No Pipe Dream, Save Rural NoCo Corp. and Save the Poudre filed a lawsuit in 8th Judicial District Court last week against the county commissioners, naming former commissioners Tom Donnelly and Steve Johnson specifically, as well as the NISP Water Activity Enterprise.
The lawsuit asks the judge to reverse the decision to grant a 1041 permit for the project, throw it out or send it back to the Larimer County Board of Commissioners for a new hearing.
It targets Johnson and Donnelly, the two yes votes in a split decision, saying that both Republican commissioners, who have since left office, should not have voted on the permit because of a “decade-long” record of advocacy and support for the proposed reservoir project.
And the suit also offers 44 examples of why the organizations believe the permit exceeded the county’s jurisdiction or abused its discretion, ranging from decisions around streamflow to pipeline routes to the number of alternatives considered.
The suit claims that the commissioners did not adequately look at the overall picture of how the project would affect residents, the environment, wildlife and the Cache la Poudre River…
Jeff Stahla, spokesman for Northern Water, pointed out that county staff members and the nonpartisan appointed Larimer County Planning Commission recommended approval of the permit based on the county’s regulations and the specific criteria that county officials were required to consider.
“We’re confident that the strength of the entire permitting process, local, state and federal, will prevail,” said Stahla…
“Basically the lawsuit is total crap,” Johnson responded in a text message. “Tom (Donnelly) and I were no more biased in favor of the project than John (Kefalas) was biased against the project. But as we said in the hearing, we put aside all of our opinions of the project and commented completely and exclusively on the criteria in the land use code.
“I am confident the county will have no problem defending the propriety of our actions,” he said.
Stahla pointed out that Save the Poudre also appealed the state water quality certification that was granted for the project, and the Colorado Water Quality Control Division rejected that challenge.
He added, “We look at this as another attempt to delay an important project for the long-term water supply in Northern Colorado.”
Six years after the application was filed, a judge has granted a water conservancy district in northwest Colorado a water right for a new dam-and-reservoir project that top state engineers had opposed.
Rio Blanco Water Conservancy District now has a 66,720 acre-foot conditional water right to build a dam and reservoir between Rangely and Meeker, known as the White River storage project or the Wolf Creek project. The conservancy district is proposing an off-channel reservoir with a dam 110 feet tall and 3,800 feet long, with water that will be pumped from the White River.
But the decree, while granting Rangely-based Rio Blanco the amount of storage it was seeking, doesn’t allow the district all the water uses that it initially wanted. The decree grants Rio Blanco a water right for municipal use for the town of Rangely; augmentation within its boundaries; mitigation of environmental impacts; hydroelectric power; and in-reservoir use for recreation, piscatorial and wildlife habitat. The conservancy district will not be able to use the water for irrigation, endangered fish or augmentation in the event of a compact call.
For more than five years, state engineers had argued that the project was speculative and that Rio Blanco couldn’t prove a need for the water. Engineers had asked the court to dismiss Rio Blanco’s entire application in what’s known as a motion for summary judgment. Division 6 Water Judge Michael O’Hara III agreed in part with state engineers and dismissed some of Rio Blanco’s requested water uses in an order filed Dec. 23. That left the fate of just three water uses to be determined at trial: Colorado River Compact augmentation, endangered fish and hydroelectric power.
After seeing his order, the parties asked O’Hara if they could postpone the trial, which was scheduled for Jan. 4, while they hammered out a settlement agreement. The final decree and a stipulation, filed Thursday night, cancel and replace O’Hara’s Dec. 23 order and let the parties avoid a trial.
“When you come to agreements, you are much more likely to live with those than having the judge force you to do things you didn’t really want to do,” O’Hara told the parties in a Dec. 31 conference call.
Both sides said they are happy with the terms of the decree. Conservancy district Manager Alden Vanden Brink said that after six years of working out issues, the decree brought a sense of elation and a sigh of relief to the community of Rangely. The district is very pleased with the final result, he said.
“Folks kept holding their breath,” Vanden Brink said. “And now we’ve got a step forward for drought resiliency.”
Settlement and stipulation
The main issue for state engineers, who were the sole remaining opposer in this case, was whether Rio Blanco could prove it needed the water. According to Colorado water law, new conditional water rights cannot be granted without a specific plan and intent to put the water to beneficial use. State engineers maintained that the conservancy district had not proven that water rights it already owned wouldn’t meet its demands.
But Rio Blanco said its existing water rights in their current locations were insufficient and that it needed a new reservoir on Wolf Creek to meet current and future needs. And district officials said they were wary of seeking to transfer these rights and uses to a new reservoir because that requires a water-court process whose outcome is not guaranteed; therefore they needed the new conditional storage right. Even if a water court approved the changes, Rio Blanco still said there was not enough storage in the White River basin to meet demands during a drought or for future uses.
State engineers and Rio Blanco disagreed about how much, if any, water Rio Blanco needed for Rangely, irrigation, endangered fish and other uses. Rio Blanco agreed to give up two of the three water uses left to be determined at trial: Colorado River Compact augmentation and endangered fish.
According to the decree, if Rio Blanco in the future is successful at moving any of their existing water rights to the Wolf Creek project, the same portion of water granted by the decree will be canceled, eliminating duplicate water rights in the reservoir.
A stipulation agreed to by both parties lays out further restrictions on the water use.
According to the stipulation, annual releases from the reservoir will be limited to 7,000 acre-feet for municipal and in-basin augmentation uses. Up to 20,720 acre-feet of water can be used for mitigation of the environmental impacts of building the project. But once the exact amount of water needed for future mitigation is determined, the difference between that amount and the 20,720 acre-feet will be canceled, reducing the total amount of water decreed.
State Engineer Kevin Rein said the final decree is a good outcome, reached in the spirit of cooperation. Even so, state engineers were never willing to compromise on giving Rio Blanco water for Colorado River Compact compliance.
“That’s something that we would have held fast on in trial and we held fast on discussing it with them,” Rein said. “It’s more a matter of something that does not legally occur right now with the state of Colorado water law.”
Rio Blanco had proposed that 11,887 acre-feet per year be stored as “augmentation,” or insurance, in case of a compact call. Releasing this replacement water stored in the reservoir to meet downstream compact obligations would allow other water uses in the district to continue and avoid the mandatory cutbacks in the event of a compact call.
Many water users in the White River basin, including the towns of Rangely and Meeker, have water rights that are junior to the 1922 interstate compact, meaning these users could bear the brunt of involuntary cutbacks. Augmentation water would protect them from that.
State engineers said augmentation use in a compact-call scenario is not a beneficial use under Colorado water law and is inherently speculative. This doesn’t seem to be a settled legal issue, and O’Hara said in his motion that he would not rule on whether compact augmentation was speculative.
“We believe the augmentation for compact compliance was very difficult to allow just due to the complexities of the Colorado River Compact and the Upper Colorado River compact, and it’s gratifying that Rio Blanco listened to us and we were able to get a final decree that didn’t include that component,” Rein said.
The water-right decree represents just the first step toward constructing the project, which will need approvals from federal agencies. Every six years, in what’s known as a diligence filing, Rio Blanco must show the water court that it is moving forward with the dam and reservoir in order to keep its water right. Fort Collins-based environmental group Save the Colorado has already said it will oppose the project.
Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with The Aspen Times and other Swift Communications newspapers. This story ran in the Jan. 9 edition of The Aspen Times.
In 2016, labor and community activists in Lansing, Michigan, called for Governor Rick Snyder to resign over the Flint water contamination crisis. The former governor did not step down—his term lasted through 2019. Photo by Jim West
FromThe Washington Post (Kim Bellware and Brady Dennis):
Former Michigan governor Rick Snyder (R) and several former officials are expected to be indicted in connection with the 2014 Flint water crisis that led to at least 12 deaths and dozens of illnesses in the predominantly Black city, the Associated Press reported Tuesday.
Snyder, his former health department director Nick Lyon and former adviser Rich Baird were among those notified by the office of Michigan Attorney General Dana Nessel (D) of the pending indictments and advised to expect imminent court dates, the AP reported, citing unnamed sources familiar with the prosecution.
The nature of the criminal charges were not immediately clear.
Randall L. Levine, an attorney representing Baird, confirmed in a statement to the Post Tuesday that authorities notified him this week about indictments. He said Baird “will be facing charges stemming from his work helping to restore safe drinking water for all residents and faith in the community where he grew up.” But he added that Baird had not yet “been made aware of what the charges are, or how they are related to his position with former Michigan Governor Rick Snyder’s administration.”
Nessel’s office dropped all criminal charges in the case in 2019, shortly after she took office, effectively restarting the probe.
Mona Hanna-Attisha, the pediatrician whose research in 2015 first documented dangerously high lead levels in children’s blood, welcomed news of the reported charges.
“As a pediatrician privileged to care for our Flint children, I have increasingly come to understand that accountability and justice are critical to health and recovery,” Hanna-Attisha told The Post in a text message Tuesday. “Without justice, it’s impossible to heal the scars of the crisis.”
Hanna-Attisha, director of pediatric residency at the Hurley Children’s Hospital in Flint, warned that while the news was a salve for the many families whose lives had been affected by the poisoned water, criminal charges are only part of the story…
“Residents of Flint were repeatedly told they were crazy. They were belittled. They were harmed by the water physically, emotionally,” Michigan Senate Minority Leader Jim Ananich (D-Flint) said in an interview Tuesday. “I’ve always said that I think criminal charges are important, because I think it’s criminal what happened to my town.”
Ananich emphasized that he doesn’t know the extent of the charges expected later this week, but he does hope they send a clear message: “No person, no politician, no one is above the law.”
For Flint families who continue to live with the irreversible effects of the tainted water, Tuesday’s news symbolized a level of vindication.
“I can’t believe it,” Gina Luster, a Flint community activist, told The Post in a message. “Finally, after 7 years of fighting for justice.”
From Yale Climate Connections (Jan Ellen Spiegel):
The region is transitioning to a more arid climate, challenging longstanding practices of water-sharing in the basin.
Colorado is no stranger to drought. The current one is closing in on 20 years, and a rainy or snowy season here and there won’t change the trajectory.
This is what climate change has brought.
“Aridification” is what Bradley Udall formally calls the situation in the western U.S. But perhaps more accurately, he calls it hot drought – heat-induced lack of water due to climate change. That was the core of research released in 2017 by Udall, a senior climate and water scientist at Colorado State University’s Colorado Water Center, and Jonathan Overpeck at the University of Michigan.
Their revelation was that the heat from climate change was propelling drought. “Previous comparable droughts were caused by a lack of precipitation, not high temperatures,” the study said. And all the factors at play were having compounding effects on each other that made the situation even worse. Those impacts were being felt most acutely on the biggest water system in the West – the Colorado River Basin.
Without a dramatic and fast reversal in greenhouse gas emissions to slow climate change, Udall and Overpeck said, the additional loss of flow in the basin could be more than 20% by mid-century and 35% at the century’s end – worse than currently assumed.
“I always say climate change is water change,” says Udall, whose father was Arizona congressman Morris (Mo) Udall, an iconic environmental activist. “It means too much water, not enough water, water at the wrong time. It means reduced water quality. You get all of these things together as the earth warms up.”
In Colorado it’s all pretty much coming true. The drought is the second worst 20-year period in the past 1,200 years, according to Udall. This summer/fall alone had some of the hottest spells on record and the worst wildfire season ever. On the other hand, 2013 brought catastrophic floods to the Front Range. “I got 17 inches of water in my house here in four days. It’s all part of the same change,” Udall says.
It’s forced Colorado to start facing the reality that its perpetual struggle for water can no longer be written off as cyclical weather that will all balance-out over short periods of time. It’s climate change at work, and it requires long-term planning and likely fundamental changes to the paradigm of how the state gets, uses, and preserves its water.
The state and individual municipalities are beginning to address their new reality with policies that range from the obvious – conservation, just using less water, to the more innovative – considering using beaver dams to restore mountain wetlands and generally remediating the landscape to better handle water.
But all those actions and more must face the political reality of the longstanding way water-sharing is handled in the basin. It pits state against state, rural against urban, agriculture against, well, everyone.
The Colorado River Compact
The Colorado River Basin provides water to a massive swath of the Rocky Mountain and western states. The Compact that rules it dates to 1922, with California, Nevada and Arizona – the lower basin states – essentially getting first dibs on water that flows from upper basin states – Colorado, Wyoming, New Mexico, and Utah – with secondary access to the water, so they generally absorb the brunt of water losses.
Colorado is a headwaters state – where the river flows down from the continental divide. It relies on whatever falls out of the sky: It does not have the luxury of access to whatever water may flow in farther downstream.
A process to re-evaluate aspects of the Compact is underway with a 2026 deadline. No one expects the basic structure to change, though other contingencies are likely to be layered on, as has happened a number of times in the intervening years.
River levels are off some 20% since the Compact was initiated, compounding the water crunch while the region’s population has grown dramatically, especially in Colorado. That combination of factors have many water experts and administrators convinced any new strategy has to do more than divvy-up the water differently.
That’s because it’s climate change and not cyclical weather causing the problems, Udall says emphatically: “Yup. Yup. Yup.” He notes that scientists already see impacts they hadn’t expected to see until 2050.
“I think some of the predictions about reduced flows in the Colorado River based on global warming are so dire it’s difficult to wrap your brain around them. We have no operating rules for that kind of reduction in supply,” says Anne Castle, a senior fellow at the Getches-Wilkinson Center for Natural Resources at the University of Colorado. “Even with these discussions that will be taking place over the next five years for the Colorado River system, I’m not sure that they will be able to get to an agreement about what would happen if flow is reduced by 50%.”
The critical climate change impacts seem to act in a loop: heat causes more evaporation of surface water. The resulting lower water level means water will warm more easily, and in turn evaporates more readily.
Global warming is also changing the dynamics of snowpacks. They melt faster and earlier and don’t regularly continue to slowly dissipate, creating a gradual runoff that is more beneficial and sustaining to the water supply. Udall notes that on April 1, 2020, there was 100% of normal snowpack above Lake Powell, which with Lake Mead are the two enormous reservoirs in the system. In a normal year that would provide 90-110% of runoff. But it provided only 52% in 2020 as a result of dry warm weather through fall.
Sustainable water supplies are also threatened as weather events occur more often as extremes: major rains in a short period of time sandwiched by extended dry periods. Torrential rains that follow a long drought may help the soil, but runoff may never make it to the water supply.
Wildfires, in recent years larger and longer, complicate matters by dumping ash and crud into water bodies, which results in less water and contamination that can render unusable what water there is. And if difficult climate conditions keep trees from growing back after fires, the resulting ecosystem changes could further damage water supplies.
Big ideas in place
“This is not your average variability,” says Andy Mueller, general manager of the Colorado River Water Conservation District, which covers most of the water used by the state. “Cooperative management of water resources can really help in these hot dry summers,” he says.
Mueller says the district tried releasing additional water from a reservoir that also creates hydropower. The extra water helps cool the river it flows into – slowing evaporation and allowing fishing and other activities often stopped when the water gets too warm and low to resume. That same water was also used for other hydropower plants downstream. Some then continued to other river areas. And some was diverted for crop irrigation, important given that farming and ranching are the biggest consumers of water in the state.
Basic conservation – just using less water – is always the first step, but even Colorado Water Conservation Board senior climate specialist Megan Holcomb admits: “We’re definitely beyond that conversation.”
The Board is considering systems that employ the technique of demand management: finding ways to use minimal water to allow for storage for dry years. So far, the thinking involves a voluntary program.
Already in place is an online tool called the Future Avoided Cost Explorer or FACE: Hazards. It helps quantify impacts of drought and wildfires on sectors of the Colorado economy.
“We know these hazards are going to continue to impact our economy, but we have no numbers to even say how much we should invest now so that we don’t have financial impacts in the future,” Holcomb says.
Castle talks about ideas such as consideration of water footprints on new developments and re-developments; integrating land use planning with water planning including things such as landscaping codes; and use of technology at various levels of water monitoring.
In search of more equitable sharing of water
She notes also a drought contingency plan adopted in 2019 by the Compact states calling for reductions in deliveries to the lower basin. It’s pointed in the right direction, she says. “At the same time pretty much everyone involved in those discussions and that agreement also agreed that it was not sufficient,” Castle says.
Many experts have called for more equitable sharing of water reductions. But ideas on what is fair differ from state-to-state and also among different groups within a region where some interests are pitted against agriculture, which accounts for 80% of the water usage in the basin.
“I think people look at that huge volume of water being used in irrigated agriculture as a place where there’s flexibility. And when you get to the politics of working through that in an equitable way, it gets really complicated,” says Jennifer Pitt, Colorado River program director for the National Audubon Society.
The suggestions have included crop switching or alternative transfer mechanisms that call on farmers to periodically grow less water-intensive crops, or pay them not to grow, as a way to make water available for municipal use or storage.
“From a pure economic perspective, it may seem like you pay them and they’re whole,” Udall says. “There are actually a lot of things where they don’t get whole. They potentially lose a market that they’ve established over years and a great relationship with a buyer. And if that goes away for a year, that buyer may not come back.”
In the end, experts say people in the Southwest should definitely not count on more precipitation arriving to bail them out. “I would disabuse people of the idea that you’re going to get more water,” Udall says. “I think it’s pretty clear you’re going to have less water.” So for folks who think building more reservoirs is a solution, Udall says: “It’s not at all clear to me that that works.”
But less conventional strategies just might.
Beaver dams to the rescue?
Beaver dams are a water management technique that has worked in nature for eons – at least for beavers. Sometimes for people? Not so much.
But the thinking is they could help slow water loss from high-elevation wetlands. That includes the real deals built by beavers or human-constructed beaver dam alternatives.
“We think there’s a possible synergy there that helps to improve water supply for water users and helps to improve habitat conditions for species – birds in particular – that depend on that kind of wetlands being around,” Pitt says.
The goal would be to protect remaining ones, help establish new ones, and do the same for high-elevation meadows.
A lot of research is still needed, Pitt says. “There’s all kinds of instrumentation that has to go into place to understand the groundwater, the surface water, evaporation, the water balance, what it does to your river downstream,” she says. There are water law considerations. And then the inevitable pilot projects.
Overall, she says, this type of holistic approach to water through natural ecosystem restoration could become a component of water-sharing agreements as have already been done with Mexico. In exchange for getting river areas restored to better flow, Mexico agreed to a sharing agreement it might not otherwise have.
More people, less water, and a touch of Johnny Appleseed
More people and less water has forced Denver Water to work with uncertainties not previously considered. “Variability is the name of the game in Colorado,” says lead climate scientist Laurna Kaatz. “And that variability’s going to increase over time. That makes it incredibly challenging to continuously provide high-quality drinking water when you’re not sure what’s coming around the corner.”
The situation calls for adaptive capacity, she says, to provide technical and legal flexibility to adjust for changing circumstances.
Kaatz pointed to the One Water project that pairs water with usage. For instance, treated wastewater could be used to water a golf course, saving the purest water for drinking.
