes with it,” Ely said.
The new arrangement addresses the county’s concerns. Instead of reducing his annual water use, Fales will simply shift the timing of his diversions to align with the Crystal’s needs.
The end result, Smith said, will bring the same environmental benefits for the river without affecting Cold Mountain Ranch’s water rights.
What’s more, the pilot agreement marks the first step toward implementing the Crystal River Stream Management Plan, released in 2016, which helped quantify the ecological needs of the river. And it means Pitkin County can finally fulfill its long-stated goal of putting more water in local rivers through the Healthy Rivers and Streams program.
For Smith, the process of working out this kind of arrangement also has broader lessons for other water conservation efforts involving conservation easements. Back in 2012, the Water Trust thought it had a leasing agreement that could be rolled out in different river basins throughout Colorado. Now, Smith said, he’s learned that what works in one community might not work for another.
“We need to be flexible,” he said.
Editor’s note: Aspen Journalism is covering rivers and water in collaboration with The Aspen Times, Glenwood Springs Post Independent, Vail Daily and Summit Daily News. The Times and the Post Independent published this story on Wednesday, Jan. 24, 2017.
Here’s the background from Sarah Tory writing for Aspen Journalism:
Bill Fales is a self-described “sucker for experiments.”
The soft-spoken, unassuming 64-year-old grows alfalfa on his 600-acre ranch just west of Carbondale. For 45 years, Fales has irrigated the fields of Cold Mountain Ranch with water from the Crystal River, which flows 35 miles from its headwaters in the Elk Mountains to the Roaring Fork River.
In spring 2016, the Colorado Water Trust, a Denver-based nonprofit devoted to improving river health, announced a new water conservation initiative to ranchers in the Crystal River valley. Fales was eager to jump on board.
It sounded simple enough: The Water Trust would compensate any ranchers willing to leave some of their irrigation water in the Crystal River to boost flows during dry times. In 2013, Colorado had passed a law protecting water rights registered in conservation programs, and Fales assumed his interest would be met with approval.
Instead, the rancher found himself embroiled in a bewildering disagreement with Pitkin County officials who insisted that Fales’ willingness to forgo some of his water when the river needed a boost would put his water rights at risk.
Why, Fales wondered, was it so hard to do something he thought was good?
Wary of bureaucracy
Cold Mountain Ranch is one of the few remaining working ranches in Pitkin County, and Fales always felt protective of the land’s open space and agricultural value. To protect his property from development, he sold a conservation easement on the entire ranch in 2009 to Pitkin County and the Colorado Cattlemen’s Agricultural Land Trust. Under the terms of the easement, the water rights that came with the ranch could not be sold separately from the land.
When it came to water conservation initiatives, however, the West’s system of private water rights often clashed with environmental priorities. That was true of the Crystal River valley, as well. When the Colorado Water Trust first put out the call to local farmers and ranchers in 2012 — a dry year — asking if they would be willing to lease some of their water for the river’s benefit, most of them, including Fales, were wary of the bureaucracy involved in the arrangement.
“It took away your whole ability to make decisions — they’d come and shut off your headgate at one of two predetermined dates,” he said.
Still, Fales knew that ranchers and farmers — and their senior water rights — had an important role to play in helping the Crystal, especially during times of drought.
The Colorado Water Conservation Board (CWCB) has an environmental instream flow right on the Crystal for 100 cubic feet per second from May 1 to Sept. 30 and for 60 cfs from Oct. 1 to April 30. The water right dates from 1975, far lower in priority than the major agricultural water rights on the Crystal — and thus of little to no benefit. During drier years, the river regularly drops well below 100 cfs.
Since most ranchers in the Crystal River valley were uninterested in a formal water-leasing arrangement offered by the state, the Water Trust devised another more flexible option, requiring no filings in water court. The arrangement allowed irrigators to let water flow past their headgates to benefit the Crystal’s flows during dry periods.
When the Water Trust advertised the program to ranchers in the Crystal River valley in spring 2016, Fales was the first to volunteer. They settled on a target flow of 40 cfs, which the recently completed stream management plan showed was an important indicator for river health and also a realistic goal for ranchers.
Fales planned to use his water right on the Helms Ditch, which includes an original right for 2.93 cfs with an appropriation date of 1899 and an enlargement right for 3.07 cfs dating to 1924. He irrigates about 100 acres with the water right.
