The Catamount gauge on the Colorado River is a result of a big collaboration, and for now, it has gone a long way in quelling the concern of conservationists in the Upper Colorado River Wild and Scenic Stakeholder Group.
Couple that with a few good-faith efforts from Front Range diverters to get more water into the river, and most everyone seems to be convinced that collaboration has been a lot better than the courtroom in this case.
The stakeholder group was formed in 2008, and its mission was overt — convince the Bureau of Land Management and the U.S. Forest Service not to write a report stating that the Upper Colorado River is suitable for a Wild and Scenic Designation from the federal government…
But while it takes an act of Congress to welcome a new river into the Wild and Scenic Rivers System, a report from the Bureau of Land Management or U.S. Forest Service saying a river is suitable for wild and scenic designation can trigger a change in management for the river…
[Rob] Buirgy said the Colorado Water Conservation Board supported the stakeholder group using the state’s Wild and Scenic Rivers Fund for scientific studies, recreational surveys, and stakeholder group coordination and facilitation. The stakeholder group also recommended that the board appropriate three in-stream flow water rights to preserve the natural environment on the river from the confluence with the Blue River to the area just above the confluence with the Eagle River. The Colorado Water Conservation Board appropriated and the water court decreed those water rights in 2013.
Colorado Parks and Wildlife is expected to help install biological metric tracking tools along the river in the coming months, and a few years ago a new USGS temperature and flow monitoring gauge was installed at the Catamount Boat Launch, near Bombardier’s house, which will measure temperature and serve as a resource guide.
While resource guides do not mandate management action based on their readings, good-faith management efforts have been undertaken based on the Catamount gauge’s readings during the collaborative process. Bombardier says the readings have been crucial for that stretch of the river, which is prone to warm temperatures…
[Ken] Neubecker said after spending more than a decade working toward Wild and Scenic designation on the Upper Colorado River, he feels the collaborative group’s plan represents the best effort conservationists could have expended toward maintaining the Upper Colorado River’s “outstandingly remarkable values,” or ORVs.
“It got all of the people who would have been opposed to actual designation to sit down at the table and work out a plan that — if everybody plays along — will have the best shot we’ve got at protecting those ORVs,” Neubecker said.
The agreement was formerly accepted by the Bureau of Land Management and U.S. Forest Service in July. Participating groups include: American Rivers, American Whitewater, Aurora Water, Blue Valley Ranch, Colorado River Outfitters Association, Colorado River Water Conservation District, Colorado Springs Utilities, Colorado Whitewater, Confluence Casting, Conservation Colorado, Denver Water, Eagle County, Eagle Park Reservoir Company, Eagle River Watershed Council, Eagle River Water and Sanitation District, Grand County, Middle Park Water Conservancy District, Municipal Subdistrict of the Northern Colorado Water Conservancy District, Northern Colorado Water Conservancy District, Northwest Colorado Council of Governments, Summit County, Upper Colorado Commercial Boaters Association, Upper Colorado River Private Boaters Association, Upper Eagle Regional Water Authority, Vail Associates, Inc., and Yust Ranch.
Fort Collins City Council voted [August 4, 2020] to oppose the Northern Integrated Supply Project, a departure from the city’s previous neutral stance on the controversial plan to siphon Poudre River water into two new reservoirs.
Council members also endorsed city staff comments expressing reservations with Northern Water’s proposed Poudre intake pipeline upstream of the Mulberry Water Reclamation Facility. They adopted their position in a 5-1 vote on Tuesday, with council member Ken Summers voting “no” and Mayor pro-tem Kristin Stephens absent.
The vote was the current council’s first opportunity to take a position on NISP. The city’s position on the project has vacillated over the years, wavering between opposition and a more neutral “can’t support” position. Council included in its opposition statement a note directing staff to continue working with Northern Water to address the city’s concerns about NISP and develop “a sustainable, long-term approach” to avoid, manage and mitigate the project’s impacts.
Council’s job on Tuesday was to decide whether to endorse staff’s comments on the pipeline, which were submitted to Larimer County, and choose between four stances on NISP ranging from the most neutral “can’t support this variant of NISP” to the most outspoken “oppose (this version of NISP) and oppose the use of city natural areas.” They chose the latter.
At issue Tuesday was whether the city could take that stance on the project while maintaining a foothold in negotiations with Northern Water, the organizer of the plan to supply water to 15 small-but-growing Colorado municipalities and water districts. While the city itself isn’t among the participants, which include Fort Collins-Loveland Water District (covering the city’s southern reaches) and Windsor, the project would degrade springtime river flows through Fort Collins and the Poudre intake pipeline would affect several city natural areas…
The intake pipeline is part of a concession Northern Water made to lessen NISP’s impacts on the Poudre through Fort Collins: Rather than drawing all the water off the river upstream of Fort Collins, Northern Water plans to run some of it through a 12-mile stretch of the river roughly between the Poudre Canyon mouth and Mulberry Street from fall to early spring.
The “conveyance refinement” plan would run 18-25 cubic feet per second’s worth of water through the river, increasing the volume of water to eliminate some dry spots, lower the river’s temperature and reduce harm to fish [living] in the river. The intake pipeline near the reclamation plant is where Northern Water plans to take the water back out of the river…
The influx of water will make “a very significant difference for fish” and offers clear environmental benefits for the river’s base flows, city watershed planner Jennifer Shanahan told council. But the structures involved with the intake pipeline will have temporary and permanent impacts to the Homestead, Kingfisher Point, Riverbend Ponds and Williams natural areas. Construction will have temporary impacts on traffic and visitors to those areas, including trail and parking lot closures, and more lasting impacts, including possible damage to sensitive wetlands, soil, wildlife and native vegetation and the sale of some land at Kingfisher Point Natural Area.
The city submitted its comments on the pipeline to Larimer County as part of the 1041 permitting process. Staff recommended that Northern Water work with the city to refine the pipeline plan in several ways, such as shrinking the pump station and settling ponds proposed at Kingfisher Point, moving the pipeline further from the river at Kingfisher Point and creating a more ecologically sound river diversion at Homestead Natural Area…
Council members agreed with the staff comments, but several of them offered broader criticism of NISP. Northern Water has been working for years on a broad plan to mitigate NISP’s impacts to the river, wildlife and riparian habitat, but environmental advocates say no mitigation plan can undo the irreparable damage of diverting so much water from a river that is already stretched thin. Fort Collins gets about half of its own water supply from the Poudre…
Mayor Wade Troxell, who has the longest tenure on City Council, said he’s watched the city make progress in negotiations with Northern Water over the last 13 years. He discouraged his fellow council members from making “sweeping opposition statements that don’t get us where we need to go.”
NISP is approaching a county decision on the 1041 permit that would allow construction of Glade Reservoir and four pipelines associated with the project. The Army Corps of Engineers is expected to issue its record of decision on the project as a whole this year, and if the project is approved, construction could begin as soon as 2023.
Releases from the Aspinall Unit will be increased from 1550 cfs to 1600 cfs on Friday, August 7th. Releases are being adjusted to raise flows back to the baseflow target in the lower Gunnison River. The actual April-July runoff volume for Blue Mesa Reservoir came in at 57% of average.
There is a drought rule in the Aspinall Unit Operations EIS which has changed the baseflow target at the Whitewater gage. The rule states that during Dry or Moderately Dry years, when the content of Blue Mesa Reservoir drops below 600,000 AF the baseflow target is reduced from 1050 cfs to 900 cfs. Therefore, the baseflow target for July and August will now be 900 cfs.
Flows in the lower Gunnison River are currently below the baseflow target of 900 cfs. River flows are expected to trend up toward the baseflow target after the release increase has arrived at the Whitewater gage.
Currently, Gunnison Tunnel diversions are 1050 cfs and flows in the Gunnison River through the Black Canyon are around 550 cfs. After this release change Gunnison Tunnel diversions will still be around 1050 cfs and flows in the Gunnison River through the Black Canyon will be around 600 cfs. Current flow information is obtained from provisional data that may undergo revision subsequent to review.
The race against time continues for farmers in southern Colorado’s San Luis Valley, with the state’s top water regulator warning that a decision on whether hundreds of farm wells will be shut off to help save the Rio Grande River could come much sooner than expected.
July 28, at a virtual symposium on the Rio Grande River, the state warned growers that they were running out of time to correct the situation.
“We’ll see in the next couple of years if we can turn around this trick,” said State Engineer Kevin Rein. “If we’re not turning it around, we need to start having that more difficult conversation.”
The valley is home to the nation’s second-largest potato economy and growers there have been working voluntarily for more than a decade to wean themselves from unsustainable groundwater use and restore flows in the Rio Grande. Thousands of acres of land have been dried up with farmers paying a fee for the water they pump in order to compensate producers who agree to fallow land.
The San Luis Valley, which receives less precipitation than nearly any other region in Colorado, is supplied by the Rio Grande, but under the river lies a vast aquifer system that is linked to the river. It once had so much water that artesian springs flowed freely on the valley floor.
As modern-day farmers began putting powerful deep wells into the aquifer, aquifer levels declined, and flows in the river declined too as a result, hurting the state’s ability to deliver Rio Grande water downstream to New Mexico and Texas, as it is legally required to do.
Between July 2019 and July 2020 the valley’s unconfined aquifer, which is fed by the Rio Grande River, dropped by 112,600 acre-feet. All told the aquifer has lost around 1 million acre-feet of water since the drought of 2002.
Through a plan written by growers in the valley and approved by the state in 2011, farmers had 20 years, from 2011 to 2031, to restore the aquifer. But multiple droughts in the past 19 years have made clear that the region can’t rely on big snow years to replenish the valley’s water supplies because there are fewer of them, thanks to climate change.
“So what is the future, the short-term future, if we can’t count on climate? And let’s admit we can’t,” Rein said. “If climate’s not cooperating the only thing that can be done is consuming less water.”
Adding to pressure on the region is a proposal by Denver developers to buy thousands of acres of the valley’s farm land, leaving some of the associated water rights behind to replenish the aquifer, while piping thousands of acre-feet of water northeast to the metro area.
Rein said drastic steps, like drying up more fields and sharply limiting how much growers can pump, are needed. But this could result in bankruptcies and could cripple the valley’s $370 million agriculture economy, which employs the majority of workers in the region. Worse still, though, would be the shutdown of all wells in the region, which is what could occur if farmers aren’t able to make progress toward aquifer sustainability.
While the deadline to restore the aquifer is set for 2031, if it becomes clear before then that growers aren’t able to restore groundwater levels, Rein will be forced to take action early by turning off all wells.
Rein said his decision likely won’t come as early as next year. But, he said, “Do we wait until 2031, the deadline? Probably not.”
The groundwater challenges and associated deadline stem from Colorado’s historic 2002 drought which led to more groundwater pumping than ever before and resulted in a falling water table, decreases in water pressure, and failing wells.
Groundwater declines have been so severe that they’ve affected surface water levels in parts of the valley. In 2004, state lawmakers passed a bill requiring the state to begin regulating the aquifer to make it more sustainable.
Landowners within the Rio Grande Water Conservation District (RGWCD) responded by forming a groundwater management district known as Subdistrict 1—that was just the first of what will soon be seven approved subdistricts.
Subdistrict 1 set goals and developed a plan of water management in late 2011 that spelled out how to reduce groundwater depletions and recharge the aquifer.
In 2012 they began paying a fee for every acre-foot of water used. That revenue helps pay irrigators who elect to participate in voluntary fallowing programs and other efforts to replenish the river and reduce stress on the aquifer.
And by 2017, irrigators had restored 350,000 acre-feet of water in the aquifer, halfway to their goal. But drought and disaster struck in 2018. With less surface water available and high temperatures, irrigators pumped heavily to maintain their crops. And by September 2018, farmers had lost about 70 percent of the groundwater gains they had worked so hard to recover.
“2018 was extremely frustrating,” said Cleave Simpson, manager of the RGWCD who is also a fourth-generation grower. ”It really kind of set us back to where we were when we started this in 2012.”
It’s not over yet. Some of that groundwater lost in 2018 has been recovered and this year participation in the fallowing program is higher than ever, with more than 13,000 acres enrolled, according to Amber Pacheco who manages the RGWCD’s subdistrict programs—that’s in addition to the 8,800 acres fallowed through the conservation programs that have been running since 2012.
Simpson and others, faced with another severe drought year, are deeply worried about the success of their conservation efforts, but dire times are also boosting motivation to solve the problem, Simpson said.
“There’s a sense of urgency from the board of managers that we’ve got to keep doing more,” Simpson said. “We’ve got to get back what we lost.”
Caitlin Coleman is the Headwaters magazine editor and communications specialist at Water Education Colorado. She can be reached at email@example.com.
Paonia, a small town in western Colorado with a handful of mesas rising above it, wouldn’t green-up without water diverted from a river or mountain springs. The lively water travels through irrigation ditches for miles to gardens and small farms below. But this summer, irrigation ditches were going dry, and one, the Minnesota Canal and Reservoir Company, stopped sending water down to its 100-plus customers as early as July 13.
Drought was hitting the state and much of the West hard, but a local cause was surprising: Water theft.
Longtime residents who gather inside Paonia’s hub of information trading, Reedy’s Service Station, have a fund of stories about water theft. It’s not unusual, they say, that a rock just happens to dam a ditch, steering water toward a homeowner’s field. Sometimes, says farmer Jim Gillespie, 89, that rock even develops feet and crosses a road.
But this is comparatively minor stuff, says North Fork Water Commissioner Luke Reschke, as stealing ditchwater is a civil offense. Stealing water from a natural waterway, however, is a crime that can bring fines of $500 per day and jail time. That’s why what was happening to people who depend on the Minnesota Canal company for their fields or gardens was serious: Water was being taken from Minnesota Creek before it could be legally diverted for irrigation to paying customers.
Once the ditch company “called” for its water as of June 8, only holders of patented water rights could legally touch the creek. Yet during three trips to the creek’s beginning, starting in mid-June, and then in mid-July, I noticed that two ranches – without water rights — were harvesting bumper crops of hay. How could that have happened unless they’d illegally diverted water to their fields?
At first, no one would talk about the early-drying ditch except to hint broadly that it wasn’t normal. Then one man stepped up: Dick Kendall, a longtime board member of the Minnesota canal company, and manager of its reservoir. “On July 5,” he told me, “I saw water diverted from the creek onto one of the rancher’s land. And I wasn’t quiet about it.”
Kendall reported what he saw to Commissioner Luke Reschke, who oversees the area’s 600 springs, ditches and canals. Reschke dismissed it, he told me, because “The rumor mill is something else on Minnesota Creek. The only people who give me trouble are the new people who don’t know how the system works.” But locals say that four years back, Reschke’s predecessor, Steve Tuck, investigated when locals complained.
Though it may not be neighborly, stopping any illegal diversion is important, said Bob Reedy, owner of Reedy’s Station: “Without water, you’ve got nothing around here.” Annual rainfall is just 15 inches per year, and without water flowing into irrigation canals from the 10,000-foot mountains around town, much of the land would look like the high desert it truly is.
But it’s not just a couple of high-elevation ranchers dipping into the creek. The West Elk Coal Mine runs large pumps that supply water for its methane drilling and venting operations in the Minnesota Creek watershed.
Mine spokesperson Kathy Welt, said the diversion is legal, and that they only take early-season water when the creek water isn’t on call. That early water, however, is what begins to fill the Minnesota ditch’s reservoir.
In other ways, the mine has damaged the watershed by building a sprawling network of roads in the Sunset Roadless Area (Threats at West Elk Mine). A cease and desist order from the State Division of Reclamation, Mining and Safety on June 10, sought by environmental groups, halted the building of an additional 1.6 miles of new roads this spring (Colorado Sun). Satellite images of the road network resemble a vast KOA Campground: Where trees once held back water and shaded snowpack from early melting, their replacement — gravel roads –- shed water and add to early runoff.
For all of Minnesota Ditch’s challenges, warming temperatures brought about by climate change could be the real challenge. Kendall said that this spring, when he plowed out the Minnesota Reservoir road, dust covered the parched ground beneath the snow.
Water — so precious to grow grapes, hay, organic vegetables and grass-fed beef, and to keep the desert at bay — had vanished early on Lamborn Mesa above Paonia. Farmer Gillespie summed it up, “there’s just no low-snow anymore — and it’s not coming back.”
David Marston is a contributor to Writers on the Range, (writersontherange.com), a nonprofit dedicated to spurring lively conversation about the West. He lives part-time in Colorado.
From the Douglas Creek Conservation District via The Rio Blanco Herald-Times:
Did you learn the definition of an alluvium this weekend? Or what estoppel means? If you attended the Douglas Creek Conservation District’s “Water Law in a Nutshell” class this weekend, presented by Mr. Aaron Clay, you now know the answers to both questions.
The Water Law in a Nutshell class covered numerous water topics pertinent to Rio Blanco County residents. Twenty-four individuals were able to take advantage of the class in-person or by Zoom.
Primary topics included water terminology, measurements of water, Prior Appropriation Doctrine, practical application of water law, and interstate compacts. Excellent questions and engagement from the 25 participants helped everyone have a much better understanding of Colorado water law and how it affects them directly.
One of many examples of valuable information is learning about “domestic preference” in the Prior Appropriations system. While domestic water use has preference over any other purpose, including agriculture and manufacturing, a Colorado Supreme Court case decided that provision does not alter the priority system. “However, it does give municipalities the power to condemn water rights, if the owners of those water rights are paid just compensation.”1
Another example is how important it is to verify water rights when purchasing property with water. If the water right is stock in a ditch company, the purchaser should verify with the ditch company that the stock certificate is recorded in the current landowner’s name and the amount. If not stock in a ditch company, it is important to verify the water right at the clerk and recorders’ office.
The seven-hour Water Law in a Nutshell class was recorded. If you are interested in viewing the class please contact the District office at firstname.lastname@example.org or 970-878-9838 to make arrangements.
Here’s the release from the Colorado Water Trust, et al. (Mark Harris, Mark Harris, Donald Anderson, and Scott McCaulou):
On Saturday, August 1, Colorado Water Trust, Grand Valley Water Users Association, and Orchard Mesa Irrigation District will initiate their implementation of an agreement that will deliver 877 acre-feet of water to the Grand Valley Power Plant and the 15-Mile Reach of the Colorado River above its confluence with the Gunnison River near Grand Junction, Colorado this summer. Grand Valley Water Users Association and Orchard Mesa Irrigation District identified available capacity in their water delivery system for Colorado Water Trust to deliver water decreed for power generation through the Grand Valley Power Plant, from where it subsequently returns to the 15-Mile Reach. This delivery will mark the second execution of an innovative agreement that Colorado Water Trust, Grand Valley Water Users Association, and Orchard Mesa Irrigation District entered last year with assistance from the Upper Colorado Endangered Fish Recovery Program and the Bureau of Reclamation.
The agreement furthers common goals of streamflow restoration for the 15-Mile Reach and takes steps toward unlocking a $425,000 grant from Walton Family Foundation to renovate the aging Grand Valley Power Plant. Thanks to donor support, Colorado Water Trust has purchased stored water from the Colorado River District. That water will be released from Ruedi Reservoir to the Colorado River for use in the power plant and to increase 15-Mile Reach flows to support four species of endangered fish including the Colorado Pikeminnow, Humpback Chub, Bonytail, and Razorback Sucker.
“We are so grateful to Grand Valley Water Users Association and Orchard Mesa Irrigation District for coordinating with us to boost flows in the 15-Mile Reach. Seeing the project work for a second year in a row proves the lasting success of our partnerships, and it’s particularly important to the fish this year, with flows as low as they are.” says Kate Ryan, Senior Staff Attorney for Colorado Water Trust.
This is the second time in the past two summers that Colorado Water Trust purchased water stored in Ruedi Reservoir for release to the 15-Mile Reach of the Colorado River to help maintain healthy streamflow and water temperatures. Purchases since 2019 will result in delivering over 1200 acre-feet of water to the Colorado River. Colorado Water Trust works closely with Grand Valley Water Users Association and Orchard Mesa Irrigation District to identify when there is available capacity in the power plant. Colorado Water Trust also works closely with the Upper Colorado River Endangered Fish Recovery Program to determine when the 15-Mile Reach needs supplemental water most to support the fish. When these two conditions overlap, Colorado Water Trust releases the water purchased out of storage for delivery to the power plant and then the 15-Mile Reach.
“Orchard Mesa Irrigation District and the Grand Valley Water Users Association appreciate the Colorado Water Trust’s facilitation of this agreement–it benefits our two organizations at the Grand Valley Power Plant, and the many other water users who support flows through the 15-Mile Reach. We believe these kinds of collaborative efforts to be of great value to the people of Colorado, the Colorado River, and the fish,” says Mark Harris, General Manager of Grand valley Water Users Association.
“Maintaining adequate flows for endangered fish through the 15-Mile Reach is possible only because of the extraordinary cooperation our Recovery Program enjoys from multiple partners and stakeholders. We are delighted to add the Colorado Water Trust to that mix of cooperators. This year, in light of unusually low flow conditions in the Colorado River, the additional water made available through this leasing arrangement is especially welcome,” says Donald Anderson, Hydrologist and Instream Flow Coordinator for the Upper Colorado River Endangered Fish Recovery Program.
The Roaring Fork Conservancy also helps to inform Colorado Water Trust of conditions on the Fryingpan and Roaring Fork Rivers to so that releases will complement flows on the stream sections between Ruedi Reservoir and the Colorado River. This year, the water released from Ruedi Reservoir will serve a few purposes before it supports the health of endangered, native fish in the Colorado River in the 15-Mile Reach. The water will bring flows in the Fryingpan River closer to their average, and will cool water temperatures on the Roaring Fork River. Finally, on the Colorado River, the water will generate hydropower, helping to produce clean energy.