Another project is called From Forests to Faucets, which works on watersheds as natural infrastructure to optimize water flow. It has already proved successful at keeping a wildfire in 2018 from encroaching on a reservoir. In April, Denver Water plans to expand its Airborne Snow Observatory, which uses technology developed by NASA to track snow availability, but now it can be deployed above an altitude of 8,000 feet.
Together the efforts seem to be working – since the 2002 drought, Denver Water has maintained a 22% per-person reduction in water usage from pre-drought levels.
Steamboat Springs is opting for tree-planting. The idea is that trees will help cool down the Yampa River, which is part of the Colorado River Basin. Hot, dry seasons had been pushing stream temperatures so high that part of the river wound up on EPA’s impaired waterbody list.
“That was a call to action,” says Kelly Romero-Heaney, Steamboat Springs’ water resources manager.
The timing also dovetailed with the 2015 release of a Colorado Water Plan that included goals for stream management. Steamboat Springs did a streamflow management plan – released in 2018. In it was the idea of shading the Yampa.
“What we learned was that flow alone cannot overcome the thermal load for the solar radiation, as strength of that radiation increases over time,” she says. “The more that we can prepare the river for that, the better it will buffer against the impacts of climate change.”
They joined forces with the Yampa Valley Sustainability Council’s ReTree program that began in 2010 as a reforestation effort to counteract trees killed by pine beetle infestations. It morphed into a three-year Yampa River restoration.
“That work also increases resilience to future changes,” says Michelle Stewart, the council’s executive director. “We’re really learning the important role soil moisture plays in resilience.”
ReTree planted 200 narrow leaf cottonwoods in 2019 and another 350 this past October. This coming October, its plans are for 450 cottonwoods and 150 mountain alders. All were raised at the Colorado State Forest Nursery from Yampa Valley clippings. “We’re using local trees that are already kind of adapting to big swings in temperature and probably have a little bit more of that hardiness that we need and drought readiness,” she says.
It’s too early to know how the shading is working but there are plans for citizen help to monitor that and to implement a soil moisture monitoring network in the Yampa Basin.
“This is a Johnny Appleseed project,” says Romero-Heaney. “We plant today and hopefully my children will get to enjoy it.”
FromThe Grand Junction Daily Sentinel (Dennis Webb):
A legal settlement this week has allowed the Rio Blanco Water Conservancy District to clear a major early hurdle in its attempt to build a large reservoir 17 miles northeast of Rangely.
The agreement reached between the district and state Division of Water Resources averted a trial that was scheduled for this week and led to a decree that was signed by Division 6 Water Judge Michael O’Hara III on Thursday. It gives the district the right to store 66,720 acre-feet of water in a reservoir that would be constructed in Rio Blanco County near the White River and Wolf Creek confluence, approximately 15 miles upstream of the district’s Kenney Reservoir.
The district’s preferred reservoir site would be on Wolf Creek, with water to be delivered to the reservoir from a proposed pump station on White River.
The proposal still faces major challenges, from federal permitting, to financing, to challenges from environmentalists. But water attorney Alan Curtis, who has been representing the district on the project, said getting the water right is necessary before federal regulatory agencies will consider approving a reservoir proposal…
Decreed uses for water stored in the reservoir include municipal water for the town of Rangely, and replacement water that can be released to offset future water uses within the district boundaries and within the Yellow Jacket Water Conservancy District, which includes portions of eastern Rio Blanco County, Moffat County and the town of Meeker. Use of the water also is allowed to mitigate environmental impacts associated with the reservoir, and for hydroelectric power generation. In-reservoir use is allowed for recreation, fisheries and wildlife habitat.
Under the settlement, the Rio Blanco district dropped its proposal for some of the water to be used to benefit endangered fish in rivers. Kevin Rein, state engineer for the Division of Water Resources, said the state was concerned with preventing water speculation, which is prohibited in Colorado. To get a water right appropriated requires having a good, nonspeculative plan to put the water to beneficial use, he said. He said the district proposal lacked things such as a formal agreement with the Upper Colorado River Endangered Fish Recovery Program or a specified amount of water that would be involved.
The water district also had proposed to store water so in-basin diversions could continue should local water have to be released to downstream states if Upper Colorado River states including Colorado ever fall out of compliance with water delivery obligations under an interstate compact. The district dropped that proposal under the settlement.
The U.S. Army Corps of Engineers has denied local groups’ request for a public hearing in the case of a marble quarry that violated the Clean Water Act.
In a Dec. 28 letter to Pitkin County and others, Benjamin Wilson, project manager for the Army Corps’ Colorado West Section, said the agency does not intend to conduct a hearing or public meeting.
“We do not believe there would be a valid interest served or that we would receive any substantial new information we would not otherwise obtain through the public notice comment and review process we are currently engaged in,” the letter reads.
In separate comments submitted to the Army Corps, Pitkin and Gunnison counties, the Crystal River Caucus, the Roaring Fork Conservancy and the Crystal Valley Environmental Protection Association (CVEPA) had asked for monitoring, restoration, mitigation and a chance for the public to weigh in about the situation at the Pride of America Mine, which sits above the town of Marble.
“We are definitely not going to accept this,” said John Armstrong, director of CVEPA. “To not even offer to hear what the public has to say in a public hearing is kind of shocking to me.”
In the fall of 2018, mine operator Colorado Stone Quarries (CSQ) diverted a roughly 1,500-foot section of Yule Creek from its natural channel on the west side of Franklin Ridge, a rock outcropping, to the east side of the ridge so that it could build a road. Operators piled the streambed with 97,000 cubic yards of fill material, including marble blocks.
In March, the Army Corps determined that these actions, which were done without the proper permit, violated the Clean Water Act. CSQ is now retroactively applying for that permit, known as a 404 individual permit. Under Section 404 of the Clean Water Act, a project requires a permit from the Army Corps if it includes the discharge of dredged or fill materials into waters such as rivers, streams and wetlands.
In its permit application, CSQ proposed making the creek relocation permanent by leaving it where it is on the east side of the ridge. The company says this is the most efficient and environmentally sound option, and it results in the closest return to pre-diversion stream conditions.
Wilson said the Army Corps received more than a dozen comments, which have been forwarded to the mining company, along with additional questions from the Army Corps. Wilson said mining company officials must address these comments and propose a plan to mitigate the damage caused by the creek relocation. The deadline for the quarry to respond is Jan. 23, but Wilson said it will probably take the company longer than that to come up with a mitigation plan.
“We are working towards figuring out which alternative is indeed the least environmentally damaging,” Wilson said in an interview with Aspen Journalism. “I think it’s understood that no matter what alternative we choose to go forward with, additional mitigation will be required.”
Pitkin County wants the mining company to restore the riparian habitat, conduct water-quality monitoring at multiple sites in the basin and compensate for any damage by doing restoration projects in other areas. County representatives identified eight projects that could provide compensatory mitigation in the Crystal River basin, including restoration of Filoha Meadows streambanks, Thompson Creek riparian restoration and Crystal River streambank stabilization.
Carbondale-based Wilderness Workshop agrees. The conservation organization is also getting involved in the issue, signing on to the comments provided by CVEPA.
“It is a shocking issue,” said Peter Hart, conservation analyst and staff attorney for Wilderness Workshop. “Obviously, the damage is done, but I think that we’d like to see fines for violations imposed and see those funds actually utilized for restoration projects in the Crystal River valley.”
CSQ senior consultant Katie Todt, who is with Lewicki & Associates, said the company is evaluating potential mitigation options, including improvements to the current stream channel within the quarry’s permit area, which should stabilize the creek bank and promote vegetation growth. The company will more fully set out mitigation options in its expected Jan. 22 response to the Army Corps.
Wilson said that even though there won’t be another opportunity for the public to formally provide comments, the Army Corps is still obligated to consider any new information that comes to light.
Assistant Pitkin County Attorney Laura Makar said it was disappointing that the Army Corps decided not to hold a public hearing, especially since this is an atypical, retroactive permit application, submitted after the work needing a permit was already complete. There was significant information that could have been shared in a public hearing, she said.
“It would have been a good opportunity to ensure the record was complete,” Makar said.
This story ran in the Jan. 8 edition of The Aspen Times.
The U.S. Forest Service said it is just weeks away from deciding whether a high-profile request to explore the geological feasibility of a new reservoir site in Colorado’s Eagle County that would capture water flowing from the iconic Holy Cross Wilderness should be granted.
The request comes from Aurora and Colorado Springs, among others, who want to be able to capture more of the water flowing from the wilderness area to meet their own growing needs.
David Boyd, a spokesman for the U.S. Forest Service, said a decision is expected “early this year.”
Proponents had hoped for a decision late last summer, but Boyd said the delay wasn’t unusual and was triggered in part by last summer’s Grizzly Creek Fire.
Aurora and Colorado Springs, which own and operate the only reservoir in the area, Homestake I, hope to demonstrate that they can divert more water and build another reservoir to serve Front Range and West Slope interests without damaging the delicate wetlands and streams in the mountain forests there.
But in advance of any request to build an actual reservoir, they have asked the Forest Service for a special use permit to survey the area and to bore several test holes to determine soil conditions and areas best suited to build the proposed Whitney Reservoir.
If a reservoir were to be built, it would also require that the 122,000-acre-plus wilderness area shrink by 500 acres, an action that will require congressional approval.
Significant opposition to the exploratory permit erupted almost as soon as the proposal became public last year. The U.S. Forest Service received more than 500 comments on the proposal last summer. The majority of those were opposed to it, citing the need to protect the wilderness and the need to preserve as much of the region’s water as possible. The Eagle River, a part of the Colorado River system, is fed in large part by the Holy Cross watershed.
Warren Hern, a co-founder of the Defenders of the Holy Cross Wilderness, said the plan would do irrevocable damage to the rare bogs and wildflowers that populate the area.
He also noted that the proposed reservoir site lies along a major fault line.
“We will do everything in our power to stop this,” Hern said.
Greg Baker, a spokesman for Aurora Water, said his agency is well aware of the special relationship thousands of Coloradans have with the Holy Cross and its spectacular wetlands and hiking trails.
Baker declined to comment for this article, saying the agency would wait until the Forest Service issues a decision.
But in a recent interview, Baker said the cities had little choice but to pursue additional water supplies to meet growing demand.
“Water is a rare commodity and it needs to be used very carefully,” Baker said.
He also said any environmental damage that might occur could be successfully mitigated.
“What you do is wetlands rehabilitation, where you develop wetlands in other areas on a two- or three-to-one basis so you’re restoring additional wetlands for those you may lose,” Baker said.
The new proposal comes under a 1998 agreement known as the Eagle River Memorandum of Understanding, which allows the reservoir proponents to develop enough water to serve environmental, municipal and industrial interests.
Parties to the 1998 agreement include Aurora, Colorado Springs, the Colorado River District, the Eagle River Water and Sanitation District, and the Upper Eagle Regional Water Authority.
Located west of Vail between Minturn and Leadville, the Holy Cross Wilderness Area was the subject of a significant battle in the 1980s when Aurora and Colorado Springs sought to build a second major reservoir there known as Homestake II.
After the case made it all the way to the U.S. Supreme Court, Homestake II was defeated in 1994.
In exchange, however, the cities were granted permission to develop a smaller amount of water in the future in partnership with Western Slope interests, resulting in the permit request now being considered by the Forest Service.
Correction: An earlier version of this article incorrectly listed Vail Associates as a participant in the Whitney Reservoir proposal.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at firstname.lastname@example.org or @jerd_smith.
This map shows the location of test holes Homestake Partners plans to drill as part of its geotechnical investigation into the feasibility of a dam site in the Homestake Creek valley. The Forest Service has received more than 500 comments, most of them in opposition to, the drilling and the overall reservoir project. Credit: USFS via Aspen Journalism
These wetlands in the Homestake Creek valley are near the site of the proposed Whitney Reservoir. The Forest Service is considering whether to issue a permit for drilling and a geotechnical study to test whether the site would support a dam. Photo credit: Heather Sackett/Aspen Journalism
These wetlands, located on a 150-acre parcel in the Homestake Creek valley that Homestake Partners bought in 2018, would be inundated if Whitney Reservoir is constructed. The Forest Service received more than 500 comments, the majority in opposition to, test drilling associated with the project and the reservoir project itself. Photo credit: Heather Sackett/Aspen Journalism
A map from Colorado Springs Utilities that shows how tunnels could bring water to Whitney Reservoir from Fall and Peterson creeks, and from the Eagle River. The map also shows the route of a pipeline to pump water from Whitney Reservoir to Homestake Reservoir.
A wetland area along Homestake Creek in an area that would be flooded by a potential Whitney Reservoir. The cities of Aurora and Colorado Springs are looking to develop additional water in Eagle County and divert it to the Front Range. Photo credit: Brent Gardner-Smith/Aspen Journalism
A map prepared by Aurora Water that shows a potential 500-acre adjustment to the Holy Cross Wilderness boundary near the potential Whitney Reservoir on lower Homestake Creek. The map as current as of July 16, 2019.
Homestake Reservoir, which is partially in Pitkin County, but mainly in Eagle County. Below the reservoir the Homestake Creek valley is visible, as well as short section of what’s known as Homestake Road. Water held in the potential Whitney Reservoir would be pumped up to Homestake Reservoir and then sent to the Front Range. Photo credit: Brent Gardner-Smith/Aspen Journalism
The dam in the Eagle River headwaters that forms Homestake Reservoir, which diverts water to the Front Range. If the wetlands in the Homestake Creek valley contain ancient peat bogs called fens, it could hinder the progress of the Whitney Reservoir project. Photo: Brent Gardner-Smith/Aspen Journailsm
Following more than a year of back-and-forth with state regulators, the Leadville Sanitation District has been issued a new wastewater discharge permit that will allow for the same amount of mercury to be present in treated water released into California Gulch.
The new permit, issued by the Colorado Department of Health and Environment (CDPHE), came after outside evaluations and public comments to the state agency called attention to Leadville Sanitation District’s (LSD) inability to meet proposed lower mercury limits without substantial upgrades.
The previous permit limited acceptable mercury levels in treated water to 0.077 micrograms per liter. Though CDPHE was going to require a lower limit of 0.044 micrograms per liter in the new permit, the limit will remain the same under the recently implemented five-year discharge permit.
While the new permit maintains the same limits for mercury levels, it requires the sanitation district to monitor for a number of contaminants not previously recorded, including uranium and radium, among others.
The permit, citing a 1989 report regarding the release of gasoline from underground storage tanks, also calls for new monitoring of benzene, toluene, ethylbenzene and xylene given the potential for groundwater contamination from the Tabor Grand Hotel service site.
The permit went into effect on Jan. 1, and requires regular reporting of contaminant levels to CDPHE.
LSD has had issues meeting the 0.077 microgram-per-liter mercury limit in the past. The district was found to be out of compliance with state-determined mercury limits in 2017, prompting evaluations of the district’s collection system.
As the organization responsible for receiving, treating and releasing all of Lake County’s wastewater, LSD has since been evaluating the sources of entry for contaminants into the county’s wastewater system.
While the district has not been able to pinpoint the exact entry point for mercury and other contaminants, evaluations of the district’s aging collection system, made up of pipes and drains throughout Leadville, suggest that the intake system has leaks which may allow for contaminant infiltration and leakage.
After recording a lower-than-expected amount of incoming sewage based on the number of residences and businesses served in the sanitation district, CDPHE is requiring LSD address the issue under the new permit. In its explanation of the new requirement, CDPHE says the low input may be a result of sewage leaking from the collection system before reaching the treatment facility.
The new permit requires LSD to meet acceptable mercury limits stipulated in the 2021 permit by September 2023. The district is required to submit a report that identifies sources of cadmium, zinc, benzene, toluene, ethylbenzene and xylene by Sept. 30 of this year.
Sustaining Lake Mead for the benefit of downstream water users in the Lower Colorado River Basin has been a key objective of the 2007 Interim Guidelines and the 2019 Drought Contingency Plans. (Source: Lighthawk via The Water Desk)
The “bathtub ring” at Lake Powell evidences lower flows coming into the reservoir. According to preliminary data from the Bureau of Reclamation, the total inflow into Lake Powell for the 2020 water year was about 6 million acre-feet, just 55% of average. Photo credit: Brent Gardner-Smith/Aspen Journalism
FromS&P Global Market Intelligence (Richard Martin):
In an era of perennial [aridification], when the future of the Colorado River watershed, the lifeline of the U.S. Southwest, is the subject of fierce debate in state capitols across the region, the idea of bringing more than 26 billion gallons of water a year to a community of fewer than 200,000 people on the edge of the Mojave Desert strikes many as folly. To officials in Washington County, of which St. George is the county seat, though, it is a critical resource for the future.
Currently the county has one primary source of water, the Virgin River, said Todd Adams, director of the Utah Division of Water Resources, and more will be needed in the coming decades.
“They only have one water source, and they have potential vulnerabilities with the Virgin River,” Adams said in a recent interview. “They need a second reliable source.”
What’s more, St. George, a bedroom community about 120 miles from Las Vegas with more than a dozen golf courses, lavish resorts and a high percentage of retirees, is expected to continue to grow rapidly through mid-century. To serve all those new arrivals, and all those fairways, more water will have to be imported, say local and state officials.
“Based on the population growth projections for Washington County through 2060, it’s expected to triple in size to over 500,000,” said Adams. “And with that growth, additional water sources will be needed.”
The problem is that taking water from one part of the Colorado River watershed diminishes the water available for other parts. And long before St. George reaches its ultimate population level, there may not be enough to go around…
Approved by the Utah state legislature in 2006, the Lake Powell Pipeline has become one of what opponents and environmentalists have dubbed “zombie water projects”: proposals for diversion and transportation in the Colorado River watershed that face significant opposition and may never get built, but that refuse to die.
The pipeline was originally pitched as a source of water and power generation. The initial plan called for a large hydropower generating station along the route and a reservoir for pumped energy storage, but those elements were scrapped to reduce the environmental impact of the overall system, according to Karry Rathje, a spokesperson for the Washington County Water Conservation District. The line will still include six smaller inline hydropower facilities, to manage the water pressure and to reduce the electricity load from the pipeline on the regional grid. Those stations will total 85,000 MWh of generation annually, at full capacity; the full project will consume around 317,500 MWh, making it a net consumer of 232,500 MWh a year.
Reducing the amount of water in Lake Powell, though, could affect electricity production at the two major downstream hydro stations on the Colorado, at Glen Canyon Dam below Lake Powell, built in 1964, with 1,312 MW of generation capacity, and the two plants at Hoover Dam, built in 1936, with a combined capacity 2,078 MW, below Lake Mead. Both dams have become symbols of the 20th-century conquest of the Southwest and of the human depredation of the Colorado River ecosystem. Glen Canyon, in particular, was controversial from its conception; environmentalists today loudly demand its removal…
Together, the two dams produce enough electricity to feed roughly 630,000 homes across the region. Because hydropower generation is dependent on the volume of water stored in the reservoirs, as the levels of lakes Mead and Powell fall, electricity production will follow. Lake Powell has been below its average annual elevation every year in this century, according to data collected by Western Resource Advocates; in 2018 the difference was more than 30 feet.
