City staff members have proposed beginning in-depth discussions with Northern Water to explore areas of “mutual interest” and possibly negotiate an agreement. City Council would have to approve any agreement, if one were reached.
Discussions with Northern Water, if approved by council, would be lengthy and touch on “endlessly complicated” details, said John Stokes, director of the city’s Natural Areas Department.
Fort Collins is not among the 15 municipalities and water districts participating in NISP, though as a stakeholder it has been involved with the project’s permitting process for many years.
In 2008 and 2015, the city submitted comments critical of the project to the U.S. Army Corps of Engineers, which is overseeing the Environmental Impact Statement process for NISP.
The Corps and other state and federal agencies will be involved in determining mitigation measures for NISP, which would reduce flows on the Poudre through the city 20 percent a year on average and 30 percent during peak flows in spring.
Experience tells the city it cannot rely on other entities to look out for the best interests of Fort Collins in assessing the negative impacts of NISP through town, Stokes said during a recent city-sponsored open house.
“They are not likely, in our view, to require mitigation at a level that we think would be important to the city if we didn’t negotiate,” Stokes said…
The final Environmental Impact Statement, or EIS, for the project is expected to be released by the Corps later this year. A record of decision on whether the project may be permitted is expected in 2018.
If the project is permitted, construction could begin in 2025, city officials say.
Discussions and negotiations between the city and Northern Water would be outside of the permitting process, said John Urbanic, project manager with the Corps of Engineers…
Mitigation of environmental impacts are part of the permitting process. It’s possible a mitigation agreement between the city and Northern Water could be included in the permit, Urbanic stated in an email to the Coloradoan.
Whether an agreement would facilitate a permit being issued “depends on what’s in the agreement,” he said.
Fort Collins’ focus regarding NISP is on the area crossed by the river between the mouth of the Poudre Canyon and Interstate 25. The city owns several natural areas along the river corridor.
Stokes said the city has many concerns about the impacts of lowering baseline and peak flows on the Poudre, including:
Reduced water quality and additional stresses on city water treatment facilities
Reductions in the health of the river’s ecology and biological resources
Reductions in the river’s ability to convey flood water
Diminished recreation and aesthetics
Specifics of what city staff would seek from Northern Water through negotiations and what it might have to do in return have not been determined, Stokes said.
About 200 people attended a city-sponsored open house on the issue Monday at the Lincoln Center. Longstanding opponents and proponents of NISP were on hand, stating familiar positions.
The Lower South Platte Water Conservancy District’s board of directors decided Tuesday to not object to a plan to move the proposed Galeton Reservoir from its original site.
Galeton is part of the Northern Colorado Water Conservancy District’s controversial Northern Integrated Supply Project, which would use water from the Cache la Poudre and South Platte rivers to irrigate, provide domestic water, and bolster the Poudre through Fort Collins.
Northern Water originally planned to build the reservoir on the southeast side of Colorado Highway 14 near Galeton, but in the 10 years since the project was proposed Nobel Energy has drilled almost two dozen oil and gas wells in the area. Those wells would have to be capped, at tremendous cost to Northern, in order to use the site for a reservoir.
Northern has applied to have the water rights instead transferred to land on the northwest side of the highway.
LSP board member Brad Stromberger, who also is on the Northern board of directors, said the Berthoud-based water district is “in the design stages” on the project already and plans to begin construction on the reservoir within about five years.
“This is a big project,” he said. “This is a new water source we need.”
The LSP’s water lawyer, Kim Lawrence, had recommended that the district file an objection to Northern’s request. Such objections are commonplace primarily to get access to crucial engineering and financial information about water projects. LSPWCD has previously gone on the record as being entirely in support of NISP, and during Tuesday’s meeting the district’s manager, Joe Frank, cautioned that objecting to the change in the Galeton application could be used by NISP opponents to claim that the lower South Platte doesn’t support NISP.