“Flowing rivers are an economic engine in Colorado, providing immense value to irrigators, drinking water providers, and recreation across the state,” says Todd Reeve, CEO of Bonneville Environmental Foundation and Director of Business for Water Stewardship. “It is for this reason that we are seeing more and more corporate funders step forward to invest in innovative projects like this one that help keep the rivers in Colorado flowing.”
Essential to the project’s success are dedicated donors: Bonneville Environmental Foundation, Coca Cola, Colorado Water Trust donors, and Daniel K. Thorne Foundation. Without these generous donations and the collaborative work of local and state agencies, water releases to support the health of the 15-Mile Reach of the Colorado River would not be possible.
ABOUT COLORADO WATER TRUST: Colorado Water Trust is a statewide nonprofit organization that works collaboratively with partners all across Colorado on restoring flow to Colorado’s rivers in need using solutions that benefit both the people we work with and our rivers. Since 2001, we’ve restored 12 billion gallons of water to rivers and streams across the state.
All Colorado River basin states have the right to develop and use their water, in accordance with the compacts that form the basis for the Law of the River. They can do so whenever in time the need arises.
Utah is entitled to 23% of the water available to the Upper Basin. Unlike the Lower Basin states (Nevada, Arizona and California), the Upper Basin states (Colorado, New Mexico, Wyoming and Utah) receive a percentage of available water rather than a set acre-foot volume so their water supplies are adjusted based on actual flows. Utah’s annual compact allocation is 1.725 million acre feet, but its annual reliable supply (or the amount of water available for development after considering climate variability) is approximately 1.4 million acre feet — or, 80% of what was allocated to the state in the compacts.
Utah currently uses less than 1 million acre feet of Colorado River water — well under its annual reliable supply. Utah’s rapid population and economic growth has necessitated that the state develop its available water resources. Utah’s development of its currently unused Colorado River water complies with the law and does not jeopardize other state allocations.
For nearly two decades, Utah has studied the Lake Powell Pipeline (LPP), a $1.4 billion project that would deliver 6% of its annual reliable supply of river water to the state’s driest and fastest-growing region — Washington County.
Washington County has reduced its per-capita use by 30% while nearly doubling its population from 2000-2018. Additional conservation reductions are planned. County water use is comparable to other desert communities when calculated using similar methodologies.
The Bureau of Reclamation recently released its draft Environmental Impact Study on the LPP and determined that the project is needed, the water is available and there are few environmental impacts.
Individuals who suggest Colorado River basin states should “challenge” Utah’s use of its water fail to understand the Law of the River, which authorizes each state to develop and use its respective share.
Here’s the release from the Colorado Water Conservation Board:
The Colorado Water Conservation Board (CWCB) received a water court decree for an instream flow water right on Himes Creek, located in San Juan National Forest, to protect a rare population of Colorado River cutthroat trout. This lineage of trout is native to the San Juan River Basin and was previously thought to be extinct.
“This instream flow water right on Himes Creek is one of the most significant that the Colorado Water Conservation Board has appropriated in the program’s history,” said CWCB Stream and Lake Protection Section Chief Linda Bassi. “CWCB staff, along with Colorado Parks and Wildlife and the U.S. Forest Service, consulted with leading researchers and scientists for the past two years to develop a strategy to best protect this extremely rare and at-risk species.”
When this instream flow recommendation was initially brought to CWCB in 2017, the U.S. Forest Service (USFS) was interested in protecting flows on Himes Creek to support a genetically pure population of Colorado River cutthroat trout. During data collection, genetic testing confirmed that the fish in Himes Creek have the same genetic markers as the San Juan lineage once thought to be extinct. Researchers estimate that the total number of San Juan lineage trout in all known populations is estimated to be as few as 1,000.
The CWCB approved the Himes Creek instream flow recommendation in March 2019, and the water court issued a decree for the Himes Creek instream flow water right on July 27, 2020.
“We are committed to working closely with the Boulder County community to ensure safety, be considerate neighbors and retain open, two-way communication channels during this construction project,” Jeff Martin, program manager for the Gross Reservoir Expansion Project, said in a recent statement…
At the same time, Denver Water has its own case with Boulder County, which initially denied the utility’s request to be exempt from a local review of its plan. A Boulder district judge ruled in December that Denver Water must go through the county’s review process. Denver Water has appealed that decision through the Colorado Court of Appeals and must file an opening brief by Aug. 4.
This means that ultimately county officials could have a say over approval of the expansion. Boulder County Deputy Attorney David Hughes said they have that power thanks to a series of Colorado statutes referred to as 1041 Regulations.
Boulder County could also request another hearing from the Federal Energy Regulatory Commission. But Hughes declined to say whether his office will do so.
After receiving that federal approval, Denver Water said it plans to finish the design phase of the expansion next year, followed by four years of construction.
“The FERC order is an important advance for the project,” a Denver Water spokesman said in an email to CPR News. “From here, related to legal matters, we’ll need to take some time to evaluate our options and the appropriate next steps.”
The vast Ogallala Aquifer has been on the minds of growers in many states but it certainly has been on the minds of growers in Colorado, Kansas and Nebraska who share the crucial resource with differing regulations. We all share a common bond to try to preserve it for future generations.
Timothy Pautler became involved with water conservation district matters with the settlement of the Arkansas River Compact dispute between Colorado and Kansas. The state of Colorado was in litigation with Kansas and Nebraska on the Republican River Compact. The state decided to approach the defense of this conflict differently than the Arkansas River Compact, so through legislation, Colorado created an entity to assist the state in achieving compact compliance and in August 2004 the Republican River Water Conservation District was formed.
The board members represented, at the time, seven counties, seven Ground Water Management Districts and one member from the Colorado Ground Water Commission. Pautler was appointed by the Kit Carson County Commission.
“My understanding of what was happening to the Ogallala Aquifer in my area of the basin was the driving force behind my desire to participate in the decision to assist the state,” he said. “The economy that was created by the state, in its determination to allow the mining of the Aquifer, and the resulting decline, was a concern.”
In 2019, the boundary for the RRWCD was expanded, to include all the irrigated acres that are actually contributing to the compact issue. This change affected folks in the southeast part of Kit Carson County and the northern part of Cheyenne County and in the East Cheyenne Ground Water Management District. This change created two more board member positions, representing those two new entities. This expansion added approximately 45,000 new irrigated acres to the RRWCD fee assessment.
The RRWCD assists the state in reaching compact compliance on the Republican River Compact that was signed in 1942. In the beginning, the state told growers that if they retired 30,000 acres from irrigation the state would be in compliance. To fund the required budget that was going to be needed, the RRWCD assessed all irrigated acres a fee of $5.50 per irrigated acre. At that point in time, the basin did not have meters on any of the wells, so a per acre charge was really the only option and was easy to do, using county assessors’ records. The RRWCD worked with the Natural Resources Conservation Service and the Farm Service Agency, to create programs that would financially compensate producers for voluntarily retiring some of their irrigated lands.
Over time the district has been actively involved with purchasing surface water rights on the Arikaree and the North and South Forks of the Republican. It was involved with the Pioneer and Laird ditch rights. When they were purchased by the Yuma County Water Authority, the RRWCD leased those rights from the YCWA for $5 million for 20 years. This transaction leaves water in the North Fork of the Republican, and is accounted for at the gauging station located just east of Wray, Colorado
“We are continually working with surface water folks, in order to acquire their rights, this practice is ongoing,” he said. “Because of the way surface water irrigation is accounted for under the compact the retirement of these water rights is very helpful in achieving compliance.
He noted the 15-member board showed tremendous leadership in helping stakeholders understand what was at stake.
“As we moved through time, the collective efforts started to bring results for the basin. We were well on our way to retiring the 30,000 acres of irrigated land. The programs were working rather smoothly, and the process was a success,” Paulter said. “But then our general manager, Stan Murphy, and our engineer, Jim Slattery, started to look at the numbers and realized that the retirement of acres alone, was not going to get us where we needed to be, in order to be in compliance.”
The acreage retirements were coming so far from the three streams—the North Fork, the Arikaree, and the South Fork—to achieve the goal. The retirements were still a good concept and leaving water in the hole is always a positive, the producer and board member said. But the lagged depletion effect that existed in the aquifer was not allowing the impact of acreage retirement to result in immediate stream flow. The lagged depletion, describes the impacts that distant well pumping has on stream flow. As a result of the lag effect, the impact of present day pumping will have negative effects for 30 to 50 years, according to the engineers, even though a well has been retired. The effects that those distant retired wells created, prior to retirement, continued to haunt the long-term goals of the RRWCD.
In 2002, the Republican River settlement had been signed. The final settlement stipulation agreed that Kansas, Nebraska and Colorado would not fight about water use that was in the past, but only work toward achieving future compliance with the compact that allocates how much water each state is entitled to use, he said. As part of the stipulation between the states, the accounting for all three states started at zero, it also allowed that any one of the states could use a pipeline to get additional water to the river in order to get into compliance.
So that became the next challenge for the board. Where do we get enough water to make a difference?
“We started looking at an exhausting list of possibilities, including The Dakota formation below the Ogallala, areas of the basin that were under appropriated, and imports from the South Platte at the time we left no stone unturned. Every idea had issues that came along with it,” Pautler said.
The Dakota was going to be too salty and too costly to bring to the surface and not enough water. The unappropriated area was going to require too many easements and a pipeline of extreme length. The South Platte was too expensive.
“In the end we were able to make a deal with one family. Their water rights were located northeast of Wray. This area of the basin has absolutely the greatest amount of saturated thickness.”
It was far enough away from the North Fork to minimize effect on stream flow, but yet close enough that the pipeline length was a doable deal, approximately 13 miles, he said. About 13,500 acre feet of historical consumptive use, from 62 permits, were acquired.
The Colorado Ground Water Commission then approved the RRWCD application, allowing it to consolidate the 62 existing wells into 15 wells to be used for compact compliance, without any injury to surrounding water rights. Along with the water purchase, the district negotiated easements from the landowners for the pipeline route. The cost of the water and easements was $50 million. The engineers designed a pipeline system that cost $20 million.
Informational meetings were key because a $70 million project was not an easy sell, especially when budgets were compiled. The $5.50 per acre assessment needed to go to $14.50. This created a budget of $7 million. A loan from the Colorado Water Conservation Board for the $60 million, at an interest rate of 2% was secured and the 20-year note will be paid off in 2028. “The public acceptance of the concept, came with a lot of questions,” Pautler said. “As their understanding of the entire compact issue increased, so did their support.”
Not so fast
Even with the pipeline it did not mean going back to old practices, Paulter said. Wells in every county and management district that once pumped 800 to 1,000 gallons per minute had diminished to 200 to 500 gpm.
When the pipeline was completed and functioning, the board started to hear comments like, “now we can pump it till it is dry.”
“The pipeline did give us all a false sense of security that nothing else has to change; the perception was the economies of the communities can now continue as always; the threat of shut downs is taken care of,” he said. “But in reality, our small communities are changing so slow we don’t even see it happening, especially in areas of the basin that never did have sufficient saturate thickness, to expect life to go on as usual, or forever.”
A safe statement would be, “most wells in the basin, do not have the yield they originally had.” Conservation has always been an underlying effort, but the urgency to get into compact compliance was paramount and trumped conservation.
The fee assessment has been a problem for the basin, in terms of conservation. For $14.50 per acre, a producer can pump all he wants, up to his permitted amount. Paulter said a per acre foot charge would have been better formula to achieve conservation. The meters did not come into existence until about 2010. Meters alone will not create conservation, although the irrigators, today, do pay more attention to the amount pumped. They are required to stay within their annual appropriation.
What has worked
Conservation has been attained in the areas where irrigated acres were retired. That unused volume assures more water for domestic and livestock use. That is vital for those areas long term. Travel west of the RRWCD boundary and there are large ranches with very limited water resources. Pipelines have been installed with USDA cost share dollars to move the water for miles. And now, even those pipelines are in jeopardy of not having enough water for livestock numbers to adequately make an economic enterprise work.
When the pipeline was completed, the RRWCD’s Conservation Committee started looking at ways to encourage meaningful conservation. They formed a subcommittee made up of members from all the Ground Water Management Districts.
The basin is very different north to south and east to west. Saturated thicknesses vary from having very little left to those areas that still have a 40-year supply left. Soil types very vastly as well.
“We have good heavy soils that will support dry land farming, to sugar sand that without water becomes rangeland. It is a classic case of the ‘haves and the have nots,’ depending on where you are located,” Pautler said. “We are all human, and no one wants to limit their neighbor’s ability to have an economic gain. Admittedly, a tough issue to struggle with.”
Another problem is the fact that the RRWCD has no statutory authority to impose water use restrictions on the basin. That is under the authority of the GWMD. By design, when the RRWCD was given statutory authority to help the state get into compact compliance, GWMDs were very outspoken and insisted that the RRWCD should not be allowed to take over the authority that the management districts already had. These are some of the challenges in trying to achieve meaningful and measureable conservation.
“I would hope that we in the Republican basin can come up with a fair and equitable solution that fits the needs of all water users in the basin. The list of water users has to include discussion with the municipalities, domestic users, commercial interests, and livestock folks. Finding agreement affects everyone, not just the ag irrigators,” he said. “We all have economic interests that are effected by the discussions moving forward. The emotional part of the discussion, kind of stems from the fact that, if we do nothing, ever so slowly, the water passes by our neighbors and we don’t care until it is our turn. A restriction that imposes conservation on all water users happens immediately. The economic impact is immediate.”
This was edited by Dave Bergmeier who can be reached at 620-227-1822 or email@example.com.
Funding is available to Routt County ranchers and farmers to install water-measuring infrastructure to better gauge how much water they are diverting…
The [Upper Yampa Water Conservancy District] has about $200,000 worth of funding to help farmers and ranchers afford the measuring devices thanks to a $100,000 match from the Yampa-White-Green Roundtable, according to Holly Kirkpatrick, communications manager for the conservancy district.
Her office will reimburse 50% of costs associated with the devices, Kirkpatrick said, up to $5,000. The district is taking application through 2021.
“We are seeing a huge uptick in interest for grant funds with people completing their projects,” Kirkpatrick said. “Folks are really interested in how they go about this process and getting projects completed before the end of year.”
For more information on the measuring devices and available funding, contact Kirkpatrick at firstname.lastname@example.org.
FromThe Grand Junction Daily Sentinel (Dennis Webb):
The U.S. Fish and Wildlife Service has begun asking for water releases from high-country reservoirs to boost water flows in the Colorado River upstream of the Gunnison River confluence and aid endangered fish, while being careful not to exhaust available water that may be needed for the species later in the year.
The agency is seeing what U.S. Fish and Wildlife Service hydrologist Don Anderson on Wednesday said are “quickly deteriorating flow conditions” on what’s called the 15-Mile Reach of the river between the Gunnison confluence and where Grand Valley irrigation diversions occur upstream.
Speaking in a conference call with upstream reservoir operators, local irrigation officials and others who work to cooperatively manage Colorado River flow levels, he said flows in the stretch Wednesday were around 450 cubic feet per second. The longterm median flow at Palisade below where Grand Valley diversions occur is 1,780 cfs for July 23, according to U.S. Geological Survey streamflow data.
Anderson told call participants that according to a report from Fish and Wildlife Service colleague Dale Ryden, fish conditions in the 15-mile stretch “are getting pretty grim.”
There, when water is low the fish are more prone to predation, exposure to more sun especially in clearer-water conditions, and even impacts from recreational river use, Anderson said. The latter is on the upswing on that river stretch as people are restless due to the pandemic and looking to get outdoors.
The Fish and Wildlife Service and partners make use of water leases and contracts, coordinated releases from upstream reservoirs and other means to enhance flows in the river stretch.
Anderson has asked for releases totaling 150 cubic feet per second from three upstream reservoirs to boost flow levels in the stretch. While he indicated a desire to further increase flows, he’s balancing that against a desire to not too quickly go through what he referred to as firm sources of water to hit an ideal flow target, in case some of that water is needed later in the year…
Anderson said some endangered fish, such as young Colorado pikeminnow, are reportedly responding to the current conditions by moving to the lower Gunnison River, which currently has more favorable flows and turbid conditions that benefit them…
One bright spot is the moister weather that is arriving in Colorado and could boost river flows. Treste Huse, a hydrologist with the National Weather Service, said during Wednesday’s call that a more active seasonal monsoon pattern is setting up that will bring a steady increase in moisture to the region over the next several days. While the most rain is expected in southwest and south-central Colorado, she said a total of maybe 1.5 to 3 inches of rain is possible in north-central Colorado. She said the 30-day outlook now calls for an equal chance of above- or below-average precipitation…
Another development that will boost the river’s flows is the expected restoration of operations at Xcel Energy’s Shoshone hydroelectric power plant in Glenwood Canyon by the end of this week. That plant has a senior 1,250-cfs water right but was damaged by river ice this spring. Flows just above the plant have fallen below that point but will be boosted once the plant exercises its right to call for more water.
Endangered fish potentially could benefit later this year from what’s called a historic users pool of water in Green Mountain Reservoir in Summit County. While the pool was created for irrigators, municipal and other water users, some years surplus water from that pool can be used to boost fish flows.
he fish also stand to gain this year from the efforts of the nonprofit Colorado Water Trust. Last year it reached a five-year agreement with the Grand Valley Waters Users Association and the Orchard Mesa Irrigation District, which operate the Grand Valley Power Plant hydroelectric facility near Palisade. The deal calls for the Colorado Water Trust to secure water from upstream sources to deliver to the plant at critical times of year, boosting the plant’s operational capacity when water supply is otherwise limited while also putting more water in the 15-mile river stretch.
The Colorado River Water Conservation District will ask voters this November to approve a property-tax increase that would double its budget, from about $4 million to $8 million.
After a lengthy discussion at Tuesday’s regular quarterly meeting, River District board members voted to move ahead with a ballot question asking voters to raise its property taxes from a quarter-mill to a half-mill. That works out to 50 cents per $1,000 of assessed value. One mill is the equivalent of $1 per $1,000 of assessed value.
According to numbers provided by the River District, the mill levy would increase per year to $40.28 from $18.93 for Pitkin County’s median home value, which at $1.13 million is the highest in the district.
The district in April had put off making a decision on moving forward with a ballot question until July due to concerns about asking voters for more money during the economic crisis caused by COVID-19. Officials were comfortable moving forward, however, after recent polling showed continued support for the measure.
According to the resolution approving the ballot language, the money will be used for fighting to keep water on the Western Slope; protecting adequate water supplies for Western Slope farmers and ranchers; protecting sustainable drinking-water supplies; and protecting fish, wildlife and recreation by maintaining river levels and water quality.
“This is one of the most consequential decisions the district has made in some time,” said board president Dave Merritt, who represents Garfield County. “This is going to be really important to the future of the River District to take us into the next era.”
The district has seen its revenue stream decline in recent years due to shrinking tax revenue from the fossil-fuel industry and lower residential assessments as a result of the state’s Gallagher and Taxpayer’s Bill of Rights amendments. As a result, the district has reduced its staff by four positions, suspended a grant program and reduced its vehicle fleet.
The district got more specific in the spring about what it would do with the money in a fiscal implementation plan. About 86% would go toward water projects backed by local communities and basin roundtables. Examples could include environmentally focused projects such as forest restoration on the Yampa River, infrastructure projects such as rehabilitation for the Grand Valley Roller Dam, and dam and reservoir projects such as the White River Storage Project. The district would not use the money to create new staff positions.
The Glenwood Springs-based River District, which was created in 1937 to protect and develop water supplies in western Colorado, spans 15 counties: Grand, Summit, Eagle, Pitkin, Rio Blanco, Routt, Moffat, Garfield, Mesa, Delta, Montrose, Ouray, Gunnison, Hinsdale and Saguache.
Pitkin County’s representative, County Attorney John Ely, was the lone “no” vote for the ballot measure. He said the fiscal implementation plan should include a promise that the River District will work with local elected officials on water projects, especially since River District board members would be the ones allocating project funding — and they are not elected to their positions.
“Having that type of commitment in the plan, I think that would go a long way in allaying that type of a concern,” Ely said.
At the suggestion of some agriculture-dependent counties, including Mesa County, River District General Manager Andy Mueller added language to the ballot question that says the district will not utilize the additional funds for paying to fallow irrigated agriculture. Montrose County representative Marc Catlin pushed to go a step further, suggesting that the definition of fallowing include permanent programs, as well as voluntary, temporary and compensated programs. The state of Colorado is currently looking into a program that could pay irrigators on a voluntary, temporary and compensated basis to fallow fields in order to leave more water in the river.
“I think we ought to tie it to this ballot because 10 years from now, somebody might have a completely different idea of what fallowing might mean,” Catlin said.
But other directors cautioned against getting too wordy in the question, which could confuse voters, especially since a recent survey found strong support for a more simply stated proposal.
“I would just be happier if we kept this closer to what was polled and simpler,” said Martha Whitmore, who represents Ouray County.
Survey finds support
The River District hired Lori Weigel from Arvada-based consultant New Bridge Strategy for another round of voter polling, which surveyed 600 district residents between June 25 and July 2. If the election were held tomorrow, 63% of those surveyed said they would definitely vote in favor of a tax increase.
“That 63% is really the critical number there,” Weigel said. “It’s pretty rare that we see support levels this high.”
The district had previously found similarly high levels of support — 65% — when Weigel surveyed voters in mid-March. Some board members worried that because the survey coincided with the beginning of the COVID-19 pandemic, the results would no longer be valid. But survey results this time around showed continued support for a tax increase.