Electricity production from all three facilities has fallen slightly in recent years, and water experts believe the future could be far worse.
“Higher temperatures and altered precipitation patterns” — i.e., the effect of global climate change — are expected to reduce streamflows in the basin by up to 11% by 2075, according to a 2013 white paper by Aaron Thiel of the University of Wisconsin-Milwaukee’s Center for Water Policy. “These factors, combined with increased summer evaporation rates, could reduce reservoir storage by as much 10-13 percent, and ultimately reduce electricity generation by 16-19 percent in the Colorado River Basin.”
Reduced electricity from hydropower could be only one of the obstacles facing big water-diversion projects like the LPP, as policymakers face the new drier, hotter era in the Southwest.
Governed by a complex web of agreements and water rights stemming from the Colorado River Compact of 1922, water use in the basin has long outstripped the actual water available. As the climate warms that gap is sure to expand.
A 2017 paper in the journal Water Resources Research, by Bradley Udall of Colorado State University and Jonathan Overpeck of the Colorado River Research Group, found that “As temperatures increase in the 21st century due to continued human emissions of greenhouse gasses, additional temperature‐induced flow losses [in the Colorado River] will occur.” Those losses could exceed 20% below the 20th-century average flow by mid‐century and 35% by 2100.
And they could be devastating to the region’s economy. According to a 2014 study that was produced by Arizona State University’s Seidman Research Institute and commissioned by Business for Water Stewardship, a non-profit organization, the Colorado River supports $1.4 trillion in annual economic activity and 16 million jobs across the seven states of the basin. Water from the river is essential to at least half the gross economic product in each of those states, including 65% in New Mexico and 87% in Nevada, the economists found. A drop in available water of only 10% would endanger some $143 billion in economic activity in a year.
Businesses everywhere are increasingly vulnerable to the risks presented by inadequate supplies of clean water. The 2019 Global Water Report produced by CDP, a nonprofit organization focused on the environmental impacts of companies, investors and governments, found that, worldwide, the total business value at risk due to water shortages and water pollution reached $425 billion. In the U.S. Southwest, that risk grows more acute with each year of persistent drought…
Despite being identified in a June 2020 executive order from the Trump administration as among the infrastructure projects that should be pushed quickly through the environmental review process, the LPP has sparked near-universal opposition from the other six states of the basin. That opposition crescendoed in September with a letter to the Secretary of the Interior from a coalition of state water agencies and governors’ offices in Arizona, California, Colorado, Nevada, New Mexico and Wyoming demanding that the project be paused or abandoned…
In southern Utah that debate is complicated by a range of factors with origins in the economics and politics of water in the West.
People in Washington County use around 300 gallons of water per capita per day, according to the most recent figures from the U.S. Geological Survey, more than twice the national average and 90 gallons more per capita than residents of Las Vegas, a city of nearly 650,000. And they get their water cheaply: water rates in the county average around $1.50 per 1,000 gallons, less than half of what Las Vegans pay and way below the $5/1,000 gal. that Denverites pay.
Zach Renstrom, the general manager of the Washington County Water Conservation District, disputes those numbers, saying that the state of Utah includes evaporation from reservoirs and re-used water in its water-use calculations…
Still, simple economics indicate that if people in southwest Utah paid more for their water, they would use less.
“Water use in Utah is subsidized, mostly by property taxes,” said Gabriel Lozada, an associate professor of economics at the University of Utah who has extensively modeled the Lake Powell Pipeline project. “So people in urban areas don’t see what the right price of water is. Unsurprisingly, Utah urban dwellers use a lot more water. The price of water we face is way way too low.”
And Washington County residents will eventually have to pay for the new pipeline, after the state fronts the construction costs. That, says Lozada, in turn would raise water rates — thus obviating the need for the pipeline as residents use less water. The possibility of rising prices leading to more conservation, and thus less demand, has not factored, at least publicly, into the developers’ considerations.
“In many scenarios it’s possible for Washington County to raise rates enough to pay back the cost of the pipeline,” said Lozada, “but they’d be so high that demand for water would be so low that no one would want to buy the water in the pipeline.”
Renstrom claims that Lozada and other opponents have an underlying agenda…
The argument over the Lake Powell Pipeline is a proxy for a larger debate about the future of the economy and society in the West, between competing visions of unlimited growth and boundless prosperity, on the one hand, and a new era of scarcity, conservation and more modest expectations on the other.
The biggest consumer of water in the Southwest, by far, is not cities like St. George but big agriculture. Since the early 20th century farmers have been growing water-intensive crops like alfalfa and cotton in the desert, using groundwater and Colorado River water. That era could be coming to a close. As the region urbanizes, converting farmland to towns, average water use goes down. Even a golf course uses less water than an alfalfa farm. A 2015 report on Utah’s future water resources and needs by the state’s Legislative Audit Division found that the Utah Division of Water Resources “understates the growth in the water supply when estimating Utah’s future water needs.”
“The division has not attempted to identify the incremental growth in supply that will occur as municipalities develop additional sources of water,” the auditors wrote. “That additional supply will mainly come from agriculture water that is converted to municipal use as farmland is developed.”
At the same time, municipal water districts in the West, such as Las Vegas, are actually using less water per capita as their populations grow…
“The widespread presumption that population growth means growing water demand drives much of the politics of water planning in the Colorado River Basin,” write Eric Kuhn, the former general manager of the Colorado River Water Conservancy District, and John Fleck, director of the University of New Mexico’s Water Resources Program, in their 2019 history of Colorado River management, Science Be Dammed. “But it is wrong. Simply put, we are consistently using less water. In almost all the municipal areas served with Colorado River water, water use is going down, not up, despite population growth.”
That means the fundamental presumption at the heart of the Lake Powell Pipeline — that in order to grow, Washington County needs more water from the river — is likewise flawed. And it offers hope that as the climate warms and the region dries, it’s possible to forge a new relationship between the Colorado River and the communities that depend on it.
“We have been getting it wrong for a century,” write Kuhn and Fleck. Time to get it right is growing short.
The Confederated Salish and Kootenai Tribal Council unanimously ratified its water compact with the state [December 29, 2020], clearing the path for rehabilitation of the Flathead Indian Irrigation Project and return of the National Bison Range to tribal control.
The Confederated Salish and Kootenai Tribes ratified their water compact with the state on Tuesday, ending a decades-long process to settle water right claims affecting a huge swath of Montana’s irrigated land.
The U.S. Congress ratified the compact — passed by the Montana Legislature in 2015 — last week as part of a massive appropriations bill. President Donald Trump signed the bill on Sunday, leaving ratification by the tribes as the final hurdle to finalizing the agreement.
The CSKT Tribal Council unanimously voted to ratify the agreement on Tuesday during a meeting held via Zoom.
With the tribes’ ratification, the federal government will create a $1.9 billion trust fund for repairing the deteriorating Flathead Indian Irrigation Project. Additionally, the tribes will regain control of the National Bison Range.
In exchange, the tribes agreed to relinquish claims to the vast majority of their off-reservation water rights claims, which could have limited irrigation in 51 of the state’s 85 adjudication basins. The CSKT had filed thousands of claims based on the tribes’ 1855 Hellgate Treaty with the federal government, by which the tribe retained the right to hunt and fish in traditional locations both on and off the present-day Flathead Reservation in exchange for ceding more than 20 million acres of land.
A tribal spokesman didn’t immediately respond to an email seeking comment Tuesday afternoon. But after Congress approved the compact last week, CSKT Tribal Council Chairwoman Shelly Fyant said during a press conference that the agreement would have a “profound and positive impact on the future of the Flathead Reservation for the next century.”
The compact had languished since Montana U.S. Sen. Jon Tester, a Democrat, introduced legislation to ratify it in 2016. Montana’s other U.S. senator, Republican Steve Daines, introduced a bill late last year, co-sponsored by Tester, to finalize the compact.
Groups including the Montana Stockgrowers Association, Montana Agricultural Business Association and Association of Gallatin Agricultural Irrigators have said finalizing the compact would offer certainty for irrigators, protect the state’s water and help avoid years of costly litigation…
On Tuesday, another tribal attorney, Rhonda Swaney, encouraged the Tribal Council itself to ratify the compact in order to prevent any attempts by “outside entities” to further challenge the agreement, pointing to the Republican legislators’ letter to Daines as an example.
Investor interest in the river could redefine century-old rules for who controls one of the most valuable economic resources in the United States.
There is a myth about water in the Western United States, which is that there is not enough of it. But those who deal closely with water will tell you this is false. There is plenty. It is just in the wrong places.
Cibola, Ariz., is one of the wrong places. Home to about 300 people, depending on what time of year you’re counting, the town sits on the California border, in a stretch of the Sonoran Desert encircled by fanglike mountains and seemingly dead rocky terrain. Driving across the expanse, where the temperature often hovers near 115 degrees, I found myself comforted by the sight of an oncoming eighteen-wheeler carrying bales of hay, which at least implied the existence of something living where I was headed.
Thanks to the Colorado River, which meanders through town, Cibola is a verdant oasis that chatters at dusk with swooping birds. Along both banks, a few hundred acres produce lush alfalfa and cotton, amid one of the more arid and menacing environments in North America.
This scene is unlikely to last, though. A few years ago a firm called Greenstone, a subsidiary of a subsidiary of the financial-services conglomerate MassMutual, quietly bought the rights to most of Cibola’s water. Greenstone then moved to sell the water to one of the right places: Queen Creek, a fast-growing suburb of Phoenix 175 miles away, full of tract houses and backyard pools.
Transferring water from agricultural communities to cities, though often contentious, is not a new practice. Much of the West, including Los Angeles and Las Vegas, was made by moving water. What is new is for private investors — in this case an investment fund in Phoenix, with owners on the East Coast — to exert that power.
When I reached Holly Irwin, a county supervisor who lives in Cibola, by phone a couple of weeks after my visit, she was angry.
“They’re going to make big bucks off the water, and who’s going to suffer?” she said. “It’s the rural counties going up against big money.”
Grady Gammage Jr., a spokesman for Greenstone, said, “In my view there is enough water both to sustain a significant agricultural economy on the river and to support urban growth in central Arizona.”
In the West, few issues carry the political charge of water. Access to it can make or break both cities and rural communities. It can decide the fate of every part of the economy, from almond orchards to ski resorts to semiconductor factories. And with the worst drought in 1,500 years parching the region, water anxiety is at an all-time high.
In the last few years, a new force has emerged: From the Western Slope of the Rockies to Southern California, a proliferation of private investors like Greenstone have descended upon isolated communities, scouring the driest terrain in the United States to buy coveted water rights.
The most valuable of these rights were grandfathered in decades before the population explosion in desert cities like Phoenix and Las Vegas, and privilege water access to small, often family-owned farms in stressed communities. Rechanneling water from rural areas to thirsty growth spots like Queen Creek has long been handled by municipal water managers and utilities, but investors adept at sniffing out undervalued assets sense an opportunity.
As investor interest mounts, leaders of Southwestern states are gathering this month to decide the future of the Colorado River. The negotiations have the potential to redefine rules that for the last century have governed one of the most valuable economic resources in the United States…
Increasingly, the river is threatened by drought, with flows down 20 percent over the last 20 years. As a result, the talks starting in January will be a vehicle for urgent attempts to manage the water, including replenishing downstream reservoirs. By design, the five-year process is ponderous and built to be consensus-driven, with an eye toward shared sacrifice.
Most of the water in the 1,450-mile-long river comes from Colorado, and as that state’s top water official from 2013 to 2017, James Eklund directed the creation of a comprehensive long-term plan to address climate change, the first by a state in the West. He believes that the last best hope against the drought is a market-based solution, one that allows private investors seeking a profit a significant hand in redrawing the map of water distribution in the West.
“I have seen time and again the wisdom of using incentives that attract private sector investment and innovation,” Mr. Eklund said. “Dealing with the threat of climate change to our water requires all sectors, public and private, working together.”
To proponents of open markets, water is underpriced and consequently overused. In theory, a market-based approach discourages wasteful low-value water uses, especially in agriculture, which consumes more than 70 percent of the water in the Southwest, and creates incentives for private enterprise to become involved. Investors and the environment may benefit, but water will almost certainly be more expensive…
The interested players range from financial firms to university endowments to investor groups, including at least two in Colorado led by former governors. T. Boone Pickens, the Texas oilman who died in 2019, was an early evangelist of water buys. Another supporter is Michael Burry, the hedge fund manager portrayed by Christian Bale in “The Big Short,” who made more than $800 million shorting the subprime mortgage market in the mid-2000s.
Matthew Diserio, the president and co-founder of the hedge fund Water Asset Management, has called the U.S. water business “the biggest emerging market on earth” and “a trillion-dollar market opportunity.”
WAM, based in New York and San Francisco, invests broadly in water-related ventures, and one of its core businesses is collecting water rights in arid states like Arizona and Colorado. Since leaving government, Mr. Eklund has become WAM’s legal counsel and public face.
“They’re making water a commodity,” said Regina Cobb, the Arizona assemblywoman who represents Cibola. “That’s not what water is meant to be.”
Private investors would like to bring in or amplify existing elements of Wall Street for the water industry, such as futures markets and trading that occurs in milliseconds. Most would like to see the price of water, long set in quiet by utilities and governments, rise precipitously.
Traders could exploit volatility, whether due to drought, failing infrastructure or government restrictions. Water markets have been called a “paradise for arbitrage,” an approach in which professionals use trading speed and access to information for profit. The situation has been compared to the energy markets of the late 1990s, in which firms like Enron made money from shortages (some of which, it turned out, traders engineered themselves).
Many see the compact as a safeguard isolating the river from the market.
The negotiating states will be focused on restoring the flow of the Colorado River, which has been so diminished by use that from 1998 to 2014 it did not even reach its natural terminus in the Gulf of California. But they will also be looking at rebalancing water levels in Lake Powell and Lake Mead, two federally owned reservoirs that hold water to use in case of extreme drought…
“The reality is we have an overallocated river,” said Jeffrey Kightlinger, general manager of the Metropolitan Water District of Southern California, the largest water supplier in the country. “You’ve got two drivers exacerbating the problem. One, moving very rapidly, is climate change. And you’re still seeing continued growth. So you’re going to see a very important negotiation.”
The emergence of open markets could outpace the negotiations. If states, cities, big farms and utilities were able to buy water freely, especially across state lines, the allocations of the compact could be obviated and the governmental power to manage the fate of the river eroded.
“The Western model is a sort of comprehensive, consensus-based public discussion, and it’s worked very well,” said Bruce Babbitt, a former governor of Arizona and secretary of the interior during the Clinton administration. “My fear is that the speculators are going to break it. They’re going to try to break up the system.”
‘A Pool Within the Pool’
In the last few years, Colorado has been debating a water policy approach that has further piqued the interest of private investors: paying farmers not to use the river at all.
Demand management, as the policy is known, is an attempt to solve the so-called wrong places problem and free up water from agriculture and reroute it to urban uses and conservation.
“The idea is, if you pay the farmers enough, they’ll go away,” said Brad Udall, a water and climate researcher at Colorado State University whose family have been lawmakers in the region for 60 years…
It’s not necessarily a new concept — in parts of Southern California, farmers have been paid for more than a decade to fallow land. Nor is it official policy yet. But Mr. Eklund would like it to be.
As Colorado’s water commissioner, he piloted a demand-management program and was known for crisscrossing Colorado’s back roads to convince skeptical farmers of the benefits of the approach. Later, as the state’s negotiator on the Colorado River, he helped make it an official goal of the compact states.
Mr. Eklund secured an “account” in Lake Powell. In theory, water saved by demand management could flow to the account, often called “a pool within the pool,” and be drawn upon if the current drought continues to realize worst-case scenarios.
However, the same water could also flow where water often flows: toward the highest bidder. WAM and other investors could theoretically create their own reservoir “accounts” and let the water sit until its value was maximized.
Andy Mueller, general manager of the Colorado River District, is skeptical. “They’d have to have a storage account of their own in a federal reservoir, and from my perspective that’s a nonstarter,” Mr. Mueller said. “Right now, we have legal and political mechanisms in place to prevent that from happening.”
He added, though, that the pressure of the drought could shift the terrain. “Is that something that can change? Yeah. And crisis drives change.”
The proponents of water markets say they are not in it just for the money. They believe that the West has an outdated and overregulated system governing access to water, which has encouraged the cultivation of crops in the desert.
“Agriculture all over the West required the development of irrigation infrastructure, such as dams and ditches,” Mr. Libecap said. “Often, the best land in the West is not along rivers, so you needed to move water.”
The system worked as long as there was enough to go around, said Mr. Libecap, who recently advised the State of Colorado on its growing water problems…
Mr. Mueller believes that the demand management pilot program triggered a land rush in rural western Colorado, with investors snapping up farms and flipping their water rights.
WAM has become one of the largest landholders in the Grand Valley, a high-mountain desert on the Western Slope of the Rockies, 250 miles west of Denver. But Mr. Eklund denies that the firm is flipping water rights…
Of course, not everyone has been displeased by the arrival of hedge funds reportedly paying millions in cash for old farms. Marc Catlin, a third-generation farmer who represents western Colorado in the General Assembly, said, “A farmer’s property is their 401(k).”
The Enron Fear
Where water investors have historically gotten involved in markets is through agriculture, with mixed results.
In 2015, California got just 5 percent of its average annual snowpack, the lowest in 500 years. Utilities, which in previous dry years bought water from farmers, found they could no longer afford it. The price had risen tenfold in a matter of months.
It wasn’t just the drought: California’s crops had shifted from low-value seasonal vegetables like lettuce and bell peppers to permanent non-staples, like almonds, that were so valuable that it was no longer economical for farmers to sell water to cities, even as prices spiked.
Mr. Kightlinger, of the Metropolitan Water District of Southern California, traces the recent private-investor interest in water to the 2015 crisis. “When you have pistachio and almond farmers willing to pay 10 times the average price, people sit up and say, ‘How can I own some of this?’” he said…
California’s agricultural water markets — a mosaic of online exchanges connecting farmers and water brokers — are considered a potential model for the West: fast, flexible and responsive to extreme weather. In September, Nasdaq and CME Group, the world’s largest derivatives marketplace, announced plans to open a futures market for California water, joining it with commodities like Brent crude oil and soybeans.
The market in the Colorado-Big Thompson Project is also nimble and responsive. An engineering marvel from the heyday of federal water construction, the project is a vast network or reservoirs filled by a tunnel that pipes water from the Colorado River 13 miles under the Continental Divide. The high-tech market there services Denver and other cities, fueling development in some of the fastest-growing housing markets in the country. In the last 10 years, the price of water there has gone up more than eightfold.