If the river fell below 40 cfs, Fales would decide if he could turn off the headgate for a short period of time and in exchange, the Water Trust would pay him $175 per cfs of water left in the river per day.
Fales isn’t sure how much water he would be able to leave in the river, as it depends on the time of year and his irrigation demands.
However, an application for “approval of a water conservation program” prepared in December 2016 in anticipation of it being submitted to the Colorado River District, which has the ability to approve such programs, did set parameters on the effort. It said Fales could choose to leave up to 6 cubic feet per second of water in the river at a time, for up to 45 days between July 1 and Sept.30, and up to 535 acre-feet a year overall.
The application says “the exact amount of water in any year to be conserved will vary based on Cold Mountain Ranch’s discretion, river calls, and hydrologic conditions.”
The draft application, which was never formally submitted to the River District, has a footnote observing that “the River District recognizes the precise quantification of water savings may be difficult or impossible” and that “estimates and a description of the method of estimation are sufficient.”
Whatever amount of water is left in the river would flow downstream for at least two miles without a chance of it being diverted by another structure.
And Fales hopes that after a week or two of his not diverting water, other irrigators might step up and turn down their headgates, too, so that collectively they could help the river without causing undue burden on any one rancher.
For Fales, volunteering for the program felt important in another way, as well.
“Putting our head in the sand is not a solution,” he said. “If we don’t come up with something ourselves, the state will tell us what to do or the Front Range will come knocking.”
One of three irrigation ditches that delivers water from the Crystal River to Bill Fales’ Cold Mountain Ranch. Fales owns some of the most senior water rights on the river, which he hopes he can use to help improve its flow during dry periods.
Confusing signs from county
In fall 2016, Fales presented his proposal to reduce his water for the purpose of boosting flows in the Crystal River to the Colorado Cattlemen’s Agricultural Land Trust and Pitkin County officials, who both have a stake in the conservation easement on his ranch. The land trust offered a few amendments, but was otherwise on board. Pitkin County, however, was less enthusiastic.
“I thought they’d give me a big kiss and a hug,” Fales said. “They have their Healthy Rivers and Streams program whose goal was to put water back in the river — which they’ve never done — and now we’d finally be able do that.”
Unbeknownst to Fales, the county had become increasingly protective of agricultural water rights on properties with conservation easements — especially the county attorney, John Ely, the architect of Pitkin County water policy.
He saw all sorts of interests pulling at the Western Slope’s water, from climate change to dramatic growth along the Front Range to Colorado’s legal obligations to deliver a certain amount of water from the Colorado River to other states like Arizona and California. There also was Colorado’s own water laws, which encourage water to be used — anywhere. Already, water from Pitkin and Garfield counties’ Roaring Fork River was diverted hundreds of miles across the mountains to Aurora and Colorado Springs.
“We clearly recognize that if water rights disappear from here then our land has a real possibility of drying up and the water will be used somewhere else,” Ely said.
For Ely, senior agricultural water rights protected much of the county’s water from getting diverted over the Continental Divide. The flip side, of course, is that the agricultural diversions are drying up sections of these rivers.
Still, when it came to water rights, Ely did not want to take any risks — even small ones. Although the conservation easement on the Cold Mountain Ranch allows the owner to temporarily reduce their water for the purpose of maintaining or improving streamflows, Fales’ proposal with the Water Trust was too informal for Ely’s taste.
Under state water law, only the CWCB has the authority to keep water destined for the environment in the river, but Fales and the Water Trust had bypassed the state in crafting their agreement.
Ely feared that another water user would claim the water Fales left in the Crystal. And he worried, too, that if Fales kept producing the same amount of alfalfa with less water, his water rights could one day be diminished in water court under the “use it or lose it” principle. This was especially concerning to Ely because the county had paid $7.5 million for the conservation easement on Cold Mountain Ranch.
“One of our central concerns was once the water was in the river there was no mechanism to keep it there,” Ely said. “If you’re preserving agricultural property, you’re not preserving much if you don’t have the water that goes with it.”
In response to Ely’s concerns, Fales and Zach Smith, the Water Trust lawyer who put together the Cold Mountain Ranch proposal, solicited the input of various environmental organizations and water policy experts to find out if the water Fales left in the Crystal would help the river.
And crucially, was Fales imperiling the Cold Mountain Ranch water rights that Pitkin County had invested in?
