An appeals court Thursday reopened a lawsuit stemming from a dispute over fishing in the Arkansas River near Cotopaxi.
The dispute is between a fly fisherman who likes to fish in a particular spot in the river and the owners of the adjacent land where they live.
It is near where Texas Creek flows into the river.
The fisherman, Roger Hill, 77, contends he has a right to fish at the spot because he thinks the riverbed belongs to the state of Colorado.
The owners of the adjacent property, Mark Everett Warsewa and Linda Joseph, contend they own the riverbed, up to the river’s center line, where it adjoins their property.
Hill, of Colorado Springs, alleged they used force on several occasions, starting in 2012, to chase him away from his favorite fishing spot.
The Pueblo Chieftain reported in 2018 that he sued, asking a judge to declare that part of the riverbed belongs to the state and is open to public use, “so he can again safely fish (there).”
Last year, Magistrate Judge Kathleen M. Tafoya of the U.S. District Court for Colorado ruled against Hill, concluding he did not have “standing” to sue. He then took his case to the 10th Circuit Court of Appeals.
On Thursday, the Denver-based appeals court overturned Tafoya’s decision, saying she erred that Hill lacked standing of the particular type she cited…
The appeals court said in its 12-page decision that it may turn out that Hill does not have standing to sue, but not on the basis of a particular type of standing that Tafoya used in ruling against him.
Hill was represented by attorneys of an entity known as Lawyers for Colorado Stream Access.
The Upper Arkansas Water Conservancy District, based in Salida, and the Colorado Water Congress, based in Denver, joined the appeal as “friends of the court” in support of the land owners. Their missions include protecting Colorado water resources.
Click here to read the newsletter. Here’s an excerpt:
Demand Management – a Hot Topic!!
There was an in-depth conversation around the Demand Management topic!
Celene Hawkins stated that the Demand Management workgroups are just at the beginning stages of work and there are still many questions. There is a greater need for coordination and keeping a steady pace of the work, while not moving too quickly so as to not miss things, as these are very complicated issues and need to take that time that is needed to do the work. There will be a joint IBCC and Demand Management work-group meetings that will take place March 4-5 where discussion could take place about that better coordination and how the CWCB can support the work-groups moving forward.
Russell George stated that the IBCC is not a work-group in Demand Management, they intentionally stand aside because they wanted to be ready as the IBCC to pick any particularly thorny question with the statewide implication that needed their help. The IBCC believes that at this point in time, and because of what’s going on with the river as a whole and the water levels of the big reservoirs, Demand Management becomes probably one of the most important issues for discussion on Colorado water issues that there is today. George explained that we owe it to the other Upper Basin states who are going through this drill, to work together to find an approach that works in all four states or to learn together that Demand Management can’t be done. Whatever conclusion is reached, it needs to be based on open and careful consideration of Demand Management as a tool that is being evaluated, as called for in the Drought Contingency Plans and Legislation.
A court ruling from the end of 2019 determined Denver Water officials must obtain an additional permit for the Gross Reservoir Expansion Project — a project that Arvada is depending on so it can continue developing land…
Arvada has a contract to purchase raw water from the reservoir and, in return, is sharing the cost of the project with Denver Water…
Denver Water is one of two sources through which Arvada obtains its water, with the other being Clear Creek, said Jim Sullivan, the city’s former director of utilities.
In total, the city has the rights to roughly 25,000 acre-feet of water, with about 19,000 of that provided through its existing contract with Denver Water, he said.
“We have a comprehensive plan that shows what the city limits will eventually grow to” by 2065, when an estimated 155,000 people will live in Arvada, Sullivan said. This plan would require approximately 3,000 additional acre-feet of water, which will be provided by the expansion project.
If the project was canceled, the city would need to halt development until it could secure alternate resources, Sullivan said.
Those other resources “have been harder and harder to come by,” said Arvada water treatment manager Brad Wyant. Other entities have already laid claim to the other major water supplies in the area, he and Sullivan said.
“The next big water project will be some kind of diversion of water from the Western Slope to the Denver area,” Sullivan said. This would be a major endeavor and “there’s nothing even on the horizon at this point,” he said, making the success of the Gross project a necessity for Arvada development.