“We could, potentially, see about 10,000 acre feet of return flow per year from this project,” Frank told the board. “There might be a day here and there when they would take water that might have come down (the South Platte River) but the return flows will more than make up for that.”
After a brief conference call with Lawrence, the board decided to not take any action on the Galeton Reservoir…
The board did, however, vote to file an objection to an application by the Arapahoe County Water and Wastewater Authority to pipe 1,500 acre feet of water from the South Platte River into the off-channel Binder Reservoir, also known as the Brighton Lateral Reservoir. ACWWA wants to use the water to exchange with other water entities along the river. Lawrence’s recommendation to the LSP was to file an objection because the proposed project “affects many (irrigation) ditches in this reach.”
Thank you, January. Numerous storms last month provided much-needed precipitation in Colorado’s mountains. As a result, all eight of the watersheds monitored by Northern Water currently have above-average snow water content, and the most probable streamflow forecasts are also well above average.
As of Feb. 14, statewide snowpack was 147 percent of normal. And the two major river basins Northern Water monitors for its forecasts, the Upper Colorado and South Platte basins, were at 147 and 142 percent of normal, respectively.
Beginning each February, Northern Water’s Water Resources Department releases monthly snowpack and streamflow forecasts. The forecasts provide:
Snow water content comparisons in the eight watersheds Northern Water monitors
April through July maximum, minimum and most probably streamflow forecasts
C-BT Project storage also remains above average for this time of year. On February 1, active storage in the project was 530,331 acre-feet, or 121 percent of normal.
The good news: All of Larimer County’s biggest dams, including the dams at Horsetooth Reservoir, have emergency action plans designed to prepare authorities for emergencies like what happened in California this weekend.
And the bad: A small percentage of Colorado’s higher-hazard dams don’t have emergency plans. Failure could put human lives, environment and property at risk.
It’s a problem highlighted nationwide this week after the Oroville Dam, located about 75 miles north of Sacramento, suffered a potential failure of its emergency spillway. While the dam itself remained intact, erosion damage to the spillway raised the possibility of the structure failing and unleashing an uncontrolled torrent of water.
This situation is unlikely to occur at any of the Horsetooth Reservoir dams, according to officials from the Bureau of Reclamation and Northern Water. That’s partially because the structures underwent an $85 million renovation in the early 2000s. The modernization project included stripping the dams’ faces and adding a roughly 16-foot-thick filter of sand and gravel. Each of the dams was also bolstered for extra strength.
The lower risk here is also a question of magnitude, said Northern Water spokesman Brian Werner, who noted that the amount of water released through the Oroville Dam in 24 hours is more than Horsetooth Reservoir could hold at full capacity.
Perhaps most importantly, Horsetooth Reservoir’s relationship to its dams and water sources is different from Lake Oroville’s relationship with the Oroville Dam and the Feather River, which the dam impounds to form the lake. No river runs into Horsetooth Reservoir; gravity transports water there from other reservoirs in the Colorado-Big Thompson Project.
The Bureau of Reclamation in June 2016 finished a comprehensive review of Horsetooth Reservoir’s dams, which include the Horsetooth, Dixon Canyon, Soldier Canyon and Spring Canyon dams. All passed inspection.
Larimer County is home to 136 of Colorado’s 1,737 dams, according to 2013 data from the National Inventory of Dams. Twelve of those dams are very large…
Each of Larimer County’s high-volume dams received a satisfactory inspection rating at its most recent inspection, and none is used for flood control. All have emergency action plans, which include critical information like emergency contacts, details about the dam and an inundation map that shows where flooding will occur at different water levels…
Of Colorado’s 1,737 dams, about 25 percent, or 425, are considered “high hazard,” meaning one or more people are likely to die if the dam fails. About 96 percent of those dams have emergency action plans, significantly higher than the national rate of 69 percent.
An additional 19 percent of Colorado dams are considered a “significant hazard,” which means their failure would result in possible loss of human life and likely significant property or environmental destruction. About 92 percent of those dams have emergency action plans.