“I think we can have a great deal of confidence in this data,” Weigel said. “(Support) has not shifted significantly. Water is something that is important to people. Water is sort of a constant.”
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 July 22 edition of The Aspen Times.
Click here for all the inside skinny and to register:
Topic: Yampa Valley State of the River
Whether it’s for clean water from your kitchen tap, water for hay or livestock or flows to paddle or play on, we all rely on the Yampa River and its tributaries.
Learn about current Yampa Basin water issues, ongoing drought and challenges facing West Slope water users at the virtual Yampa Valley State of the River meeting hosted by the Colorado River District, the Community Agriculture Alliance and the Yampa-White-Green Basin Roundtable.
If you’re busy for the live event, register to receive a recording of the webinar by email to watch later.
• Protecting West Slope Water in Times of Uncertainty – Jim Pokrandt, Director of Community Affairs at the Colorado River District
• Snowpack and Runoff updates in the Yampa River Basin – Upper Yampa Water Conservancy District
• Recreation in the Yampa River Basin – Lindsey Marlow, Program Manager at Friends of the Yampa and Josh Veenstra, owner of Good Vibes River Gear
• How you can participate in Yampa River planning and the Integrated Water Management Plan – Marsha Daughenbaugh, Rocking C Bar Ranch and Nicole Seltzer, Science & Policy Manager at River Network
• Conversation with the Division Engineer – Erin Light, Division 6 Engineer at the Colorado Division of Water Resources and Jackie Brown, Natural Resource Policy Advisor, Tri-State Generation and Transmission
Time: Jul 29, 2020 06:30 PM in Mountain Time (US and Canada)
Here’s a guest column from Kent Holsinger and David Kueter that’s running in The Valley Courier:
Once every ten years a comet is visible in the night sky, the census counts every person living in the United States, and your water rights are at risk of abandonment in Colorado. Water is Colorado’s most precious natural resource. Colorado’s proposed decennial abandonment lists were published online on July 1st. Over four thousand water rights were listed, including over 630 rights in Division 3. This is a marked increase from decades past.
Put another way, the lists prepared by the Division Engineers at the Colorado Division of Water Resources could result in a significant number of water rights being declared abandoned throughout the state. The Rio Grande Basin has been over appropriated since the 1890’s with groundwater resources depleted throughout much of the basin. The Colorado Water Plan projects the basin will need an additional 180,000 acre feet (AF) by 2050. As a result, protecting existing rights is more important than ever. Water right owners should check the lists online at http://water.state.co.us to determine whether their rights are at risk. The lists will also be published in the local papers of record throughout the state in July and August.
While the agency is required to notify the “last known owner or claimant” of a water right included on the list by July 31st, the State’s ownership records are not always up-to-date. In an arid climate like Colorado, water rights are highly coveted and highly valued. Losing a water right to abandonment can be catastrophic. It can also directly impact the bottom line and the market value of your property. Water right owners have multiple opportunities to protest inclusion of a right on the abandonment lists. Under Colorado water laws, abandonment requires both an overt act (typically non-use) and intent. Good record-keeping, personal knowledge and extrinsic evidence like Google Earth imagery can help protect valued water rights. Lands protected by conservation easements may have other good arguments to employ.
Fortunately, the deadline for written objections to be submitted to the appropriate Division Engineer (along with a $10.00 fee for each water right) is July 1, 2021. In the meantime, water right owners would be wise to start collecting records and consulting with legal counsel. By December 31, 2021, after considering any filed objections, the Division Engineers will file the final proposed abandonment lists with the Water Court. Water right owners can then formally protest the inclusion on the list by June 30, 2022, which protests will be heard by the Water Judge beginning in October 2022. This article does not constitute legal advice nor the creation of an attorneyclient relationship. Kent Holsinger and David Kueter are attorneys at Holsinger Law, LLC and can be contacted at: http://www.holsingerlaw.com.
U.S. Commissioner Jayne Harkins of the International Boundary and Water Commission, United States and Mexico, today reiterated that Mexico must take immediate action to deliver Rio Grande water to the United States to comply with the bilateral 1944 Water Treaty. Under the treaty, Rio Grande water is allotted to the United States in quantities calculated based on cycles of five years. The current cycle ends on October 24, 2020. To meet its international obligations, Mexico must deliver an additional 416,829 acre-feet (514.2 million cubic meters [mcm]) to the United States between now and the end of the cycle.
“Mexican government officials have stated there is enough water stored in the Mexican reservoirs to enable Mexico to meet the needs of Chihuahua farmers during this year’s irrigation season while complying with the treaty. They need to increase their water releases to the United States immediately,” said Commissioner Harkins. “Mexico has failed to implement releases promised earlier and continuing to delay increases the risk of Mexico failing to meet its delivery obligation.”
Commissioner Emily Lindley of the Texas Commission on Environmental Quality said, “Mexico has not honored its commitments. Texas farmers, irrigators, municipalities, and industries along the Rio Grande rely on water that should be delivered as laid out in the 1944 Treaty. I echo Commissioner Harkins that it is vital Mexico deliver water immediately to the U.S.”
Mexico has only delivered 1,333,171 acre-feet (1,644 mcm) out of the minimum five- year obligation of 1,750,000 acre-feet (2,159 mcm). The remaining volume yet to be delivered exceeds the 350,000 acre-feet (431.7 mcm) minimum average volume the 1944 Water Treaty requires over an entire year, demonstrating that immediate action is required.
“I want to emphasize that farmers and cities in South Texas rely on this water to get them through the summer,” Commissioner Harkins added.
Under the 1944 Water Treaty, Mexico delivers Rio Grande water to the United States while the United States delivers Colorado River water to Mexico. The United States continues to meet its obligations to deliver Colorado River water and expects Mexico to fulfill its Rio Grande obligations to the United States. The International Boundary and Water Commission is responsible for applying the boundary and water treaties between the United States and Mexico.
2020 has been a tumultuous year, and as we enter our fifth month of quarantine and social distancing, it can be encouraging to find things to celebrate. With the close of Colorado’s legislative session last month and Governor Polis finalizing his bill signings, one thing that we can laud is the work that was accomplished for our rivers. Even though the Colorado General Assembly struggled to fully address a more than $3 billion budget shortfall, they maintained and expanded programs and investments necessary to keep our rivers flowing, and this is something we can be proud of.
In March, Governor Polis signed two bills into law that expand and improve Colorado’s instream flow program. These bills, HB20-1157 and HB20-1037, provide new tools for water users and conservationists to work together to keep water in rivers for the benefit of fish and wildlife. HB20-1157 will be a particularly important tool for the Yampa River Fund which provides grants to improve the health of the Yampa River, including through leases of water from Stagecoach Reservoir to enhance late-season fish habitat, agriculture, and to benefit the local tourism and outdoor recreation economy.
Colorado also made a new commitment to improve water conservation in our cities and towns. The Colorado Water Plan, finalized in 2015, sets a goal of achieving 400,000 acre-feet of municipal and industrial water conservation savings by 2050. The way that we plan and build our cities and towns contributes to how we use water, how much we use, and how quickly demands grow for new supplies. The new law, HB20-1095, authorizes local governments to include water conservation elements into their master plans, thereby encouraging local governments to combine their land and water use planning to accelerate the state toward its 400,000 acre-foot conservation savings goal.
While budgets were slashed statewide, fortunately funding for the implementation of Colorado’s Water Plan was maintained. Over $7 million was included in the Colorado Water Conservation Board budget for Water Plan implementation grants or water projects across the state, and an additional $4 million was allocated to invest in stream and watershed management planning efforts to keep rivers healthy and flowing. We appreciate the state’s continued recognition of the importance of clean rivers and drinking water for all Coloradans and hope that this commitment continues.
Just over six months ago, voters demonstrated their own commitment to healthy rivers and water supplies by legalizing sports betting and directing tax revenues to fund the implementation of Colorado’s Water Plan. As sports begin to start back up, we urge the General Assembly to respect the will of the voters and ensure this tax revenue is directed, as intended, to Water Plan implementation.
While we celebrate these wins for Colorado’s waterways, we recognize there is still more work to be done.
In June, the Trump administration issued rules that significantly reduce protections for Colorado’s rivers and wetlands under the Clean Water Act, leaving many previously protected waterways in limbo. The new federal rule leaves one out of every five stream miles in Colorado, including half of the state’s wetlands, unprotected from construction activity discharges. Thanks to a lawsuit led by Colorado Attorney General Phil Weiser, the rule has been temporarily blocked pending resolution, which maintains protections for our state’s waterways—for now.
Regardless of the outcome in court, it is time for Colorado to ensure that its rivers and wetlands will always be protected from destructive dumping and discharges. The Water community is coming together—virtually—this summer to try to find some common ground on this issue and we plan to bring a solution before the General Assembly for the 2021 legislative session.
While 2020 seems to be the year of one bad headline after the next, we are heartened by the work of our state legislature and government to make positive strides toward safeguarding our water future.
After a year of meetings, workshops and in-depth discussions, state officials feel a feasibility investigation into a program that would pay water users to reduce consumption and add to a savings account in Lake Powell should continue.
Although no formal decision has yet been made on whether to implement a voluntary, temporary and compensated water-use reduction plan known as demand management, Amy Ostdiek, Colorado Water Conservation Board deputy section chief for interstate, federal and water information, told the state agency’s board of directors on Wednesday she has not found a reason to keep from moving forward.
“I didn’t identify any points that would indicate to me that we should stop the feasibility investigation,” said Ostdiek, who has been leading and organizing the process for the state. “From my perspective, we have not identified a reason not to continue the analysis or any hard reason it wouldn’t work.”
At the heart of a potential program is a reduction in water use in an attempt to send up to 500,000 acre-feet downstream to Lake Powell to bolster levels in the giant reservoir and meet 1922 Colorado River Compact obligations.
Under such a program, agricultural water users could get paid to temporarily fallow fields and leave more water in the river, in order to fill a 500,000 acre-foot pool as an insurance policy in case of continued drought or further reduction in average flows.
Report from workgroups
In June 2019, the CWCB, a state agency responsible for developing and protecting Colorado’s water, named 74 water experts and managers to eight work groups tasked with tackling complicated issues and questions around the creation of a demand management program. The groups were divided by topics: law and policy; monitoring and verification; water-rights administration and accounting; environmental considerations; economic considerations and local government; funding; education and outreach; and agricultural impacts.
A ninth group, headed by former Colorado lawmaker and chair of the Interbasin Compact Committee Russell George, has been focusing on how to ensure a demand management program is equitable among water users and basins. The IBCC facilitates conversations among representatives of different river basins and addresses statewide water issues.
Each group met multiple times over the past year and their findings, as well as their lingering questions, were included in a 200-page demand management update report presented [July 15, 2020] to CWCB directors.
The sprawling report summarizes the work completed by the groups and their overlapping key values, concerns and uncertainties. The sustainability of agriculture and agricultural communities ranked highest in the values category, while program design and participation ranked highest in the uncertainties category.
Several board members offered their opinions on a potential demand management program. Steve Anderson, who represents the Gunnison-Uncompahgre River basin, questioned whether the state could create water savings by funding more projects outlined in the Basin Implementation Plans instead of crafting a demand management program. The BIPs identify how each basin’s water needs will be met through existing or new projects, policies and processes.
“Once we become more efficient I think we would generate more system water for the Colorado,” he said. “At the end of the day we are going to have a choice between buying an insurance plan or using those funds elsewhere for conservation and efficiency.”
It is unclear how much a demand management program would cost the state, but one of the work groups is dedicated to the funding question.
The main goal of a demand management program would be to defend against what’s known as a “compact call,” which could happen if the upper basin states — Colorado, Utah, Wyoming and New Mexico — were not able to deliver the 75 million acre-feet of water over 10 years to the lower basin states, as required by the Colorado River Compact. Colorado water managers desperately want to avoid this scenario, which looms larger each year with the increasing effects of drought and climate change on an over-allocated river, because it could trigger mandatory cutbacks for water users.
CWCB board member Greg Felt, who represents the Arkansas River basin, struck a dark tone, saying moving forward with a demand management program is necessary because one of the potential alternatives — involuntary cutbacks, also known as “curtailment” under a compact call — will be impossible to enforce.
“I frankly think that people are not going to accept curtailments on any rights the way they have historically,” Felt said. “From what I’ve watched this year in rural Colorado, people aren’t going to be buying curtailment. The water is going to come out of the stream. You can’t have enough water commissioners to stop that.”
Funding for next steps restored
With the first year of a feasibility investigation complete, the ultimate decision on whether to move forward with a demand management program lies with CWCB board members. The board plans to discuss the work presented by the work groups at a one-day workshop in September.
CWCB staff also are planning a virtual regional workshop for the public to learn more about the first year’s findings. Both meetings will be open to the public.
For several weeks there was uncertainty surrounding the future funding of the demand management feasibility investigation, when on May 1, Gov. Jared Polis suspended the program’s funding due to the COVID-19-caused state budget crisis. But the funding was restored in this year’s projects bill, according to CWCB Deputy Director Lauren Ris.
The agency now has until the end of June 2021 to spend the remaining $834,000 of the original $1.7 million allocation, should the board decide to continue delving into the issue for another year.
CWCB Director Rebecca Mitchell urged the board to be leaders for Colorado on the issue of demand management.
“We want to do whatever we can to avoid a curtailment situation,” Mitchell said. “Everyone is looking to see what we do and how we handle this, and we do have a very unique opportunity at a very critical time to lead strongly on this.”
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 July 18 edition of The Aspen Times.
The Imperial Irrigation District and farmer Michael Abatti have been locked in a years-long legal battle with as many twists as the river over which it has been fought. The saga might finally come to an end, though, after a California appellate court handed down a ruling on Thursday that found IID is the rightful manager of the portion of the Colorado River guaranteed to the Imperial Valley.
The three-judge panel was asked to determine whether IID fairly distributes water, including to the nearly 500,000 acres of agriculture that receive it every year. Additionally, the judges needed to decide whether farmers, via their private property, had a specific right to Colorado River water, as a trial court judge ruled in 2017. That decision had thrown into question a more than century-old system that doled out water in the agricultural valley south of the Salton Sea.
In the ruling, the judges found that farmers have a guaranteed right to water delivery but that they don’t hold a special claim to water rights above other industrial and residential users…
Equitable Distribution Plan
After the ruling came out, questions remained about the future of the Equitable Distribution Plan, a document IID revised in 2013 to determine how water would be apportioned in the case of a declared shortage on the river. Farmers were put last in line in the plan, and that was the other key question Abatti raised in his litigation.
The appellate court ruled that IID “abused its discretion in how it prioritizes apportionment among categories of water users,” but both sides emerged from the case claiming a level of victory on that point.
In an email, Lee Hejmanowski, one of Abatti’s attorneys, told The Desert Sun, “In 2013, Michael Abatti stood up for all of the farmers in the Imperial Valley by challenging the IID’s so-called ‘Equitable Distribution Plan.’ Mr. Abatti is pleased that the Court of Appeal has affirmed the trial court’s decision striking down the EDP, which was not, in fact, equitable because it treated farmers inequitably.”
Frank Oswalt, IID’s general counsel, said he believes “the board’s got a lot of homework to do” to ensure it is reading the decision correctly when moving forward with some form of the Equitable Distribution Plan. But, Oswalt said he viewed the decision as largely affirming the mechanisms the IID used in the plan.
Wally Leimgruber of the Imperial Valley Coalition for the Fair Sharing of Water, which supports IID’s position, said the ruling was a victory for the district. But, he expects the plan to be rewritten to clearly spell out that all water users must be treated equally if there is a water shortage…
What comes next
Both sides in the legal fight between farmers and the IID have hunkered down to determine the next phase of their battle plans.
“Mr. Abatti and his attorneys are digesting the Court of Appeal’s 106-page decision and determining the next steps in the process,” Hejmanowski said.
Oswalt said the IID, too, is mulling the finer details of the ruling, and it ultimately will be up to the board of directors to decide on next steps. But, he said, IID leadership are satisfied that the decision leaves control over water solidly with them, meaning “the IID board is a lot less likely to want to appeal this than the other side.”
Each side also will need to make a determination about how many more resources they want to plow into the fight.
In a January board meeting, Oswalt told the IID board that the district had racked up a $2.3 million legal bill. While the district would not provide an exact updated figure on Friday, Galindo said it had crept toward the $3 million range…
The parties have 10 days after the appellate court’s decision becomes final — which typically happens within a month from when it was handed down — to request that the state’s apex court take it up. The California Supreme Court only hears about 5% of cases that are sent its way, however, meaning there is a strong chance that Thursday’s decision could be the final word in Abatti’s legal challenge to IID’s control over Colorado River water in the Imperial Valley.
It’s fitting that President Trump invoked an interstate highway expansion in Atlanta last week to announce final rules that, if they survive the inevitable legal challenges, will undermine one of the nation’s bedrock environmental laws, the National Environmental Policy Act. American voters face a fork in their own road this November — stay on the Trump expressway to environmental degradation and catastrophic climate change, or shift to the road, bumpy as it may be, to a cleaner environment and more sustainable future of wind, solar and other energy sources that do not involve burning fossil fuels.
The COVID-19 pandemic understandably has seized the nation’s attention, but that hasn’t lessened the risk we all face from air and water pollution and carbon-fed global warming. Trump has unabashedly sought to dismantle federal regulatory structures to speed up construction projects while forging a national energy plan based on producing and burning fossil fuels.
His embrace of the oil, gas and coal industries defies the global scientific consensus that burning fossil fuels emits greenhouse gases that make the Earth less habitable by warming the atmosphere, feeding stronger and more frequent storms, triggering devastating droughts that propel human migration, and pushing up sea levels so that they encroach on cities and other human settlements. In fact, the National Oceanic and Atmospheric Administration reported last week that unusually high tides led to record flooding among one-quarter of Atlantic and Gulf Coast communities where the agency maintains tide gauges. Climate change is no dystopian vision of the future; it is here.
Trump’s efforts to eviscerate regulatory oversight of the environment is rooted in his belief that regulations are for the most part unnecessary hurdles to economic progress. He bewails the amount of time it takes for projects to clear environmental reviews and related court challenges, adding what, in his mind, are unnecessary costs and delays. To be honest, he may have something there. NEPA came into being five decades ago — signed into law by President Nixon — and it’s not out of line to suspect that there are places where the law and the regulations that arose from it could use some reasonable revising. But Trump and his industry-connected advisors are not the ones to trust with such a task.
These new rules are not reasoned updates. By requiring environmental impact analyses to be completed within two years (now they often take twice that), the administration seeks to cut short the consideration of those most affected by major projects — often people of color and low-income households — and disarm the environmental activists fighting to ensure that necessary environmental protections are respected. The rules also would require regulators to no longer weigh the cumulative effects of a proposed project and limit their review to effects “that are reasonably foreseeable” and “have a close causal relationship” to the work being done. So, for example, a proposed project’s emissions could not be added to those of other nearby emitters to determine whether their cumulative impact creates an excessive burden on a specific community.
Separately, the Government Accountability Office reported last week that the administration tweaked the formula for measuring the “social cost of carbon” so that estimates of the potential harm from emissions are seven times lower than they used to be. It’s foolhardy — and dangerous — to look at environmental impacts through such a narrow lens.
Meanwhile, presumptive Democratic nominee Joe Biden, after lengthy negotiations with progressive environmentalists who had backed Sen. Bernie Sanders (I-Vt.), released a $2-trillion plan for quickly shifting the nation from its reliance on fossil fuels to renewable sources.
It’s not the controversial “Green New Deal” that progressives have been pushing, but it’s in the neighborhood. Getting such a measure through Congress even if both chambers were controlled by Democrats would be no easy task, but Biden’s proposal at least recognizes the dire future we all face if the nation — and the world — do not fundamentally alter how we produce and consume energy.
The world cannot afford to backslide on environmental protections and the all-important fight to mitigate the worst effects of climate change. Yes, jobs are important, but survival more so. The errors and consequences of the past are crystal clear. The question is, will we heed those lessons?
With Wednesday’s move by the Trump administration to weaken one of the nation’s bedrock conservation laws – the National Environmental Policy Act (NEPA) – all eyes will increasingly be on local opposition and regulation when it comes to major infrastructure on federal lands.
That’s pretty much what Eagle County Commissioner Kathy Chandler-Henry told me when I asked about the proposed Whitney Reservoir project currently being scoped out by the U.S. Forest Service along Homestake Creek in southeastern Eagle County. The reservoir is being proposed by Colorado Springs and Aurora to pump Western Slope water to the Front Range.
All that’s currently being considered by the Forest Service is a test-drilling project to detect fatal flaws and see if one of four possible dam configurations is feasible, at which point an actual proposal for Whitney Reservoir would be submitted and considered by the feds, including a possible request to shrink the Holy Cross Wilderness by up to 500 acres to realign the road.
The Forest Service was flooded with more than 500 online comments opposing the drilling and the reservoir, demanding higher levels of environmental scrutiny for a special use permit for the drilling project that could be issued under what’s known as a “categorical exclusion.” Opponents are demanding an Environmental Assessment (EA) or Environmental Impact Statement (EIS)…
in the 1990s, when I first moved to the Vail area, there was a huge battle going on over what was then called Homestake II – a reservoir proposed for the same area by the same cities, which still hold 20,000 acre-feet of water rights here.
Eagle County used its 1041 permitting powers, which give counties some degree of local control over infrastructure projects with regional or statewide impacts, to deny Homestake II – a move that wound up in court and went all the way to the Colorado Supreme Court before Eagle County ultimately won. Those 1041 regulatory powers were granted by a state law in the 1970s.