Smith and Fales received responses from Trout Unlimited, the Aspen Valley Land Trust, and the Colorado Division of Water Resources.
All of those contacted were in favor of the proposal and saw no problem with regard to Fales’ water rights and his making an application to the River District seeking approval for it.
“Once approved by the River District the plan will protect the Helms Ditch right from abandonment, diminution of historical consumptive use, and any assertion of waste,” Alan Martellaro, the Division 5 engineer at the Colorado Division of Water Resources, wrote in an email to Ely on January 11, 2017. “I believe the application is a simple, good first step toward balancing agricultural and ecological river needs in the Crystal River valley desired by the Water Trust and Bill Fales.”
Meanwhile, Fales, Smith, and Pitkin County officials began meeting to try to resolve their disagreements over the proposal. John Currier, the chief engineer at the Colorado River District, attended one of the meetings.
“I don’t think it’s risky at all from a water-rights protection perspective,” Currier later said. He conceded, however, that someone could, in the future, argue that Fales had been wasting his water if he continued to grow the same amount of alfalfa with less water. The risk, he said, was remote.
The whole ordeal has left Fales feeling frustrated and confused.
“We’re supposed to be one of the most environmentally minded counties, so to say to farmers that they should maximize their diversions is really bizarre,” he said.
In search of a new arrangement
Fales, the Water Trust, and Pitkin County officials continued to meet in the hopes of resolving their differences about the Cold Mountain Ranch proposal. After all, they wanted the same thing: more water in the river.
Although they’re still sorting out the details, Fales, Ely, and the Water Trust are optimistic the new arrangement will satisfy both parties: Instead of reducing his water use, the Water Trust will pay Fales to coordinate the timing of his irrigation diversions with the river’s needs so that he turns down his headgate when the Crystal is running low and back on again when the river is flowing well.
Dale Will believes a successful agreement could ripple throughout the area. Will is acquisition and special projects director at the Pitkin County Open Space and Trails program, and the program’s former director.
“That’s why everyone is focused on Cold Mountain Ranch,” Will said. “Not because Bill [Fales] by himself can solve the problem, but because if they can make his proposal work, they can expand it to our other agricultural land.”
Editor’s note: Aspen Journalism is covering rivers and water in collaboration with the Glenwood Springs Post Independent, The Aspen Times, the Vail Daily, and the Summit Daily News. The story was published on Tuesday, Jan. 2, 2017 by the Post Independent and The Times.
From the Colorado Attorney General’s office via the Valley Courier:
[On Monday, January 8, 2018], Colorado Attorney General Cynthia H. Coffman’s office presented arguments in the U.S. Supreme Court in Texas v. New Mexico and Colorado, No. 141, Original, to protect the authority and jurisdiction of the Western States to manage water rights within their own borders and across state lines in cooperation with neighboring state officials.
The case reached the U.S. Supreme Court after Texas sued New Mexico over a dispute regarding water in the Rio Grande Basin. Colorado, Texas and New Mexico are all parties to the Rio Grande Compact, an agreement that since 1938 has regulated the interstate apportionment of the waters of the Rio Grande. Texas did not make any claims against Colorado, but because Colorado is a party to the Compact, Colorado was also included in the case.
While Texas’s claims against New Mexico were pending, the U.S. government attempted to independently sue the State of New Mexico under the Rio Grande Compact. The Supreme Court invited the State of Colorado to present arguments on whether the United States has a right to sue a State under an interstate water compact, despite not being a party to it.
“Arguments over water rights have been going on since the beginning of statehood, but the authority to manage this critically important natural resource has always belonged first and foremost to the States,” said Attorney General Coffman. “We cannot allow the federal government to encroach on our rights and interfere with our ability to manage water resources on equal footing with our Sister States.”
Colorado Solicitor General Fred Yarger argued on behalf of the State, explaining that the federal government does not have a right to sue New Mexico under the Rio Grande Compact. The United States is not a party to the Compact, he explained, and the authority, jurisdiction and responsibility to manage the water of the Rio Grande lies with the States. Solicitor General Yarger argued that allowing the federal government to sue under the Compact to which it is not a party would set a very concerning precedent, harming the ability of States to work together to solve water disputes cooperatively, without federal government intrusion.