So far, the city has contributed about $3 million to the project, with plans to contribute about $100 million by 2030.
The contributions are funded through Arvada Water’s capital improvement budget, which consists of one-time tap fees that customers pay when they first connect to the Arvada Water system. Resident’s bimonthly water billing funds ongoing operations and will not be used for the Gross project, Sullivan said.
Denver Water has estimated the project will cost a total of $464 million.
“It’s time to protect Lake Mead and Arizona,” the state’s Republican governor, Doug Ducey, said in his state of the state address in January 2019. He spoke to lawmakers in the midst of uncomfortable, emotional discussions at the statehouse in Phoenix about who gets access to water in the arid West, and who doesn’t.
“It’s time to ratify the Drought Contingency Plan,” Ducey said to a round of applause.
The multi-state deal was the first issue Ducey brought up in the speech, and indicated it should be the legislature’s first priority. The deal was designed to keep the Colorado River’s largest reservoir — Lake Mead outside Las Vegas — from dropping rapidly and putting the region’s 40 million residents in a precarious position.
Within weeks Arizona finished its portion of the plan. Tribal leaders in the state didn’t receive any accolades in Ducey’s speech. But a recent Arizona State University report suggests they should have. The report’s authors said without the actions of two tribes — the Gila River Indian Community and the Colorado River Indian Tribes — the deal would’ve likely collapsed.
“We know that you have to live in harmony with your surrounding community, with the water resources, you have to respect that,” Gila River Indian Community governor Stephen Roe Lewis said after Ducey’s speech.
To get the deal across the finish line, Lewis’s tribe agreed to lease a portion of its water to the Central Arizona Groundwater Replenishment District, which supplies water for new homebuilding in the Phoenix and Tucson metro areas. The Colorado River Indian Tribes agreed to fallow cropland on its reservation, which spans the Arizona-California border, and leave the unused water in Lake Mead.
“This is a legacy, history making moment for all of Arizona,” Lewis said.
Arizona’s portion of the Drought Contingency Plan became a unique example in the basin of tribal leaders asserting themselves in broader discussions about the river’s management. Historically, tribes in the Colorado River basin have been marginalized and ignored, left out or outright banned from discussions of Western water development.
With the drought plan done, some tribal leaders say their water rights can’t be ignored any longer, and that it’s irresponsible of Western water leaders to leave them out of large multi-state agreements. And a recently finished federal study is amplifying tribes’ call for a seat at the table to negotiate the river’s future.
“Early on, five years ago, the tribes didn’t think, well, how do we participate in this process?” said Daryl Vigil, member of the Jicarilla Apache Nation in northern New Mexico, and acting director of the Ten Tribes Partnership, an organization that represents the interests of 10 Colorado River basin tribes.
“But, I think given the nature of the senior nature of tribal water rights, they absolutely needed to be involved in that process,” Vigil said.
In December 2018, the federal government released the Tribal Water Study, which looked at water use within tribes, and projected future demands. One big takeaway from the report gained attention across the Southwest: On paper, tribes have rights to about 20% of all the water in the Colorado River watershed. Tribes aren’t using all the water they have rights to, but they plan to, which will have ripple effects throughout the entire southwestern watershed, Vigil said…
Celene Hawkins, who heads up The Nature Conservancy’s work on tribal water issues in the Colorado basin, said while tribes were largely left out of the negotiating process that led to the 2007 guidelines, the tone is different now. (The Nature Conservancy receives funding from the Walton Family Foundation, which also supports KUNC’s Colorado River coverage)
“I am hearing more conversation throughout the basin about tribal inclusion in the process,” Hawkins said. “I don’t know how it’s going to look yet, but there seems to be a commitment to doing better by having the tribal voices at the table this time.”
When the tribes show up to negotiate, they’ll be entering the room with some of the most senior water rights in the basin, which comes with their own level of value and power. Selwyn Whiteskunk, who manages water issues for the Ute Mountain Ute tribe in southern Colorado, said he plans to push for more flexibility in the tribe’s water rights portfolio.
