@USBR Releases Water Markets Report

watermarketsreportusbr122016

Here’s the release from the US Bureau of Reclamation (Peter Soeth/Martin Doyle):

The Department of the Interior and the Bureau of Reclamation released a report this week reviewing the role of Reclamation in water markets. For decades, water users in the West have used many different approaches to address water needs particular to their location. In some instances, these approaches have created market conditions in which buyers and sellers voluntarily trade water rights. Such water market transactions can often involve Reclamation facilities.

This new report, “Water marketing activities within the Bureau of Reclamation,” highlights the ways Reclamation has partnered with water users to enable such transactions. The report reviews a series of case studies which illustrate a tremendous amount of locally-led innovation. The cases also illustrate how locally-led transactions have created collaborations and programs that enable greater flexibility in the use of project water or facilities.

Reclamation Commissioner Estevan López said, “States and local water users are quietly solving water resource challenges in the West through market-based agreements. This report will help us identify ways that Reclamation can enable and support continued innovation in the face of increasing pressures on scarce water supplies.”

Reclamation is continuing its role in supporting locally led water markets through a new grant program. Starting in Fiscal Year 2017, the WaterSMART grant program will provide grants to conduct planning activities to develop water marketing strategies to establish or expand water markets and water marketing transactions. Reclamation will make available $3 million for this program. This new funding opportunity is expected to be posted in February 2017.

Going forward, Reclamation will continue to work with states and local water users to promote innovation through water markets in order to provide flexibility, promote conservation and stretch scarce water supplies.

CWCB and City of Aspen oppose Maroon Creek Club water rights application

A map showing the location of four ponds on the Maroon Creek Club's golf course for which the club is seeking refill rights. The ponds are located between Maroon Creek and Buttermilk Mountain.
A map showing the location of four ponds on the Maroon Creek Club's golf course for which the club is seeking refill rights. The ponds are located between Maroon Creek and Buttermilk Mountain.

By Brent Gardner-Smith, Aspen Journalism

ASPEN – The Colorado Water Conservation Board and the city of Aspen are objecting to an effort by the Maroon Creek Club to broaden a 1989 water right so it can refill four ponds on its private golf course as it sees fit.

Both the CWCB and the city have filed statements of opposition in the water court case, which was filed in Division 5 Water Court on Aug. 10.

Maroon Creek LLC has told the court it is not asking to expand the 1989 water right, but is instead seeking “determination of surface water rights” regarding potential refill rights for four ponds, arguing that the 1989 right includes a refill option.

The ponds are usually filled once a year with water diverted from Maroon and Willow creeks, via the Willow Creek Ditch and the Herrick Ditch under the club’s 1989 water right.

But both the state and the city are concerned that in seeking such a determination, the club will actually expand its water right, and do so despite an earlier settlement agreement that sets a cap on the amount of water that the ponds can store in a year.

The four ponds can hold between 4.7 acre-feet to 13.6 acre-feet of water and altogether can store 35.1 acre-feet.

Two of the ponds are on the Buttermilk Mountain side of Highway 82 and two are on the clubhouse, or north, side of the highway. The ponds were built in the 1990s when the club’s golf course was shaped by a fleet of earthmovers.

Overall flow into the ponds, per the club’s 1989 water right decree, is not to exceed 4 cubic feet per second at any one time from the two irrigation ditches that feed them.

The Willow Creek Ditch can divert 10 cfs from Willow Creek, a tributary of Maroon Creek that enters at T Lazy-7 Ranch. And the Herrick Ditch can divert 60.86 cfs from Maroon Creek, which is a tributary of the Roaring Fork River.

Maroon Creek LLC concedes the original decree is silent as to refill rights, but points to an amended 
application from the 1989 case that says “the reservoirs will be filled and refilled, in priority, as needed.”

“The explicit reference to reservoir refill indicates the original applicant’s intent to alter the presumptive one-fill rule with respect to the reservoirs,” states the “application for a determination” from Maroon Creek LLC. “Further, the reservoirs are on-ditch structures and are part of the greater Maroon Creek Club golf course. Keeping the reservoirs full through refill is ‘consistent with and implicit in the normal operation’ of key golf course ponds, which provides further evidence that reservoir refill was intended to be a part of the final decree in the original case.”

Attorneys with Garfield and Hecht in Glenwood Springs prepared the water court filing. And Andrew Hecht, a founder of and a partner in Garfield in Hecht in Aspen, is the manager of Maroon Creek LLC.