From the Colorado Cattlemen’s Ag Water NetWORK via The Fence Post:
The collective water use of the upper basin states is still well below the 7.5 M acre-feet annual average depletion maximum. U.S. Bureau of Reclamation reports indicate that the upper basin water use averaged 4.4 M acre-feet between 2000 and 2015. The highest use among these years was 4.9 M acre-feet.
The lower basin states, with greater population and higher evapotranspiration, have a more difficult time managing water demands within the limitations of the compact. For the last several years, annual releases from Lake Mead have averaged about 9 M acre-feet to meet lower basin water demands. Lake Mead also loses about 1.2 M acre-feet in evaporative and system losses, so the total annual outflow from Lake Mead has been about 10.2 M acre-feet.
The imbalance between Lake Mead’s recent inflows and outflows is called the “structural deficit.” This is the amount by which the lower basin states and Mexico must reduce their demands in order to reach a more sustainable withdrawal rate from Lake Mead.
Lake Powell stores water that flows from the upper Colorado River basin and is used to buffer declines in Lake Mead. Glen Canyon Dam, which creates Lake Powell, also generates 5 billion kilowatt-hours of hydroelectric power annually. The Western Area Power Administration distributes this electricity to Colorado and six other states at cost-effective rates. The total value of the electricity produced is about $120 million annually. A small, but important, portion of the annual power revenue is used to fund salinity control programs that help pay for irrigation infrastructure upgrades on the western slope, and provide funding for the Colorado River and San Juan River endangered species recovery programs.
In 1970, formal “Operating Criteria” were agreed upon by the seven states and the Bureau of Reclamation to provide for the coordinated operation of reservoirs in the upper and lower basins and set conditions for water releases from Lake Powell and Lake Mead. The Operating Criteria allow the secretary of the interior to make releases from Lake Powell to raise the water level in Lake Mead so that the stored volume of the two reservoirs is roughly equal. The upshot is that Lake Powell will decline when Lake Mead declines, even if ample flow is entering Lake Powell from the upper basin states.
Since 2000, the two reservoirs have been drawn down to approximately half of their capacity to meet lower basin demands. The current water level of Lake Mead (1,083 feet above sea level) is the lowest since the reservoir started filling in 1935 (ref http://lakemead.water-data.com). It is currently just above the “Tier 1 Shortage level” of 1,075 feet, which is the point where water allocations to Arizona and Nevada are automatically reduced. These reductions become increasingly severe at Tier 2 and Tier 3 levels.
The current level of Lake Powell is about 3,625 feet above sea level. The concern for the upper basin states is that if the structural deficit continues and/or a drought returns, Lake Powell could be lowered to a level below 3,490 feet, which is the minimum level needed to generate electricity.
The lower basin states and Mexico have implemented conservation measures that have saved about 1.2 M acre-feet in Lake Mead since 2014. This has resulted in the lake level being 14 feet higher than it would have been otherwise.
For Colorado and the other upper basin states, the challenge isn’t complying with the usage limit spelled out in the 1922 compact. Instead, it is simply how to deal with snowpack and runoff shortages over a multi-year period. Since many Front Range cities and irrigation districts rely on Colorado River basin water via trans-mountain diversions, runoff shortages on the western slope also directly affect eastern slope residents and farmers. And of course, multiple years of drought in the upper basin could result in lowering of Lake Powell to the power pool level simply because of inadequate runoff. When the 2002-2003 drought began, Lake Powell was full. Today it is about 58 percent of its capacity.
In 2015, a program was created to determine whether voluntary, compensated reductions in consumptive use in the upper basin states could be a useful tool to put water into Lake Powell and minimize lake-level declines during drought periods. The System Conservation Pilot Program is funded by southern California’s Metropolitan Water District, Central Arizona Project, Southern Nevada Water Authority, Denver Water, U.S. Bureau of Reclamation, and NGOs. About $4.5 M has been spent on the program through 2017 and approximately 22,000 acre-feet of consumptive use water has been conserved through such fallow and deficit irrigation, alternative cropping and a municipal water savings program. The program is being continued in 2018.
Here’s a report from Laura Paskus writing for The New Mexico Political Report. Click through and read the whole article. Here’s an excerpt:
In its U.S. Supreme Court case against New Mexico and Colorado, the State of Texas says that by letting farmers in southern New Mexico pump from wells near the Rio Grande, our state has failed to send its legal share of water downstream. The water fight has some New Mexicans gnawing their nails—and not just southern farmers whose water rights could be cut if Texas prevails.