After years of their questions and concerns not being met, Colorado’s top water engineers are looking to formally oppose the water rights associated with a proposed reservoir project in northwest Colorado.
In November, the Colorado Division of Water Resources filed a motion to intervene in the Rio Blanco Water Conservancy District’s application for a 90,000-acre-foot conditional water-storage right on the White River. The state DWR is now waiting for a judge to determine whether it will be allowed to file a statement of opposition in the case.
For more than 4½ years, state engineers have expressed concerns that the conservancy district has not proven there is a need for the water, which would be stored in the proposed White River reservoir and dam project between Rangely and Meeker. The issue is whether Rio Blanco has shown that it can and will put to beneficial use the water rights it applied for in 2014. It remains unclear whether the town of Rangely needs the water.
“And throughout this case, the Engineers have consistently maintained that RBWCD must demonstrate that its claimed water right is not speculative,” the motion reads. “Although RBWCD has addressed some of the Engineers’ concerns in the past six months, the Engineers maintain that RBWCD has not met its burden.”
State Engineer Kevin Rein said his office had been trying to resolve its concerns with Rio Blanco’s claims to water informally and doesn’t take filing a motion to intervene lightly.
“We are very aware of the influence we can have on the process and costs and delays, so we don’t just frivolously file a statement of opposition every time we have some issue with a case,” Rein said. “We believe there are issues that need to be fixed in this water-court application in order for it to go forward.”
Rio Blanco declines comment
The White River storage project, also known as the Wolf Creek project, would store anywhere from 44,000 to 2.92 million acre-feet of water. The water would be stored either in a reservoir formed by a dam across the main stem of the White River — this scale of project proposal is now rare in Colorado — or in an off-channel reservoir at the bottom of Wolf Creek gulch, just north of the river. Water would have to be pumped from the river uphill and into the off-channel reservoir.
Rio Blanco District Manager Alden Vanden Brink declined to comment on the state’s opposition, citing concerns about litigation. Vanden Brink also is chair of the Yampa/White/Green River Basin Roundtable and sits on the board of the Colorado River Water Conservation District.
Rio Blanco is a taxpayer-supported special district that was formed in 1992 to operate and maintain Taylor Draw Dam, which creates Kenney Reservoir, just east of Rangely. The district extends roughly from the Yellow Creek confluence with the White River to the Utah state line.
Rio Blanco says Kenney Reservoir is silting in at a rate of 300 acre-feet per year, threatening the future of Rangely’s water supply and flatwater recreation, and a new off-channel reservoir on the White River could help solve this problem.
If a water-court judge grants the motion to intervene, the state will become the second opposer in the case. Currently, the only other remaining opposer is 4M Ranch, owned by Deirdre Macnab.
Tucked between rolling hills of arid, sagebrush-covered rangeland, the proposed reservoir and dam site abut her 13,000-acre property along the White River.
Macnab, who bought the beef and hay operation nearly five years ago, is on the board of the conservation group White River Alliance, as well as the Yampa/White/Green River Basin Roundtable. Macnab said the main reason she opposes the reservoir project is because of the state’s concerns.
“If we felt that there was a clear purpose and need that would benefit the public, then we would, in fact, be supportive of this,” Macnab said. “But the fact that the experts are saying there does not appear to be a clear purpose and need means that this would be a real travesty and waste of taxpayer money. It’s something we will continue to oppose until that changes.”
State engineers are also concerned about the vagueness of the revised amounts of water for various uses that Rio Blanco says it needs.
In a 2018 report, Division 6 engineer Erin Light questioned Rio Blanco’s claims that it needed water for industrial/oil and natural gas/oil shale and irrigation uses. In response, Rio Blanco dropped those claims but almost doubled the need for municipal and industrial use for the town of Rangely and added a new demand for recreation.
The conservancy district also set the amount of water for environmental needs for threatened and endangered species at between 3,000 and 42,000 acre-feet despite its acknowledgement that the actual amount needed for this use was unknown. Rio Blanco then added a new demand for a sediment pool of 3,000 to 24,000 acre-feet and an insurance pool of up to 3,000 acre-feet but did not describe either of these uses.