Inspection of Colorado dams falls to two agencies. The state’s dam safety division evaluates dams owned locally or by private and state agencies, and the Bureau of Reclamation monitors federally owned dams.
The public is invited to an open house on the Northern Integrated Supply Project, or NISP, from 5 to 7 p.m. Feb. 13 at the Lincoln Center, 417 W. Magnolia St.
The open house will provide information regarding a proposal by Fort Collins staff members to explore the potential for negotiated outcomes for NISP with Northern Water, the primary proponent of the…project…
Fort Collins has not supported the project as described in a draft Environmental Impact Statement for several reasons, including its potential impacts on city water facilities and the health of the river through the city.
City staff members have proposed discussing mitigation for the project with Northern Water officials and possibly entering into negotiations…
City Council is scheduled to consider staff’s recommendation during its Feb. 21 meeting.
Here’s the release from Colorado State University (Jim Beers):
The Cache la Poudre River, which flows from the mountains through Fort Collins, Timnath and Windsor to the plains east of Greeley, is at the heart of countless activities: from irrigating crops and lawns to providing drinking water for more than 365,000 people and hosting numerous recreational activities.
Those with connections to and concerns for the Poudre River will gather on Friday, Feb. 3 for the fourth annual Poudre River Forum. After its first three years at Larimer County Fairgrounds, the forum is moving down the river to Greeley as a reminder that the Poudre River is important to all who benefit from it — from its headwaters to its confluence with the South Platte. This year’s forum — the theme is “As the Poudre Flows — Forest to Plains” — will be held from 8:30 a.m.-4:30 p.m. at the Island Grove Events Center, 501 N. 14th Ave., Greeley. Pre-registration is required for all participants.
Understanding the river, each other
Sponsored by the Poudre Runs Through It Study/Action Work Group, the forum serves as a community-wide gathering of people from agricultural, municipal, business, recreational and environmental backgrounds to learn about and discuss issues related to the Poudre River.
“The Poudre River Forum brings together those who use the river for agricultural and urban diversions and those who work to improve its ecological health. In the past those groups have not necessarily seen eye to eye,” said MaryLou Smith, PRTI facilitator. “Increasingly our participants are open to the idea that it takes collective vision and action to make the Poudre the world’s best example of a healthy, working river.”
Once again, this year’s event will be facilitated by the Colorado Water Institute at Colorado State University. “The Forum is a great opportunity for the communities connected by the Poudre River to come together to better understand the entire watershed, and each other,” said Reagan Waskom, director of CWI.
Forests and water quality/quantity
Laurie Huckaby with the U.S. Forest Service, will present “The last 1,000 years in the Poudre according to the trees,” to kick off the topic of how important the upper watershed is to water quantity and quality.
“Water quality and forests are inextricably linked,” said Joe Duda of the Colorado State Forest Service, who will join Huckaby as one of the presenters. “Forest conditions and insects, disease and fire all can have profound impacts on water flow and quality. Only healthy, resilient forests can continuously supply clean water.”
Global lessons for local success
“Finding the Balance: Managing Water for People and Nature” is the message of keynote speaker Brian Richter. Richter has been a global leader in water science and conservation for more than 25 years, and currently serves as chief scientist for the Global Water Program of The Nature Conservancy in Washington D.C. Richter’s ideas about the importance of recognizing the balance of working river/healthy river are the basis for which PRTI was initially formed. He has consulted on more than 120 water projects worldwide, and has served as a water advisor to some of the world’s largest corporations, investment banks, the United Nations, and has testified before Congress on multiple occasions. Richter co-authored,with Sandra Postel, the 2003 book Rivers for Life: Managing Water for People and Nature and in 2014 wrote Chasing Water: A Guide for Moving from Scarcity to Sustainability.
Change affects all sectors
An afternoon panel session will probe the impacts of change — positive and negative — along the Poudre River and how they have been similarly and differently addressed by agriculture, urban, and environmental sectors. They will discuss what anticipated future changes might these three sectors see as opportunities or incentives for mutually beneficial collaboration that could result in a healthier, working river?