Monday’s oral arguments before the court, over whether the feds can intervene under the Rio Grande Compact, drew a large crowd from the Land of Enchantment. Watching the proceedings from the audience were some of the state’s most prominent water attorneys, as well as Attorney General Hector Balderas, State Engineer Tom Blaine, an entire crew of employees from the Office of the State Engineer, officials from the City of Las Cruces and the Albuquerque Bernalillo County Water Utility Authority, and U.S. Sen. Tom Udall.
Like everyone else, New Mexico’s senior senator, a Democrat, had to check his coat and belongings before entering the court, and after arguments, Udall said he wanted to be there because the case will affect the management and division of water use by farmers and communities for decades.
“Regardless of the ultimate decision, it’s critical that we understand that one of the root causes of the dispute is the increasing scarcity of water in the Southwest, and climate change is making that worse,” he said. “We must seek cooperative solutions or there will be more disputes over water—not fewer.”
There’s a lot at stake: The state has already spent $15 million on staff and legal fees. And if the Supreme Court decides in favor of Texas, New Mexico could owe a billion dollars or more in damages and be forced to curtail groundwater pumping around places like Hatch, Las Cruces and Mesilla.
Now entering its sixth year, No. 141, Original: Texas v. New Mexico and Colorado stems from a deal two irrigation districts signed with the federal government during the drought of the 2000s.
After the relatively wet decades of the ’80s and ’90s ended, the Elephant Butte Irrigation District and El Paso County Water Improvement District No. 1 watched reservoir levels drop. In 2008, they decided to share water through dry times. The two signed a new agreement with the U.S. Bureau of Reclamation, operator of the Rio Grande Project, which is anchored by Elephant Butte Reservoir.
But the two states weren’t parties to that agreement—and then-New Mexico Attorney General Gary King sued the federal government, alleging too much water was being given to Texas.
In 2013, Texas fired back against New Mexico and Colorado, pointing out that by allowing farmers to pump groundwater connected to the Rio Grande, New Mexico had for decades taken more than its legal share of water under the Rio Grande Compact of 1938.
That’s the case moving through the US Supreme Court. But things are even more complicated than they seem.
That’s in part because under the compact, New Mexico doesn’t deliver Texas’ water at the state line. Rather, water goes to Elephant Butte Reservoir, about 100 miles north of Texas. From there, the Bureau of Reclamation delivers it to farmers in both southern New Mexico and Texas.
Now, the United States says that by allowing farmers to pump groundwater, New Mexico has harmed its ability to deliver water under the compact, as well as under the international treaty with Mexico.
And that brings us to Monday’s oral arguments before the Supreme Court…
During the fast-paced arguments, seven of the nine justices questioned each of the attorneys, parsing their way through Western water rights and the role Reclamation plays in both Texas and New Mexico. (Clarence Thomas stayed characteristically quiet and Samuel Alito asked no questions.) Many asked questions about the compact, the Reclamation Act of 1902 and treaty rights.
For Associate Justice Stephen Breyer, however, the case was clear.
In response to Colorado’s opposition of federal intervention, Breyer cited the U.S. Constitution, which allows the federal government to intervene in cases in its own interest.
“Obviously, the founders who wrote this wouldn’t want three or four or five or six states to enter into some compact that might wreck the Union,” Breyer said. “So doesn’t that suggest that they do have a right, the United States, to intervene, at least where there is a federal interest?”
It seems “quite simple,” he said: “The Constitution foresees that they can intervene where there’s an interest. They have several interests. End of case, unless there is something that I don’t see.”
Colorado and New Mexico don’t see it that way, of course.
New Mexico doesn’t object to the US joining the case; in fact, the state argues it is a necessary party to the suit. But New Mexico doesn’t want the federal government to raise a claim under the Rio Grande Compact.
After questions from multiple justices, including Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, New Mexico’s Rael tried to clarify that distinction, noting that the U.S. doesn’t own water rights itself under the compact or through the Rio Grande Project.
“Those water rights are owned by the landowners themselves who are represented by their individual states as parens patriae,” he said to Kagan. “And so the United States has an interest in the project, and they can certainly sue to enforce to make sure that we’re meeting our—that we’re not interfering with its project obligations, but it can’t sue us under the compact.”
She also worries that if the justices decide that the U.S. can assert a federal interest in a case between states, that could affect other interstate river compacts.