“Thus, despite removing its claims for industrial/oil and natural gas/oil shale, which originally accounted for over half the demand for the claimed water right, the total demands for water identified by RBWCD actually increased to 24,000-100,000 acre-feet,” the motion to intervene reads.
Since 2013, the Colorado Water Conservation Board has given roughly $850,000 in grant money to Rio Blanco to study the White River storage project, including a $350,000 Colorado Water Plan grant in 2018. According to CWCB communications director Sara Leonard, Rio Blanco has so far spent about 60% of these most recent grant funds.
Leonard said that DWR’s motion to intervene was not a surprise to the CWCB, that the two state agencies with seemingly differing views on the project have met and that the CWCB is aware of the state engineers’ concerns.
“The grants that have been awarded to the applicant to date have all been with the intention of helping the District with the evaluation process,” Leonard wrote in an email. “In other words, the motion has not changed the scope of the ongoing work in the grant.”
The Colorado River Water Conservation District has also given Rio Blanco $50,000 toward investigating the feasibility of the storage project.
“We are not advocates and we are not opposers,” said Jim Pokrandt, director of River District community affairs and chair of the Colorado River Basin Roundtable. “It’s a regional question that our constituents need to figure out.”
Aspen Journalism collaborates with The Craig Daily Press and other Swift Communications newspapers on coverage of water and rivers. This story appeared in the Jan. 17, 2020 edition of The Craig Daily Press.
The Wyoming State Engineer’s Office recently heard a proposal to drill eight high-capacity water wells in Laramie County, and now 17 ranchers and farmers in the area are protesting.
The wells would use a total of 1.5 billion acre feet of water from the Ogallala Aquifer that many states in the Western U.S. rely on for water. Fifth generation Wyoming rancher and attorney Reba Epler said if the state engineer approves these wells, stock wells on her family ranch would likely dry up.
“One of the ways we’d be impacted immediately is that we’d have shallower stock wells that we’ve used for about 50 years,” Epler said. “We’d have to drill much deeper, and the cost of drilling deeper is getting significantly more expensive.”
Epler said all eight wells were applied for by three members of the Lerwick family. She said it’s possible the family wants to sell the water to use in the fracking process since a lot of oil and gas development is happening in the area.
“If you really want to know, I think it’s a classic resource grab,” Epler said. “And anyone who controls 4,642 acre feet of water has a tremendous amount of power and they will have it a long time and many generations of people will have that kind of power.”
Epler said it doesn’t make sense to give anyone that much water when the Ogalalla Aquifer is already drawing down so much nationwide.
“The aquifer in parts of Texas has gone dry, it’s gone dry in parts of New Mexico. Oklahoma, Kansas are having a really difficult time because their pivots are drying up. Colorado, eastern Colorado is having a heck of a time.”
Epler said she remembers when Lodgepole Creek near her ranch ran year round.
Opinion: Think we’re too polarized to do anything meaningful? Tom Buschatzke and Ted Cooke prove that even those who disagree can work together.
The Lower Basin Drought Contingency Plan is nothing short of historic.
Not necessarily because it’s a good deal. The multi-state agreement, which was signed in May, is costly and doesn’t solve any of the problems that threaten the Colorado River, which supplies about 40% of Arizona’s water supply.
DCP is monumental because it proves that people with wildly different viewpoints can learn to work together and accomplish things that matter. Even now, despite how divided our country has become.
California, Nevada and Arizona agreed to leave water in Lake Mead to keep it from reaching catastrophically low levels. Arizona also created its own plan to lessen the impact of those cuts on Pinal County farmers, who would have been heavily impacted by the deal.
That was a massive lift. Ironically, though, it probably never would have come together if two guys hadn’t decided to bury the hatchet – and in doing so, led a group of vastly different water interests to a deal they could all support.
It’s why Tom Buschatzke, director of the Arizona Department of Water Resources, and Ted Cooke, general manager of Central Arizona Project, are The Arizona Republic’s 2019 Arizonans of the Year.
Their agencies had locked horns over the deal’s basic details, including how to manage water levels at Lake Mead. Dueling op-eds were published in The Republic, with Buschatzke vowing not to sign CAP’s proposed plan.