All of that led to the Eagle River Memorandum of Understanding (MOU) that outlines how all the various stakeholders in the Eagle River Basin would work together going forward to resolve their issues. But one important thing remains true: Eagle County, not a signatory to the MOU, still has 1041 permitting authority.
So Chandler-Henry, the water leader on the board, had some important things to say last spring. First, on any proposal that would require redrawing the boundaries of the Holy Cross Wilderness Area: “I can tell you that’s not anything that we would ever be supportive of is moving wilderness boundaries.” Then, on the importance of local permitting power:
Chandler-Henry points out that federal protections have been stripped away by the current administration, with fens and ephemeral streams recently being removed from the definition of Waters of the United States by the U.S. Environmental Protection Agency. Those changes, she said, are making it much easier for water providers to get their federal permits in place.
“Which means 1041 is all the more important for local considerations,” Chandler-Henry said, adding she believes her constituents oppose a dam. “I think that that is going to be a huge public sentiment, that we don’t want anything there.”
That being said, the county has to be somewhat diplomatic on both the test drilling and a possible future reservoir. Eagle County officials said they are working with the Forest Service on the test drilling proposal and may comment later.
“Eagle County cannot take a position regarding, and will not be commenting on, any future reservoir project because of its permitting authority powers,” county officials said in an email. “Eagle County must avoid prejudging a file based upon this authority.
“Eagle County plans to meet with the USDA USFS to discuss procedural questions regarding the proposed Whitney Creek Geotechnical Investigation project. Depending upon the outcome of that conversation, Eagle County may or may not choose to provide comment [to the Forest Service],” officials added.
Chandler-Henry, who talked to me well before the formal test drilling application and the recent Trump move to gut NEPA, said the county is keeping an open mind on 1041 permitting for whatever proposal eventually comes before the board. However, she reiterated that shrinking the Holy Cross boundary – something Congress would have to approve – is a non-starter…
Western Slope signatories of the Eagle River MOU were tight-lipped on the geophysical study and drilling. Jim Pokrandt, director of community affairs for the Colorado River District, declined to comment on the investigatory test work, saying only, “Yes, we have signed the MOU. That said … we are not participating in the Whitney Creek effort.”
Diane Johnson,communications and public affairs manager for the Eagle River Water & Sanitation District, said: “The short answer is we – [ERWSD] and Upper Eagle Regional Water Authority — support [Homestake Partners’] right to pursue an application for their yield. We trust the permitting process to bring all impacts and benefits to light for the community to consider and weigh in total.” Neither organization submitted a comment to the Forest Service…
Impacts from fatal-flaw drilling
If approved by the Forest Service for a special use permit, Homestake Partners would send in crews on foot to collect seismic and other geophysical data later this summer or fall. Then crews with heavy equipment would drill 10 bore holes of up 150 feet deep in three separate possible dam locations on Forest Service land.
Crews would use a standard pickup truck, a heavy-duty pickup pulling a flatbed trailer, and a semi-tractor and trailer that would remain on designated roads and parking areas, with some lane closures of Homestake Road (703) and dispersed campsites possible.
For off-road boring operations, crews would use a rubber-tracked drill rig, a utility vehicle (UTV) pulling a small trailer, and a track-mounted skid steer. The drill rigs are up to 8 feet wide, 22 feet long, and 8 feet high and can extend up to 30 feet high during drilling, requiring possible tree removal in some areas. The rigs would also have to cross Homestake Creek and some wetland areas, although crews would use temporary ramps or wood mats to mitigate impacts.
According to a technical report (pdf) filed by Homestake Partners, the subsurface work is expected to take up to five days per drilling location, or at least 50 days of daytime work only. However, continuous daytime noise from the drilling could approach 100 decibels, which is equivalent to an outboard motor, garbage truck, jackhammer or jet flyover at 1,000 feet. If work is not done by winter, crews have up to a year to complete the project and could return in 2021.
The drilling process would use several thousand gallons of Homestake Creek water per day that engineers say “would have negligible impacts on streamflow or aquatic habitat. Water pumped from Homestake Creek during drilling would amount to less than 0.01 [cubic feet per second], a small fraction of average flows.”
Homestake Partners would avoid wetlands as much as possible during drilling, but “where temporary wetland or waters disturbance is unavoidable, applicable 404 permitting would be secured from the U.S. Army Corps of Engineers (Corps).” Crossing of Homestake Creek would occur in late summer or fall when stream flows are low, and no drilling would occur in wetlands.
While no permanent roads would be built for the drilling, temporary access routes would be necessary and reclaimed as much as possible. “Access routes would be selected to reduce surface disturbance and vegetation removal, and to avoid identified or potential unexploded ordnances (UXOs) discovered during field surveys.” The famed 10th Mountain Division of the U.S. Army used the area for winter warfare training during World War II.
Congratulations to friend of Coyote Gulch, Grace Hood.
Here’s the release From the University of Colorado:
The Center for Environmental Journalism is proud to welcome its 24th class of Ted Scripps Fellows, who will spend nine months at the University of Colorado Boulder’s College of Media, Communication and Information working on long-term, in-depth journalistic projects and reflecting on critical questions.
The group brings a depth of experience across a range of media, with backgrounds covering local issues as a public radio reporter and a photojournalist, overseeing a non-profit news organization and a science magazine, and reporting abroad as a Moscow correspondent.
“We’re thrilled to welcome these incredibly accomplished journalists to the Center for Environmental Journalism,” said Tom Yulsman, CEJ director. “We gain as much from their presence as they do from spending a year at the university.”
Stacy Feldman, co-founder of InsideClimate News (ICN), a Pulitzer Prize-winning non-profit news organization providing reporting and analysis on climate change, energy and the environment. Serving as executive editor from 2015 to 2020, she’s spent the past 13 years helping to build and lead ICN as it transformed from a two-person startup to an operation with nearly 20 employees and a model for national and award-winning non-profit climate journalism.
As a fellow, she plans to study new approaches to local journalism that could help people connect environmental harm and injustice to their own health and their communities’ well-being.
Grace Hood, who has covered water, science and energy topics across the American southwest as Colorado Public Radio’s environment and climate reporter since 2015. Throughout more than a decade in public radio, she’s profiled octogenarian voters worried about climate change, scientists tracking underground mine fires, a visually impaired marijuana farmer and a homeowner who lives next door to Colorado’s first underground nuclear fracking experiment.
As a fellow, she plans to study how cities and states monitor air quality near oil and gas sites. She has a particular interest in the rise of citizen science when it comes to measuring air pollution across the West.
Alec Luhn, an independent journalist with a focus on the changing communities and ecosystems of the far north. Previously a Moscow correspondent for The Guardian and The Daily Telegraph, he’s been published in The Atlantic, GQ, The Independent, MAXIM, The Nation, The New York Times, POLITICO, Reuters, TIME, Slate and WIRED, among others. During a decade abroad, he’s reported from the coldest permanently inhabited place on earth and covered the conflict in eastern Ukraine, annexed Crimea, war-torn Syria and Chernobyl reactor four, as well as covering oil spills, permafrost thaw, reindeer herding, polar bear patrols, Gulag towns and the world’s only floating nuclear power plant in the Arctic.
As a fellow, he plans to study how climate change and resource extraction are altering the fragile environment of the north, with deep repercussions for reindeer and caribou and the indigenous peoples that depend on them.
Amanda Mascarelli, managing editor of Sapiens, an award-winning digital magazine that covers anthropology and archaeology for the general public. She has led the publication since before its 2016 launch and has overseen the production of hundreds of stories on topics including Holocaust archaeology, schizophrenia, fracking, cultural appropriation, and, most recently, the COVID-19 pandemic. Previously, she spent more than a decade as a freelance science journalist specializing in health and the environment. She’s been published by outlets including Audubon, Nature, New Scientist, Science, Science News for Students and The New York Times and worked as a health columnist for the Los Angeles Times and The Washington Post.
As a fellow, she will study the social inequalities of health in vulnerable communities in the Denver metro region and elsewhere in Colorado, with an eye to exploring the health and social impacts of industrial expansion, fossil fuel extraction, and a planned massive urban redesign.
RJ Sangosti, who has been a photojournalist at The Denver Post since 2004, where he’s covered events spanning from Hurricane Katrina to presidential elections. Over more than a decade, he has documented the people and landscape of eastern Colorado, where years of drought and a loss of agricultural earning power continue to hurt farmers. Most recently, he completed a story about a Denver neighborhood in one of the country’s most polluted urban zip codes, whose residents continue to be impacted by a huge interstate construction project. His work was included in the 2012 Time Magazine top 10 photos of the year, and he was honored to be part of the 2016 jury for the centennial year of The Pulitzer Prizes.
As a fellow, he will report on the effects pesticides and fertilizers have on aquifers and groundwater, and he hopes to gain new skills in research and writing.
[On July 17, 2020], the Federal Energy Regulatory Commission ordered Denver Water to proceed with design and construction to expand Gross Reservoir in Boulder County.
Seventeen years ago, Denver Water began the federal environmental permitting process that lead to approvals by the Colorado Department of Public Health and Environment and U.S. Army Corps of Engineers in 2016 and 2017.
“Obtaining the Federal Energy Regulatory Commission order to move forward with the Gross Reservoir Expansion Project brings a comprehensive 17-year federal and state permitting process — one that involved nearly 35 agencies and organizations — to a close,” said Denver Water CEO/Manager Jim Lochhead. “This order directs Denver Water to move ahead with construction to meet mandated milestones and timelines.”
“Expanding Gross Reservoir is a critical project to ensure a secure water supply for nearly a quarter of the state’s population. The project provides the system balance, additional storage and resiliency needed for our existing customers as well as a growing population. We are seeing extreme climate variability and that means we need more options to safeguard a reliable water supply for 1.5 million people in Denver Water’s service area,” Lochhead said.
The design phase of the Gross Reservoir Expansion Project is expected to wrap up by mid-2021 and will be followed by four years of construction. The project involves the raising of the existing 340-foot-tall Gross Dam by an additional 131 feet, which will increase the capacity of the reservoir by 77,000 acre-feet, and includes 5,000 acre-feet of storage dedicated to South Boulder Creek flows that will be managed by the cities of Boulder and Lafayette.
“We are committed to working closely with the Boulder County community to ensure safety, be considerate neighbors and retain open, two-way communication channels during this construction project,” said Jeff Martin, program manager for the Gross Reservoir Expansion Project. “We will continue to seek community input on topics such as traffic control plans, hauling traffic schedules, tree removal plans, and other construction-related activities.”
The FERC order, along with the permitting conditions put in place by CDPHE and the Corps, further commits Denver Water to implement environmental improvements by putting in place measures evaluated in the environmental assessment issued in February 2018.
The project relies on the expansion of an existing footprint — without the placement of a new dam, reservoir or diversion structure; it also benefits from an original design that anticipated eventual expansion. Increasing the capacity of Gross Reservoir was a specific and formal recommendation from the environmental community as an alternative to construction of the proposed Two Forks Reservoir in the 1980s.
Denver Water has committed more than $20 million to more than 60 different environmental mitigation and enhancement projects that create new habitat and flow protections to rivers and streams on both sides of the Continental Divide as a result of the Gross Reservoir Expansion Project. According to Colorado officials, those commitments will have a net environmental benefit for the state’s water quality.
This project has earned the support of major environmental groups including Colorado Trout Unlimited, The Greenway Foundation and Western Resource Advocates; local, state and federal elected officials (including Colorado’s last five Governors); and major business and economic development groups, among others.
An expanded Gross Reservoir is critical to Denver Water’s multi-pronged approach — including efficient water use, reuse and responsibly sourcing new storage — to improve system balance and resiliency while contributing to water security for the more than 1.5 million people in the Denver metro area.
The FERC regulates the production of hydropower in the United States. As a Federal Power Act project dating back to 1954, expanding Gross Reservoir required the FERC’s approval of Denver Water’s application to amend its hydropower license. This approval and order carry the force of law and are the final federal authority over the reservoir project.
The Northern Integrated Supply Project moved a step closer to construction Wednesday when the Larimer County Planning Commission recommended approval of the reservoir storage project.
Four members of the volunteer planning board voted to recommend that the Larimer County Board of Commissioners approve a 1041 permit for the project that would include a new reservoir west of Fort Collins for water storage and recreation. Two voted against it, and the other three members stepped back from the decision because of perceived conflicts of interest.
Planning Commission member Curtis Miller, a Loveland resident, said he is convinced that the project meets all the criteria for the permit and will be a benefit for the entire region…
Drake resident Abbie Pontius, a member of the Planning Commission, also spoke in favor…
However, Nancy Wallace, chair of the Planning Commission and a Fort Collins resident, voted against the project. She said that the water primarily will benefit residents outside Larimer County, and the reservoir would draw unwanted and unneeded traffic to the region…
John Barnett, a Fort Collins resident on the Planning Commission, also voted against the project after saying he worries that it will affect water levels in the river downstream from Mulberry Street, particularly at several natural areas…
The main approval for the project will come from the U.S. Army Corps of Engineers, which after more than a decade of analysis, is expected sometime in 2020.
But the project also requires a 1041 permit from the county on issues including the pipeline, realignment of U.S. 287 and recreation. A 1041 permit allows the county to make requirements on certain aspects of the project that would affect county residents.
The Larimer County commissioners have the final say on the permit. That elected board has a public hearing scheduled over four consecutive Mondays starting Aug. 17. A final decision will come at the end of that hearing and will include consideration of the recommendation from the planning board…
The last night of the Planning Commission hearing, on Wednesday, included several representatives of Northern Water answering questions previously posed by members of the Planning Commission as well as response to public comments. Those include:
Stephanie Cecil, water resources engineer, and Brad Wind, general manager, both said they realized that Northern Water needs to do a better job reaching out to people who live near the proposed Glade Reservoir and associated pipeline. Both committed to doing better at reaching residents, especially those who live in the Eagle Lake subdivision through which the pipeline will run. “Based on what we heard at the last meeting we missed the mark,” Cecil said.
The reservoir and dam will be built in an area that includes the North Fork and Bellvue faults. Jennifer Williams, a civil engineer with AECOM, a consultant hired by Northern Water, stressed that both faults are considered inactive, meaning they have not shown movement in the last 1.3 million years. In fact, the most recent movement is estimated to be 30 million to 60 million years ago, Williams said.
The project would require a new route for a section of U.S. 287 northwest of Fort Collins. This new stretch of highway would be completed before the existing route is decommissioned, and construction of the highway would commence at the same time as construction begins on Glade Reservoir. A specific schedule depends upon the timing of permits that are still outstanding. The new route will be about 1.6 miles longer than the existing highway.
Northern Water also clarified that the NISP participants have committed to paying $16.35 million, or 75%, of the construction of recreation facilities on the land around Glade Reservoir. The remaining 25% would be paid by other partners. Those have not been determined yet but could include corporate sponsors, grants or even Larimer County, which is looking to manage recreation at the reservoir.
Wallace, who voted against the permit, disagreed with that piece, saying that she believes that boating at the proposed reservoir should be changed to wakeless only without motorboats, and that associated savings could reduce the costs potentially paid by Larimer County…
Miller and Jeff Jensen, another Planning Commission member from Fort Collins, strongly disagreed, saying that there is a demand for recreation including motorized boating. They said this added reservoir would help meet that need and provide a resource to Larimer County residents.
The initial proposal was that Northern Water and Larimer County pursue a 25-year recreation lease with the option for a 25-year renewal. At Jensen’s suggestion, the Planning Commission voted to recommend a 35-year lease also with the option for renewal to manage recreation at Glade Reservoir in the future.
Jensen, too, spoke strongly in favor of NISP and voted to recommend approval of the 1041 permit by the commissioners.
The Planning Commission voted 4-2 to recommend approval of the permit, with commissioners Nancy Wallace and John Barnett in opposition.
Commissioners said the long-debated project, which would provide water to 15 regional communities and water districts, would be a benefit to the county and the state.
Commissioner Curtis Miller said the proposal met all of the county’s criteria for approval…
The requested 1041 permit – named for the state law that grants local governments permitting authority over certain infrastructure projects – is for siting Glade Reservoir and its proposed recreational facilities, including a visitor center, campgrounds and boat ramps…
The permit also covers the routes of four pipelines needed to convey water from Glade, including one that would release water into the Poudre River to run through Fort Collins and another to take it out again for delivery to communities to the south.
As part of the project, Northern would build recreational facilities that would be managed by the Larimer County Natural Resources Department. The department manages recreation at Carter Lake and Horsetooth, Pinewood and Flatiron reservoirs…
Under a condition of approval added by the Planning Commission, the county would have a 35-year management agreement for recreation on the reservoir with an option for another 25 years. The condition was one of more than 80 recommended by the commission and county staff…
Representatives of Northern Water had answers for each of the objections, in part citing the exhaustive research and planning that went into a federal Environmental Impact Statement process for NISP that began in 2004.
NISP would pay $53 million to mitigate its impacts to wildlife and the environment, with more than 90% of that funding spent in Larimer County, Northern Water officials said.
NISP would provide 40,000 acre-feet of water annually to its participants, which include the Fort Collins-Loveland Water District and Windsor…
A decision of record on the Environmental Impact Statement for NISP is expected to be released this year by the U.S. Army Corps of Engineers. The project has received water quality certification from state regulators.
The Larimer County Board of County Commissioners has scheduled the following hearings on NISP:
6 p.m., Aug. 17 – Presentations only; no public testimony.
2 p.m. Aug. 24 (break from 5:30 p.m. to 6:30 p.m.)
3 p.m. Aug. 31 (break from 5:30 p.m. to 6:30 p.m.)
6:30 p.m. Sept. 2 – questions, final deliberation and decision
Testimony will be taken in person and online. Registration to speak will be available online beginning Aug. 3.
Speakers will be limited to 2 minutes each. Borrowing, lending or grouping time will not be allowed.
Click here to read the report. Here’s the Executive Summary:
The Upper Division States of the Colorado River Basin are currently investigating the feasibility of a potential Demand Management program. Demand Management is defined as temporary, voluntary, and compensated reductions in consumptive use. The Demand Management Storage Agreement, one element of the Drought Contingency Plan (DCP) finalized by the Colorado River Basin States in 2019, provides the authorization for the Upper Division States to store water created pursuant to a Demand Management program in Lake Powell. The water would only be used for Compact compliance purposes at the direction of the Upper Colorado River Commission. Whether a program is set up and how such a program would operate are still open questions. Each Upper Division State must make an initial determination that Demand Management is feasible before moving forward with creating a potential program.
The Colorado Water Conservation Board is Colorado’s agency charged with setting the State’s water policy, and is therefore the agency with authority to determine whether Demand Management is feasible for Colorado. Following adoption of the DCP in March 2019, the CWCB Board adopted the 2019 Work Plan to help guide the initial stage of this feasibility investigation, to take place in Fiscal Year 2019-2020. The Work Plan had three primary components: (1) establish workgroups comprised of subject-matter experts and key Colorado River stakeholders, which were directed to meet publicly at least four times in Fiscal Year 2019-20, and to identify key threshold issues for board consideration; (2) regional workshops designed to facilitate the public discussion around Demand Management and provide opportunities for CWCB staff updates on the feasibility investigation; and (3) continued education and outreach. In addition, the Board directed staff to facilitate a literature review, currently underway by consultants hired following a Request for Proposal process.
The purpose of this Report is to provide an update of work done pursuant to the 2019 Work Plan. This report will assist the CWCB Board in considering the key threshold issues associated with a potential Demand Management program. The purpose of the report is not to provide guidance on next steps of the feasibility investigation. However, it may help shape the discussions and decision-making about the next phases of Colorado’s feasibility investigation. While the complete report provides a full summary of workgroup discussions and other work, below is a summary of each workgroup’s main discussion points.
To encourage agricultural participation, a potential program must be viewed as equitable and proportional while remaining voluntary; furthermore, it must be adequately communicated that the potential program is necessary to achieve the objectives set out in the Upper Basin Drought Contingency Plan and will serve as an insurance policy against mandatory curtailment.
In designing a potential program, care must be given to program design to minimize and mitigate on-farm and off- farm agronomic impacts such as reductions in crop yield and soil erosion, including the provision of technical assistance and information; furthermore, the program should account for secondary economic impacts and evaluate potential benefits.
Non-injury to water right holders and non-participants is critical and can be achieved through the possible consideration of utilizing existing change of water use approval processes and providing additional mitigation expenses to agricultural water providers to account for potential operational impacts.
Structuring the potential program application, review, and the contracting process should consider alignment with the timing of when producers make critical operational decisions and allow for some operational flexibility; furthermore, payments should consider all potential impacts including both agronomic and operational changes.
In considering the design of a potential Demand Management program, current programs in place similar to a potential Demand Management program, such as the Federal Conservation Reserve Program and Colorado Fallow-Leasing Pilot Program should be further analyzed; furthermore, pilot and demonstration projects could be useful in better understanding potential impacts and effects of temporary irrigation reductions and should be explored with an effort to capture the potential diversity of projects.
Economic Impacts and Local Government
Any potential Demand Management program will be voluntary; those who do not wish to participate should not do so.
In designing any potential Demand Management program, the initial goal should be to “do no harm,” meaning to minimize and mitigate any adverse impacts to communities. A number of factors should be considered in analyzing this question, including but not limited to the type of water use, the duration of the Demand Management program, the length of individual project participation, and the geographic location and concentration of projects.
Any potential program should create benefits for individuals, the community, and the economy wherever possible. Potential benefits may include avoidance of Compact administration actions, increased revenue to local economies, environmental benefits, and opportunities to improve long-term management of water and land.