In Australia, however, water markets have had unintended consequences. Valued at $2 billion after 14 years in existence, Australia’s markets primarily facilitate trades in agricultural areas. When started, they were hailed as a fast, flexible way of redistributing water on the driest inhabited continent, with little regulation attached.
“We went harder and faster than anyone and let the market rip,” said Stuart Kells, a professor at La Trobe Business School in Melbourne. “We let anyone come play.”
This led to domination by professional investors with no ownership of farmland, Mr. Kells said. As a result, “water has turned into a financialized product like what happened to energy in the late 1990s,” he said.
Last year, Australia’s devastating wildfires and drought spiked water prices. Subsequently, the government’s antitrust department started an inquiry. Though it stopped short of calling for a shutdown, an interim report last summer recommended comprehensive changes in water markets, citing inadequate regulation and market exploitation by professional traders.
“Here water is very scarce, and in periods of shortage traders essentially cheer on the drought,” Mr. Kells said. “The markets have become a paradise for arbitrage.” He compared the dynamic to “California in the 1990s, where fires and outages were beneficial for traders because of price spikes and you saw Enron traders cheering on fires.”
Australia has also seen the advent of a market in complex financial products, such as derivatives, based on water.
“What has happened in Australia should be a cautionary tale for America,” Mr. Kells said. “The way the markets were set up left them open to being gamed.”
Click here to read Ian James’ fantastic article about the current state of the Colorado River from stem to stern that’s running up at AZCentral.com. Click through and read the whole article. Here’s an excerpt:
The warming climate is intensifying drought, contributing to fires and drying out the river’s headwaters, sending consequences cascading downstream.
ROCKY MOUNTAIN NATIONAL PARK, Colorado — Beside a river that winds through a mountain valley, the charred trunks of pine trees lie toppled on the blackened ground, covered in a thin layer of fresh snow.
Weeks after flames ripped through this alpine forest, a smoky odor still lingers in the air.
The fire, called the East Troublesome, burned later into the fall than what once was normal. It cut across Rocky Mountain National Park, racing up and over the Continental Divide. It raged in the headwaters of the Colorado River, reducing thick forests to ashes and scorching the ground along the river’s banks.
The fires in Colorado spread ferociously through the summer and fall of 2020 after months of extreme heat that worsened the severe drought.
As smoke billowed over the headwaters, the wildfires raised warning signs of how profoundly climate change is altering the watershed, and how the symptoms of heat-driven drying are cascading down the heavily used river — with stark implications for the entire region, from Colorado’s ranchland pastures to the suburbs of Phoenix…
Over the past year, the relentless hot, dry months from the spring to the first snows left the soil parched. The amount of runoff into streams and the river dropped far below average. With reservoirs sinking toward new lows, the risks of shortages are growing.
Much of the river’s flow begins as snow and rainfall in the territory of the Colorado River Water Conservation District, which includes 15 counties on Colorado’s West Slope. Andy Mueller, the district’s general manager, said the extreme conditions over the past year offer a preview of what the region should prepare for in the future.
“Climate change is drying out the headwaters,” Mueller said. “And everybody in the Colorado River Basin needs to be concerned.”
Mueller saw the effects while backpacking in Colorado’s Holy Cross Wilderness in the summer with his 19-year-old daughter. Above the tree line, at an elevation of 12,000 feet, they expected to see mushy green tundra. Instead, they found the ground was bone dry…
People who focus on the river have widely acknowledged the need to adjust to a shrinking system with less water to go around.
Many suggest solutions can be achieved through collaborative efforts — often with money changing hands in exchange for water — while working within the existing rules. Others say solutions shouldn’t fall on the backs of farming communities by taking away water that fuels their economies. Some people argue the river seems headed for a crash and its rules need to be fundamentally reimagined…
The deals between the seven states are designed to temporarily lower the odds of Lake Mead and Lake Powell dropping to critical lows over the next five years. The states’ representatives have yet to wade into the details of negotiations on what shortage-sharing rules will look like after 2026, when the current agreements expire.
Still unresolved are difficult questions about how to deal with the shortfall over the long term.
What’s increasingly clear is that the status-quo methods of managing the river are on a collision course with worsening scarcity, and that eventually something will have to give…
Watershed ‘thirstier’ with heat
Last winter, after a dry year, the Rocky Mountains were blanketed with a snowpack that was slightly above average. Then came extremely hot and dry conditions, which shrank the amount of runoff and flows into tributaries and again baked the soils dry.
[Andy] Mueller said the change occurred abruptly at the end of the snow season in the spring…
With the heat, some of the snow didn’t melt but instead evaporated directly into the air, which scientists call sublimation — something that has been happening more over the past two decades. The flows in streams dropped over the next few months, and then August brought record heat, which dried out the headwaters and fueled the fires through the fall…
In a 2018 study, scientists found that about half the trend of decreasing runoff in the Upper Colorado River Basin since 2000 was the result of unprecedented warming. In other research, scientists estimated the river is so sensitive to warming that it could lose roughly one-fourth of its flow by 2050 as temperatures continue to rise…
“A warmer atmosphere is a thirstier atmosphere, and we’re seeing less runoff bang for our precipitation buck,” said Jeff Lukas, an independent climate researcher in Colorado. “We’ll still have wetter and drier years, but the baseline is very likely to be shifting downward, as it has in the last 20 years.”
And when extreme heat comes, it leaves less water running in tributaries and also translates into drier forests, leading to increased fire risk.
The soils were so dry over the past year that they soaked up moisture, contributing to below-average stream flows, said Megan Holcomb, a senior climate change specialist with the Colorado Water Conservation Board.
“You can think of it as like the dry sponge that you haven’t wetted in forever,” Holcomb said. “That kind of soil moisture deficit is not something that you rebound from immediately.”
After the hot spring came a dry summer. The lack of monsoon rains compounded the drought. And then came August, Holcomb said, when a map of record-hot temperatures hugged the Colorado River Basin like a “massive red handprint.”
In areas of western Colorado that drain into the river, it was the hottest and driest August on record, breaking the previous temperature record by 2 degrees F, said Russ Schumacher, Colorado’s state climatologist and director of the Colorado Climate Center.
The state usually gets its largest wildfires in June and July. But with the severe drought, the fires burned through August, and then exploded in October with unprecedented speed and intensity. The ultradry conditions, together with high winds, contributed to the three largest wildfires in Colorado history, which together devoured more than half a million acres.
In the future, rising temperatures will lead to more of these scorching summers.
Firefighters on the march: The Pine Gulch Fire, smoke of which shown here, was started by alighting strike on July 31, 2020, approximately 18 miles north of Grand Junction, Colorado. According to InciWeb, as of August 27 2020, the Pine Gulch Fire became the largest wildfire in Colorado State history, surpassing Hayman Fire that burned near Colorado Springs in the summer of 2002. Photo credit: Bureau of Land Mangement-Colorado, via InciWeb and National Interagency Fire Center.
The Cameron Peak fire soon after it started on Aug. 13, 2020. By Sept. 11, the fire had grown to more than 102,000 acres (now >200,000 acres) and was not expected to be considered out until Oct. 31. Photo credit: InciWeb via The Colorado Sun
East Troublesome Fire October 21, 2020 via Wildfire Today.
Scenes of the CalWood Oct. 17, 2020 (Jivan West/CU Independent)
Abby Burk of the conservation group Audubon Rockies noticed how low the river was in the summer when she went paddling in her kayak. In parts where the river was full and muddy a year earlier, she found bars of gravel. Where there once were channels to paddle through, she encountered dead-end lagoons.
In November, when Burk drove through the headwaters near the smoldering fires, she snapped photos of the hills and mountains, still golden-brown beneath a dusting of snow.
When the soil is so parched, it will always “take the first drink” before water reaches the streams, Burk said. “We need a lot more snow for many years to come to really replenish the soil moisture deficits that we’re seeing now.”
The fire scars will also bring challenges come spring, she said, when melting snow will send runoff carrying ash, debris and sediment into streams, potentially creating complications for water systems.
Burk said she’s hoping there will be a slow melt so the runoff comes gradually, without “bringing down the mountain into the river.”
A rancher looks to adapt
Paul Bruchez raises cattle on his family’s ranch in the headwaters near the town of Kremmling, where the Colorado River winds through pastures…
Bruchez has been involved in discussions about the river as a member of the Colorado Basin Roundtable. And while he’s heard many people voice alarm about the watershed lately, Bruchez said he and other neighboring ranchers have been talking about the need to adapt to a river with less water since 2002, when severe drought came.
The flows dropped so low then that even ranchers with the longest-standing water rights, known as senior rights, couldn’t get it to their fields.
“Within this river basin, we have seen a change over time of the quantity and volume of water that is available. And in that same time, we’ve seen a growth of population that relies on it,” Bruchez said. “We knew this in 2002 when we hit that drought, that if we didn’t change how we operated, we weren’t going to survive.”
Since then, Bruchez and other ranchers have been talking about ideas for adapting…
The closer the region gets to a scenario of curtailing water allotments, Bruchez said, the more investors and representatives of cities and towns are going to be contemplating ways of securing water from elsewhere.
For people in agriculture, he said, “we need to be at the table or we’re going to be on the menu.”
‘It affects everybody’
One of the main tributaries that feeds the Colorado is the Gunnison River, which like the mainstem has shrunk during the heat-amplified drought. Along the Gunnison, cattle ranchers got less water last year and their pastures produced less hay.
The river’s low flows also forced an early end to the river rafting season on Labor Day weekend. After that, releases from a dam had to be cut back and the Gunnison was left much shallower than usual, with rocks protruding in stretches where boats would normally be drifting until the end of September.
The river has dropped to some of its lowest levels in years, said Sonja Chavez, general manager of the Upper Gunnison River Water Conservancy District.
The effects are visible at Blue Mesa Reservoir, one of the state’s largest, which has declined to less than half its full capacity.
Visiting the lake, Chavez walked on sandy ground that used to sit underwater.
Looking across the inlet where the river pours into the lake, she pointed to a gray line on the rock showing the high-water mark. During spring runoff, she said, the river in this channel can reach about 20 feet higher. But with the soil so parched, its level dropped.
“When we are dry in the Upper Gunnison Basin, it affects everybody downstream of us,” Chavez said. And the swings between high and low flows, she said, have made it difficult to plan how to operate the reservoirs…
Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
A warm spring this year quickly erased what had been a robust snowpack, which melts and feeds the Colorado River and tributaries like the Gunnison River in Colorado. Source: Bureau of Reclamation via the Water Education Foundation
Upper Gunnison watershed May 2019. Photo credit: Greg Hobbs
In the Gunnison Valley, a local climate action group meets to talk about potential solutions. Some conversations have focused on how to manage forests that have grown thick with vegetation over the past century as federal agencies have focused mostly on putting out fires.
While the forests have grown thicker, warmer temperatures have enabled beetles to flourish, littering the mountains with dead trees.
Chavez and others want to prioritize efforts to make the forests healthier and more fire-resilient by thinning the trees through logging, mechanical treatments or controlled burns, which they say would make the whole watershed healthier. She said the federal government needs to be more involved and the region needs funding for these projects.
“Our big push this year is to do some watershed management planning and work with the Forest Service to identify zones of concern, or areas that we can treat,” Chavez said. “We’re worried if we had a big fire what would happen.”
Alongside those efforts, water managers are discussing ways of dialing down water usage…
Ranchers, farmers consider using less
One lifelong rancher who had a smaller-than-usual hay crop was Bill Trampe, who has worked on water issues for years as a board member of the Colorado River District.
His cattle graze on meadows near Gunnison where the grasses survive year after year. He was short of water to irrigate after mid-June, which left the pastures parched.
Over the past two decades, only a few years brought good snowpack, he said, and ranchers have repeatedly had to weather the financial hits of years when they must buy hay for their cattle…
‘We need to set the terms’
In other parts of the river basin, some representatives of agricultural water agencies are worried about the potential consequences of paying farmers to leave land dry.
One such voice is J.B. Hamby, a newly elected board member of California’s Imperial Irrigation District, who said he’s concerned that while cities and sprawling suburbs continue to grow rapidly, agricultural communities are increasingly at risk. He said people in cities need to realize there is a priority system that shouldn’t be changed…
Arizona gets nearly 40% of its water from the Colorado River. Much of it flows in the Central Arizona Project Canal, which cuts across the desert from Lake Havasu to Phoenix and Tucson.
In 2020, Arizona and Nevada took less water from the river under the drought agreement among Lower Basin states, and in 2021 they will again leave some of their water in Lake Mead. The latest projections show Mead could fall below a key threshold by summer, which would trigger a shortage declaration and larger cutbacks in 2022…
Now, with less water flowing to farms, the amount of runoff into the Salton Sea has shrunk, leaving growing stretches of exposed lakebed that spew dust into the air. The dust is contributing to some of the worst air pollution in the country, and many children suffer from asthma.
Hamby said the Imperial Valley would have been better off without the water transfer deal. Looking at the proposed approach in Colorado, Hamby said, it seems to replicate what occurred in Imperial.
“When you tie money to water, you get users who become addicted to the money and don’t actually in the end start to want to farm anymore,” Hamby said. “That is really corrosive to the long-term survival, much less thriving, of rural communities when people get more hooked on money rather than the way of life and putting the water on the land.”
He argued that such an approach would be “subverting the whole priority system” and enabling cities to avoid taking cuts themselves…
‘Are we doing enough?’
At his ranch by the river, Bruchez said he wants to be on “the preventative side,” getting ahead of the looming problems instead of reacting. And that includes studying and promoting conservation, he said, because the bottom line is “we just all have to figure out how to use less water.”
In early 2019, Bruchez began talking with Perry Cabot, a researcher from Colorado State University, about a project that would help provide data on crop water use, impacts of reduced irrigation and strategies for conserving water.
Cabot gave a presentation to the Colorado Basin Roundtable, and members supported the idea of a study. The project began in 2020 with about $900,000 in funding, including support from the Colorado Water Conservation Board and groups including Trout Unlimited and American Rivers.
A group of nine ranchers participated and were paid for leaving some fields dry or partially dry, Bruchez said. More than 900 acres weren’t irrigated for the entire year, and about 200 acres were “deficit irrigated,” meaning they received less water.
Bruchez’s ranch totals about 6,000 acres. He participated on about 41 acres, where he stopped irrigating on June 15 and didn’t water the rest of the year.
“My end goal is to understand the impacts of water conservation for agriculture so that if and when there are programs to participate, agriculture is doing it based on science,” Bruchez said…
Paul Bruchez said he’s seen that when people talk about solutions, they often seem to draw boxes around different approaches like demand management, water conservation, climate change and forest management, but he thinks they’re all quite connected.
“It’s all the same conversation,” Bruchez said. “To me, the question just comes down to, are we doing enough, quick enough?”
“It’s that water that is provided by the Colorado River that ties us all together,” Mueller said. “And truly, when we recognize the importance of the Colorado River and how it ties us together, that’s when we succeed as a society.”
Ian James is a reporter with The Arizona Republic who focuses on water, climate change and the environment in the Southwest. Send him story tips, comments and questions at email@example.com and follow him on Twitter at @ByIanJames.
A coalition of high-profile businesses, including Coors Seltzer and Coca-Cola, as well as the nonprofit Colorado Water Trust have signed up to add additional water for fish, farmers and hydropower generation to a key segment of the drought-stressed Colorado River known as the 15-Mile Reach.
This stream segment begins just east of Grand Junction, Colo., and ends west of town where the Gunnison River merges with the Colorado River.
For decades this reach has been under intense scrutiny, in part because it is a key source of water for Western Colorado ranchers and fruit growers, and it is also considered critical habitat for four endangered fish species: the razorback sucker; the humpback chub, the bonytail and the Colorado pikeminnow.
Dec. 15, the Colorado Water Trust unveiled a 10-year funding commitment from Business for Water Stewardship that will help ensure that there is more water in the river during dry times to keep irrigators, a small federal hydro plant, and the fish healthy.
The Colorado Water Trust is a Denver-based nonprofit dedicated to helping secure water rights through purchase, lease or donation to benefit the environment. Business for Water Stewardship is a program of the Portland, Ore.-based Bonneville Environmental Foundation that brings companies together to aid the environment.
Bringing in corporate funders, who have the resources to commit to a multi-year effort is key, according to Todd Reeve, the founder of Business for Water Stewardship. Danone and Intel Corp. are also funders.
“Companies are increasingly realizing the state of our water resources,” Reeve said. “And they are stepping up to support these environmental water solutions.
“This project stands up as an important example of all of these entities coming together. We’d like to see more of them,” Reeve said.
How much money and water will be provided under the agreement isn’t clear yet, according to the Colorado Water Trust, in part because it will depend on weather conditions and the condition of the river each year.
To date nearly $100,000 has been raised to buy water, according to the water trust.
Efforts to preserve Colorado’s 15-Mile Reach are coordinated by the Upper Colorado River Endangered Fish Recovery Program, a federal initiative launched in 1988 that also includes Utah and Wyoming. But because the river has multiple users, from growers to rafters and anglers, to power generators, dozens of other agencies, water users and towns are also involved, according to Kate Ryan, an attorney for the water trust.
The hope, according to Ryan, is that this long-term commitment to the area will build on and add more durability to what others have begun.
Under the agreement, the Colorado Water Trust each year will buy water from upstream sources for delivery to the Grand Valley Power Plant near Palisade. The power plant produces electricity to pump irrigation water to members of the Grand Valley Water Users Association and is operated by the Orchard Mesa Irrigation Company (OMIC).
After the water moves through the plant, it will continue downstream to the 15-Mile Reach.
“The water that comes down through the hydropower plant makes my system work better,” said Max Schmidt, OMIC’s manager. “But it’s also good for the fish.”
As the Colorado River Basin continues to dry out, natural flows in the river will have to be supplemented by water that can be obtained from those who have water in storage that they don’t need and are willing to sell or lease on a temporary or permanent basis.
Ryan said she is pleased the water trust was able to secure the agreements and funding that will allow it to be a long-term contributor to the health of the 15-Mile Reach.
“What was amazing and sobering this year is that the dry-year targets for flow are 650 cubic feet per second (cfs). But most of the summer they were down at 300 cfs,” Ryan said.
Despite the dire water forecasts, the potential for more cooperative efforts on the river appears to be growing.
Schmidt can reel off a list of cities, irrigation districts and water agencies that have stepped up in recent years to help, including the Colorado Water Conservation Board, the Colorado River District, and the cities of Aspen, Snowmass, Palisade and Grand Junction.
That doesn’t count the cash and operating support from the U.S. Fish and Wildlife Service, which runs the recovery program, and the U.S. Bureau of Reclamation, or the new contributions from the Colorado Water Trust and Business for Water Stewardship.
“When everybody wins, everybody wins,” Schmidt said. “I don’t care if it’s power water, irrigation water or fish water, wet water in the river makes everybody’s lives better.”
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at firstname.lastname@example.org or @jerd_smith.
The Navajo Utah Water Right Settlement is a long time coming.