Looking over the Maroon Creek Club golf course from Tiehack on Dec. 5, 2016. One of four ponds on the course is visible, barely, in the foreground.
Looking over the Maroon Creek Club golf course from Tiehack on Dec. 5, 2016. One of four ponds on the course is visible, barely, in the foreground.

City and state file statements

The Colorado Water Conservation Board, which owns instream flow rights in Maroon Creek and the Roaring Fork and Colorado rivers, filed a detailed statement of opposition in the case on Oct. 27.

“The principle that reservoirs are limited to one fill per year is well-established in Colorado water law,” states a filing from the CWCB, prepared by attorney generals for the state of Colorado. “Therefore, absent specific language in a decree to the contrary, a decreed right to fill a reservoir is limited to a single filing per year.”

The CWCB argues that the 1989 water rights held by the Maroon Creek Club were the result of a stipulated agreement in the water court case that created the rights, and as such are explicitly limited to a single fill of each of the four reservoirs.

“The decree unambiguously awards a single fill,” the CWCB says.

And addressing any potential decision to the contrary, the CWCB told the court it “should reject an interpretation which is contrary to the long-accepted single-fill rule.”

The CWCB holds instream flow rights on Maroon Creek and on the Roaring Fork and Colorado rivers.

Water attorneys for the city of Aspen also filed a statement of opposition in the case.

“Aspen owns numerous water rights decreed for diversion from Maroon Creek and the Roaring Fork River and its tributaries, including certain water rights that applicant (Maroon Creek LLC) has contracted for use on the property that is the subject of this application, which may be injured by the requested determination of surface water rights,” the city told the court.

As such the city says Maroon Creek LLC “must prove that the request for determination of surface water rights does not create a new water right or expand the decreed amount of use of the water rights” from the 1989 decree.

A status conference in the case is set for Dec. 22.

Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on coverage of water and rivers. The Daily News published this story on Monday, Dec. 6, 2016.

2016 Colorado Ag Water Summit recap

longspeak

From the Community Agriculture Alliance (Todd Hagenbuch) via Steamboat Today:

On Tuesday, people from across the state convened for the 2016 Colorado Ag Water Summit at the Jefferson County Fairgrounds near Denver. Northwest Colorado was well-represented by folks who live and work in both the Yampa and White River basins.

The subject of this year’s summit was ATMs. No, not the machines that dole out cash, but Alternative Transfer Methods. ATMs are creative ways to work within the confines of Colorado water law to enable water rights to be used temporarily for uses other than what they are decreed for.

You might remember that there are specific uses attached to an individual’s water right in Colorado – an irrigation right can only be used to grow crops, and a municipal right can only be used to provide water for a specific, set-area of residences, business, etc. If a water right is purchased for a use other than the decreed use, the owner must go to Water Court to get the decreed use changed.

When approved, these change cases typically take agricultural uses and turn them into municipal uses, enabling thirsty cities to provide water for an ever-increasing number of customers. This ‘Buy and Dry’ approach takes irrigated farm land out of production. Because these rural areas are losing agricultural productivity, they also lose farmers, farm implement dealers, local bankers, the local grocery store, etc. Eventually, entire communities disappear.

Landscapes also change from an environmental and scenic perspective when they are no longer irrigated. John McKenzie, who represented the Ditch and Reservoir [Company] Alliance at the summit, summarized it well when he said, “We’ve created a constructed landscape and environment we all really like.” That change was because we started irrigating otherwise arid lands.

ATMs aim to let one user (usually a municipality) use another’s right (usually a farmer’s) temporarily. Legislation passed recently allows for these arrangements three out of every ten years.

Since the legislation was passed, several new ATMs have been created. The Ag Water Summit featured panels of speakers who shared their experiences of participating in ATM projects. Ag producers, municipality and industrial, and environmental and recreational interests were represented.

Most of the panelists were pleased with their ATM experiences, although panelists also talked about the challenges that need addressed if this type of water sharing is to succeed in the intermountain west. Some of those challenges include: cost, risk and uncertainty, lack of infrastructure to store and convey water from one user to another and the need for all parties to have a long-term agreement in order to make plans for the future (investments, contracts, etc.).

Regarding those challenges, Andy Jones, a lawyer specializing in water law out of northern Colorado, said “Think of ATMs as a big water supply project: they will need the same infrastructure, investment, etc. as any ‘new source’ project.”

Colorado will continue to be challenged by more demand for water than we have supply to accommodate, but thinking of new ways to share it will help us to meet more of those needs. And continuing to bring people together to discuss it will help, too.