A number of process considerations should be taken into account when considering how to assure no harm is done to communities where possible, or mitigated if there is harm.
In operating a potential Demand Management program, the process should be transparent and collaborative.
Education and Outreach
Workgroup members identified many challenges in helping the State explore threshold questions related to communication, education, and outreach needs around a potential Demand Management program.
In lieu of assisting with a communication plan for the active “investigation” process or a future program, the workgroup focused their expertise around priority considerations should the CWCB elect to continue with feasibility, project pilots, or full program development.
While it is essential to develop a communications plan well before a Demand Management program is enacted, content substance is needed to proceed in which common terms are defined across workgroups and state partners, clear frames are developed to help unite messaging across stakeholder groups, and essential content from FY19- 20 workgroups are considered by CWCB and incorporated into an agreement on a Demand Management program’s general (initial/draft) shape.
At this stage, there is a branding problem, as different stakeholders have different ideas of what a program may look like, how it can be explained, and how often communication is carried to individuals’ direct communities.
This workgroup recommends immediate messaging discussions to identify shared priority framing. Several guiding examples are presented in the workgroup’s final deliverable.
Throughout the investigation, workgroup members identified the need to help stabilize communication chains, the need for extra transparency, and the need to maintain an open line for all users to communicate concerns and ideas to/from CWCB and to/from one another.
A Demand Management program could provide opportunities for projects with net environmental benefits that would not be available under potential Compact administration.
A Demand Management program should not harm the environment, should build in considerations to minimize adverse environmental effects, and should incentivize projects that provide net environmental benefits.
A Demand Management program should use the suggestions in the Environmental Considerations document to evaluate project environmental benefits and impacts without creating an unnecessarily burdensome process for applicants. The suggestions should also be used as part of the criteria to prioritize projects. Potential environmental benefits are location and project specific and would need to be evaluated on a case-by-case basis.
A Demand Management program should identify project impacts and benefits to environmental resources including changes to flow regimes, instream flows, water quality standards, critical habitat, management/planning documents, and conservation needs and strategies if evaluation tools are readily available and applicable (for a more detailed list of potential resources impacted, see Environmental Considerations document).
Research and data gaps exist for evaluating environmental benefits and impacts, such as information on changes to hydrology, return flows, and wetlands. Streamlined approaches and methods are needed to make these assessments.
The funding workgroup initially identified a number of questions to help frame the conversation around funding a potential Demand Management program, including how much funding would such a program require.
To help quantify potential funding needs, workgroup members discussed factors that could affect a Demand Management program and built scenarios around them.
The factors included: volume of water needed, cost of potential program (i.e. $/acre-foot), percent of water savings expected from a Demand Management program (versus funded investments in infrastructure), acute or chronic need, year by which water is needed, and reservoir storage options.
Workgroup members came up with a preliminary list of funding ideas noting that not one concept, but rather a portfolio (potentially paired with a reverse auction model) would be beneficial: statewide tax (income, sales, property), regional tax, statewide fee, Bureau of Reclamation contribution, hydropower user fee, export user fee (i.e. Front Range water user rate increase).
Even with a diverse portfolio, COIVD-19 fundamentally changed the calculus and workgroup members expect we will likely see transformations in many water use sectors and the larger economies of the Western US if hydrology continues to deteriorate and Compact Administration becomes necessary.
Law and Policy
There are several open legal and policy questions relating to a potential Demand Management program, and the conclusions drawn could impact how a program operates and whether it works within existing law. These key legal and policy issues include, but are not limited to:
Would participation in a potential program be considered a beneficial use under Colorado law? What is the definition of Compact compliance?
How is program eligibility determined?
How is conserved consumptive use defined for purposes of participation in a potential program?
What is the appropriate definition of “temporary” in the context of a potential Demand Management program?
What is the appropriate procedure for project review and approval?
Monitoring and Verification
Quantification, measurement, monitoring, and verification must be honest, accurate, and defensible.
Participation and monitoring and verification must be protective of other water users.
Participation must result in added water to the system.
Participation and monitoring and verification must be as simple, easy, and flexible as possible while still meeting the first three principles.
Water Rights Administration and Accounting
Any potential program should take into consideration the appropriate process for changing the use of a water right from its current use to Demand Management.
The question of whether Demand Management is a beneficial use of water should be considered before a potential program is established.
Changes in administration and accounting for storage should be considered in establishing a potential program.
Appropriate scrutiny for any program should be balanced against the need for ease and flexibility.
The Imperial Irrigation District has filed its opening brief in a case against the Metropolitan Water District of Southern California that it launched last year in an attempt to halt the implementation of the Lower Basin Drought Contingency Plan for the Colorado River. IID wants to see it paused until the Salton Sea is also considered.
The two behemoths in the world of Western water are locking horns in court over the plan, which is an agreement made between California, Nevada and Arizona to keep more water in Lake Mead, the man-made lake created by the Hoover Dam. Nearly 40 million people rely on water from the Colorado River system, but growing demand across the West and a warming climate are threatening the important waterway…
In its 38-page brief filed on July 8, IID attorneys argue that Metropolitan’s approval of the Drought Contingency Plan in March 2019 was improper because it did not include an environmental analysis conducted under the California Environmental Quality Act. IID asked the court to stop Metropolitan from acting on its plan until a CEQA review had been completed…
In a statement sent to The Desert Sun, Metropolitan General Manager Jeffrey Kightlinger said the the two water agencies already spoke about the Salton Sea when the Drought Contingency Plan was created.
“During that negotiation, we worked closely with IID to ensure that the agreement has no adverse impacts on the Salton Sea, as the water contributions made to Lake Mead will not affect the amount of water flowing into the sea,” Kightlinger said.
But in its court filing, IID questioned the math underpinning Metropolitan’s contribution to the Drought Contingency Plan, saying it “relied on statistical slight-of-hand” that needed to be studied further.
Between amendments to the plan in December 2018 and March 2019, Metropolitan said it would take over what had originally been IID’s responsibility to keep 250,000 acre feet of water in Lake Mead over the first two years when it eventually fell to the level that would trigger the Drought Contingency Plan. This was a “sudden and abrupt departure” from earlier decisions and cut IID out from the negotiations, the rural water agency alleged in its court filings…
The Coachella Valley Water District, the Palo Verde Irrigation District in Blythe and the city of Needles are also listed as interested parties on the brief, as they are the other three agencies within California that have rights to divert water from the Colorado River.
Ortega said Metropolitan has until September 25 to file its response.
Click here to read the report from the Energy and Policy Institute (Joe Smyth). Here’s the executive summary:
Burning coal to generate electricity consumes large quantities of water, which exposes the electric utilities that operate coal plants to water supply risks. Large coal plants consume millions of gallons of water each day, which can also lead to legal disputes and conflicts with other water users, increased costs when water supplies are disrupted, and other challenges. Those water conflicts and risks are magnified in the American West, where water supplies are already scarce and increasingly threatened by persistent drought and hotter temperatures driven by climate change.
Several utilities have recently announced plans to close coal plants that they operate in order to reduce costs and meet the expectations of their customers, regulators, and investors for a cleaner power supply. Those closures will free up large quantities of water, creating potential economic and environmental benefits while also raising questions among communities, utilities, and regulators over the fate of that newly available water.
Still, many coal plants in the Western U.S. do not yet have clear closure plans, and the utilities that operate them will continue to face water supply risks and conflicts.
Recent reports by Moody’s Investors Service and BlackRock have highlighted the growing risks of climate change impacts to electric utilities and the power plants they operate, including water supply risks and drought. Major electric utilities also acknowledge those risks; in filings with the Securities and Exchange Commission, the largest electric utilities and coal plant operators in the Western United States – including Xcel Energy, PNM, Arizona Public Service Company, Pacificorp, Talen Energy, and Tri-State Generation and Transmission Association – reported that drought in the region could disrupt water supplies consumed by their coal plants. Utilities that don’t disclose risks in SEC filings, like Basin Electric and Arizona G&T Cooperatives, have nevertheless faced water supply challenges at their coal plants.
Some parties propose keeping coal plants online by installing infrastructure to capture their carbon emissions. Carbon capture infrastructure nearly doubles the water consumption of a coal plant, significantly increasing the water supply risks for companies that pursue carbon capture instead of closing coal plants.
This report explores the water supply risks facing coal plants in the American West, and the conflicts and legal disputes over water that have already arisen between communities and the utilities that operate coal plants. We show how much water each coal plant in the Western U.S. consumed in recent years, and estimate how much more water each will consume until its closure. And we discuss key water supply risks facing particular coal plants in the American West, based on documents filed with the SEC and state utility regulators, annual reports, local news articles, and correspondence with utilities in the region. Those include legal disputes over water rights between Native American communities and utilities, increased water needs of a carbon capture proposal in New Mexico, groundwater consumption by coal plants in Arizona, the impacts of drought on coal plants in Colorado, Montana, and Wyoming, and more.
Cumulatively, 30 coal plants in Arizona, New Mexico, Colorado, Utah, Nevada, Montana, and Wyoming consumed 370,555,000,000 gallons [ed. 1,137,190 acre-feet] of water between 2014 and 2018, according to data published by the Energy Information Agency (EIA). On average, that amounts to more than 76 billion gallons of water each year, or 208 million gallons [ed. 638 acre-feet] each day. Coal capacity owned by Pacificorp consumed over 102 billion gallons of water between 2014 and 2018, 27% of the total and the most of any utility in the region.
Combining coal unit water consumption data with coal unit closure dates (announced as of July 2020) shows that coal plants in the Western U.S. could consume 886 billion gallons of water between 2020 and 2040. That figure could be reduced as more utilities announce additional coal plant closures, close coal units before their scheduled retirement dates, and operate coal plants less often.
Most coal plants in the Western U.S. consume surface water, including from the Colorado River, Yellowstone River, Green River, San Juan River, Laramie River, North Platte River, Arkansas River, Yampa River, San Miguel River, Cottonwood Creek, Sevier River, Huntington Creek, Hams Fork River, and the Bighorn River.
Nine coal plants consume groundwater, including in Arizona, Colorado, New Mexico, and Nevada, a practice that is rare outside of the Southwest. Two coal plants in Colorado consume reclaimed municipal water, which reduces but does not eliminate water supply risks. Three coal plants in Wyoming use dry cooling systems instead of water-cooled systems, which reduces water consumption but increases costs and air pollution.
Participants in a 12-year process to establish protections for a stretch of the upper Colorado River are calling the finished product — which amounts to a workaround of a Wild and Scenic River designation — a success.
Last month, the Bureau of Land Management and the U.S. Forest Service formally approved the “Amended and Restated Upper Colorado River Wild and Scenic Stakeholder Group Management Plan.” The plan lays out a blueprint for protecting the “outstandingly remarkable values,” or ORVs, of the Colorado River from Kremmling to Glenwood Springs, with an emphasis on recreational floatboating and fishing.
The ORVs must either be a unique, rare or exemplary feature located on the river or shoreline; contribute to the functioning of the river ecosystem; or owe their existence to the presence of the river. The plan seeks to balance these ORVs with water development and use by Front Range water providers and Western Slope water users.
To ensure protection of the ORVs, the plan includes voluntary cooperative measures that the participants could take, such as the strategic timing of reservoir releases, enhancing spring peak flows and agreements with water users to acquire water rights, which would be used to preserve the natural environment.
The plan includes a provision that addresses two big uncertainties that would lead to more transmountain diversions from the Colorado River: Denver Water’s Moffat Collection System Project and the Northern Colorado Water Conservancy District’s Windy Gap Firming Project. The “poison pill” provision would allow any stakeholder to withdraw support for the plan if those projects — which are still in the permitting phase and mired in litigation, and which would provide a combined 48,000 acre-feet of water for the Front Range — negatively impact streamflows, especially for boating.
Six interest groups — conservation/environment/fishing; local government; recreational floatboating; state interests; Front Range water users; and Western Slope water users — have been working on crafting the plan since 2008. The Eagle River Watershed Council has been involved as a stakeholder since 2013, said executive director Holly Loff.
“It’s really exciting, and what a huge collaborative effort this has been, and I can’t really think of other situations that have been larger in scope and larger in the number of collaborators and all with very diverse interests — and we found a way to make it work,” Loff said. “It’s an amazing feat, really.”
Opposition to W&S
The alternative management planning process came about after the BLM in 2007 found that 54 miles of the upper Colorado River from Gore Canyon to just east of No Name Creek in Glenwood Canyon possessed enough ORVs that they were eligible for a federal Wild & Scenic River designation. Created by an act of Congress in 1968, the National Wild and Scenic Rivers System seeks to preserve rivers with outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic and cultural values in a free-flowing condition.
There are two ways that a river can be designated as Wild & Scenic: The secretary of the Interior can designate a river if a state governor requests it or Congress can designate a river, usually after a land-use agency conducts a study to see whether it’s eligible.
Designation as Wild & Scenic brings protection from development. For example, new dams cannot be constructed on the designated stretch and federal water-development projects that might negatively affect the river are not allowed.
But the possibility of federal government involvement and potential restrictions on water development on the upper Colorado doesn’t sit well with some groups. Municipal water providers such as Denver Water and Northern Water divert water from the Colorado’s headwaters to Front Range cities.
“A lot of members of the water community find the idea of a Wild & Scenic designation kind of frightening and prohibitive,” said Colorado Water Conservation Board Stream and Lake Protection Section Chief Linda Bassi. “It would prevent potentially new reservoirs along a Wild & Scenic river (and) certain types of structures, and that is why the water community has typically been a little leery of Wild & Scenic designation.”
In 2009, the Colorado General Assembly established the Wild and Scenic Rivers Fund. Despite what its name suggests, the fund is not dedicated to establishing Wild & Scenic designations of rivers, but to avoiding the federal designation through “work with stakeholders within the state of Colorado to develop protection of river-dependent resources as an alternative to wild and scenic river designation.”
The Upper Colorado River Wild and Scenic Stakeholder Group has been the recipient of money from the state fund, which is allocated up to $400,000 a year and administered by the Colorado Water Conservation Board. According to a CWCB memo from May, when staff reviews requests for these funds, they evaluate whether projects will promote collaboration among traditional consumptive water interests, including irrigation, and non-consumptive interests, including recreation and the environment, and whether the project will still enable Colorado to fully use water it is allocated.
“If we tried to go through designation, we don’t know if it would have ever made it past the state of Colorado,” said Kay Hopkins, outdoor recreation planner for the White River National Forest. “The state would have had to be supportive of our determination.”
Despite its renowned river rafting, fishing and scenic beauty, which contribute to the recreation-based economy of many Western Slope communities, Colorado has just 76 miles of one river — the Cache La Poudre — designated as Wild & Scenic. That’s less than one-tenth of 1% of the state’s 107,403 river miles.
Instead of a federal designation, the CWCB considers its instream-flow program to be a primary tool in the effort to protect ORVs. Instream flows are in-channel water rights aimed at preserving the natural environment to a reasonable degree. As a part of the alternative management plan process, the CWCB secured three instream-flow rights that date to 2011 on the upper Colorado River — from the confluence of the Blue River to Piney River; from Piney River to Cabin Creek; and from Cabin Creek to the confluence with the Eagle River.
Bassi, who runs the state’s instream-flow program, has participated in the state interests group since planning began in 2008.
“Those flow rates are designed primarily to meet the needs of fish,” Bassi said. “But they will help to maintain flows that provide for some levels of boating experiences.”
The Forest Service and BLM approval of the alternative management plan means that the stretch of the upper Colorado River has been deferred from Wild & Scenic eligibility. But if the plan fails or any of the stakeholders enact the “poison pill” provision, the river could revert to being considered for eligibility, meaning it would once again be up for federal scrutiny, something some stakeholders want to avoid.
“That is the hammer behind the long-term commitments,” said Rob Buirgy, coordinator for the stakeholder group.
Eagle County Commissioner and Colorado River Water Conservation District Board member Kathy Chandler-Henry believes the strength of the alternative management plan is the input of its many participants.
“My first thought was the alternative management plan must be a lesser system of protection, but in my mind, it has not turned out to be that way because there are so many players at the table,” she said. “It doesn’t seem like a lesser process. It seems like a more publicly engaged process.”
Loff was more pragmatic.
“I don’t think (the alternative management plan) is better, but I don’t know that this group ever would have agreed to a standard Wild & Scenic designation. I don’t think that would have happened at all,” she said. “I think it’s better that we have this.”
Aspen Journalism is collaborating with the Aspen Times and other Swift Communications newspapers on coverage of water and rivers. This story was published online and printed in the Aspen Times on July 11, 2020.
The U.S. Forest Service has been inundated with more than 500 online comments — the vast majority in opposition — to a geophysical study and drilling by the cities of Aurora and Colorado Springs to determine the feasibility of a second reservoir in the Homestake Creek drainage, including objections from nearby towns and a local state senator.
The geophysical study and the drilling are the next step in the lengthy process of developing a reservoir on lower Homestake Creek.
The mayors of Red Cliff and Minturn signed and submitted separate but identical letters questioning the legality of drilling 10 boreholes on Forest Service land near the Holy Cross Wilderness Area, which is six miles southwest of Red Cliff, to see whether soil and bedrock can support a dam for what would be known as Whitney Reservoir. Avon’s attorney has asked for a public comment extension to Aug. 4 so that it can hold a hearing.
“A Whitney Reservoir would irreparably change and harm our community,” Minturn Mayor John Widerman and Red Cliff Mayor Duke Gerber wrote in their letters, submitted June 30. “We are paying close attention to these proposals, other moves by Homestake Partners and the public controversy. This categorical exclusion is rushed, harmful and unlawful.”
Operating together as Homestake Partners, the cities of Aurora and Colorado Springs own water rights dating to the 1950s that, under the 1998 Eagle River Memorandum of Understanding (MOU), give them the basis to pursue developing 20,000 acre-feet of water a year from the Western Slope. They’ve been studying four potential dam sites in the Homestake Valley several miles below the cities’ existing Homestake Reservoir, which holds 43,600 acre-feet of water.
The smallest configuration of Whitney Reservoir, if deemed feasible and ultimately approved, would be 6,850 acre-feet, and the largest would be up to 20,000 acre-feet. The reservoir, on lower Homestake Creek, would pump water up to Homestake Reservoir, about five miles upstream, then through a tunnel under the Continental Divide to Turquoise Reservoir near Leadville.
In 2018, Homestake Partners paid $4.1 million for 150 acres of private land, which it leases back to the former owner for a nominal fee. That land, which would be inundated to accommodate a large portion of Whitney Reservoir’s surface area, is braided with streams and waterfalls and is lush with fens and other wetlands. It’s also home to a cabin once used as an officers quarters for the famed 10th Mountain Division of the U.S. Army. The site is not far from Camp Hale, between Red Cliff and Leadville, where soldiers trained for mountain warfare during World War II.
Eagle River MOU
The Eagle River MOU is an agreement between Aurora and Colorado Springs and a bevy of Western Slope water interests. The Colorado River Water Conservation District, Eagle River Water & Sanitation District, Upper Eagle Regional Water Authority, and Vail Resorts are collectively defined in the MOU as the Reservoir Company. None of those entities submitted comments to the Forest Service on the drilling proposal. And according to Diane Johnson, communications and public affairs manager for the ERWSD and UERWA, none are helping to pay for the feasibility study and none are involved in the reservoir project, except to the degree that it is tied to the MOU.
The MOU provides for 20,000 acre-feet of average annual yield for the cities. “Yield” refers to a reliable supply of water. In some cases, yield equates to storage in a reservoir, but yield can also be created by other methods, such as pumping water uphill from a smaller, refilled reservoir, which is an option being studied by the cities on lower Homestake Creek. The MOU also provides for 10,000 acre-feet of “firm dry year yield” for the Western Slope entities in the Reservoir Company, and firm dry year yield means a reliable supply even in a very dry year. Those entities have developed about 2,000 acre-feet of that allocated firm yield in Eagle Park Reservoir, and it’s not yet clear whether the Whitney Reservoir project would help them realize any additional yield.
“The short answer is we support (Homestake Partners’) right to pursue an application for their yield,” Johnson said. “We trust the permitting process to bring all impacts and benefits to light for the community to consider and weigh in total.” .
Jim Pokrandt, director of community affairs for the River District, declined to comment on the investigatory test work, saying only, “Yes, we have signed the MOU. That said, … we are not participating in the Whitney Creek effort.”
Besides Homestake Partners and the Reservoir Company, the MOU was signed by the Climax Molybdenum Company. The two private companies signed onto the MOU — Vail Resorts and Freeport-McMoRan (Climax) — also declined to comment on either the drilling study or Whitney Reservoir.
Under the MOU, various parties can pursue projects on their own, and the other parties are bound to support those efforts, but only to the degree that a proposed project meets the objectives of the MOU, including whether a project “minimizes environmental impacts.”
Many of the 520 online comments as of the June 30 deadline objected to testing for the possibility of a dam, expressing concern for the complex wetlands in the area, but most of the comments also strongly condemn the overall project: a potential future Whitney Reservoir.
The cities are trying to keep the focus on the test drilling.
“This is simply a fatal-flaw reservoir siting study that includes subsurface exploration, and it’s basically just to evaluate feasibility of a dam construction on lower Homestake Creek,” said Maria Pastore, Colorado Springs Utilities’ senior project manager for water resource planning. “It’s simple exploratory work to determine if we can even go ahead with permitting and design.”
Marcia Gilles, acting ranger for the Eagle-Holy Cross District, said her office will continue accepting comments at any time during the ongoing analysis of the geophysical study despite the June 30 deadline. She added that if the Forest Service concludes there are no “extraordinary circumstances,” she can render a decision using what is known as a categorical exclusion and then issue a special-use permit as soon as August. A categorical exclusion requires less environmental scrutiny than other forms of analysis.