Two days after Christmas President Donald Trump finally signed the omnibus appropriations package totaling $2.3 trillion. The omnibus bill includes $1.4 trillion for federal spending and $900 billion for COVID-19 relief, which was approved by the U.S. House of Representatives and the U.S. Senate on Dec. 21 along with the water rights settlement.
This settlement has been years in the making. It settles all current and future claims by the Navajo Nation for water rights within Utah; confirms the Navajo Nation’s right to deplete 81,500 acre-feet of water per year from Utah’s Colorado River Basin apportionment; and authorizes approximately $220 million for water infrastructure to provide clean drinking water to Navajo communities in Utah.
“It was a big effort by Navajo. It’s been in the works for so long,” said President Jonathan Nez, who remembers this settlement being in the works even before being elected as a Navajo Nation Council Delegate…
Nez said that Utah Gov. Gary Herbert was key to the bill’s passage. In a release Herbert stated it represents 15 years of “good faith work between our governments.”
Others who were instrumental include former Council Delegate Davis Filfred, House Natural Resources Committee Chairman Raúl Grijalva, U.S. Rep. Rob Bishop and Sen. Mitt Romney (both R-Utah) and former Navajo Department of Justice attorney Stanley Pollack, among other people.
In 2003, a memorandum of agreement between the Navajo Nation and the state of Utah allowed the two sides to formally enter into discussions to determine the water rights of the Nation.
In December of 2015, representatives from the Navajo Nation Department of Water Resources and Department of Justice, along with the Navajo Nation Water Rights Commission, reached an agreement with the state of Utah as to the quantification and settlement of water rights claims.
“It’s a settlement,” said former Navajo Nation Speaker LoRenzo Bates said. “That is very important. It’s no longer a claim. It’s a settlement.”
After two work sessions and other lengthy discussion to accept the proposed agreement, the 23rd Navajo Nation Council passed it. Bates remembers some delegates were “threatened” if they voted green.
Andrew Curley, assistant professor in the School of Geography Development, & Environment at the University of Arizona, has some qualms about the landmark settlement.
“Water settlements are like treaties and always come with concessions,” said Curley. “Unfortunately we have a political culture that doesn’t discuss the costs of settlements, costs like future and expanded claims to water, priority rights, who gets water first in times of drought, or even how sometimes water settlements impact our land claims through legal chicanery.”
He added that the Utah settlement appears to be better than past proposals, in terms of quantity of water and trade-offs. But the Navajo Nation has to remember that the state governments stole all this water in the first place, he said…
But Bates and Nez both said the settlement could lead to resolving the Navajo-Hopi Little Colorado River Water Rights Settlement…
Bates said the Arizona settlement would require more strategy and negotiation. But for now the Utah Water Settlement will be able to address the more than 40 percent of Navajo households in Utah that lack running water or adequate sanitation.
Larimer County has approved a development agreement that delves into details surrounding construction of certain aspects of the Northern Integrated Supply Project.
The county commissioners on Tuesday voted 2-1 to approve the agreement with the Northern Integrated Supply Project Water Activity Enterprise, putting into writing some of the specific requirements that the elected board had put into place earlier in approving a 1041 permit for the water supply project…
The agreement focuses on recreational facilities for Glade Reservoir, and the amount of money Northern Water committed to that piece, as well as pipeline details, environmental mitigations and requirements surrounding the relocation of U.S. 287.
It puts in writing that the county will be involved in construction meetings and inspections and lays out some safety requirements.
“This agreement really protects the interest of Larimer County … whether one supports this project or not,” said Commissioner Steve Johnson, who along with Commissioner Tom Donnelly voted to approve the development agreement. (Both commissioners also voted in September to grant the 1041 permit, which allows the county some input on certain aspects of this water storage and pipeline project.)
The county does not have final say over whether the Northern Integrated Supply Project will be built. That approval would come from the U.S. Army Corps of Engineers, and the federal agency’s decision is expected soon, following more than a decadelong environmental process.
Johnson stressed that the county does not have final say but that he wants to have some say on safety, recreation and construction that will affect residents…
Larimer County has agreed to manage the recreation on and around Glade Reservoir, with Northern Water committing to $20.6 million for recreational facilities and with either the county or another yet-to-be-identified partner bringing $3.775 million to the table.
The money would cover parking lots, boat ramps, a visitors center, camping areas and environmental mitigations at the reservoir and on the surrounding land.
Commissioner John Kefalas, the sole Democrat on the board and the lone vote against the 1041 permit in September, also voted against the development agreement Tuesday. He said he understands the purpose is to describe the water developer’s obligations to the county and “to enhance the general welfare of the county,” but that he had concerns about some pieces of the agreement and could not vote in favor of it without further information.
The development agreement was included on the consent agenda at the commissioners’ weekly administrative matters meeting. The consent agenda typically is a list of actions approved without discussion and all by a single vote. Kefalas moved the item from that single vote so the board could discuss it.
“My rationale for pulling this item from the consent agenda is first to highlight that approval of the NISP project is indeed one of the most significant decisions made by this board of county commissioners, one that will impact Larimer County and future generations in many ways,” Kefalas said. “As such, this development merits public attention and scrutiny and, from my perspective, it is necessary for the people to see how this NISP agreement seeks to mitigate the potential unintended consequences of the proposed Glade Reservoir.”
He also expressed “serious concerns” about the overall project and said two provisions in the agreement add to those worries. He highlighted wording in the agreement that stresses that recreation is a secondary use to the water supply and that Northern Water, which will manage the project, may vary water levels and may modify design and location, at its sole discretion, for operations, maintenance or other issues to prioritize water supply over recreational uses.
“So I ask the question: What will happen to the recreational benefits of the NISP project if it takes 10 years to fill the reservoir perhaps due to higher temperatures, extended droughts and reduced snowpack?” Kefalas said. “Without a science-based answer to this question today, I cannot support this NISP development agreement.”
As its trial date in water court approaches, hundreds of pages of depositions obtained by Aspen Journalism reveal state engineers’ sticking points regarding a proposed reservoir project they oppose in northwest Colorado.
Over a few days in November, state attorneys subpoenaed and interviewed several expert witnesses and the Rio Blanco Water Conservancy District manager in the White River storage-project case, also known as the Wolf Creek project. Their questions centered on the town of Rangely’s water needs and on whether water is needed for irrigation.
The documents, obtained through a Colorado Open Records Act request, also underscore the extent to which fear of a compact call is shaping this proposed dam and reservoir project between Meeker and Rangely.
The Rangely-based Rio Blanco Water Conservancy District is applying for a conditional water-storage right to build a 66,720-acre-foot, off-channel reservoir using water from the White River to be stored in the Wolf Creek drainage, behind a dam 110 feet tall and 3,800 feet long. It would involve pumping water uphill from the river into the reservoir.
There also is an option for a 72,720-acre-foot on-channel reservoir, although this scale of project is now rare in Colorado. Rio Blanco has said they prefer the off-channel option.
For more than five years, top state water engineers have repeatedly said the project is speculative because Rio Blanco has not proven a need for water above its current supply.
Despite Rio Blanco reducing its claim for water by more than 23,000 acre-feet from its initial proposal of 90,000 acre-feet, state engineers still say the water-right application should be denied in its entirety. After failing to reach a settlement, the case is scheduled for a 10-day trial in January. Division 6 Engineer Erin Light and top state engineers Kevin Rein and Tracy Kosloff are the sole opposers in this case.
Rio Blanco already operates Kenney Reservoir, just east of Rangely on the White River. But it is silting in at an average of 300 acre-feet per year and is nearing the end of its useful life, according to court documents.
A main point of contention between Rio Blanco and state engineers is whether there will be an increased need for irrigation water in the future. Rio Blanco claims it needs 7,000 acre-feet per year for irrigation.
During the depositions, state attorneys questioned Rio Blanco manager Alden Vanden Brink about the need for irrigation water. He claimed there is a local boom in agriculture and that there is high-value farmland that is not being irrigated simply because of a lack of water. Vanden Brink said happiness for residents on the lower White River will increase with access to irrigation water from the proposed reservoir, adding that if irrigation water is made available, demand for it will increase.
“It will make water available in the lower White River so that people can increase their quality of life and have a garden, you can have a few pigs,” Vanden Brink’s deposition reads. “It’s just going to be improvement all the way around.”
But details were sketchy on what specific lands would be irrigated and the district’s plan to get water from the reservoir to irrigators. State engineers, in a subsequent trial brief, say that just because there are lands that might benefit from irrigation doesn’t mean there will be future increased demand. If you build it, they won’t necessarily come.
“Instead, the premise that there will be a demand for water if the water right is granted is exactly the sort of ‘self-fulfilling prophecy of growth’ prohibited under Colorado’s anti-speculation doctrine,” the state’s trial brief reads.
Engineers also say Rio Blanco has not identified how the reservoir, situated low in the White River basin, would serve the majority of irrigated acres located upstream.
“For instance, Rio Blanco has not identified any pipeline construction or other water project works that could run water up to these other locations,” the state trial brief reads.
Rangely’s water needs
Rio Blanco and the state also disagree about the amount of water needed for Rangely, a high-desert town of about 2,300 people near the Utah border. Rangely takes its municipal water from the White River.
In their depositions, Vanden Brink and Gary Thompson, an expert witness and engineer with W.W. Wheeler and Associates, refer to “cow water” as the source of Rangely’s water issues.
According to Vanden Brink, who also is the town’s former utilities supervisor, when flows in the White River drop to around 100 cubic feet per second, water quality becomes impaired. That can include increased algae growth, decreased dissolved oxygen, increased alkalinity and increased mineral contaminants, which require more treatment, he said.
“If you want to look at that water and how you can take that water and make it potable, forgive me, but it looks worse than cow water,” Vanden Brink said in his deposition. “I know if I was a cow, I wouldn’t want to drink it. It’s pretty degraded; it’s pretty muddy, it’s bubbly, it’s gross. And there’s a reason Rangely’s got the extensive treatment that it does.”
In an April letter to Rio Blanco, Town Manager Lisa Piering and Utilities Director Don Reed said Rangely would commit to contract for at least 2,000 acre-feet of storage for municipal use after the reservoir is built. According to expert reports, Rangely’s current demands are 784 acre-feet per year.
Project proponents say that increased flows from reservoir releases will dilute contaminants and improve water quality at the town’s intake.
But this argument doesn’t work for state engineers, who say that the water Rio Blanco says Rangely needs is not based on projected population growth and that Rio Blanco has not analyzed whether the town’s existing water supplies would be sufficient to meet future demands.
“Rio Blanco at trial may attempt to offer evidence regarding needs based on water quality, but Rio Blanco has not disclosed any evidence quantifying the amount of water Rangely would need for that purpose,” the trial brief reads.
Colorado River Compact influence
Depositions and water court documents reveal how water managers’ and experts’ fear — and expectation — of a compact call could influence the project proposal.
According to the 1922 Colorado River Compact, the upper-basin states (Colorado, Utah, New Mexico and Wyoming) must deliver 7.5 million acre-feet a year to Lake Powell for use by the lower-basin states (Arizona, California and Nevada). If the upper basin doesn’t make this delivery, the lower basin can “call” for its water, triggering involuntary cutbacks in water use for the upper basin.
Water managers and policymakers admit that no one knows how it would play out just yet, but risk of this hypothetical scenario becoming reality is increasing as drought and rising temperatures — both fueled by climate change — decrease flows into Lake Powell.
Water managers are especially worried that those with junior water rights, meaning those later than 1922, will be the first to be curtailed. Senior water rights that existed prior to the compact are generally thought to be exempt from compact curtailment.
Many water users in the White River basin, including the towns of Rangely and Meeker, have water rights that are junior to the compact, meaning the users could bear the brunt of involuntary cutbacks in the event of a compact call.
Rio Blanco is proposing that 11,887 acre-feet per year be stored as “augmentation,” or insurance, in case of a compact call. Releasing this replacement water stored in the proposed reservoir to meet these compact obligations would allow other water uses in the district to continue and avoid the mandatory cutbacks in the event of a compact call.
According to Rio Blanco’s trial brief, “there is significant risk of a compact curtailment in the next 25 years that could negatively impact 45% of the water used in the district.”
In his deposition in response to questions from Rio Blanco attorney Alan E. Curtis, Thompson said drought scenarios will get worse in the future, the White River will be more strictly administered and a compact call is likely to occur.
“Things are — in my opinion — drought conditions are increasingly pervasive,” he said.
But state engineers say that augmentation use in the event of a compact call is not a beneficial use under Colorado water law and is inherently speculative. Compact compliance and curtailment are issues to be sorted out by the Upper Colorado River Commission and the state engineer, not individual water users or conservancy districts, they say. The state of Colorado is currently exploring a concept called demand management, which could pay water users to use less water in an effort to boost levels in Lake Powell.
According to their trial brief, state engineers say that while the desire to plan for compact administration is understandable, “the significant uncertainties involved in future compliance under the Colorado River Compact mean that Rio Blanco cannot show a specific plan to control a specific quantity of water for augmentation in the event of compact curtailment.”
The trial is scheduled to begin Jan. 4 in Routt County District Court in Steamboat Springs. Among the witnesses that Rio Blanco plans to call are Colorado River Water Conservation District Manager Andy Mueller, Colorado Water Conservation Board Chief Operating Officer Anna Mauss and Rio Blanco County Commissioner Gary Moyer.
Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with The Aspen Times and other Swift Communications newspapers. This story ran in the Dec. 26 edition of The Aspen Times and the Vail Daily, and the Dec. 28 edition of Steamboat Pilot & Today.
On Nov. 30 Governor Jared Polis sent a “memorandum of drought emergency” to executive directors of state government departments. The memo marks the beginning of phase 3 “full plan activation” of the state’s Drought Mitigation and Response Plan.
The memo said “deep and persistent drought conditions” had covered the state for 15 weeks, noting that this level of drought had not been observed since 2013. It also activated the “Municipal Water Impact Task Force,” chaired by members of the Colorado Water Conservation Board and the Department of Local Affairs.
The memo states: “The initial objective of the Task Force is for water suppliers to coordinate with each other and the state going into winter to prepare for anticipated drought-related challenges and opportunities in 2021.”
“So it’s telling you to get planning for a drought, which is what your water conservancy districts, Yellow Jacket and the Rio Blanco Water Conservancy districts are attempting to do” said Alden Vanden Brink, District Manager for the Rio Blanco Water Conservancy District.
During a Dec. 14 Board of County Commissioners work session, he spoke about the Governor’s memo and its implications for the basin. “I’ve been following up on this quite a bit trying to make sure they understand that there is no drought contingency within our White River basin,” he said.
By drought contingency, Vanden Brink was referring to storage, of which he said there is very little in the basin. “You’re looking at just a couple of days worth of water, literally,” said Vanden Brink, later adding “we have a real problem with the lack of storage in our basin, a real problem, and it makes us extremely vulnerable.”
That vulnerability, though not exactly new to the basin, is growing more urgent. Colorado’s record drought in 2020 was just the beginning of a more long term trend, according to leading climatologists and groups like the National Oceanic and Atmospheric Administration (NOAA)…
That planning includes preparations for an upcoming water court lawsuit set to begin in the first week of January. “It’s to get a conditional water right to construct a reservoir for drought contingency within the White River basin.” said Vanden Brink, referring to the Wolf Creek Reservoir, also known as the White River Storage project. The project would store between 66,000 and 73,000 acre feet of water, depending on the exact location.
In an expert report submitted earlier this year, state engineers contested that Rio Blanco had failed to identify the need for that much water. Ultimately that disagreement is what prompted the lawsuit between the Rio Blanco Water Conservancy District and the State’s Division of Water Resources.
Adding to his message of urgency, Vanden Brink talked about proposed “demand management” strategies which are likely to become more prevalent in coming years. “What they’re looking at doing is paying a rancher to idle his field for a given period of time, and allow that water to flow by,” said Vanden Brink, noting that the development of those strategies was a changing dynamic. Although he didn’t speak negatively about the concept in general, he was concerned about its potential impact in the region. “Not allowing that water to go be used for flood irrigation….flood irrigation is what recharges our groundwater aquifer. That’s taking away from that groundwater aquifer what little storage we have, which is the aquifer” said Vanden Brink.
He argues that given the lack of existing storage, and thus lack of drought contingency in the basin, the Governor’s memorandum of drought emergency provides more legitimacy to Rio Blanco’s proposed reservoir project.
Chuck Miller of Fort Morgan has been vocal in opposing action by the LSPWCD to raise its mill levy from 0.5 mill to 1 mill for the 2020 budget year and retaining that level for 2021. Miller contends that the increase is a violation of the TABOR amendment to the Colorado Constitution. He and others have appealed to county commissioners in Logan, Morgan, Sedgwick and Washington counties to refuse to certify the water district’s mill levy…
The group asserts that, although the water conservancy district freed itself from the restrictions of the TABOR amendment in 1996, it still promised not to raise taxes without a vote. The district board, however, takes the position that, when it was formed in 1964, it was statutorily authorized to levy up to 1 mill on real property within the district, and the 1996 “de-Brucing” question allows the district the right to levy up to 1 full mill; the public vote would only be needed if the district wanted to exceed its original allowance of 1 mill.
The mill levy must be certified in each of the four counties covered by the district. Only Sedgwick County, where Commissioner Chairman Donald Schneider also is a member of the LSPWCD board of directors, voted to certify the mill levy. Washington County Commissioner LeAnne Laybourn told the Journal-Advocate Thursday morning that, contrary to what was previously reported, the Washington County Commissioners pulled the water district’s mill levy from a group of levies they were to certify.
Miller said he has gotten conflicting answers to questions about who enforces the provisions of the so-called Taxpayer’s Bill of Rights, a 1992 amendment to the state constitution. TABOR restricts government spending and forbids raising taxes without voter approval.
Colorado Department of Local Affairs spokesperson Brett McPherson told the Journal-Advocate Wednesday that the state has no role in enforcing TABOR.
“TABOR contains the mill levy/tax rate restriction but is locally interpreted and enforced through the courts,” McPherson said. “TABOR is locally enforced by taxpayers, who elect board members and who can also bring a lawsuit against the taxing entity. There is no state agency role in enforcing TABOR.”
According to state statute, if a mill levy is not certified, the county can be instructed to extend the previous year’s mill levy which, in this case, is still 1 mill, since that was certified the previous year.
FromColoradoPolitics.com (Marianne Goodland) via The Colorado Springs Gazette:
The week of Dec. 14, the seven states that are part of the Colorado River Compact began the first step for renegotiating guidelines that will decide how much water the three lower basin states and Mexico will get from Lake Mead, on the Arizona-Nevada border, and from Mead’s source, the Colorado River.
The guidelines are interim, signed in April 2007, and are due to expire in 2026. Among the most significant, the guidelines provide long-term stable management of the river and also determine the circumstances under which the Interior secretary could reduce the annual amount of water available from Lake Mead to the Colorado River lower basin states. The guidelines also are a way for the basin states to avoid litigation, part of what prompted the 2007 interim guidelines.