Todd Hagenbuch is the agriculture extension agent for Colorado State University Routt County Extension.

Will-O-Wisp’s water project 1041 permit for Tanglewood Reserve Planned Unit Development revoked — Fairplay Flume

drinking_water

From The Fairplay Flume (Lynda James):

Will-O-Wisp Metropolitan District’s water project 1041 special development permit for the now nullified Tanglewood Reserve Planned Unit Development was revoked on Nov. 3.

The county 1041 permit, approved in 2008, was to minimize impacts from the metro district developing infrastructure to pump water from Elk Creek and pipe it up Mount Evans Boulevard to the Tanglewood PUD.

The final plat for the 400-plus lot high density Tanglewood, located adjacent to Pine Junction on both sides of U.S. Highway 285, was conditionally approved in 2006 and nullified in 2015 for not fulfilling the conditions of approval.

The land was slated to be the second phase of the WOW subdivision development in the 1980s, is in WOW service area and WOW was going to use its Elk Creek water rights to provide water.

Phase 2 was never developed and the land has been through several owners since then.

At the Nov. 3 meeting, Park County Attorney Lee Phillips said the 1041 permit stated that if substantial material changes occurred after approval, the commissioners shall suspend the permit and set a hearing to determine whether new requirements are needed or if revocation was appropriate.

Phillips said the commissioners suspended the permit in June and decided to schedule a hearing to determine if it should be revoked since the PUD plat had been nullified.

Phillips said the county received a letter from WOW in August asking that the permit be kept active.

WOW’s attorney Richard Toussaint attended the Aug. 25 commissioners meeting and asked the commissioners not to revoke the district’s water project 1041 permit.
Toussaint said the permit was needed so WOW could continue to show the state that it was completing due diligence on the conditional water right WOW owned on Elk Creek.

He said a possibility exists that WOW could lose their water rights if the 1041 permit was revoked and WOW could not continue its due diligence.

By state water law, due diligence means actively doing something to reach the point where the water rights are put to beneficial use. Once beneficial use is established, the water right becomes absolute, instead of a conditional water right.

Toussaint said WOW wants to start building the infrastructure in Elk Creek as part of its due diligence. (See “Residents pack room for … ” in the Sept. 2 issue of The Flume).

A hearing was set for Sept. 22, but continued to Nov. 3 because Doug Windemuller, whose property would have been impacted the most, was gone in September.

Neither Toussaint nor anyone from WOW attended the Nov. 3 hearing.
Windemuller owns one of the three lots in Woodside Park subdivision where infrastructure was proposed both on land and in the creek.

At the hearing, he recommended revocation and that if a different land development on that property was permitted, then WOW could reapply for a 1041 to meet that development’s water needs.

#ColoradoRiver: Sharing Water: A Special Presentation from Author John Fleck Wednesday, November 30 #COriver

Young girl enjoying the river restored temporarily by the pulse flow March 2014 via National Geographic
Young girl enjoying the river restored temporarily by the pulse flow March 2014 via National Geographic

Register here. From the website:

When the governments of the United States and Mexico released water from Morelos Dam on the Colorado River in the spring of 2014, it marked the culmination of one of the most important environmental restoration experiments in arid western North America. In the midst of deep drought, water returned to the river’s desiccated delta, and with it birds, riparian plant communities, and even beavers. But while all nature is ultimately local, bringing water and wildlife back to that landscape required linking those local environmental concerns to water management in the entire Colorado River Basin, spread across seven U.S. states and two in Mexico. John Fleck will talk about his new book “Water is for Fighting Over: and Other Myths about Water in the West,” which chronicles the environmental success in the delta and the broader problem solving that made it possible.

waterisforfightingoverandothermythsaboutwaterinthewestjohnfleckcover

CCWCD closes on two projects

Geisert Reservoir photo via the Central Colorado Water Conservancy District.
Geisert Reservoir photo via the Central Colorado Water Conservancy District.