“At this time, the proposed action appears to be categorically excluded from requiring further analysis and documentation in an environmental assessment (EA) or environmental impact statement (EIS),” Gilles said. “Should the environmental analysis find extraordinary circumstances, the Forest Service would proceed to analyzing the project in an EA or EIS.”
State Sen. Kerry Donovan, a Vail Democrat, disagrees. She wrote to the Forest Service on June 30: “I … strongly urge you not to categorically exclude this project from (National Environmental Policy Act) analysis. I cannot express how sternly the citizens of my district oppose water diversion projects to Front Range communities.” Her district encompasses seven Western Slope counties, including Eagle, where the dam would be located.
Donovan called the proposed investigation — which would require temporary roads, heavy drilling equipment, continuous high-decibel noise, driving through Homestake Creek and use of its water in the drilling process — an affront to the “Keep It Public” movement, which advocates for effective federal management on public lands.
If approved by the Forest Service for a special-use permit, Homestake Partners would send in crews on foot to collect seismic and other geophysical data later this summer or fall. Crews with heavy equipment would then drill 10 boreholes up to 150 feet deep in three possible dam locations on Forest Service land. The drilling would take place on Forest Service land but not in a wilderness area.
Crews would use a standard pickup truck, a heavy-duty pickup pulling a flatbed trailer, and a semi-truck and trailer that would remain on designated roads and parking areas, with some lane closures of Homestake Road and dispersed campsites possible.
For off-road boring operations, crews would use a rubber-tracked drill rig, a utility vehicle pulling a small trailer, and a track-mounted skid steer. The drill rigs are up to 8 feet wide, 22 feet long and 8 feet high, and can extend up to 30 feet high during drilling, possibly requiring tree removal in some areas. The rigs would also have to cross Homestake Creek and some wetland areas, although crews would use temporary ramps or wood mats to mitigate impacts.
According to a technical report filed by Homestake Partners, the subsurface work is expected to take up to five days per drilling location, or at least 50 days of daytime work only. However, continuous daytime noise from the drilling could approach 100 decibels, which is equivalent to either an outboard motor, garbage truck, jackhammer or jet flyover at 1,000 feet. If work is not done by winter, crews have up to a year to complete the project and could return in 2021.
The drilling process would use several thousand gallons of Homestake Creek water per day that engineers say “would have negligible impacts on streamflow or aquatic habitat. Water pumped from Homestake Creek during drilling would amount to less than 0.01 (cubic feet per second), a small fraction of average flows,” according to a technical report included with application materials.
Homestake Partners would avoid wetlands as much as possible during drilling, but “where temporary wetland or waters disturbance is unavoidable, applicable 404 permitting would be secured from the U.S. Army Corps of Engineers.” Crossing of Homestake Creek would occur in late summer or fall when streamflows are low, and no drilling would occur in wetlands.
While no permanent roads would be built for the drilling, temporary access routes would be necessary and reclaimed as much as possible.
“Access routes would be selected to reduce surface disturbance and vegetation removal, and to avoid identified or potential unexploded ordnances (UXOs) discovered during field surveys,” according to the technical report. The 10th Mountain Division used the area for winter warfare training during WWII.
Another concern cited in the report is the potential impact to Canada lynx. Listed as threatened under the Endangered Species Act, “only Canada lynx has potential habitat in the vicinity of the project area,” according to the report. “No impacts on lynx are anticipated from the proposed work because much of the activity would occur near Homestake Road, a well-traveled recreation access road. Work would be conducted over a short period (approximately five to six weeks) and impacts on potential habitat would be negligible.”
The vast majority of comments from a variety of environmental groups and concerned citizens focused on potential impacts to the area’s renowned wetlands and peat-forming fens, which the project proponents say they will avoid as much as possible. So far, Gilles said she is not aware of any legal challenges to the project.
“Geophysical exploration has an obvious significant nexus and direct relation to additional future actions, i.e., dam construction, which may in time massively impact the Eagle River watershed — regardless of whether the future actions are yet ripe for decisions,” ERWC officials wrote.
Even if the test drilling returns favorable results for a reservoir project, there is another obstacle that Homestake Partners will have to clear if they want to move forward with two iterations of the project: a wilderness-boundary change, which would require an act of Congress and the president’s signature.
The Whitney Reservoir alternatives range from 6,850 to 20,000 acre-feet and in some configurations would require federal legislation, which the cities are working to draft, requesting a boundary adjustment for the nearby Holy Cross Wilderness Area. The largest Whitney proposal would require an 80-acre adjustment, while an alternative location, lower down Homestake Creek, would require a 497-acre adjustment.
White River National Forest Supervisor Scott Fitzwilliams discounts the notion that his agency should reject outright the test-drilling application, as some environmental groups have suggested, until the wilderness-boundary issue is determined. Although some local and state lawmakers have said they are against shifting a wilderness boundary, Fitzwilliams said it’s still too soon for him to take up the wilderness issue.
“These are test holes,” Fitzwilliams said of the drilling, which is intended to see whether the substrata are solid enough for a dam and reservoir. “Going to get a (wilderness) boundary change is not a small deal for them, so why would you do it if you find fatal flaws? That’s a red herring.
“I understand it; nobody wants to see a dam in the Homestake drainage. I get that. But it just seems prudent to do (the drilling) to see if there’s any reason to go further.”
Aspen Journalism is collaborating with the Vail Daily and other Swift Communications newspapers on coverage of water and rivers. This story was published online by Vail Daily on July 9, 2020 and in its print edition on July 10. The early online version of the story was edited to clarify aspects of the Eagle River MOU.
Dozens of in-person and remote speakers aired their concerns about the proposed $1.1 billion water storage and delivery project, which would include building Glade Reservoir northwest of Fort Collins.
Issues raised about the massive project proposed by Northern Water included the ecological impacts of drawing water from an already heavily used Poudre River to store in the reservoir, the routing of pipelines that would carry water to participating communities, and the effects construction of the reservoir and pipelines would have on nearby communities…
A decision of record on the Environmental Impact Statement for NISP is expected to be released this year by the U.S. Army Corps of Engineers. The project has received water quality certification from state regulators…
The Planning Commission is considering an application from Northern Water for a 1041 permit — named for the state law that grants local governments permitting authority over certain infrastructure projects — for the siting of the reservoir and associated recreational facilities, including a visitor center, boat ramps and campgrounds. The permit also covers the routes of four pipelines needed to convey water from Glade.
Commission members heard presentations on the reservoir and pipelines from county staff members and Northern Water on June 24. Wednesday’s four-hour hearing was dedicated to taking public comment.
Of the approximately 40 people who spoke individually or as the representative of a group, only one spoke in favor of NISP. The county has received several hundred emails from residents opposing the project…
Northern Water has said the dam site is safe and structures will be designed to withstand seismic activity and soil shifts.
Residents of the Eagle Lakes subdivision blasted the proposed routing of a pipeline from Glade through their neighborhood that would connect with another pipeline near the county line and carry water south.
Northern Water would likely have to use its eminent domain power to get the 100-foot easement it wants for constructing the pipeline, said Eagle Lake resident Mark Heiden…
He said alternative routes through open land are available if Northern Water were willing to pay the additional cost, which he estimated at $3 million.
Area homeowners complained they would have to endure many weeks of disruption from construction activity and loss of use of their property because of the easements.
Northern Water has said it would pay property owners fair market value for easements and restore disturbed land to pre-construction condition or better.
Several speakers compared the proposed pipeline to the city of Thornton’s plan to run a massive pipeline along Douglas Road. The proposal was fought by No Pipe Dream and others.
The county commissioners rejected Thornton’s proposed route last year. Thornton has sued the county in District Court over the decision…
The Planning Commission continued its hearing to July 15, when members will hear additional information from staff and Northern Water before deliberating on its recommendation on a permit to the county commissioners, who will decide whether to grant the permit.
The commissioners have scheduled multiple hearings on the permit application for NISP in August.
After the public comment was completed, planning commissioners listed several questions they want addressed by county staff or Northern Water at the next meeting. The questions reflected issues brought up during public comment, including whether Northern Water has sufficient water rights to fill the reservoir and provide recreational opportunities.
Northern Water has said boating would be possible on the reservoir 90% of the time.
Commission member Nancy Wallace said she wants to hear more about how plans for the project address climate change and other “big picture” issues…
The Larimer County Planning Commission is scheduled to have its final meeting on NISP beginning at 6 p.m. July 15 at the County Courthouse Offices Building, 200 W. Oak St. in Fort Collins.
Attendance will be limited to 50 people because of COVID-19 restrictions on gatherings.
The planning commission will make a recommendation on a permit for NISP to the Board of County Commissioners, which will decide on the application.
Hearings by the commissioners are scheduled:
6 p.m., Aug. 17 – Presentations only; no public testimony.
2 p.m. Aug. 24 (break from 5:30 p.m. to 6:30 p.m.)
3 p.m. Aug. 31 (break from 5:30 p.m. to 6:30 p.m.)
6:30 p.m. Sept. 2 – Questions, final deliberation and decision
Speakers will be limited to 2 minutes each. Borrowing, lending or grouping time will not be allowed.
Charismatic is hardly the best word to describe the humpback chub, a fish with a frowny eel face jammed onto a sportfish body in a way that suggests evolution has a sense of humor. Nor did tastiness build a fan base for this “trash fish” across its natural habitat throughout the Colorado River Basin. But, in 1973, the humpback chub became famous by winning federal protection under the Endangered Species Act.
Researchers in the Grand Canyon now spend weeks at a time, several times a year, monitoring humpback chub, which has become central to an ecosystem science program with implications for millions of westerners who rely on Colorado River water…
…the humpback chub’s experience is surprisingly meaningful now, as its river habitat deep in the iconic, redrock canyon becomes the subject of new scrutiny. New negotiations about the Colorado’s future begin later this year in a world that has fundamentally changed since foundational water agreements were drawn up, back when the river was flush and the entire basin was treated like a giant network of irrigation ditches.
Now, nearly a century after the original Colorado River Compact was forged, river stakeholders also find themselves in alien terrain as they try to reconcile an old management scheme with new realities, such as tribal rights, environmental protection and, especially, climate change.
‘The Pie is Getting Smaller.’
About 40 million people in seven states and Mexico rely on the Colorado for irrigation, drinking and even hydropower. Most of the water is used in agriculture to irrigate more than 5.5 million acres.
Meanwhile, the Colorado is shrinking. Average river flows have dropped 19 percent over the last century. About half of the decline is blamed on global warming, and scientists project that unchecked climate change could nearly triple flow reductions by the century’s end. Meanwhile, basin tribes want to tap into allocations they haven’t been able to use because they lack means to store and pipe the water.
And thanks to research mandated by the 1992 Grand Canyon Protection Act, the fate of the chub and the canyon ecology are factors that will also need to be considered in the yet-to-be-scheduled negotiations. Ultimately, everyone’s worried about losing their share of the Colorado River, of going home with partly empty buckets because there’s just not enough water to go around…
Water Rights: A Dramatic Struggle
The U.S. Interior Department must begin updating plans for managing the river, and convene all the states that rely on it, by the end of the year under the Colorado River Interim Guidelines, one of the agreements that determine how much water is allocated for each stakeholder to use or develop.
Like everything about Colorado River management, it’s legally complex and controlled by a deeply entrenched power structure involving the seven basin states, the federal Bureau of Reclamation and established users in agriculture and municipalities that have assigned positions in the line to the spigot—spots known as “water rights.”
But even the guidelines, which were implemented in 2007, have fallen short in the new, drier West. Last year, Congress approved a pair of Drought Contingency Plans, requiring varying levels of conservation to be implemented, state-by-state, whenever water levels sank too low at Lake Powell or Lake Mead, the ginormous storage reservoirs for Colorado River water. Both lakes dropped to emergency levels within months.
The original compact guarantees certain water volumes to the lower basin states—Arizona, Nevada and California. The upper basin states—Wyoming, Utah, Colorado and New Mexico—historically haven’t used all of their allocations but plan to develop theirs, too. For example, Utah is pressing forward with a multibillion-dollar project to pipe 86,000 acre feet halfway across the state to the fast-growing southwestern part of the state. A diversion of water from the Utah-Wyoming border to Colorado’s populous Front Range—killed and resurrected so many times it’s called the “zombie pipeline”—would use 55,000 acre feet.
Still, Schmidt said: “I am actually very hopeful. I believe that climate change and the real need to renegotiate agreements have brought us together.”
The role of global warming as a motivator for revisiting the water allocations probably can’t be overstated. The average temperature in the Southwest has already risen twice as fast as the global average and future temperatures are projected to increase as much as 9.5 degrees Fahrenheit by 2100.
Climate change is just one reason Daryl Vigil, water director for the Jicarilla Apache Nation and interim director of the Ten Tribes Partnership, is determined to see tribes at the table in the next round of negotiations. He says the 29 basin tribes have priority rights to about 20 percent of the Colorado River’s water but were snubbed by current users from past Colorado River talks.
“The system is going to protect itself, to perpetuate what it already does because it benefits those who already are doing okay,” he said. “Familiar story, right?”
The exclusion, which amounts to environmental racism, means tens of thousands of indigenous people have not been able to access their water and tap into the associated economic opportunities, such as selling their water rights and using the water for energy projects, he said. Instead, other stakeholders are using tribal water without paying for it.
Another reason the tribes should be part of the decision making, he said, is because of their experience—thousands of years of dealing with water scarcity in the region—and their cultural views about the environment belong in any critical conversations about the Colorado. Otherwise the future looks “pretty catastrophic to us,” Vigil told High Country News this spring.
“When we start talking about climate change,” he said, “absolutely pushing to make sure that we’re thinking about a mindset of how we fit into Nature, rather than Nature fitting into us.”
[John] Fleck said the people deciding the basin’s fate need information about the tradeoffs. And data from Grand Canyon research will help them understand not only how to preserve a “sacred space” in American culture but also how to continue relying on a resource essential to the West.
Forty years after the Holy Cross Wilderness Area was created, an early effort to explore tapping its water supplies has generated more than 500 comments to the U.S. Forest Service.
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 first, they are asking 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. The public comment period closed June 30, although the Forest Service said it will continue to accept comments.
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 permit request is already building, with the Holy Cross Wilderness Defense Fund threatening legal action to stop the surveying and drilling of test holes into soils, according to comments submitted to the Forest Service.
Also opposing the process, among others, is Colorado state Sen. Kerry Donovan, who represents several West Slope counties. “Our wilderness areas are afforded the highest levels of protection and to begin action that disturbs them today begins a process of destroying them forever,” she said. [Editor’s note: Donovan is on the Board of Trustees of Water Education Colorado, which sponsors Fresh Water News].
In addition, she wrote, “With drought conditions becoming the new normal…it is imperative we protect high altitude water resources and keep each drop in the basin it was born in.”
The Eagle River is a tributary to the drought-stressed Colorado River, whose flows have already begun a serious decline.
Jerry Mallet is president of Colorado Headwaters, an environmental advocacy group. The fight to stop the proposal, he said, “will be as big as the Two Forks fight was several years ago,” referring to the successful effort to stop Two Forks Reservoir from being built on the South Platte River in 1990.
Aurora and Colorado Springs point to their legal obligations to develop a project that serves multiple interests, and which also protects the environment, while ensuring their citizens have access to water in the future.
“The studies…will provide the factual data necessary to identify and evaluate feasible reservoir alternatives to provide critical water supplies for human and environmental purposes,” said Colorado Springs spokesperson Natalie Eckhart. “We recognize the necessity to partner with other agencies throughout this process and are committed to working collaboratively with other communities and agencies to best manage our shared water resources.”
The 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. Aurora and Colorado Springs hope to develop 33,000 acre-feet of water, an amount roughly equal to that used annually by 66,000 homes.
Under the proposal, Aurora and Colorado Springs would receive 20,000 acre-feet, West Slope interests would receive 10,000 acre-feet, and 3,000 acre-feet would be set aside for the Climax Molybdenum Company.
Parties to the 1998 agreement include Aurora, Colorado Springs, the Colorado River District, the Eagle River Water and Sanitation District, the Upper Eagle River Water and Sanitation District, as well as Vail Associates.
Diane Johnson, spokesperson for the two Eagle River districts, said the agencies haven’t yet taken a position on the proposal, citing the need for the analysis required for the special use permit as well as any actual construction of a reservoir to be completed.
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 opponents successfully took their case 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 project that is now being proposed to the Forest Service.
To submit your comments or to get more information about the survey and drilling proposal, visit this U.S. Forest Service’s web page.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at email@example.com or @jerd_smith.
The silence you are hearing is no one being surprised.
The limits of the phrase “waters of the United States” within the Clean Water Act (CWA) have been the subject of conflicting, confusing, and often divergent case law for decades, and the efforts of the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) to issue new rulemakings beginning in the Obama administration have only led to a deeper legal quagmire. The most recent effort to redefine the term, the Navigable Waters Protection Rule (2020 WOTUS Rule) is already subject to conflicting court decisions, and split implementation.
The contrary decisions were both handed down on June 19, 2020 in the United States District Court for the District of Colorado and in the United States District Court for the Northern District of California. The Colorado decision granted the state’s request for a preliminary injunction preventing the implementation of the 2020 WOTUS Rule in Colorado. The California decision considered and rejected a similar request for nationwide injunction by seventeen states.
Colorado’s decision turned on an analysis of the U.S. Supreme Court Decision in Rapanos v. United States, 547 U.S. 715 (2006). Noting that is difficult to ascertain what the 4-1-4 Rapanos decision actually stands for, the Colorado district court looked at what it stands against. Five justices in Rapanos were expressly opposed to the categorical exclusion of intermittent and ephemeral streams from Clean Water Act protection that was proposed by the plurality opinion of Justice Scalia. Because the 2020 WOTUS Rule attempts to codify what the Supreme Court has already rejected as “inconsistent with the [CWA’s] text, structure, and purpose” (see Rapanos at 776), the judge concluded that Colorado is likely to succeed on the merits, and granted the requested injunction.
The California decision came to the opposite conclusion, relying heavily on the inherent ambiguity of the term “navigable waters” within the CWA. Citing Chevron U.S.A. v. NRDC, Inc. 467 U.S. 837 (1984), the court believed deference was due to the agencies when implementing ambiguous terms in a statute. The district court also noted that under National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), an agency reversing itself regarding the interpretation of an ambiguous term is not automatically cause for denying Chevron deference. Moreover, the district court noted that a “court’s prior judicial construction of a statute [read: Rapanos] trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Brand X at 982. The court could not construe any proposition from the fractured Rapanos opinions as following unambiguously from the terms of the CWA, and thus concluded that the plaintiffs had not carried their burden of showing a likelihood of success on the merits. The broader injunction requested by the plaintiffs was denied.
From email from the Colorado Water Conservation Board (Rob Viehl):
The CWCB staff is working on revisions to the Rules Concerning Colorado’s Instream Flow and Natural Lake Level Program (“ISF Rules”). The revisions to the ISF Rules will: (1) address the rulemaking requirements of HB20-1157; (2) update a reference to the CWCB’s website; and (3) update references to Colorado Parks and Wildlife.
Staff will hold a virtual stakeholder meeting on Monday, August 3, 2020 from 1:00 p.m. – 4:00 p.m. to discuss the draft ISF Rules revisions.
A draft of the revised ISF Rules and information on how to access the meeting will be sent out prior to the meeting. If you have questions, contact Linda Bassi at firstname.lastname@example.org or (303) 917-5916.
FromThe Associated Press (Susan Montoya Bryan) via The Durango Herald:
One of New Mexico’s largest drinking water providers will stop diverting water from the Rio Grande to help prevent the stretch of the river that runs through Albuquerque from going dry this summer, officials said Tuesday.
The Albuquerque Bernalillo County Water Utility Authority said the curtailment is expected to last until the fall as the utility switches to using groundwater exclusively over the summer to provide drinking water to customers in the metro area.
While the river’s dwindling levels aren’t expected to force mandatory restrictions on water use in the Albuquerque area…
Carlos Bustos, the authority’s conservation manager, said water use is up by more than 1 billion gallons over last year. He said that’s not unexpected because 2019 was a wet year and demands were lower…
Officials are blaming poor runoff for the river conditions. While the snowpack was decent going into April, it was essentially gone the next month and very little had made its way down the tributaries and to the river.
Water management and irrigation agencies have been supplementing the river with water from upstream storage to meet demand since the spring.
The federal Bureau of Reclamation started the year with about 20,000 acre-feet of leased water from San Juan-Chama Project to supplement flows for the endangered Rio Grande silvery minnow. Agency spokeswoman Mary Carlson said Tuesday they were forced to start releasing that water in April due to the low runoff and are now down to about 12,500 acre-feet for the remainder of the season.
“We’ve leased or are in the process of leasing everything available to use this year,” she said. “We are working closely with our biologists and our partners and attempting to put the limited supply of water available into the river in areas where it’s most beneficial to the silvery minnow.”
Carlson said the monsoon season is going to have to materialize “in a big way” to avoid intermittency or drying in the Albuquerque reach.
The Albuquerque water authority said it will continue to release surface water from Abiquiu reservoir in northern New Mexico to help keep Albuquerque’s stretch wet. The utility is required by the state to cease drinking water diversions when native river flows at the Central Avenue bridge reach 122 cubic feet per second or lower. That’s expected to happen later this summer.
Federal officials say the utility’s move will help take pressure off the river.
As is typical, some stretches of the river further south already are dry.