The seven states that make up the Colorado River Compact, and which will negotiate those guidelines, are divided into upper basin states (Colorado, Wyoming, Utah and New Mexico) and lower basin states (Arizona, Nevada and California). Mexico is also part of the lower basin water allotment, as well. About 40 million people across the seven states rely on the Colorado River for water.
Colorado, Utah, Arizona and New Mexico are dealing with extreme drought conditions, according to the U.S. Drought Monitor.
What that means for the river heading into in the future, said John Fleck, a former journalist and author and now with the University of New Mexico’s Water Resources Program, is water levels in Lake Mead could drop to 1,060 feet by 2022. That’s 15 feet below what triggers “the next tier of mandatory Lower Basin water use cuts under the river’s 2007 interim guidelines and the supplemental drought contingency plan” signed last year…
Last week, the seven states signed a joint letter to Trump administration Interior Secretary David Bernhardt and Bureau of Reclamation Commissioner Brenda Burman requesting technical support from the federal agency, as the states move forward with negotiations. The states are setting up a working group to look at modeling for the management and operations of Mead and Lake Powell, which is the water “bank” on the Colorado River for the upper basin states…
[Rebecca] Mitchell said she thinks “everything is on the table as we look toward the future.” What’s in the final report — or not — “doesn’t mean we can’t deal with bigger issues outside of the guidelines.”
That’s also where the Biden administration, and his Interior nominee, U.S. Rep. Deb Haaland, D-New Mexico, could make a difference. One of the signs from Biden toward the Colorado River is his appointment of Tanya Trujillo of New Mexico to the Department of the Interior’s transition team. Trujillo is vice chairwoman of the New Mexico Interstate Stream Commission and lower basin project director for the Colorado River Sustainability Campaign. A water lawyer, Trujillo has experience working in Interior on water issues.
“We’re hoping (the new administration) will foster negotiations that are rooted in science and create a framework that recognizes how climate change is affecting and will continue to affect the basin,” Kim Mitchell, a senior water policy adviser with Boulder-based Western Resource Advocates, told BloombergLaw.com in November.
On the Arizona-California border, where the Colorado River pushes against Headgate Rock Dam, churning water pours into a wide canal and runs across the desert, flowing toward the farmlands of the Colorado River Indian Tribes.
This tribal nation is the largest single user of Colorado River water in Arizona, with rights to divert about 662,000 acre-feet per year, more than double the amount of water diverted for the state of Nevada.
But unlike other tribes elsewhere in Arizona, the Colorado River Indian Tribes, or CRIT, are legally barred from leasing water to growing cities and suburbs. The reasons go back to a 1964 decree by the U.S. Supreme Court that established the tribal water rights, and to a law enacted in the 1790s that limits tribes’ authority to make such deals without congressional approval.
Now tribal leaders plan to ask Congress to pass legislation that would allow them to put some of their water on the market by leasing it out. They say their water can help Arizona endure shortages as drought and climate change reduce the river’s flow.
They’re already leaving some farmlands dry in exchange for payments, helping Arizona deal with cutbacks under an agreement aimed at boosting the water level in Lake Mead…
Chairman Dennis Patch said the tribe can do more to help as the Southwest grapples with declining water supplies, and in turn would benefit by leasing some of its water. He said it’s also time the Colorado River Indian Tribes gain the ability to use their water as they choose.
“We did this as a tribe because we wanted to claim our own destiny with our land and our water,” Patch said during a virtual meeting on the proposal earlier this month. “Our water is critical to the state’s water security as the drought continues and possibly worsens.”
And because CRIT holds the most senior first-priority rights, its water likely won’t be at risk of cuts during shortages…
Leasing some water would also generate funds to repair and upgrade the aging irrigation system on the reservation, helping its farms use water more efficiently, Patch said. He called the plan “a win for Arizona water users, for the river and for our people and the reservation economy.”
CRIT has about 4,500 tribal members. In January 2019, members voted in a referendum to endorse the approach of seeking federal legislation to lease a portion of the water for use off the reservation.
If Congress agrees and passes a law, the legislation would be the first of its kind in Arizona and could clear a path for other tribal governments along the river to seek authorization for similar water deals…
The Colorado River Indian Tribes’ reservation was established by the federal government in 1865.
Its members come from four tribal affiliations. The Mohave have lived along the river for thousands of years. They were joined by Chemehuevi people, some of whom were displaced by flooding on their lands when dams were built. Later, in the 1940s and 50s, the U.S. government encouraged Navajo and Hopi families to move to the reservation to farm.
In June, the Senate unanimously passed the Utah Navajo Water Rights Settlement Act, a long-awaited piece of legislation aimed to do just that for the Utah portion of the reservation. The legislation would recognize the Navajo Nation’s right to 81,500 acre feet of water from the Colorado River basin in Utah — enough to meet the annual needs of an estimated 160,000 typical American households. It also would settle the tribe’s current and future water rights claims and provide $220 million to build much-needed water projects in San Juan County.
Despite its bipartisan passage, outgoing President Donald Trump threw the entire funding and relief package into uncertainty Tuesday night when he sharply criticized it as “wasteful and unnecessary.”
Over 40% of Navajo Nation homes in San Juan County — where tribal water rights have never been formalized — lack running water and many residents have to fill containers at public taps, a time-consuming and expensive process. Others rely on water delivery from nonprofit organizations.
The bill, made more urgent by the pandemic, garnered bipartisan support after nearly 18 years of negotiation. Every member of the Utah delegation to the House of Representatives, three Republicans and one Democrat, cosponsored it, and the public appeared to back its premise as well…
But months passed and nothing happened. Sen. Mitt Romney, R-Utah, and Rep. Ben McAdams, D-Utah, put out a joint news release in October urging the House to pass the bill. Navajo Nation President Jonathan Nez spoke to a water conference at Colorado Mesa University in November, and worried that if the legislation did not go to a vote in the House before the end of the year, it could continue to founder in Congress like it has since first being introduced by then-Sen. Orrin Hatch, R-Utah, in 2016.
On Monday, however, the legislation finally saw renewed life when it was included in the massive Consolidated Appropriations Act of 2021, a $2.3 trillion spending bill that includes $900 billion in coronavirus relief and a $1.4 trillion omnibus spending package. The legislation is now waiting for Trump’s signature.
“This is truly a historic milestone for the Navajo people and the state of Utah,” Nez said in a statement Monday. “For years, Navajo leaders have advocated for the passage of the Navajo Utah Water Rights Settlement Act to provide clean water for our people that reside in the Utah portion of the Navajo Nation. The COVID-19 pandemic has punctuated our critical need for more clean water resources to keep our people safe and healthy.”
Nez thanked the bill’s advocates in Congress, including Romney, McAdams and Rep. Rob Bishop, R-Utah, as well as Utah Gov. Gary Herbert and Lt. Gov. Spencer Cox, the state’s governor-elect.
For decades, too many Native American tribes in the Colorado River basin have been denied their fair share of water. Too many families on too many reservations have not had the access to clean water that most Americans enjoy. Today, Congress took a step in the right direction with the Navajo-Utah Water Rights Settlement Act, a bill included in the large omnibus package, the final legislative act of 2020. Audubon supported this settlement and its many benefits including:
Long-needed water infrastructure for citizens of the Navajo Nation in Utah, as well as access to freshwater and wastewater facilities
Affirmed allocation of 81,500 acre-feet of water for the tribe in Utah
More than $200 million from the federal treasury and $8 million from the State of Utah to develop infrastructure for water services on the Navajo reservation in Utah
The right to lease their water off reservation (a right currently denied other tribes in the Colorado River Basin)
Final settlement of all claims for the Navajo Nation in Utah, avoiding the need for future litigation.
As climate change impacts increasingly threaten the Colorado River, the Navajo-Utah settlement will make certain that underserved communities on the Navajo reservation have access to water. Moreover, it ensures the Navajo can realize the full benefit of their water rights as they choose, for their families, their economy, and for the Colorado River and every living thing that depends on it, including hundreds of species of birds.
Audubon will continue to advocate for sensible water legislation and policies at the local, state, and federal levels.
The Chaffee County Commissioners approved a contract for Denver-based Harvey Economics to conduct an economic impact study of Nestlé Waters North America’s local operations.
In corresponding moves, the Commissioners voted to extend Nestlé’s existing 1041 permit to Aug. 4, 2021, and voted to continue the permit hearing to Jan. 19, 2021.
The existing permit allows Nestlé to pump up to 196 acre-feet of water per year at Ruby Mountain Spring, and Nestlé has applied for a 10-year permit extension.
The Commissioners have temporarily extended the original permit by more than a year, and this most recent extension will allow Nestlé to continue its operations while the economic study is conducted.
The extension also allows time for county officials, Nestlé and members of the public to review and comment on the economic study.
In discussing the timeline for the ongoing 1041 hearing, the Commissioners indicated they expect Harvey Economics to complete the study in approximately 3 months, after which Nestlé will have the study reviewed by a consultant.
Members of the public will have an opportunity to review the study, review Nestlé’s response, and comment on both documents, with Commissioners expecting to render a decision on Nestlé’s permit application by early June.
If the Commissioners deny the permit extension, Nestlé would have until Aug. 4, 2021, to phase out its Chaffee County operations.
Commissioners Chairman Greg Felt raised the issue of plastic bottles and asked Nestlé Natural Resource Manager Larry Lawrence about the feasibility of converting an existing bottling plant to use biodegradable bottles.
The fires burning in the American West were the prompt. Turning to the president, Wallace asked Trump what he believed about climate science and what he would do in the next four years to confront carbon pollution. Trump, at first, demurred.
“I want crystal clean water and air,” Trump responded. Then he pivoted to a familiar talking point: railing against cluttered forests as the cause of wildfires in California and other western states.
The initial line — the desire for crystal clean water — is one that the president repeats frequently, even dating to his 2016 presidential campaign. Immaculate water, he has also said. Clear water. Beautiful water. But the focus on appearances is superficial, according to a number of water advocates and analysts. Revisions to environmental rules that the administration has pursued during the first term of the Trump presidency will be detrimental to the nation’s waters, they said.
“President Trump loves to say that he wants crystal clear water,” Bob Irvin, president and chief executive of the conservation group American Rivers, told Circle of Blue. “But his administration has adopted policies that will result in dirtier water across the country.”
Irvin, an environmental lawyer by training, has worked in Washington D.C. for more than three decades, starting out as a trial attorney in the Justice Department during the Reagan administration. He was senior counsel for fish and wildlife for the Senate Committee on Environment and Public Works. He worked for conservation organizations like the World Wildlife Fund and the National Wildlife Federation. His career has spanned Republican and Democratic administrations and there was always at least some common ground for environmental priorities, he reflected.
Not during the Trump administration, though. Irvin could not name any beneficial administration policy for waterways. “It is stunning for me to say that,” he said.
Others interviewed for this story were not as absolute, but they echoed, to varying degrees, Irvin’s thoughts: “This administration has been unrelentingly hostile to the idea of conservation and environmental protection, and has been single-minded in its determination to undermine that protection.”
Failure to secure a big win for infrastructure was surpassed by an agenda to undo environmental protections.
First under Scott Pruitt and currently led by Andrew Wheeler, who lobbied for fossil fuel industries he now regulates, the U.S. Environmental Protection Agency took the reins in the administration’s plan to weaken federal authority and relinquish power to the states.
Like his boss, Wheeler made public statements that lifted water to a place of prominence.
“My frustration with the current dialogue around environmental issues is that water issues often take a backseat,” Wheeler told the audience at the Wilson Center on March 20, 2019, in an event to mark World Water Day. “It’s time to change that.”
And yet, many critics and analysts say that the administration did not change that. Regulatory rollbacks not only at the EPA but from the Army Corps of Engineers, Bureau of Reclamation, and the Department of Energy leave the country’s waters more vulnerable to pollution and development, they say. States, which are enduring budget cuts to their environmental units, are not in a position to be a backstop, argues Eric Schaeffer, executive director of the Environmental Integrity Project.
“The assumption that states are going to come in and fill the gap is not warranted,” Schaeffer told Circle of Blue. Schaeffer was the director of EPA’s Office of Civil Enforcement from 1997 to 2002. His group released a study showing that 31 states reduced funding for state pollution control agencies from 2008 to 2018. “When EPA leaves the field, it leaves a lot of work undone,” he said.
The list of places where EPA has left the field or stepped back from it is long. The administration gave coal power plants more time to close unlined waste pits and relaxed standards for pollutants in power plant wastewater that is discharged to rivers and lakes. It narrowed the scope of state reviews of pollution impacts under the Clean Water Act. It withdrew a proposal that would have required mining companies to provide more financial assurance that they could clean up future water contamination. Reversing an Obama-era decision, it decided not to regulate perchlorate in drinking water. Draft rules for lead in drinking water appear to give utilities more time to replace lead service lines.
The U.S. Forest Service, for its part, overturned an Obama-era prohibition on mining leases in about 234,000 acres of Superior National Forest in northern Minnesota. The administration is proceeding with an environmental review of the contested Twin Metals mine, a proposed copper-nickel mine that would be located in the national forest some five miles from Boundary Waters Canoe Area Wilderness.
The Bureau of Reclamation, meanwhile, has sought to increase the height of Shasta Dam over the objections of the state of California and the Winnemem Wintu tribe, which do not want higher waters to submerge salmon habitat and cultural sites along the McCloud River. And the Bureau is carrying out an executive order to maximize water exports from the Sacramento-San Joaquin delta.
Laura Ziemer, the senior counsel and water policy advisor for Trout Unlimited, said that there is a lot of opportunity for the Bureau of Reclamation to invest in drought and climate preparedness in the western states through certain forms of natural water storage and irrigation efficiency. But projects like the Shasta Dam raise are not that…
Out of all these deregulatory actions, one stood out. Most people interviewed for this story singled out the administration’s changes to the scope of the Clean Water Act — the definition of what counts as a water of the United States, or WOTUS — as the most damaging policy for water.
“It’s going to have consequences that are irreversible and far-reaching,” Kyla Bennett, New England director and science policy director at Public Employees for Environmental Responsibility, told Circle of Blue.
Written by the EPA and Army Corps, the WOTUS rule reduces protections for wetlands and ephemeral streams that only flow after rainfall. Agency staff used national hydrological datasets to calculate that as many as half of the nation’s wetlands and 18 percent of streams would be excluded under the new rule. That means developers will not have to seek permits to fill in wetlands and stream segments that formerly had protection. It also means that requirements to minimize damage and offset unavoidable impacts by restoring wetlands elsewhere have been stricken.
Ziemer noted that western rivers are particularly vulnerable to the removal of protections for ephemeral streams…
Watersheds that are connected from headwater channels to floodplains absorb high flows and retain that water through drought periods. “If we allow all of our hydrologic function to be paved over, we are going to expose ourselves to both flood and drought risk moving forward,” Ziemer said.
The EPA press office declined requests from Circle of Blue for interviews with Wheeler and David Ross, head of the Office of Water. It is the agency’s position that no existing map depicts accurately the boundaries of federal regulatory authority under the Clean Water Act. Several federal agencies are now working to publish such a guidepost.
Tipping the Balance of Power
What is the effect of this overhaul? In most cases, it is too early to say. Narrowing the scope of the Clean Water Act took effect this June for every state but Colorado. “It takes a while between the time you push the lever on a new policy or decision and the time the impacts show up in water quality,” Schaeffer said.
The administration touts other steps it has taken to secure the nation’s water: a national plan to coordinate the reuse of water, orders to speed up reviews and permitting of things like the management plan for federally managed dams on the Columbia River, and formalizing a water “subcabinet” of department heads who will coordinate policy, a determination that it will regulate two toxic PFAS substances in drinking water. FEMA, to the pleasure of green groups, also quietly advanced new guidance that allows greater use of federal flood prevention funds for natural infrastructure such as wetlands.
In general, the administration’s rules have tipped the balance of power to users of water: mining companies, energy developers, farmers, homebuilders. Even as it moves to regulate two PFAS in drinking water, the EPA is allowing the chemical industry to produce and sell new PFAS substances.
Among the president’s most ardent supporters is the American Farm Bureau Federation. Don Parrish, senior director of regulatory relations for the Farm Bureau, told Circle of Blue that the administration has assisted in three ways: collaborating with states on nutrient pollution, encouraging market-based systems for trading pollution credits, and simply listening to farm groups.
“One of our biggest priorities coming into this administration was a more realistic definition of waters of the United States,” Parrish told Circle of Blue. Narrowing the scope of the Clean Water Act accomplished that, Parrish said, though the Farm Bureau did not get everything it wanted in the revised rule.
The Utility Water Act Group, a coalition of energy utilities and industry groups that sued to overturn Obama-era coal ash regulations and to support the Trump administration’s environmental policies, declined to comment for this story.
It’s not just the policies that have drawn ire. The Trump administration has sought to transform the process by which those decisions are made: by sidelining scientific evidence and shrinking the environmental review process.
According to a survey of federal scientists, political appointees in the Trump administration raised barriers to using science in policy decisions. More than 4,200 federal scientists responded to the survey, which was conducted in 2018 by the Union of Concerned Scientists and Iowa State University. Half of respondents agreed or strongly agreed that political considerations outweighed scientific conclusions.
The legacy of these four years is still being written. The administration’s policy changes have fared poorly in court. Many have been overturned because of procedural missteps and hastily written justifications. Other rules like the definition of waters of the United States are in the early stages of litigation.
Local governments and environmental groups don’t think a proposal submitted by a mining company goes far enough to restore the damage done when the company diverted a section of creek near Marble, and they are asking the U.S. Army Corps of Engineers to hold a public hearing to address various concerns.
They also say the company, which was found to have violated the Clean Water Act for moving the section of Yule Creek without first applying for a permit, should undertake river restoration projects elsewhere in the Crystal River basin as compensatory mitigation for damage the company caused when it moved the waterway to construct a road to better access its marble quarry.
The quarry site and Yule Creek are in Gunnison County, but the creek is a tributary of the Crystal River, which flows through Pitkin County.
In separate comments submitted to the Army Corps, Pitkin and Gunnison counties, the Crystal River Caucus, the Roaring Fork Conservancy and the Crystal Valley Environmental Protection Association (CVEPA) are asking for monitoring, restoration, mitigation and a chance for the public to weigh in about the situation at the Pride of America Mine above the town of Marble.
“I think this is an activity of significant interest for those living in the Crystal River Valley,” said Pitkin County Assistant Attorney Laura Makar.
In its comment letter, CVEPA requested that the Army Corps hold a public hearing in the Crystal River Valley to “allow impacted residents a meaningful opportunity to engage in this decision-making process, and to better understand the situation that has transpired in our local watershed.”
In the fall of 2018, mine operator Colorado Stone Quarries (CSQ) diverted a 1,500-foot section of Yule Creek from its natural channel on the west side of Franklin Ridge, a rock outcropping, to the east side of the ridge so it could build a road. Operators piled the streambed with 97,000 cubic yards of fill material, including marble blocks.