Then, in May 2018, after water bills stalled in the state Legislature, Buschatzke and Cooke decided to become Switzerland – and agreed to co-chair a steering committee that produced an insane amount of water policy in a matter of months.
“It wasn’t like Switzerland,” Cooke said in a joint interview with Buschatzke. “It was as if the two most visible combatants agreed to put down their swords and take another approach.”
Their first few appearances were awkward. Words were chosen carefully. There was a palpable tension lying just below the surface, and the long hours and tense negotiations took a toll on the pair, who by February looked pale and gaunt, like they had been through the war.
But that tension helped bring the deal together.
Their example spread behind the scenes
There were a lot of strange bedfellows working on this deal, groups that had vastly different ideas about who should get the water and how it should be used. Yet they kept trading ideas, even when many felt the effort was DOA.
Some later said they were compelled to keep at it when talks broke down (and they broke down a lot) because of the example Buschatzke and Cooke were setting.
It was a poorly kept secret that their partnership had its share of “lively discussions behind closed doors,” as Buschatzke characterized it. But Buschatzke and Cooke said they were going to work together for DCP’s sake – and everyone involved knew they meant it.
There were many other players who orchestrated major compromises behind the scenes, including Paul Orme, an attorney representing Pinal County irrigation districts, and HighGround, a public-affairs consulting firm that for two years facilitated meetings between cities and farmers.
Without their efforts, this deal would not have come together.
Equally instrumental were those who put money and water on the negotiation table, including the governor, non-profit environmental groups like the Environmental Defense Fund and the Gila River Indian Community. In fact, Arizona’s plan is one of the first major Western water agreements where tribes were actively involved and treated as key players in the deal.
No one was willing to let the effort die
That’s what makes DCP so remarkable.
It’s easy to dig in on water rights, and historically, disputes over limited supplies have devolved into a zero-sum game.
Yet farmers, cities and tribes made sacrifices and compromises that might not necessarily be in their best interests because they knew that being left out of the regional deal would put everyone’s water at risk.
When talks started to get off track, Gov. Doug Ducey wrote an op-ed that spelled out the principles that should be guiding the effort.
Few people liked the plan CAP passed to spare farmers from such drastic, immediate cuts. But it served as a catalyst for the plan that ultimately succeded.
Lawmakers were heavily involved – which was critical, considering they ultimately had to pass the plan – and in addition to the countless meetings that occurred behind closed doors, stakeholders met frequently in public to hold each other accountable.
These lessons have been noted repeatedly in committees that are tackling the state’s next big water crisis, a depleting groundwater supply.
Even now, collaboration continues
Even better, the working relationships that were created during DCP have continued far beyond the state’s many study groups.
The math driving DCP works only if Pinal farmers drill wells to use once their Colorado River water goes away. That means farmers will soon be pumping a lot more from an aquifer that ADWR contends does not have enough water to support everyone for the next 100 years.
Though the Legislature earmarked some cash to refurbish and relocate the wells farmers need, the project also relies on federal funding to be completed quickly.
Irrigation districts knew they would need partners to compete for that cash and began working with universities, municipal water providers, conservation districts, environmental groups and others, who have all ponied up cash to match the grant. They also have expanded the project, earmarking additional funds for farmers to experiment with low water-use crops and irrigation techniques.
According to the grant application, the goal is to involve at least 6,000 acres in these low water-use projects. The newly drilled wells also will help entities like CAP recover water they had previously stored underground for times of shortage.
This is about more than water policy
That’s a better solution than what we arrived at during DCP negotiations – one that aims to reduce the impact of groundwater pumping and spread use of the wells to more than just farmers.
And it’s yet another model that Arizona can point to as it works through water problems (or any problems, for that matter).
DCP is historic – and the example set by Buschatzke and Cooke is worth lauding – not because everyone is suddenly on the same page about our water future. Deep disagreements remain.
DCP matters because it proves that people with vastly different interests can get in a room and talk it out, maybe even shout it out in private. But they keep talking to each other. Keep looking for solutions they can live with, even if the ideas aren’t perfect.
Because they know that’s how you accomplish meaningful things.
This is an opinion of The Arizona Republic’s editorial board.