What [Samantha Barncastle] seems to want more than anything, though, is an end to fighting. It would be better for people to control their own destiny, she says, and work together instead of litigating.
“When you’re talking about a multi-billion dollar agricultural economy and municipalities and colonias, and all these different water users, you have got to look at other solutions beyond pure litigation,” she says. As interesting as it was for everyone to come to the Supreme Court this week, she says, how things might shake out is scary.
Leaving the court later that day, past the contemplative figure of Justice and her scales, the gray sky starts to spit freezing rain. Women flip open umbrellas, men hunker down into their scarves. New Mexicans, though, lift their faces to the rain.
Things are complicated. Here’s a timeline to help you keep track of the Supreme Court lawsuit New Mexico is facing on the Lower Rio Grande.
1902 – The United States Reclamation Service (now the US Bureau of Reclamation) is established to study and develop water resources in Western states.
1906 – The United States and Mexico sign a convention to ensure the Rio Grande’s waters are shared equitably between the two countries.
1906 – Construction begins on dams and canals on the Rio Grande. Leasburg Diversion Dam and Canal is completed in 1908, Elephant Butte Dam in 1916 and Caballo Dam in 1938. The Rio Grande Project, operated by the Bureau of Reclamation, provides irrigation water to farmers in southern New Mexico and Texas.
1938 – Colorado, New Mexico and Texas work out the Rio Grande Compact in a desire to “remove all causes of present and future controversy” among states and their citizens. The treaty was ratified by the three states and passed by Congress in 1939, and amended in 1948.
1950s – Drought strains water supplies along the Rio Grande. Farmers along the Rio Grande in Southern New Mexico and Texas drill about 1,000 new irrigation wells to supplement surface water supplies with groundwater.
2003 – After decades of relatively wet conditions, drought hits New Mexico, putting a strain on Rio Grande water supplies and reservoir levels.
2006-2007 – US Bureau of Reclamation creates a new operating procedure, which water users in southern New Mexico (Elephant Butte Irrigation District) and Texas (El Paso County Water Improvement District No. 1) sue over.
2008 – US Bureau of Reclamation, the Elephant Butte Irrigation District, and the El Paso County Water Improvement District No. 1 come to an agreement over water deliveries and sharing. The states of Texas and New Mexico are not a part of this new operating agreement for the Rio Grande Project.
2011 – Then-New Mexico Attorney General Gary King sues the US Bureau of Reclamation in New Mexico federal district court over the 2008 Operating Agreement, alleging that too much water was being given to Texas—water that should have stayed in New Mexico.
2013 – Texas sues New Mexico and Colorado in the US Supreme Court over violations of the compact. Texas alleges that by allowing farmers to pump groundwater connected to the Rio Grande, New Mexico has been taking more than its share of compact water. Texas wants the court to make New Mexico pay for the water it has been taking, over the course of many decades.
2014 – Special Master A Gregory Grimsal is appointed in the case and directed to submit reports to the court.
2014 – US Bureau of Reclamation intervenes in the case, alleging that by allowing farmers to draw water from the river and below ground, New Mexico is allowing people to use more water than they legally should. And it says New Mexico’s diversions interfere with water deliveries to Mexico.
2014 – New Mexico makes a motion to dismiss Texas’ complaint. (The court denies this in 2017.)
2015 – In a report to the New Mexico Legislature, scientists note that the Mesilla Valley aquifer “may no longer have the capacity to provide a reliable, supplemental supply during extended drought conditions and with the current levels of intensive use of groundwater.”
2016 – The special master releases his draft report, which indicates Texas has the upper hand in the lawsuit and recommends the high court reject New Mexico’s motion to dismiss.
September 2016 – US Bureau of Reclamation releases its final decision and environmental studies related to the 2008 Operating Agreement, which outlines operations through 2050.
January 2017 – New Mexico Office of the Attorney General, Office of the State Engineer and the Interstate Stream Commission announce they are working together on the case and also enter into joint defense agreements with New Mexico State University, PNM, the New Mexico Pecan Growers Association, Southern Rio Grande Diversified Crop Farmers Association, the City of Las Cruces and Camino Real Regional Utility Authority.
February 2017 – Special Master finalizes his first interim report. Parties have the chance to reply and/or file exceptions to his report.
January 2018 – Oral arguments occur in US Supreme Court. Justices hear from attorneys for Colorado, New Mexico, Texas and the federal government.