In March, the Army Corps determined that these actions, which were done without the proper permit, violated the Clean Water Act. CSQ is now retroactively applying for that permit, known as a 404 individual permit. Under Section 404 of the Clean Water Act, a project requires a permit from the Army Corps if it includes the discharge of dredged or fill materials into waters, such as rivers, streams and wetlands.
In its permit application, CSQ proposed making the creek relocation permanent by leaving it where it is on the east side of the ridge. The company says this is the most efficient and environmentally sound option, and it results in the closest return to pre-diversion stream conditions. But that analysis doesn’t sit well with some local groups.
The Crystal River Caucus, which represents Pitkin County residents downstream of the site, said in its comment letter that the company’s proposed solution focuses too much on practicability above environmental factors.
“CSQ’s illegal activities have severely reduced, if not eliminated, many viable alternatives which could have been considered if the mining company had complied with the state and federal laws intended to regulate its activities,” the caucus wrote in its comment letter. “CSQ should not be rewarded for its violation of those laws.”
In its comment letter, Pitkin County said CSQ has not demonstrated that it has a plan that eliminates its detrimental impacts. In addition to a public hearing, the county wants the mining company to restore the riparian habitat, conduct water-quality monitoring at multiple sites in the basin and compensate for any damage by doing restoration projects in other areas.
Pitkin County and the Healthy Rivers board identified eight projects that could provide compensatory mitigation in the Crystal River basin, including restoration of Filoha Meadows streambanks, Thompson Creek riparian restoration and Crystal River streambank stabilization.
“These projects could provide the following types of benefits to the watershed: riparian zone improvement, floodplain connectivity, erosion control, habitat for aquatic life and water quantity increase,” the letter reads.
The Basalt-based Roaring Fork Conservancy, in its letter, said it is interested in assisting with developing and implementing a long-term water-quality monitoring plan. According to the conservancy’s 2016 Crystal River Management Plan, the areas near Marble were some of the most ecologically intact prior to the recent mining activity on Yule Creek.
“RFC strongly encourages the applicant to undertake significant efforts, through a qualified and independent organization(s) to design and implement restoration projects and related long-term monitoring to restore the necessary and lasting ecological function in this severely impacted reach of Yule Creek,” the letter reads.
In a prepared statement, CSQ said it is awaiting guidance from the Army Corps on next steps in the process.
“Once CSQ has received all of the public comments and the Corps’ response, it will review all of this information and consider the best course of action,” said CSQ senior consultant Katie Todt, who is with Lewicki & Associates.
The Army Corps will now decide whether to issue a permit after the fact — an unusual situation. CSQ did not submit any compensatory mitigation plans as part of its application, but the Army Corps could require them if it determines that CSQ can’t minimize all its impacts.
“The applicant is currently considering various options to conduct compensatory mitigation, if needed,” says the Army Corps’ public notice of the application from October. “Discussions thus far have included wetland enhancement and preservation near the confluence of Yule Creek and the Crystal River in effort to improve water quality within the watershed, among other options that seek to improve the ecological function of the Yule Creek watershed. CSQ is amenable to receiving information related to additional compensatory mitigation options.”
According to its public notice, the Army Corps says it will use the public comments received to prepare an environmental assessment of CSQ’s activities.
The public comment period closed Dec. 16, a deadline that had been extended by a month at the request of the Crystal River Caucus. According to Susan Nall, chief of the Colorado West Section of the Army Corps, it is the Army Corps’ goal to issue a decision on a permit within 120 days after receiving the application.
The Pride of America Mine, known locally as the Yule Quarry, is owned by Italy-based Red Graniti. The quarry has been the source of marble for many well-known monuments, including the Lincoln Memorial, the Tomb of the Unknown Soldier and the Colorado Capitol building. In 2016, the state Division of Reclamation, Mining and Safety granted the quarry a permit for a 114-acre expansion for a total of 124 permitted acres. CSQ officials say there is enough marble in its quarries to continue mining at the current rate for more than 100 years.
Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with The Aspen Times and other Swift Communications newspapers. This story ran in the Dec. 21 edition of The Aspen Times.
Officials from all seven states in the watershed sent a letter State letter to USBR re: Colorado River 2026 guidelines.[/caption] this week to Interior Department secretary David Bernhardt, letting the federal government know they’re ready to start hammering out details of operating guidelines for the biggest reservoirs in the country.
Dry conditions made worse from climate change have hit Lakes Mead and Powell hard during the last two decades, leaving them well below capacity.
But as those talks begin, long-standing tensions remain.
“The states noted in that correspondence the importance of engaging with water users, tribes, NGOs and Mexico as those discussions progress,” said John Entsminger, president of the Colorado River Water Users Association and general manager of the Southern Nevada Water Authority.
Tribes, environmentalists and recreation advocates have routinely been kept out of past negotiations, and say they’ll be pushing for more transparency in crafting the new rules…
“Greater inclusion earlier in the processes, will likely lead to more creative solutions, with more buy-in from the affected parties,” said Bureau of Reclamation commissioner Brenda Burman. The agency oversees water infrastructure in the West…
Current guidelines put in place in 2007 expire in 2026.
FromThe Associated Press (Felicia Fonseca) via U.S. News & World Report:
A set of guidelines for managing the Colorado River helped several states through a dry spell, but it’s not enough to keep key reservoirs in the American West from plummeting amid persistent drought and climate change, according to a U.S. report released Friday…
The report by the U.S. Bureau of Reclamation found that the guidelines provided stability, along with other agreements among the states and with Mexico, but they won’t be enough to sustain a region that’s getting warmer and drier and has demanded more from the Colorado River.
The guidelines and an overlapping drought contingency plan expire in 2026. Officials in Wyoming, Utah, Colorado, New Mexico, Arizona, California and Nevada told the Interior Department on Thursday that they have started talking about what comes next…
The Bureau of Reclamation was tasked with reviewing the effectiveness of the 2007 guidelines before year’s end to help with a baseline for the new negotiations. The guidelines spelled out the operations of the nation’s two largest manmade lakes — Lake Powell along the Arizona-Utah border and Lake Mead along the Arizona-Nevada border — outlining what happens when the river can’t supply the water that states were promised in the 1920s.
The guidelines allow water to be stored in Lake Mead, the reservoir created by the Hoover Dam. They set marks for the lake that would trigger water cuts to Nevada and Arizona. California and Mexico have been looped in on possible cuts in other plans.
The guidelines were meant to be flexible and encourage consensus among states, rather than the federal government dictating management of the river, and to avoid litigation because states were required to consult with each other before suing…
In comments before the report was finalized, Native American tribes said they largely were left out of the discussions that led to the guidelines and want a bigger role in the next round of talks, with recognition of their sovereign status. They hold the rights to 3.4 million acre-feet of water annually in the Colorado River basin.
Not all tribes, including the Navajo Nation and Hopi Tribe in northwestern Arizona, have secured the legal right to the water they claim in the basin.
Burman said the Bureau of Reclamation, states, tribes and others will focus in the weeks ahead on creating timelines for the negotiations…
When the 2007 guidelines took effect, Lake Powell and Lake Mead together were about half full. Conservation, delayed water deliveries, a balancing act and other measures have kept them hovering at that level.
States, tribes, cities and other water users are expected to use the Bureau of Reclamation report as a resource for deciding what will replace the guidelines.
Here’s the release from Reclamation (Patti Aaron and Linda Friar):
The Bureau of Reclamation today released a report intended to bring partners, stakeholders and the public to a common understanding of the effectiveness of the 2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead. The technical report documents conservation efforts and operations on the Colorado River since 2007 and provides an essential reference to inform future operations.
“The report presents a thorough review of operations and highlights that we have experienced historic collaboration among states, tribes, water users, non-governmental organizations and the international community in addressing issues affecting one of America’s most important rivers,” said Commissioner Brenda Burman. “Forty million people across seven states and Mexico depend on the Colorado River for life and livelihood, so it’s critical that our actions protect this resource now and into the future. Today’s report highlights both the historic steps taken in the basin, as well as the need for continued progress to meet the growing challenges in the years ahead.”
The report concluded:
– The 2007 Interim Guidelines were largely effective as measured against both their stated purpose and common themes as provided in the 2007 Record of Decision.
– Increasing severity of the drought necessitated additional action to reduce the risk of reaching critically low elevations in Lakes Powell and Mead.
Experience over the past 12 years provides important considerations:
– enhanced flexibilities and transparency for water users
– expanded participation in conservation and Basin-wide programs
– increased consideration of the linkage that occurs through coordinated reservoir operations, particularly with respect to the inherent uncertainties in model projections used to set operating conditions
– demonstrated need for more robust measures to protect reservoir levels
Here’s a guest column that’s running in the Steamboat Pilot & Today (Gena Hinkemeyer):
Did you know that Colorado’s Water Plan calls for 80% of locally prioritized rivers to be covered by a stream management plan by 2030? Yes, that includes our Yampa River Basin.
The Yampa White Green Basin Roundtable is one of nine grassroots water policy roundtables throughout Colorado working to develop locally driven collaborative solutions to water supply challenges. The roundtable’s Integrated Water Management Plan will combine community input with science and engineering assessments to identify actions that protect existing and future water uses and support healthy river ecosystems in the face of growing populations, changing land uses and climate uncertainty.
So where do we begin with the IWMP process? Why not start with the biggest users of water here in the basin, our agricultural stakeholders. Stakeholders have been clear that agricultural infrastructure is in need of improvement, but there is limited documentation about specific needs. Stakeholder engagement is the most important factor to successful IWMPs. That’s where I come into play.
As a segment coordinator for the project, I am reaching out to our agricultural users to listen and learn from them about their use of water and riverside lands, plus their management concerns and opportunities they may see for improvements. I wasn’t really sure what my job would entail. I had visions of field work and lots of interaction with ranchers. Our work was delayed by COVID-19 restrictions, but we were able to roll with the punches and conduct our interviews over the phone.
Virus or not, ranchers still had to irrigate their fields, so we found a way to continue our work. As it turns out, I learned more about irrigation and the effects irrigation has on our community than I ever thought possible. From the headgates of the Yampa all the way down to the confluence of the Green River, our team chose 50 water diversion structures for assessment.
What does a diversion assessment entail, you might ask? A technical team, J-U-B Engineering out of Grand Junction, conducted site visits on the 50 river structures. The site visit included a field inspection of the river headgate, ditch conditions, inventory and assessment of control structures, measurement devices and level of functionality, overall structural integrity and diversion functionality, along with the ability of the structure to divert a wide range of flows.
The results of the diversion assessment will benefit irrigators by providing a technical evaluation of their structure, including suggestions of ways to improve or modify the structure, if needed. The roundtable will use the information along with a combination of other studies regarding river health and recreation to select future priorities and action planning.
As the work of the IWMP continues, the assessments will also support regional decision making regarding multi-benefit projects — those that overlap agriculture, environment and recreation. Working on the IWMP has opened my eyes to how important agriculture and water are to this community. It’s our livelihood and our heritage.
For more information on the IWMP project, visit yampawhitegreen.com/iwmp.
Gena Hinkemeyer is segment coordinator for the Yampa White Green Basin Roundtable Integrated Water Management Plan.
On Monday, the Supreme Court said a river master overseeing the Pecos River compact between the two states correctly decided New Mexico should receive credit for floodwater it stored for Texas after Tropical Storm Odile dropped significant amounts of rainfall into the Pecos River Basin in 2014.
Some of the water had evaporated while in storage by the time Texas was ready to receive it, prompting that state to claim New Mexico failed to meet its obligations. The river master granted New Mexico delivery credits in 2018.
Texas challenged that decision and asked the Supreme Court to review the case.
“The question presented is straightforward: Under the Pecos River compact, does New Mexico receive delivery credit for the evaporated water even though that water was not delivered to Texas? The answer is yes,” wrote Justice Brett Kavanaugh in delivering the opinion of the court.
The Pecos River, which begins east of Santa Fe at the base of the Sangre de Cristos and runs through Eastern New Mexico, is used by irrigators and cities in both states and is the subject of a 1949 compact.
Critical to the case, Kavanaugh wrote, was an email between Texas’ Pecos River commissioner, in which he asked his New Mexico counterpart to hold Texas’ portion of the flow until it could be utilized at Red Bluff Reservoir on the Texas side of the border south of Carlsbad.
New Mexico agreed, but reminded Texas the water belonged to that state and would have been released downstream if not for the request.
New Mexico, Kavanaugh wrote, “also added (correctly as it turns out) the [e]vaporative losses … should be borne by Texas.”
“The text … and the record evidence of the States’ correspondence establish that New Mexico is entitled to delivery credit for the water that evaporated while New Mexico was storing the water at Texas’ request,” the justice wrote.
D’Antonio said New Mexico has a credit of about 166,000 acre-feet under the Pecos compact. That includes the 16,000 acre-feet that were in play in Monday’s case.
Don’t miss this rare and unique opportunity with Aaron Clay in an online setting to learn more about all aspects of the law related to water rights and ditch rights as applied in Colorado. Subject matter includes the appropriation, perfection, use, limitations, attributes, abandonment and enforcement of various types of water rights. Additional subject matter will include special rules for groundwater, public rights in appropriated water, interstate compacts and more.
From his 26 years as a water referee at the Colorado Water Court, Clay brings his wealth of knowledge that earned him a reputation as one of the top experts in water law to this “Water in a Nutshell” course.
We welcome EVERYONE in Colorado, including landowners, realtors, lawyers, water district employees, and anyone else interested in water law.
Registration is $35.00, which includes a hard copy of the Citizen’s Guide to Colorado Water Law, Citizens Guide to Interstate Compacts ($20.00 value) and course materials all mailed directly to you. **$55.00 if you wish to receive Continuing Education Credits. Includes Registration, all course materials and CE or CLE’s.
Pre-registration is required! Register early as this workshop is sure to sell out.
Wall Street has begun trading water as a commodity, like gold or oil. The country’s first water market launched on the Chicago Mercantile Exchange this week with $1.1 billion in contracts tied to water prices in California, Bloomberg News reported.
The market allows farmers, hedge funds, and municipalities to hedge bets on the future price of water and water availability in the American West. The new trading scheme was announced in September, prompted by the region’s worsening heat, drought, and wildfires fueled by climate change. There were two trades when the market went live Monday.
“Climate change, droughts, population growth, and pollution are likely to make water scarcity issues and pricing a hot topic for years to come,” RBC Capital Markets managing director and analyst Deane Dray told Bloomberg. “We are definitely going to watch how this new water futures contract develops.”
Proponents argue the new market will clear up some of the uncertainty around water prices for farmers and municipalities, helping them budget for the resource. But some experts say treating water as a tradable commodity puts a basic human right into the hands of financial institutions and investors, a dangerous arrangement as climate change alters precipitation patterns and increases water scarcity.
“What this represents is a cynical attempt at setting up what’s almost like a betting casino so some people can make money from others suffering,” Basav Sen, climate justice project director at the Institute for Policy Studies, told Earther. “My first reaction when I saw this was horror, but we’ve also seen this coming for quite some time.”
“The territorial seas and traditional navigable waters,”
“Perennial and intermittent tributaries to those waters,”
“Certain lakes, ponds, and impoundments,” and
“Wetlands adjacent to jurisdictional waters.”
The final definition “provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before,” according to the EPA. “Congress, in the Clean Water Act, explicitly directed the Agencies to protect ‘navigable waters.’ The Navigable Waters Protection Rule regulates the nation’s navigable waters and the core tributary systems that provide perennial or intermittent flow into them.”
In July, final changes to the rule were published by the EPA to implement section 401 of the CWA that many characterized as gutting a 50-year history of state and tribal water quality regulation.
“This section allows states and tribal nations to protect health and human safety within their geographic boundaries by making permitting decisions related to the discharge of waste into state waterways,” according to a press release published by the Washington State Office of the Attorney General. The press release went on to say that the rule would “handicap states’ abilities to regulate water quality.”
In July, Washington Attorney General Bob Ferguson filed suit against the EPA and the Army Corps of Engineers in the U.S. District Court for the Northern District of California. The case is co-led by New York and California and was joined by Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Wisconsin, and the District of Columbia.
The lawsuit alleges that the new rule “unlawfully violates the plain language, intent and established case law interpreting the Clean Water Act.”
“The final rule forces states to issue permits based on an incomplete review of what effects industries will have on waterways,” according to the Washington attorney general’s press release. “States will only be able to consider a narrow range of impacts these projects have on water quality, even when the consequences cause far-reaching and even irreversible environmental damage. The rule also limits the amount of information industry must provide, unreasonably reduces the amount of time states have to make decisions or deny permits and attempts to grant the federal government oversight of projects rather than states.”
Environmental and conservations groups estimate the final rule leaves 50% of U.S. wetlands and millions of miles of streams unprotected, according to the Milwaukee Journal Sentinel…
Colorado met with success in the U.S. District Court for the District of Colorado, where an injunction was granted to stop the rule within the state. “The court found that Colorado met the bar for preliminary injunction and agreed to freeze the rule until the litigation plays out,” according to E&E News.
Colorado’s case says the new rule is “significantly narrower” than prior WOTUS definitions and is “inconsistent with case law on the scope of the CWA and abandons the ‘significant nexus’ test laid out in U.S. Supreme Court Justice Anthony Kennedy’s concurring opinion in the 2006 case Rapanos v. United States,” according to Law Week Colorado. “According to this test, wetlands or non-navigable bodies of water fall under the CWA if they ‘significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as ‘navigable.’”
The 10th Circuit convened a remote three-judge panel to hear the EPA’s motion to overturn the injunction, during which Deputy Assistant Attorney General for the U.S. Department of Justice Jonathan Brightbill “argued the rules were narrowed to provide clarity in the wake of three Supreme Court cases.”
“Against this thoughtful interpretation of navigable waters and in light of the Supreme court precedent, including the SWANCC decision which definitively holds there is a stopping point to the term navigable waters short of the Interstate Commerce Clause, Colorado points only to generalized objective provisions of the Clean Water Act,” Brightbill said in a Courthouse News Service article, referring to the 2001 case Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers.
Representing the state of Colorado, State Solicitor General Eric Olson emphasized that important protections are missing from the new WOTUS definition.
Bobby Ray Baldock, senior U.S. Circuit judge, pointed out that Colorado could correct the issue with legislative measures.
“Olson explained that Colorado is one of 48 states that previously relied on the federal permitting system and that the new rule was implemented during a state legislative session shortened by Covid-19,” according to Courthouse News. “We absolutely agree we could put in a regulatory regime that could fill that gap, but we can’t do that in 60 days, which is all that they gave us under the rule,” Olson said.
U.S. Circuit Judge Carolyn McHugh disagreed. “That’s self-inflicted because the Colorado approach has been there will be no dredge-and-fill permits,” McHugh countered, according to Courthouse News. “The [federal] response was you’ve known since the executive order was signed, isn’t that fair notice?”
Politico (Annie Snider) takes a deep dive featuring Paul Bruchez and the efforts to keep water in the Colorado River. Click through and read the whole thing. Here’s an excerpt:
The power politics of the Colorado River have long pitted families like Paul Bruchez’s against big cities. Under pressure from climate change, they might be finding a path out.