“It has been said that the only thing that is constant is change,” said John Bartholow, retired ecologist from U.S. Geological Survey, and panel coordinator/moderator. “The question is, can we learn to adapt to those changes sure to come on the Poudre in ways that benefit agriculture, municipalities, and the environment?”
The panel will include Eric Reckentine, deputy director, City of Greeley Water and Sewer; John Sanderson, director of science, Nature Conservancy of Colorado; and Dale Trowbridge, general manager, New Cache la Poudre Irrigating Company.
Videos, displays and music too
The day-long forum also includes “River Snapshots” highlighting more than 15 projects undertaken by a variety of groups on the Poudre last year; “My How the Poudre Has Changed,” featuring historical 1970’s footage of the Poudre; updates from both the cities of Greeley and Fort Collins on current water programs; and over two dozen river-focused displays from community organizations and agencies. The day concludes with a social hour including food, beer and other beverages, and river-themed door prizes.
Officials in charge of the Windy Gap Firming Project are checking to make sure that a Dec. 7 Colorado Supreme Court decision won’t adversely affect the $387.36 million transmountain water diversion project that will benefit the Front Range…
…in December, the Colorado Supreme Court sided with western slope interests against Aurora in case that had to deal with pumping western slope water across the continental divide and storing it on the eastern slope. Aurora had a one-half interest in the Busk-Ivanhoe Diversion Project in western Colorado.
Jim Pokrandt, spokesman for the Colorado River District, said the case relied on storage rights for the water.
“The big crux of the Aurora case is that they didn’t have the storage rights for the transmountain water that they took,” Pokrandt said. “So I’m sure what a lot of folks are doing is looking at their water decrees and seeing if they actually have decreed storage rights for transmountain water. That’s the question for the Windy Gap Firming Project.”
Pokrandt said that in the Colorado River District’s view, the court made the right decision.
“Our position is that water law is water law and under ordinary water law, you need a water right to store water. And Aurora argued that transmountain water didn’t need an exact water right to store it,” Pokrandt said. “But, no you do need that because water law is water law and there’s nothing special about transmountain water.”
The municipal subdistrict of the Northern Colorado Water Conservancy District is leading the Windy Gap Firming Project.
Eric Wilkinson, general manager of the municipal subdistrict, said they have staff researching to make sure the Aurora decision is unique to the case and to verify that the Windy Gap Firming Project is on legally stable ground moving forward.
“The Busk-Ivanhoe decision has a very significant application statewide … what the (Colorado) Supreme Court decision did is apply, in essence, 2016 water rights administration and laws to a decree that is dated 1928,” Wilkinson said.
Wilkinson added that staff are verifying that they have the water decrees to store Windy Gap water on the within the basin of use, which would be on the western slope.
Northern Spokesman Brian Werner said they are fairly certain the Colorado Supreme Court decision shouldn’t have major impacts on the Windy Gap Firming Project, which has been in the works since 2004.
“I want to emphasize that intent to store, we’ve had that all along with the Windy Gap Firming Project,” Werner said. “So if you’re asking what the impact (of the decision) is on the Windy Gap Firming Project, I can tell you there shouldn’t be any.”
Wilkinson added that with Colorado water law, nothing is certain forever.
“That’s the intent of our research to get to that point (of certainty),” Wilkinson said.
“But in Colorado water law and some of the interpretations that come out, there is not such a thing as absolute certainty. This Busk-Ivanhoe decision introduced some change in thought that didn’t exist before so say ‘here’s how it will be always and forever in absolute certainty’ is probably unreasonable, but we’re trying to get to a reasonable amount of certainty.”
Coyote Gulch contributor Brent Gardner-Smith took a deep dive into the decision to extract a summary of the water court process for a change of use. Below is his email:
You might appreciate this. In the midst of the Busk opinion is summary of the factors that go into changing a water right. I’ve stripped it of the legal references, but otherwise, it’s the court’s words. Thought you might appreciate it. Not sure what else to do with it yet.