Head east from Glenwood Springs in western Colorado today, and you’ll encounter an isolated stretch of I-70 hugging the curves of the Colorado River. But 110 years ago, you would’ve hit “a thriving little city” of hundreds of people living in tents, nestled there between the high walls of the river canyon so its residents could build a hydroelectric plant.
That facility, the Shoshone power plant, still adds energy to the grid, but its true importance lies elsewhere: Shoshone is a cornerstone of the elaborate complex of water rights, laws, agreements and relationships that shape the management of the upper Colorado River. Because of the water rights it holds — and because it returns the water it uses to the river channel — the diminutive plant dictates how the river is managed in Colorado. “It’s an interesting historic relic with huge implications for the ecological health of the river,” says Brent Uilenberg, a manager in the U.S. Bureau of Reclamation’s Upper Colorado Region, “and (for) providing a reliable water supply for East and West Slope human uses.”
The water system Shoshone has shaped irrigates crops, supports endangered fish and keeps a nearly $8 million rafting industry afloat. Merely by existing, the plant helps keep the demands of Denver and other thirsty cities in check.
In what has long been a source of conflict and compromise among Colorado’s water managers, most of the state’s precipitation falls west of the continental divide, on the Western Slope, separated from the majority of the population by the Rocky Mountains. Since the early 1900s, a series of tunnels and ditches have addressed that mismatch by ferrying water out of the Colorado River basin, supplying cities and irrigating fields east of the Rockies. “The Shoshone power plant has played a dominant role on the river since it first came online,” says John Currier, chief engineer at the Colorado River Water Conservation District.
But Shoshone, because it predates those diversions, keeps some water that might otherwise cross the backbone of the continent in western Colorado. In the world of Western water, older rights get first dibs: So Shoshone gets priority, even if that means managers must let water flow past their tunnel intakes. Less water for eastern Colorado means the river keeps rushing downstream toward Shoshone, and people and ecosystems that depend on it.
Downstream communities draw drinking water from the Colorado, and growers near Palisade and Grand Junction use it to irrigate peaches and other crops. Keeping water in the river has also been fundamental to a collaborative program to recover four species of endangered fish in the Colorado River. “It comes back to, fish need water,” says Tom Chart, the director of the Upper Colorado River Endangered Fish Recovery Program.
Downstream of Shoshone, just above where the Gunnison River empties into the Colorado, there’s a stretch of river where endangered Colorado pikeminnow lay their eggs after spring floods have cleared the cobbles of silt. But human demands on the river tax it so much that during drought, it can get close to drying up. To prevent that, water users and managers work within a tangled web of agreements and rules, looking for ways to keep the river wet. The flows that come down from Shoshone anchor that effort. “I always view Shoshone as our first line of protection,” Reclamation’s Uilenberg says.
But that protection hasn’t always been assured: If the power plant needs maintenance or shuts down, it wouldn’t be allowed to exercise its water rights, because water must be put to “beneficial use” under Western water law. To preserve Shoshone’s influence on the Colorado River — to protect the wildlife, farms and economies that depend on it — water districts from both sides of the continental divide formalized a plan in 2012. They agreed upon a protocol for releasing water from upstream reservoirs that would mimic the Shoshone flows should the power plant go offline, effectively preserving the plant’s influence for the long term. Short shutdowns at the aging facility aren’t uncommon, and “hav(ing) that protocol in place to bridge those gaps is key,” Chart says.
A separate deal, however, allows reductions in the Shoshone flows. Xcel Energy, the owner of the plant, has agreed to allow more water to go to Denver during dry periods by running just one turbine — cutting the plant’s water needs in half — when certain conditions are met. But crucially, that “relaxation” of Shoshone’s water rights is typically limited to the season when it would be least impactful to others: mid-March through mid-May, when the Colorado is beginning to run high with snowmelt but irrigation and rafting seasons have yet to begin.
For its part, Xcel says their interests lie simply in running the plant, not in negotiating battles over water, according to Richard Belt, a water resources senior analyst for Xcel based in Denver. “Shoshone has sort of been a neutral third party there, kind of minding its own business,” he says, a role it has played for decades, through deluges and droughts, major repairs and evolutions in water management — and one which the tiny, century-old plant will likely hold for years to come.
Shoshone Falls hydroelectric generation station via USGenWeb
Shoshone hydroelectric generation plant Glenwood Canyon via the Colorado River District