Some experts have predicted that this summer’s flows could be the worst in decades…
Gov. Michelle Lujan Grisham issued an executive order June 15 declaring that drought and severe fire conditions exist throughout the state. In addition to the concern over surface water supplies, The order highlighted the fire restrictions put in place by state and federal agencies and called on municipalities to do the same with regards to fireworks ahead of the 4th of July holiday.
The latest federal drought map shows about three-quarters of the state are dealing with some form of drought, with the area along the New Mexico-Colorado border seeing the most extreme conditions. Swaths of moderate to severe drought also are covering parts of northwestern and eastern New Mexico.
While the region is on the verge of the summer rainy season, forecasters have cautioned that this year could see close to or below average rainfall while temperatures will range from slight above to above average.
As the Colorado basin grapples with climate change, shortages and declining reservoir levels, we revisit one of the critical legal milestones in the evolution of “the Law of the River.”
As Utah pushes forward with its proposed Lake Powell Pipeline – an attempt move over 80,000 acre feet per year of its Upper Colorado River Basin allocation to communities in the Lower Basin – it is worth revisiting one of the critical legal milestones in the evolution of what we have come to call “the Law of the River.”
The division of the great river’s watershed into an “Upper Basin” and “Lower Basin”, with separate water allocations to each, was the masterstroke that allowed the successful completion of the Colorado River Compact in 1922. But the details of how that separation plays out in water management today were not solidified until a little-discussed U.S. Supreme Court ruling in 1955, in the early years of the decade-long legal struggle known as “Arizona v. California.”
Most, if not all, of the small army of lawyers, engineers, water managers, board members, academics, tribal officials, NGO representatives, and journalists now actively engaged in Colorado River issues are familiar with the 1963 Arizona v. California Supreme Court decision. It was Arizona’s great legal victory over California that cleared the road for the Congressional authorization and construction of the Central Arizona Project (CAP). Many in the ranks are also quite familiar with Simon H. Rifkind, the court-appointed Special Master who conducted lengthy hearings and worked his way through a mountain of case briefs and exhibits before writing his 1960 master’s report that set the stage for the court’s decision. Few of us, however, are familiar with George I. Haight. Haight was the first special master in the case, appointed on June 1st, 1954. He died unexpectedly in late July 1955. Two weeks before his death he made a critical decision that was upheld by the Supreme Court and set the basic direction of the case. Today, as the basin grapples with climate change, shortages, declining reservoir levels, and most recently, Utah’s quest to build the Lake Powell Pipeline exporting a portion of its Upper Basin water to the Lower Basin to meet future needs in the St. George area, Haight’s forgotten opinion looms large.
In late 1952 when Arizona filed the case, it was about disputed issues over the interpretation of both the Colorado River Compact and the Boulder Canyon Project Act. Among its claims for relief, Arizona asked the court to find that it was entitled to 3.8 million acre-feet under Articles III(a) & (b) of the compact (less a small amount for Lower Basin uses by New Mexico in the Gila River and Utah in the Virgin River drainages), that under the Boulder Canyon Project Act California was strictly limited to 4.4 million acre-feet per year, that its “stream depletion” theory of measuring compact apportionments be approved, and that evaporation off Lake Mead be assigned to each Lower Division state in proportion to their benefits from Lake Mead. California, of course, vigorously opposed Arizona’s claims. One of California’s first moves was to file a motion with Haight to bring into the case as “indispensable” parties the Upper Division states; Colorado, New Mexico, Utah, and Wyoming. California’s logic was that the compact issues raised by Arizona impacted both basins and every basin state (history has shown California was right on).
The Upper Division states were desperately opposed to participating in the case. Backing the clock up to the early 1950s, these states, including Arizona, had successfully negotiated, ratified, and obtained Congressional approval for the Upper Colorado River Basin Compact. They were now actively seeking Congressional legislation for the Colorado River Storage Project Act (CRSPA), the federal law that would authorize Glen Canyon Dam (Lake Powell) and numerous other Upper Basin projects. Upper Basin officials feared that if they became actively involved in Arizona v. California, California’s powerful Congressional delegation would use it as an excuse to delay approval of CRSPA (as it had successfully done with the CAP). Thus, these states and their close ally, Arizona, opposed California’s motion.
The basis of their opposition was relatively simple; Under the compact, except for the Upper Basin’s obligations at Lee Ferry, the basins were separate hydrologic entities, the issues raised by Arizona were solely Lower Basin matters, and that Arizona was asking for nothing from the Upper Division states. Their strategy worked. In a July 11, 1955 opinion, Haight recommended California’s motion be denied. By a 5-3 decision, the Supreme Court upheld his recommendation and, except for Utah and New Mexico as to their Lower Basin interests only, the Upper Division states were out of the case. The Upper Division states cheered the decision. Arizona’s crafty Mark Wilmer devised a new litigation strategy built on Haight’s logic and ultimately his successor, Simon Rifkind, ruled that there was no need to decide any issue related to the compact. For more details, see Science Be Dammed, Chapter 15.
In convincing Special Master Haight to deny California’s motion, Arizona and the Upper Division states turned him into an ardent fan of the Colorado River Compact. Haight opined “The compact followed years of controversy between the states involved. It was an act seemingly based on thorough knowledge by the negotiators. It must have been difficult of accomplishment. It was the product of real statesmanship.” In justifying his decision, he found “The Colorado River Compact evidences far seeing practical statesmanship. The division of the Colorado River System waters into Upper and Lower Basins was, and is, one of its most important features. It left to each Basin the solution to that Basin’s problems and did not tie to either Basin the intra-basin problems of the other.” A few pages later, he says “The Compact, by its terms, provides two separate groups in the Colorado River Basin. Each of these is independent in its sphere. The members of each group make the determinations respecting that group’s problems,” and finally “because by Article III of the Colorado River Compact there was apportioned to each basin a given amount of water, and it is impossible for the Upper Basin States to have any interest in water allocated to the Lower Basin States.”
Fifty five years later, how would Special Master Haight view the problems the Colorado River Basin is facing where climate change is impacting the water available to both basins, through the coordinated operation of Lakes Mead and Powell the basin’s drought contingency plans are interconnected, critical environmental resources in the Grand Canyon, located in the Lower Basin, are impacted by the Upper Basin’s Glen Canyon Dam, and most recently two states, New Mexico and Utah, have found it desirable to use a portion of each’s Upper Basin water in the Lower Basin? With one major exception, I think he would be pleased. Haight understood that through Article VI, the compact parties had a path to resolve their disputes and implement creative solutions. The first part of Article VI sets forth a formal approach where each state governor appoints a commissioner, the commissioners meet and negotiate a solution to the issue at hand and then take the solution back to their states for legislative ratification. This formal process has never been used, but luckily, Article VI also provides an alternative. The last sentence states “nothing herein contained shall prevent the adjustment of any such claim or controversy by any present method or by direct future legislative action of the interested states.” After Arizona refused to ratify the compact in the 1920s Colorado’s Delph Carpenter successfully used federal legislation to implement a six-state ratification strategy (the Boulder Canyon Project Act).
The exception that would concern Haight is Utah’s unilateral decision to transfer about 80,000 acre-feet of its Upper Basin water to the Lower Basin via the Lake Powell Pipeline. The LPP violates the basic rationale that Haight used to keep the Upper Basin out of Arizona v. California and for which Utah and its sister Upper Division states fought so hard. The project uses water apportioned for exclusive use in the Upper Basin, terms carefully defined by the compact negotiators, to solve a water supply problem in the Lower Basin.
Defenders of Utah’s may believe a precedent has already been set– the Navajo-Gallup Pipeline, which delivers 7,500 acre-feet of New Mexico’s Upper Basin water to the community of Gallup and areas of the eastern Navajo Nation. But if that is to be cited as a precedent, it comes with an important caveat. New Mexico addressed the compact issues through federal legislation with the participation and consent of the other basin states and stakeholders. Utah, by comparison, apparently believes federal legislation, and by implication the consent of others in the basin, is not needed.
In the face of climate change induced declining river flows and increased competition for the river’s water, there is no question that the basic compact ground rules devised by the negotiators a century ago will face increasing pressure. There will likely be more future projects and decisions that, like the LPP, will challenge the strict language of the compact. The question now facing the basin is how will this revisiting be accomplished? Will it be done in an open and transparent manner that engages not just the states, but a broad range of stakeholders and implemented through legislation (not easy in today’s world, as a practical matter it requires no opposition from any major party to get through the Senate) or by a series of unilateral decisions designed to benefit or advantage individual states or specific entities, but with no input or buy-in from the basin as a whole?
If, like me, you live in Los Angeles — or Denver, Las Vegas, Phoenix or Salt Lake City — you drink water from the Colorado River. You probably eat vegetables grown with Colorado River water, and maybe you eat beef fed on alfalfa grown with Colorado River water. When you switch on a light or charge your phone, some of the electricity may be generated by Colorado River water.
The Colorado, in other words, makes life possible in the American West.
Nowhere is that more true than the Imperial Valley, a sun-baked desert in California’s southeastern corner where around 500 landowning families use Colorado River water to grow much of the country’s winter vegetables. I’ve spent lots of time there as a reporter. It’s a tragic and beautiful place. Beautiful in the way the sunlight glints across a lattice of irrigation canals that crisscross endless green farm fields, and tragic in the widespread poverty and pollution that undergird a lucrative agricultural economy.
And more recently, tragic because Imperial County has California’s highest per capita rate of COVID-19 cases.
In terms of water, the valley is especially important because the Imperial Irrigation District holds a right to an astounding 3.1 million acre-feet of the Colorado River’s annual flow. That’s roughly 20% of all the river’s water allocated across seven western states. It’s about two-thirds of California’s stake in the Colorado, and as much as Arizona and Nevada receive combined.
Climate change, meanwhile, is diminishing the river’s flow, which is especially worrying because longstanding legal agreements already promise western states more water from the Colorado than is typically available, as John Fleck and Eric Kuhn detailed in a recent book. There’s a reckoning coming, unless cities and farm districts across the West band together to limit consumption.
The coming dealmaking will almost certainly need to involve the river’s largest water user, the Imperial Irrigation District.
But at the moment, it’s unclear to what extent the district actually controls the Imperial Valley’s Colorado River water.
That was the issue debated in a San Diego courtroom last week, or at least a video conference standing in for a courtroom. A three-judge appellate court panel heard arguments from lawyers for the irrigation district and landowning farmer Mike Abatti, who sued the agency to overturn a water apportionment plan that he says would unjustly limit his use of water for irrigation.
Who is Mike Abatti? As a reporter for the Desert Sun in Palm Springs, I spent many months investigating his enormous influence in the Imperial Valley. I discovered a pattern of government officials with ties to Abatti making decisions that advanced his financial interests — including a public agency that awarded a $35-million energy contract to a company led by Abatti, and a district attorney who publicly cleared Abatti of wrongdoing on the energy contract after describing him as a “good friend.”
I also found that the trial court judge who presided over Abatti’s water lawsuit against the Imperial Irrigation District — and ruled in his favor — had a long history of business and social ties to the Abatti family.
In a sweeping decision, Judge L. Brooks Anderholt found that Imperial Valley farmers hold a “constitutionally protected property right” to the region’s Colorado River water, and that the irrigation district’s elected board members have a limited ability to reduce deliveries to agricultural users. Anderholt’s ruling seemed to tilt the balance of power from the district to landowning farmers…
Lawyers for both sides focused their arguments on the central question of who controls the water.
Abatti’s attorney, Cheryl Orr, said farmers have a right to however much water they “reasonably need” to cultivate their crops, based on past use. (Farmers currently use 97% of the Imperial Valley’s water.) Orr told the judges that under established law, farmers “have a priority of water that is different and higher than just an ordinary use,” such as household drinking water.
The irrigation district board “just unilaterally determined that they were going to reorder the priorities and put agriculture at the bottom of the list,” Orr said. “They’re treating farmers as customers of the water district. And they’re not customers.”
Irrigation district attorney Jennifer Meeker countered that the agency’s elected board members have wide latitude in how they apportion water, so long as they don’t cut off deliveries to farmers. A constitutionally protected property right, she said, would give farmers “a first grab at the water to fulfill all of their past use, and then whatever’s left can go to anybody else.”
“If you get to a point where there is such a shortage that there just simply is not enough water, everybody is going to end up being curtailed,” Meeker told the judges. The irrigation district’s elected board, she said, “has the right and the discretion” to develop a plan for spreading water cutbacks fairly among farmers, cities and industrial users such as geothermal power plants.
Whichever side wins, the outcome is liable to radiate outward across the West, like a stone creating ripples in a reservoir.
More control for the landowning farmers could make future Colorado River negotiations more difficult — or make it harder for growing cities to acquire water supplies that rightfully belong to the Imperial Valley, depending on how you look at it.
It’s not just Abatti’s lawsuit that could affect Imperial’s role in high-stakes Colorado River negotiations. Local politics are an important factor, too. In April, I wrote about a contentious election for a seat on the irrigation district board. The campaign has fueled rampant speculation over which candidates might secretly be backed by which local power brokers — including Abatti.
As drought conditions deepen, Colorado Governor Jared Polis on June 23 sought activation of the state’s Drought Task Force and Phase 2 of the State Drought Mitigation and Response Plan.
The governor’s office said in a release the drought spans 81 percent of the state, with severe and extreme conditions affecting a third of the state, including El Paso County.
Colorado’s Drought Task Force includes officials with the departments of Agriculture, Natural Resources, Local Affairs and Public Safety, and the Colorado Water Conservation Board. The second phase of the plan means the task force will assess initial damages and impacts of drought in areas experiencing severe or extreme drought and recommend mitigation measures. In addition, the Agricultural Impact Task Force is activated to make an assessment on physical and economic impacts.
Meantime, there doesn’t appear to be any plan to further restrict water use in Colorado Springs where customers have been under restrictions since May to water their lawns no more than three times a week…
Colorado Springs currently has more than two years’ worth of water in storage, which is good news for gardeners, because more severe water restrictions wouldn’t be triggered until the amount in storage falls to a 1.5-year supply, [Pat] Wells says.
Utilities recently completed land acquisition for the 30,000-acre-foot Gary Bostrom Reservoir, the second phase of SDS, which is planned for construction near Bradley Road southeast of the city in the next decade. Another project, called the Eagle River project in the mountains, will create another reservoir, hopefully by 2040 to 2050, Wells says…
Some years, snowpack fills reservoirs to the brim and rainfall reduces demand, but not every year.
“What we’re seeing is a lot more variability in the swings,” Wells says, noting that water managers study tree rings, climate change models and other data to try to predict what lies ahead.
“While our demand has flattened and we’re serving more customers with the same amount of water,” he says, “our supplies are becoming more variable.”
As Wells quips, quoting baseball legend Yogi Berra, “The future ain’t what it used to be.”
Take the Colorado River, which provides water to multiple states and Mexico. It’s been in drought conditions for 20 years and provides 60 to 70 percent of Colorado Springs Utilities’ supply.
“We are going to reach a point, as demand continues to grow in the West and supplies become uncertain, we’re going to have to use water more efficiently and cut back some of our demand on the Colorado River,” he says.
At present, Utilities is capable of delivering 95,000 acre feet of water on demand, but that demand is forecast to rise to 136,000 acre feet in the decades to come.
That’s why Utilities is pursuing a multi-pronged approach to expanding its water supply.
“With a growing population, we have to bring in more supplies,” Wells says. “Our storage needs grow as our cities grow.”
Besides storage, Utilities wants to work more deals with agricultural users like it did in the Arkansas Valley in 2018. Another strategy might be to expand the number of non-potable systems used for irrigation. But ultimately, Utilities, like other water providers in the West, likely will be confronted with re-treating and recycling water back into its domestic delivery system.
“In the next 30 to 50 years it may become more technically feasible to do direct potable reuse,” he says, noting that the Colorado Water Conservation Board has approved a grant for a Utilities reuse demonstration project in partnership with Aurora, Denver and Colorado School of Mines.
Polis’ order follows dwindling mountain snowpack, a warmer-than-average spring and far less precipitation than normal, Colorado Politics reported Wednesday. It also comes as the U.S. Drought Monitor reported this week that extreme drought expanded in northern New Mexico and eastern Colorado.
The order also activates an state agricultural task force to determine the drought’s potential crop and cattle damage impact and the possible economic fallout for the state’s $8 billion farming industry.
Abnormally dry conditions affect mountain and plains regions and roughly 80% of the state’s landmass is in some form of drought.
Winter snowfall was low in most of Colorado and May precipitation was less than half of normal, according to the Natural Resources Conservation Service, a branch of the U.S. Department of Agriculture.
Reservoir levels are dwindling in southern and southwestern Colorado, including the agricultural San Luis Valley and the Gunnison River Basin, the service said.
Becky Bolinger, a climatologist at Colorado State University’s Colorado Climate Center, said high winds, low humidity, high temperatures and lack of precipitation have produced a “flash drought” situation with higher than normal water evaporation in much of the state that particularly affects agriculture.
The summer promises higher temperatures and low rainfall and the summer monsoons that deliver rain from the southwest won’t make up for current conditions, Bolinger said.
Here’s the release from the Colorado Department of Agriculture (Sara Leonard):
Governor Jared Polis requested activation of Colorado’s Drought Task Force and Phase 2 of the State Drought Mitigation and Response Plan this week as drought conditions deepen, reaching more than 81% of the state, with severe and extreme drought conditions in 33% of the state (40 counties).
Colorado’s Drought Task Force – which includes leadership from the Departments of Agriculture, Natural Resources, Local Affairs, Public Safety, and the Colorado Water Conservation Board – determined the need to activate Phase 2 of the Drought Plan on June 18 after a third of the state reached extreme drought conditions. “Phase 2” indicates officially directing the Drought Task Force to assess initial damages and impacts of drought in areas experiencing severe or extreme drought and to recommend mitigation measures. This Phase also activates the Agricultural Impact Task Force, which will conduct an initial assessment on physical and economic impacts and recommend opportunities for incident mitigation.
Counties impacted by abnormally dry (D0) and moderate (D1) drought will continue to be closely monitored. The 40 counties currently experiencing severe (D2) and extreme (D3) drought include: Alamosa, Archuleta, Baca, Bent, Chaffee, Cheyenne, Conejos, Costilla, Crowley, Custer, Delta, Dolores, Eagle, El Paso, Elbert, Fremont, Garfield, Gunnison, Hinsdale, Huerfano, Kiowa, Kit Carson, La Plata, Las Animas, Lincoln, Mesa, Mineral, Montezuma, Montrose, Otero, Ouray, Pitkin, Prowers, Pueblo, Rio Grande, Saguache, San Miguel, San Juan, Washington, and Yuma.
To stay informed on Colorado drought issues, sign up for the State’s Drought Updates or visit the Colorado Water Conservation Board website.
The extreme northern tier of counties, including Logan County, has so far been spared from the ongoing drought. South Platte Basin reservoir levels are at 89 percent of capacity basin-wide, down a percentage point from the same time last year. In the lower reaches, irrigation reservoirs are between 76 percent of capacity at Empire and 97 percent capacity at North Sterling, again each a few percentage points down from a year ago.
The Larimer County Planning Commission on Wednesday heard details of plans for constructing and operating the project, which would include building Glade northwest of Fort Collins and laying 35.6 miles of pipeline to carry NISP water out of the county.
The information packet given to commissioners, including staff reports, environmental impact statements and comments from numerous government agencies, is 3,242 pages.
The packet includes more than 500 comments from members of the public, including groups and individuals who have been fighting NISP since it was proposed in 2004.
Concerns about the project and its impact to the Poudre River during federal and state permitting processes were raised again along with new issues on the county level by environmental group Save the Poudre and others.
No public comment was taken. That will happen during hearings scheduled July 8 and 15. An additional meeting would be scheduled if needed to allow Northern Water time for rebuttal following the public comment, county officials said.
Northern Water is seeking a 1041 permit — named for the state law giving authority to local governments to make decisions on certain types of infrastructure projects — for NISP. The planning commission will make a recommendation on the application to the Board of County Commissioners, which will decide whether to grant a permit.
Three of the nine planning commission members recused themselves from the proceedings citing the potential appearance of impartiality or conflicts of interest: Anne Best Johnson, community development director for the city of Evans, which is a participant in NISP; Bob Choate, an attorney who might be called upon to give legal advice on the project to the Weld County commissioners; and Sean Dougherty, a Realtor who represents a landowner who might be affected by the project…
Under the county’s 1041 regulations, the county’s purview of NISP is limited to the siting of Glade and associated recreational facilities and the locations of four large pipelines that would carry NISP water through Larimer County.
The project must meet 12 criteria for approval, including that the project would not negatively impact public health and safety and the “proposal demonstrates a reasonable balance between the costs to the applicant to mitigate significant adverse (effects) and the benefits achieved by such mitigation,” according to the land-use code.
County development review staff members said the proposal meets the criteria and recommended approval of the permit with 82 conditions, including requirements for several reports and plans for addressing issues such as noise and dust during construction.
As part of the project, Northern would build recreational facilities that would be managed by the Larimer County Department of Natural Resources. The department manages recreation at Carter Lake and Horsetooth, Pinewood and Flatiron reservoirs.
Facilities at Glade would include a visitor center, campgrounds, hiking, fishing and boating. A four-lane boat ramp would be built on the southeast side of the reservoir.
The facilities would increase recreational opportunities as envisioned in county master plans, said Daylan Figgs, Natural Resources director.
Demand for access to recreation will likely increase as the county grows in the years to come, Figgs said. The facilities proposed by Northern would cost about $21.8 million. NISP would cover 75% of the cost, with the rest coming from the county directly or through partnerships.