Paul Bruchez’s family has ranched cattle in Colorado for five generations. And twice in his lifetime, his generation has nearly become the last.
The first time, it was the city of Denver that squeezed them out. By the 1990s, when Bruchez was still in high school, the city’s fast-growing suburbs had swept north and totally surrounded their roughly 2,000 acres in Westminster. Bruchez’s father had taken dirt roads to get to school, but by the time Bruchez was a teenager development had engulfed the family homestead so completely that at one point the city needed to send a police escort to help move their harvest equipment safely between fields on what were by then city roads. Running a full-scale farm operation in the middle of a city soon became untenable and the family opted to cut a land deal with the city and start fresh on the other side of the Rocky Mountains.
The second time, it was a drought. Their new land near Kremmling, a small ranching community 100 miles to the west, had one particularly appealing feature for a family that needed hay to feed its cattle: the Colorado River literally ran through it. The ice-cold mountain runoff from the river’s headwaters in Rocky Mountain National Park would feed their land through a network of ditches, offering plentiful water to grow 2,000 acres of hay. And for a family of fly fishermen, it had another attraction. The lush cottonwood trees lining the main stem of the river promised cool water and insects, a spot where trout would bite.
They had one good year before the ditches went dry.
The drought hit while Bruchez was in college and his father was facing a battle with cancer, and it nearly bankrupted the family. It marked the beginning of Bruchez’s mission to secure the future of not just his family’s operation, but the very West that made cowboys like him…
Technically, families like Bruchez’s have the upper hand in water disputes. The whole Western water system is built on a roughly 150-year-old legal regime that gives priority access to whoever put the water to use first. Farmers and ranchers led the settlement of the West, giving them the most “senior” rights and ensuring that they get their water before newer users like sprawling suburbs. Some 70 percent of the Colorado River’s flow is consumed by agriculture.
But as climate change keeps squeezing the water supply, the ranchers’ position is growing more precarious. They are far less powerful and wealthy than the cities that need water, which have often swooped in and bought out farms for their water rights. It is inevitable, now, that large amounts of water will have to leave agriculture in order to sustain cities and suburbs in the far-drier future; the question is simply whether it can be done in a way that keeps agriculture on the landscape.
Over the past century, Denver, Boulder and other cities on Colorado’s dry Front Range have steadily bought up farmers’ water rights on the wet, western slope of the Rockies and built massive, transmountain tunnels to ship the water to thirsty city dwellers. Today, roughly 65 percent of the water that would naturally flow into Grand County, where Kremmling sits, is diverted elsewhere. Many farm and ranch families nurse a grudge to this day, holding tight to the old Mark Twain adage that “whiskey is for drinking; water is for fighting.”
But Bruchez’s twin near-disasters and his path to recovering from them led him to a different conclusion: that in the long term, financial and climatic forces are aligned against agriculture, and ranchers and farmers are likely to lose if they don’t find a way to make themselves part of the solution.
Instead of seeing agriculture and new suburbanites as locked in a zero-sum struggle over who gets the West’s diminishing water, Bruchez has spent the past two decades hatching a series of projects to help ranchers by making common cause with sportsmen, environmental groups and even some big city water officials and lawyers.
Now, Bruchez has emerged as a leading voice for agriculture in Colorado as the state explores a controversial new scheme to manage its own, internal water usage—almost certainly by paying farmers to forgo using their water—in a bid to avoid a nightmare scenario in which river flows dip so low that the terms of a 1922 river compact force junior users like cities to be abruptly cut off. It’s an idea that has been knocking around water policy circles across the West for years without action, but that could be called into place quickly if the river’s flows continue to shrink rapidly.
Bruchez, 39, is as comfortable on a Zoom conference call with state water managers as he is riding horseback with a neighbor to steer cattle away from a quickly spreading forest fire, and in between he steals quiet moments to cast a line into the nearby river, in search of a rainbow or brown trout. What drives him is not just a desire to protect his family’s way of life, but to prove that farmers and ranchers aren’t just part of a mythical Western past but can be a part of the solution to weathering climate change and preserving the environment for the future.
Click here for posts on Coyote Gulch that mention Paul.
Rancher and fly fishing guide Paul Bruchez (Source: Russell Schnitzer, used with permission via the Water Education Foundation)
This mowed hay field is part of Reeder Creek Ranch, owned by the Bruchez family near Kremmling. Little data exists on the impacts of reducing irrigation water on higher elevation pastures like this one, but Paul Bruchez and a group of local ranchers have volunteered their fields for a study that will help scientists learn more about what happens to pastures that receive less irrigation water. Photo credit: Paul Bruchez via Aspen Journalism
Rancher and fly fishing guide Paul Bruchez’s daughter and nephew sit in a hay field at the family ranch near Kremmling. Bruchez is helping spearhead a study among local ranchers, which could inform a potential statewide demand management program. Photo credit: Paul Bruchez via Aspen Journalism
Funds provided by grants and landowners near Kremmling, Colorado, have facilitated improvements such as this back stabilization project. (Source: Paul Bruchez)
Restoration work along the Colorado River reestablished a riverbank more conducive to irrigation access. (Source: Paul Bruchez)
Banks erosion along the Colorado River near Kremmling, Colorado, affected the ability of irrigators to convey water through ditches. (Source: Paul Bruchez)
Channel and habitat improvement projects along the Upper Colorado River promote irrigation systems and soil and water quality near Kremmling, Colorado. (Source: Paul Bruchez)
Stream improvements on the Upper Colorado River have been going on for five years, the result of a collaborative effort by ranchers and others near Kremmling, Colorado, and Trout Unlimited. (Source Paul Bruchez)
Strategic placement of rocks promotes a more natural streamflow that benefits ranchers and fish. (Source: Paul Bruchez)
Developers often dropped by unannounced at the Allely farm to ask if the family would consider selling their 70-acre property south of Greeley at the confluence of the Big Thompson and South Platte rivers. The answer was always no — the Allelys did not want their land, which had been in the family since in the early 1960s, to be developed, now or in the future.
So when staff from Westervelt Ecological Services first approached the Allelys about creating a habitat preservation program on their farm roughly three years ago, the family was skeptical. But over the course of many months and long conversations, they began to warm to the idea and eventually agreed.
Instead of selling their property to the highest bidder or leaving it to the next generation, the family established a conservation easement — a permanent agreement to never develop the land — and, for a fee, allowed Westervelt to create the new Big Thompson confluence mitigation bank. The project broke ground in late October.
Now, a developer who disrupts wetlands or streams elsewhere along the Front Range and in parts of eastern Colorado can offset that impact by buying credits generated from floodplain and ecosystem restoration work completed on the Allelys’ land. Purchasing credits from this new mitigation bank allows developers to meet their obligations under the federal Clean Water Act.
“It’s a very important piece of property to us as a family,” said Zach Allely, the fifth-oldest of the six children who grew up on the farm. “If there’s an opportunity for us to say, ‘No, this is a place where native fauna, native flora can thrive forever,’ we’ll take that.”
Mitigation banks, explained
Mitigation banks are not new in Colorado — there are some 21 pending, approved, sold-out or suspended throughout the state, according to the U.S. Army Corps of Engineers’ database — but this is the first new mitigation bank approved on the Front Range in 20 years.
Across the country, mitigation banks have become more popular since 2008, when the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers expressed a preference for mitigation banks (over other types of mitigation) and offered clearer guidance, standards and timelines for these projects.
Mitigation banks like this one are a byproduct of the federal Clean Water Act, first enacted in 1948 as the Federal Water Pollution Control Act and then expanded and reorganized in 1972. More specifically, they relate to Section 404 of the act, which aims to protect the country’s wetlands from the discharge of dredged or fill materials during the construction of dams, levees, highways, airports and other development projects.
Under Section 404, developers must take steps to avoid and minimize damage to wetlands and streams by adjusting the scope, location, design and type of project they wish to undertake. After avoidance and minimization, they must turn to a third mitigation type: compensatory mitigation.
Under compensatory mitigation, developers can restore, establish, enhance or preserve wetlands at the project site or somewhere else nearby. But this type of work isn’t always practical or possible, which is where mitigation banks come into play. Instead of going to all that trouble, a developer can pay for someone else to do the heavy lifting at a different, nearby location.
A mitigation banker, in this case Westervelt, pays for the upfront costs of finding a suitable piece of land, gaining approval from the right regulatory agencies, and doing the actual mitigation work. Then, depending on the scope and size of the project, the banker can sell a certain number of credits to offset the impacts of future development within the bank’s general vicinity.
Restoring historical floodplain
Today, crews are hard at work on the Allely property, re-establishing the historical floodplain to help restore the ecosystem for plants and animals and improve flood resiliency for nearby communities.
This restoration work also creates 34.76 wetland credits and 460 stream credits — released in phases — that developers, public agencies, mining companies and others can buy to help mitigate the unavoidable damage their projects will cause to other Colorado wetlands and streams.
Lucy Harrington, the Rocky Mountain region director for Westervelt Ecological Services, declined to say how much the company is charging for credits from the new 72.4-acre bank, citing variable pricing and bulk discounts.
But the Colorado Department of Transportation, which regularly buys credits from mitigation banks across the state, recently paid $200,000 for a credit from the new bank to help offset the impact of its Central 70 highway improvement project, said Becky Pierce, CDOT’s wetlands program manager.
To find potential mitigation bank sites, Westervelt staffers perform geographic information system (GIS) analyses that take into account a property’s proximity to streams, hydrology, oil and gas infrastructure, and proximity to other conserved properties, among other factors, Harrington said.
The company, which opened its newest regional office in Centennial in 2016, also looks at community-identified areas for wetland restoration and conservation, as was the case with the new Big Thompson confluence bank. Westervelt staff worked with the Middle South Platte River Alliance to understand local priorities and identify possible sites for the new bank. The alliance helped introduce Westervelt to the Allely family.
“It’s really a confluence of technical work, relationship-building and a little bit of luck, to be perfectly honest,” Harrington said.
Westervelt and other mitigation bankers often buy property outright. But in this case, Westervelt paid the Allely family an undisclosed amount to use their land for the mitigation bank and, in return, the Allelys protected the property in perpetuity with a conservation easement, which comes with its own tax benefits and incentives. Westervelt and the Allelys also established a long-term endowment for the site’s management with the National Fish and Wildlife Foundation.
After creating a detailed plan and getting approval from regulatory agencies like the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, Colorado Parks and Wildlife and others, Westervelt began work.
Credits going fast
The company has released its first round of credits, which includes 8.69 wetland acres and 115 functional feet of stream credits. So far, the company has sold more than half of the wetland credits, Harrington said.
“Any project, whether it’s a highway widening that may cross a river, home development that may affect ephemeral or perennial drainage, a Walmart parking lot that’s expanding, a pipeline going in, any of those development items that could impact wetlands and streams, instead of having to provide a wetland offset themselves can just come to us, write a check and just walk away,” Harrington said. “We take on all the liability of the site in perpetuity.”
Meanwhile, the Allely family knows that their property will never be developed and is instead being restored to its historical conditions. They can also still access the land under the conservation easement, which is held by the nonprofit land trust Colorado Open Lands.
Staff at Colorado Open Lands say they hope the success of the Big Thompson mitigation bank will inspire other landowners to conserve their land.
“It’s just another tool, another way for us to look at getting creative about protecting open space in Colorado,” said Carmen Farmer, conservation project manager with Colorado Open Lands. “Traditionally, we protect land throughout the state using state tax credits and federal tax deductions and incentives. Sometimes the traditional model doesn’t necessarily pencil out for landowners. This is another way for us to go about incentivizing landowners to help protect their properties and make sure they’re compensated for doing so.”
Sarah Kuta is a freelance writer based in Longmont, Colorado. She can be reached at email@example.com.
From the Water Education Foundation (Gary Pitzer):
Western Water Spotlight: draft assessment of 2007 interim guidelines expected to provide a guide as talks begin on new river operating rules for the iconic southwestern river
Twenty years ago, the Colorado River Basin’s hydrology began tumbling into a historically bad stretch. The weather turned persistently dry. Water levels in the system’s anchor reservoirs of Lake Powell and Lake Mead plummeted. A river system relied upon by nearly 40 million people, farms and ecosystems across the West was in trouble. And there was no guide on how to respond.
So key players across the Basin’s seven states, including California, came together in 2005 to attack the problem. The result was a set of Interim Guidelines adopted in 2007 that, according to a just-released assessment from the Bureau of Reclamation, mostly worked. Stressing flexibility instead of rigidity, the guidelines stabilized water deliveries in a drought-stressed system and prevented a dreaded shortage declaration by the federal government that would have forced water supply cuts.
Those guidelines, formally called “Interim Guidelines for Lower Basin Shortages and the Coordinated Operations for Lake Powell and Lake Mead,” are set to expire in 2026 As stakeholders in the Colorado River Basin — including water agencies, states, Native American tribes and nongovernmental organizations — prepare to renegotiate a new set of river operating guidelines, Reclamation’s assessment is expected to provide a guide for future negotiations.
“We find that the guidelines were largely effective,” said Carly Jerla, modeling and research group manager with the Bureau of Reclamation’s Lower Colorado River region and one of the report’s authors. However, the Interim Guidelines could not solve all of the challenges brought by what has become a two-decade-long drought in the Basin. Said Jerla: “We saw risk getting too high and needed additional assets.”
Preserving Lake Mead
With the guidelines as a foundation, those assets arrived in 2019 through drought contingency plans for the Upper and Lower Basin – voluntary reduction commitments that built a firewall against the likelihood of Lake Mead dropping to critically low levels.
Chris Harris, executive director of the Colorado River Board of California, said the guidelines achieved their objective, considering that the drought has essentially persisted since 2000. Even with the severity and longevity of the drought, the guidelines kept the two reservoirs at about 50 percent of capacity since 2007.
“To my mind that’s a pretty good marker that we were generally successful,” Harris said.
Reclamation’s review of the Interim Guidelines was released for public comment in October. It is expected to be finalized in December. After that, discussions are expected to begin to hammer out a new set of operating rules that would be ready to take effect when the existing guidelines expire in 2026.
Reclamation’s review, which was required under the guidelines, focused solely on how effectively the Interim Guidelines managed water shortages and storage in Lake Powell and Lake Mead. It did not include existing environmental management programs such as the Glen Canyon Dam Adaptive Management Program that are independent of the guidelines. The 2026 guidelines should take a broader view, said Matt Rice, director of American Rivers’ Colorado River Basin Program.
“Not just looking at the two big buckets [reservoirs], but how do we ensure the river is healthy and has water for its environmental needs,” he said.
“How do we ensure that communities are considered, certainly the tribes, and how do we evaluate additional future demands, projects like the Lake Powell pipeline (a proposed project to deliver Lake Powell water to Southern Utah).”
Ensuring Tribal Participation
Tribal water rights are a key consideration to future Colorado River water use. Ten federally recognized tribes in the Upper and Lower Basins have reserved water rights, including unresolved claims, to divert about 2.8 million acre-feet of water per year from the river and its tributaries, according to Reclamation’s 2018 Tribal Water Study. These tribes anticipate diverting their full water rights by 2040.
Reclamation’s review emphasizes the need for listening to all voices, most notably tribes. Tribal representatives were largely overlooked in the development of the 2007 Interim Guidelines and tribes want to make sure their voices are heard when the next set of operating rules are drawn up.
“We hope that the review will remind Reclamation of the importance that Indian tribes have played in the stewardship of the Colorado River and underscore the importance of meaningful and sustained participation of the Lower Basin tribes in any future guidelines development regarding management of the Colorado River,” Jon Huey, chair of the Yavapai-Apache Nation in Arizona, wrote in a letter to Reclamation.
Jerla said Reclamation recognizes how important it will be to include the tribes in future discussions.
“We definitely heard that loud and clear,” she said. “I think the critical role that tribes have played in the activities since the Guidelines … their desire to be more involved and more included, they will absolutely be a key part of efforts going forward, no question.”
Balancing Water Uses
There is inherent tension in balancing Colorado River water uses between the two basins. Part of the problem is users in the Lower Basin can use Lake Mead as a bank account, having water released downstream to them as they need it. Lake Powell, on the other hand, sits at the bottom of the Upper Basin’s drainage and water that flows into Powell is largely beyond reach of Upper Basin users.
“The guidelines have been partially successful in that they have achieved their principal objective of preventing Lower Basin shortage, as well as establishing a Lower Basin conservation mechanism and avoiding litigation in the Basin,” said Amy Haas, executive director of the Upper Colorado River Commission. “However, from the standpoint of the coordinated operations of Lakes Powell and Mead, a secondary objective of the Guidelines, they have come up short.”
Haas pointed out that between 2015 and 2019, Lake Powell was required to release 9 million acre-feet of water annually under the Guidelines, even with poor inflows into Powell and below-average hydrology in the Upper Basin watershed. That’s more than has historically been required.
“Meanwhile, Lake Mead elevations have not substantially increased under the Guidelines due in large part to overuse in the Lower Basin, also known as the structural deficit,” she said. “These issues must be addressed in the post-2026 operational criteria.”
Protecting the Colorado River
Drought wreaked havoc on the Colorado River Basin between 2000 and 2004, with record dryness that depleted the combined storage of Lake Powell and Lake Mead. Conditions worsened quickly. At the beginning of the 2000 water year, the review said, the combined storage in Lake Powell and Lake Mead was 55.7 million acre-feet. After the worst five-year period of inflow on record ended in 2005, that storage fell to 29.7 million acre-feet – a striking loss of nearly half of the water in the two anchor reservoirs.
Something new had to be done. The business-as-usual approach of determining drought conditions for the Basin on a yearly basis was not going to provide long-term stability or prevent conflict under such historic dryness.
“Failing to develop additional operational guidelines would make sustainable Colorado River management extremely difficult,” Reclamation’s review said.
The Interim Guidelines in 2007 opened the door for Lower Basin water users and Mexico to get creative about how water is managed and used. One example that grew out of the guidelines is Intentionally Created Surplus, allowing downstream parties to bank water in Lake Mead that they could draw upon later.
“One result of this new flexibility was that critical Lake Mead elevations could be protected through the conservation of this water in the lake,” said Tom Buschatzke, director of the Arizona Department of Water Resources. “The Basin states, meanwhile, continued to seek ways to protect reservoir levels and the health of the Colorado River system.”
Saving Intentionally Created Surplus water in Lake Mead turned out to be a critical drought response tool, said Reclamation’s Jerla, ensuring that the lake’s water level did not drop to where water users would be required to take cuts.
Reclamation’s review of the Interim Guidelines notes that there are other areas of interest beyond its scope that should be considered in future discussions, such as impacts of river operations to environmental, recreational and hydropower resources, and more meaningful engagement of Basin partners, stakeholders, tribes and states.
The review notes that since the Interim Guidelines were adopted, Reclamation has expanded its long-term modeling assumptions and