Under Colorado’s doctrine of prior appropriation, a water right is a usufructuary right that affords its owner the right to use and enjoy a portion of the waters of the state.
One does not “own” water, but owns the right to use water within the limitations of this doctrine.
The touchstone of Colorado’s prior appropriation doctrine is beneficial use. That is, an appropriator perfects a right to use water by applying a specified quantity of unappropriated water to a beneficial use.
“Beneficial use” is “that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.”
Colorado water law has long recognized the right of water users to make changes to the terms of their decrees—including changes to the type, place, or time of beneficial use; changes to the points of diversion; changes to storage; and changes from direct flow to storage and subsequent application and vice versa.
Permanent changes to a water right must be decreed through the adjudication process established by the legislature … and … parties wishing to change the use of a water right must obtain a water court decree allowing the change in use.
It is inherent in the notion of a ‘change’ of water right that the right itself can only be changed and not enlarged.
This is a basic predicate of water law dating to the nineteenth century; a change application merely continues the rights decreed in the original appropriation in a new form and may not expand the amount of water actually used under the original decree.
In other words, “the right to change a water right is limited to that amount of water actually used beneficially pursuant to the decree at the appropriator’s place of use.”
Thus, in order to determine that a requested change of a water right is merely a change, and will not amount to an enlargement of the original appropriation, the court must quantify the historic use of the right to some degree of precision.
Quantification of the amount of water beneficially consumed pursuant to the decree guards against rewarding wasteful practices or recognizing water claims that are not justified by the nature or extent of the appropriator’s actual need.
An absolute decree confirms that a right of appropriation has vested; the decree entitles the appropriator to use that right through its decreed point of diversion in a specified amount, usually expressed as a flow rate (for a diversion right) or in acre-feet of water (for a storage right).
The term “historic use” refers to the “historic consumptive use” or “historic beneficial consumptive use,” attributable to the appropriation of that quantity of water historically consumed by applying the water to its decreed beneficial use.
However, because “the period and pattern of use are not known with certainty at the time a water right is adjudicated,” the decreed flow rate at the decreed point of diversion is not the same as the matured measure of the water right.
Rather, over an extended period of time, “a pattern of historic diversions and use under the decreed right for its decreed use at its place of use” will become the true measure of the mature water right for change purposes, typically quantified in acre-feet of water consumed.
Crucially, proper analysis of the historic consumptive use of a water right measures the amount of water both actually and lawfully used in accordance with the decree.
Because beneficial use defines the genesis and maturation of every appropriative water right in this state, every decree includes an implied limitation that diversions are limited to those sufficient for the purposes for which the appropriation was made.
Importantly, the actual historic diversion for beneficial use may be less than the decreed rate because, for example, “that amount has simply not been historically needed or applied for the decreed purpose.”
Indeed, we have often observed that when an appropriator exercises the right to change a decreed water right, he runs the real risk that the right will be requantified at an amount less than his original decree, based on the actual historic consumptive use of the right.
In short, an initial change application reopens the original decree for determination of the true measure of the appropriative right’s consumptive use draw on the river system.
In sum, “the fundamental purpose of a change proceeding is to ensure that the true right — that which has ripened by beneficial use over time — is the one that will prevail in its changed form.”
The decision is actually a page-turner for water wonks.
This graphic shows the transmountain diversions in Colorado. The Bousted Tunnel, at 53,871 AF, the Twin Lakes Tunnel, at 46,930 AF, and the Busk-Ivanhoe Tunnel, at 4,123 AF, have taken (in this data set) a combined average of 105,024 AF a year from the top of the Roaring Fork and Fryingpan rivers headwaters.
A map of the Busk-Ivanhoe system, with Ivanhoe Reservoir on the left side of the map and Turquoise Reservoir on the right.