Here’s the release from the Central Colorado Water Conservancy District (Randy Ray or Kathy Parker):

““CCWCD is pleased to announce the acquisition Geisert Reservoir. Every opportunity CCWCD can, we partner with good people such as Weld County – it’s proven to be a win-win for the two agencies. The support of the Weld County Commissioners regarding irrigated agriculture is so impressive, the residents of Weld County have to be proud.” –Randy W. Ray – CCWCD Executive Director

“CCWCD staff and Board of Directors constantly evaluate projects which provide the best benefit for our constituents as economical as possible. The CCWCD Board was successful in siting a diversion point on the South Platte River for the Bijou Hill Recharge Project – will provide a supply of water to the South Platte River when operational that will last for years.” — Randy W. Ray – CCWCD Executive Director

Central Colorado Water Conservancy District and Weld County Commissioners formally executed a closing on Geisert Reservoir November 8th. This water storage project takes advantage of a mined-out gravel pit on the north bank of the Cache La Poudre River, near 11th avenue, in north Greeley. Geisert Reservoir has a perimeter slurry wall that limits interaction of groundwater, the slurry wall liner was tested and approved by the Colorado Division of Water Resources. The reservoir capacity is 1,257 acre-feet and should be full by the end of November. The water being used to fill Geisert Reservoir during the months of November and December originates from a lease with the City of Thornton and other water supplies owned by CCWCD upstream of Greeley. The water will be held in storage for a short time period and released in approximately January of 2017 for augmentation of Central’s 1,000-member agricultural irrigation wells. The CCWCD agricultural members are located in parts of Adams, Morgan and Weld Counties.

A second closing was held on November 10th for CCWCD’s Bijou Hill Recharge Project in western Morgan County near the town of Orchard, Colorado. This land near the South Platte River will become a new point of water diversion in which water will be pumped south of the river several miles to recharge projects. These recharge projects include ponds which will be constructed as shallow infiltration basins with the intent of rapid seepage into the underlying groundwater aquifer. The water after delivered to the groundwater aquifer becomes as water supply to be used for augmentation of agricultural wells in CCWCD’s plans of augmentation which include roughly 1,000 wells in parts of Adams, Morgan and Weld Counties. The groundwater recharge project will be a tremendous benefit to the CCWCD augmentation plans operated by the CCWCD Sub-Districts – the Groundwater Management Subdistrict and the Well Augmentation Subdistrict.

Augmentation plans are Water Court decreed legal agreements which allow irrigation wells to pump out of priority while preventing injury to more senior water rights using projects such as Geisert Reservoir and Bijou Hill Recharge.

Bijou Hill Recharge and Geisert Reservoir will not only help farmers and livestock producers with their needed water supplies, but also offer an added benefit of creating new wildlife habitat and water quality improvements.

CCWCD – Where the Future Flows

If you would like more information about this topic, please contact Randy Ray or Kathy Parker at 970-330-4540 or email at rray@ccwcd.org

South Platte River alluvial aquifer
South Platte River alluvial aquifer

@ColoradoStateU: Explaining Western water law — November 14

Photo by Havey Productions via TheDenverChannel.com
Photo by Havey Productions via TheDenverChannel.com

Here’s the release from Colorado State University (Jessica Bennett):

Learning more about the complexities and inner-workings of western water law is the purpose behind the 2016 Interdisciplinary Water Resources Seminar series. The series will discuss topics including the history and evolution of western water law; state compacts and federal water law; hybrid water law systems; water quality law; groundwater law; and environmental law. The seminar series will provide attendees the opportunity for in-depth discussion about water-related court cases and interaction with prominent water resource professionals.

Each seminar is held Monday at 4 p.m. in the Behavioral Sciences Building, Room 103. All faculty, students, off-campus water professionals, and members of the Fort Collins community who are interested in water and western water law are invited to attend.

For individuals unable to attend, the seminars will be recorded and uploaded online. The full semester schedule is accessible here. Or there’s more information regarding all of the Interdisciplinary Water Resources Seminars.

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Amy Beatie, Nov. 14

Amy Beatie began her tenure at the Colorado Water Trust in 2007, after nearly six years practicing water litigation at two different Front Range water law firms. Beatie will be speaking at the Nov. 14 seminar on “Water Transactions in Colorado.” She will discuss how the reallocation of water rights through voluntary transfers has become a significant part of the water law for Colorado and other Western states. In this seminar, Beatie will provide the basic tools and concepts necessary to understand water transactions under Colorado water law.

Prior to practicing water litigation, Beatie clerked for the Honorable Gregory J. Hobbs of the Colorado Supreme Court. While in law school, she helped create the University of Denver Water Law Review, served as its editor-in-chief, and now sits on the advisory board. She is also a member of the advisory board of Metro State University’s One World One Water Center and the board of directors of the Colorado Water Congress. In May 2013, Beatie received the Colorado Foundation for Water Education’s Emerging Leader award.