[Nancy] Wallace said she was “struck” that the county might have to contribute to the cost of recreational facilities. NISP doesn’t appear to “give much to the county” other than its recreation components and water for Windsor and the Fort Collins-Loveland Water District, she said…
Christine Coleman, a water resources engineer with Northern, told the commissioners $49 million in NISP environmental mitigation work would be done in the county.
The final environmental impact statement for NISP estimated development of the reservoir could bring in $13 million to $30 million a year in economic benefits, Coleman said. The project would contribute $16.35 million to recreation facilities at Glade…
To keep water flowing in the Poudre, which can dry up in spots under certain circumstances, NISP would release water from Glade back to the river through a 1.3-mile pipeline.
The added water would flow 13 miles through Fort Collins before it is picked up by another pipeline upstream from the city’s wastewater treatment plant on Mulberry Street. The guaranteed flow through the city would be between 18 and 25 cubic feet per second.
“This will increase flows at the Lincoln (Street) gauge in Fort Collins and the Poudre River in eight out of 12 months in average years and 10 out of 12 months in dry years,” said Stephanie Cecil, a water resources engineer with Northern.
Water would be pumped into a pipeline running east to a pipeline along County Road 1 running south. The pipeline would affect some city-owned natural areas.
A fourth pipeline would carry water from Glade along a route known as the “northern tier” and connect with the county line pipeline.
The pipe would run through the Eagle Lake subdivision, sparking resistance to the proposal from local residents…
Cecil said the pipelines would require 100-foot easements, of which 60 feet would be permanent and 40 feet would be temporary for constructions. Property owners would be paid fair market value for easements, and surface disruptions would be reclaimed to pre-existing conditions or better.
NISP’s pipelines would range from 32 to 54 inches in diameter. The northern tier pipeline would carry about two-thirds of the water going to NISP participants, Cecil said…
What’s next for NISP in Larimer County
The Larimer County Planning Commission is scheduled to take public comment on NISP during hearings schedule July 8 and July 15 at the County Courthouse Offices Building, 200 W. Oak St. in Fort Collins.
Both meetings will begin at 6 p.m. Attendance will be limited to 50 people because of COVID-19 restrictions on gatherings.
Comments will be limited to 2 minutes per person. Borrowing, lending or grouping time will not be allowed. Groups and individuals who wish to speak in person or remotely must register at larimer.org/planning/NISP-1041.
The planning commission will make a recommendation on a permit for NISP to the Board of County Commissioners, which will decide on the application.
Hearings by the commissioners are scheduled:
6 p.m., Aug. 17 – Presentations only; no public testimony.
2 p.m. Aug. 24 (break from 5:30-6:30 p.m.)
3 p.m. Aug. 31 (break from 5:30-6:30 p.m.)
6:30 p.m. Sept. 2 – questions, final deliberation and decision
Larimer County staff has recommended approval of a 1041 permit for the Northern Integrated Supply Project with requirements that include noise, water and air quality monitoring and mitigation during construction of its reservoirs and associated pipelines.
Engineering, health department and planning staff members outlined that recommendation to the Larimer County Planning Commission on Wednesday during the first of a three-part public hearing for the reservoir project, which over the past decade has drawn vocal opposition and support.
Northern Water hopes to build the water project on behalf of 15 water providers as a way to pull water in wet years, from both the Poudre and South Platte rivers, to store for when needed. All of the participants have water conservation plans and have reduced their water use by 10%, but still need future water supplies, according to Northern Water…
The U.S. Army Corps of Engineers is responsible for the main permit to build the project — a decision expected sometime this year after more than a decade of evaluation. However, Larimer County does have some authority through its 1041 permit on certain aspects of construction of the reservoir and its associated pipelines as well as recreation on and surrounding the reservoir.
The planning commission will make a recommendation to the Larimer County commissioners, who will hold a public hearing that is scheduled across three Mondays starting Aug. 17 and will end with a decision on whether to grant the 1041 permit.
The first of the planning commission dates, Wednesday, was a presentation by Northern Water and by Larimer County staff. Public comment is slated for the next two hearings, scheduled July 8 and July 15…
Some highlights of the presentation, from both county staff and Northern Water representatives, include:
The realignment of U.S. 287 north of Fort Collins is not part of the 1041 permit, but Larimer County is asking that the design take into effect the impacts on nearby county roads including the already dangerous intersection with U.S. 287 and Colo. 14.
Glade Reservoir would be able to store 170,000 acre feet of water with 1,600 surface acres and water that could hit 250 feet at its deepest. The reservoir would be 5 miles long, and the project would include four separate pipeline segments spanning a total of 35.6 miles.
Recreation at the reservoir would be detailed closer to construction to reflect trends and interests at the time but would include a mixture of boating, camping, fishing and trails that would help meet demands for a growing Larimer County population. Overall, Northern Water has proposed $21.8 million in recreation amenities and improvements, including a visitors center. Northern Water has committed to covering 75% of those costs through the project; the remainder would be covered through partnerships.
Northern Water would need to mitigate impacts on traffic that would range between 400 and 1,600 average daily trips during construction of the reservoir, up to 300 daily trips associated with construction of the pipelines and an average of 1,150 daily trips associated with recreation.
Larimer County would require traffic management, dust and noise mitigation plans, as well as groundwater monitoring. Construction would be limited to daytime, and the county would require private well monitoring to ensure that those water sources are not polluted.
County staff members believe any impacts on wildlife, wetlands, streamflow, fisheries and other natural resources would be mitigated by existing measures in a Fish and Wildlife Mitigation and Enhancement Plan that was approved by state officials in 2017, as well as through a water quality permit based on multiple studies and evaluations. The mitigation plan calls call for $53 million in improvements, including fish-friendly bypasses at diversion structures, a low flow plan to keep more water in the Poudre River through Fort Collins and enhancements to wetlands and wildlife habitat.
The project proposes swapping irrigation water from the Poudre River with water from the South Platte River, which will prevent “buy and dry” of farmland. This could keep more than 60,000 acres of irrigated farmland in production, according to Northern Water.
Use of Colorado River water in the three states of the river’s lower basin fell to a 33-year low in 2019, amid growing awareness of the precarity of the region’s water supply in a drying and warming climate.
Arizona, California, and Nevada combined to consume just over 6.5 million acre-feet last year, according to an annual audit from the Bureau of Reclamation, the federal agency that oversees the lower basin. That is about 1 million acre-feet less than the three states are entitled to use under a legal compact that divides the Colorado River’s waters.
The last time water consumption from the river was that low was in 1986, the year after an enormous canal in Arizona opened that allowed the state to lay claim to its full Colorado River entitlement.
States have grappled in the last two decades with declining water levels in the basin’s main reservoirs — Mead and Powell — while reckoning with clear scientific evidence that climate change is already constricting the iconic river and will do further damage as temperatures rise.
For water managers, the steady drop in water consumption in recent years is a signal that conservation efforts are working and that they are not helpless in the face of daunting environmental changes.
“It’s quite a turnaround from where we were a decade ago and really, I think, optimistic for dealing with chronic shortages on the river in the future, knowing that we can turn the dial back and reduce demand significantly, all three states combined,” said Bill Hasencamp, the manager of Colorado River resources for the Metropolitan Water District of Southern California, a regional wholesaler and one of the river’s largest users.
Observers of the basin’s intricate politics are also impressed with the trend lines for a watershed that irrigates about 5 million acres of farmland and provides 40 million people in two countries and 29 tribal nations with a portion of their water.
“It is an incredibly important demonstration of the fact that we can use less water in this incredibly important water-use region,” John Fleck told Circle of Blue. Fleck is the director of the University of New Mexico water resources program.
Projections for 2020 indicate that conservation will continue, though not quite at last year’s pace. Halfway through the year, the Bureau of Reclamation forecasts water consumption to be roughly 6.8 million acre-feet. An acre-foot is the amount of water that will flood an acre of land to a depth of one foot, or 325,851 gallons.
“I have to give them credit,” Jennifer Gimbel, a senior water policy scholar at Colorado State University, told Circle of Blue about the lower basin states. “They’re working hard to get these numbers.”
Raising Lake Mead
Just five years ago, in 2015, the three states were making use of their entire 7.5-million-acre-foot allotment. By statute and tradition, the basin is divided into a lower basin, where use is higher, and an upper basin, which includes Colorado, New Mexico, Utah, and Wyoming. The basins have different water allocation systems and rules governing its use.
In the lower basin, Arizona’s annual allocation is 2.8 million acre-feet, but last year it used just 2.5 million. Nevada used 233,000 of its 300,000 acre-feet. The big savings were in California, which used only 3.8 million of its 4.4 million acre-feet. California hasn’t used that little water from the Colorado since the 1950s, Fleck said.
The drop in California last year is due in large part to Metropolitan Water District, which consumed only 537,000 acre-feet. Five years ago, the district’s tally was around 1 million acre-feet per year. Urban conservation and development of local water sources have played a large role in the decline, but the district’s Colorado River water use is also influenced by snow levels in the Sierra Nevada mountains. When more water is available to be imported from the northern part of the state, as it was last year, the district leans less heavily on the Colorado River.
Reclamation’s annual audit measures the amount of water consumed by humans, plants, and animals in the lower basin. Consumptive use equals total withdrawals minus any water that is returned to the river system, from irrigation runoff or wastewater treatment plants.
As meticulous as it is, the audit neglects a significant piece of the basin’s water budget: evaporation from reservoirs and system losses, which is water consumed by riverside vegetation and absorbed by the ground. Together, these add up to about 1 million acre-feet per year, Jeremy Dodds, water accounting and verification group manager for Reclamation, told Circle of Blue.
This factor is part of the lower basin’s “structural deficit,” which means that total demand in the lower basin — use by Arizona, California, and Nevada, plus evaporation and required deliveries to Mexico — exceeds the amount of water that flows into Lake Mead, the lower basin’s supply source.
Gimbel, who was the principal deputy assistant secretary for water and science for the U.S. Department of Interior from 2014 to 2016, said that despite the conservation efforts reflected in the audit, the lower basin still has much work to do. “They’re closing the deficit, but they’re not there yet,” she said.
The goal of the lower basin’s conservation is to keep Lake Mead from a precipitous decline into “dead pool” territory, where the reservoir is too low to send water downstream. The dead-pool threshold is at elevation 895 feet. Not using 1 million acre-feet last year most certainly helped the reservoir. Dodds said that at the current elevation of 1,089 feet, each block of 85,000 acre-feet equals 1 foot of elevation. So last year’s conservation added 12 feet to Mead, compared to a scenario in which the three states use their full entitlement.
The conservation tool box that the states have employed has a range of instruments. Cities have provided incentives to remove grass lawns and replace inefficient toilets, showerheads, and washing machines. In Imperial Irrigation District, farmers have lined earthen canals with concrete to prevent seepage and they have agreed to fallow land to save water. Those measures, in both town and country, have helped to reduce demand. Supplies, on the other hand, have been bolstered by more investment in recycling and reuse, groundwater treatment, and desalination. As a whole, the seven states in the watershed came together in 2019 to modify rules for mandatory water-use restrictions that kick in as Lake Mead drops.
The decline in Colorado River water consumption mirrors regional and national trends. In Metropolitan Water District’s service area in Southern California, water use per person fell from about 181 gallons per person per day in the mid-1990s to 131 gallons in 2018, a drop of 27 percent. Colorado River consumption on the Colorado River Indian Tribes reservation, in Arizona, is down about 20 percent since 2016.
According to Tom Ley, a water consultant to the tribes, the decline is due to changes in farming practices and participation in a land fallowing program that will see 10,000 acres taken out of production in the next three years. The tribes’ decrease in consumptive water use “may look even more dramatic once the 2020 report comes out,” Ley told Circle of Blue.
All of these actions amount to a shift in the perception of what’s possible, Fleck said.
“It shows that the expectation that a growing population and a robust agricultural economy require more water is wrong,” explained Fleck, who is optimistic about the basin’s capacity to wield the tools of conservation effectively. Environmental doom is not the inevitable outcome, he says. “We’re seeing success in the transition away from the tragedy narrative,” he added.
Still, there are minefields to navigate. There are dozens of proposals in the upper basin states to withdraw more water from the river, which, if they were built, would further stress supplies. Some of the water conserved in Lake Mead is stored as a credit that participating agencies can theoretically draw upon in the future. How agencies handle those withdrawals, especially if large requests are made as lake levels plummet, is an uncertainty. On top of that, a warming climate will suck more moisture from the basin, even before rain and snow reach the river.
A hot, dry spring this year in the upper basin is evidence of what aridity can do. Snowpack in the basin’s headwaters was roughly average on April 1 and runoff into Lake Powell, a key water supply indicator, was expected to be 78 percent of normal. But then dry conditions arrived in April and May. Combined with dehydrated soils, which took their share of water, the runoff forecast by June 1 had diminished to just 57 percent of normal.
Those climate signals are the counterbalance to the conservation success so far. Water managers, now wary, know the risk.
“Just hopefully we don’t get a string of dry years coming back,” Hasencamp said.
The water has made development possible and is used for farms, homes and businesses. Meanwhile, recreation has risen to over 4 million annual visitors in Glen Canyon National Recreation Area, with tourists bringing in over $420 million to local communities.
But climate scientists studying the Colorado River find the lake’s water source is quickly declining…
According to Brad Udall, a water and climate researcher at Colorado State University, the lake is crucial for honoring the commitments laid out in that Colorado River Compact.
“Lake Powell is what the upper basin considers its bank account for meeting required deliveries to the three lower basin states. So, it’s essential to the management of the river,” Udall said.
When Lake Powell reached capacity on June 22, 1980, it was a wetter period of time for the region. Today, the lake is just above half full, and a large part of that is because of climate change.
“Since the year 2000, the flow of the river is roughly down 20% and about half of that decline is due to higher temperatures,” Udall said.
And as states continue to use the water, lower flows mean there is less to store in Lake Powell and Lake Mead.
Even though extreme dry and wet years have fluctuated, the West is generally getting drier, said John Fleck, the director of water resources at the University of New Mexico.
“We really need to call [what we’re experiencing] aridification — the drying out of the Colorado River Basin because of climate change, we can’t just call it ‘drought’ anymore,” Fleck said. “It appears to be this permanent phenomenon that’s lowering the lake levels. You should not expect it to return to high lake levels over long periods of time. That’s just not something we can expect to happen.”
While the river flow has declined, the demand for water has increased with regional growth. Upper and lower basin states are making drought contingency plans to keep Lake Powell and Lake Mead from reaching critically low levels.
Udall said states will also have to rethink those original water allocations from the 1920s.
“It’s hard to balance the equities of trying to respect these agreements that people have planned on versus changing circumstances that make these agreements totally inappropriate for right now. And I don’t know what the answer is but something’s gotta give.”
Lexi Peery is a Report for America corps member who reports from KUER’s Southwest Bureau in St. George. Follow Lexi on Twitter @LexiFP
The court said that Colorado Attorney General Phil Weiser had met the requirements for a temporary injunction to be granted. The decision came as a federal court in California rejected a similar request that was nationwide in scope and backed by several states including California and New York, according to Bloomberg business news.
The decision means the state will have more time to set up a new regulatory program to replace at least a portion of the protections lost under the new Waters of the U.S. rule, or WOTUS, as it is known.
For the second time, the state’s top water cop has directed the Western Slope’s oldest and most valuable water rights to be left off the once-a-decade abandonment list. That means hundreds of these mostly irrigation water rights have been granted immunity — even though they are no longer being used — from the threat of “use it or lose it,” further enshrining them in the state’s system of water administration and dealing a blow to the validity of the well-known adage.
Every 10 years, engineers and water commissioners from the Colorado Division of Water Resources review every water right — through diversion records and site visits — to see whether it has been used at some point in the previous decade. If it hasn’t, it could end up on the decennial abandonment list, which is scheduled to come out in July.
But a November 2018 email from state engineer Kevin Rein to all four Western Slope division engineers instructs them to not include pre-compact rights on the abandonment list. That includes all the water rights in the Yampa/White/Green, Colorado, Gunnison and San Juan/Dolores river basins.
“Since the nature of the pre-compact water rights is unique in Colorado when it comes to administration of the Colorado River Compact, and in recognition of the fact that the value of the rights could benefit all water users in Colorado, as opposed to only the owner of the water right, I will ask that you direct your staff to do no further investigation of pre-compact water rights and to not include them in the Division Engineers Proposed Abandonment list for 2020,” the email reads.
A primary job of the state and division engineers is to administer Colorado’s system of prior appropriation, in which the older the water right, the more powerful it is.
Rein said he talked with major water providers and managers along the Front Range and on the Western Slope before making the decision, but he would not say which ones or anything about the nature of those conversations.
Former state engineer Dick Wolfe issued a similar directive regarding the 2010 abandonment list, meaning Colorado’s water rights that date to before June 25, 1929 — when Congress ratified the Colorado River Compact — have enjoyed an extra level of protection from state-led abandonment for two decades.
“We need to allow for the fact that if those water rights are abandoned and taken off the tabulation, then that amount of water is no longer available to Colorado,” Rein said.
But what exactly the value of unused, pre-compact water rights could have to all Colorado water users remains unclear. Post-compact water rights, meaning those after June 25, 1929, are still eligible for the abandonment list.
According to Rein, the decision to include water rights on an abandonment list is administrative one and he has statutory authority to revise the list.
Colorado River Compact
A major fear of Colorado water managers is what’s known as a “compact call.” If the upper basin states — Colorado, Utah, Wyoming and New Mexico — don’t deliver the required 75 million acre-feet of water over 10 years as specified in the Colorado River Compact to the lower basin states — California, Nevada and Arizona — it could lead to a compact call. This scenario, which looms larger each year with the increasing effects of drought and climate change on an over-allocated river, could trigger involuntary cutbacks for Colorado water users.
But water rights that had been perfected before the compact was ratified are exempt from these cutbacks. And now the state is adding unused, pre-compact water rights to this exempt category. In Colorado, many of these oldest water rights belong to Western Slope agriculture.
Like moving a pawn early in a chess match, it is unclear exactly how this directive from Rein could help Colorado in the future. Nobody really knows whether or how a compact call (or negotiations among states to avoid one) might play out. Therefore, no one can say exactly what value these pre-compact water rights have to Colorado.
Water experts and managers throughout the upper and lower basin were reluctant to talk about the issue and gave diplomatic responses to questions about the sensitive political issue of interstate compact compliance.
“I don’t know the answer,” Rein said. “I think there’s general agreement that these water rights may have value in a compact-call scenario. I don’t know because of the complexities of it.”
Some water experts say preserving these pre-compact water rights, even though they aren’t being used, could give Colorado stronger footing in potential negotiations with lower basin states by propping up Colorado’s consumptive-use tally on paper.
“I would say it’s a conservative approach and it might help in your negotiations with other states,” said Doug Kemper, executive director of the Colorado Water Congress. “You would be making the argument that we have this portfolio of water rights, these are still on the books. But again, you’re trying to forecast how a negotiation might proceed, and I think to meaningfully comment on that would be almost impossible right now.”
Preserving these irrigation water rights also means they would be available to transfer to other users in the future, such as Front Range water providers — whose water rights are mostly post-1929 and therefore vulnerable to cutbacks under a compact call — as the state continues to urbanize.
In a prepared statement, Denver Water CEO Jim Lochhead said the water provider, which supplies water to 1.4 million people, “is supportive of the state’s efforts to protect Colorado’s pre-compact rights. This approach will benefit and help provide additional security for Colorado River water users on the West Slope and Front Range.”
Reagan Waskom, director of the Colorado Water Center at Colorado State University, agreed that hanging onto those pre-compact water rights could be in the state’s best interest.
“The idea of holding as many of those pre-compact rights in place makes sense from a purely Colorado-centric point of view,” said Waskom. “We still don’t know what a compact call or curtailment would look like, so we are going to stay as conservative and protective as we can.”
The Colorado River Water Conservation District is in favor of Rein’s directive, according to general counsel Peter Fleming. The Glenwood Springs-based River District works to protect water rights on the Western Slope, which often means advocating for agriculture interests.
But Fleming brings up an interesting point: The value of water rights in Colorado is based on them being used. If these water rights still exist on paper but haven’t been used in a decade — in some cases, two decades — what is their value?
“There’s this notion that pre-compact water rights are sacrosanct and very important, and that’s true if they have continued to be used and historically consumed,” Fleming said. “But you don’t just make water available by saying these rights that haven’t been used for X number of years still exist. So, I guess I would say it’s a risk-avoidance strategy, but it’s an unproven strategy.”
Rein’s directive also helps debunk the adage “use it or lose it.” While the pre-compact rights are not being used, they also are no longer in danger of being lost. The threat of the state taking away a water right has now disappeared for Western Slope pre-compact irrigation rights.
The often-misunderstood tenet “use it or lose it” is embodied by the abandonment process.
Some water users believe that if they don’t divert the full amount they are entitled to — even if they don’t always need that much — the state will take it away and it will be available to another water user. But the concept is much more nuanced than that.
Colorado water law says abandonment is “the termination of a water right in whole or in part as a result of the intent of the owner thereof to discontinue permanently the use of all or a part of the water available.”
Just not using the water will not lead to abandonment; there must be an intent to abandon the right.
For a water user to keep their water right, they must put the water to “beneficial use,” which in the case of irrigation water means growing crops. If the water has not been used for 10 years — meaning there are no diversion records and the local water commissioner does not see evidence of water use on their site visits — division engineers could presume that the water right has been abandoned. They put it on the state’s initial abandonment list, which is updated every 10 years and published in local newspapers.
Water-right holders then have one year to file an objection to their listing in writing with the division engineer.
“We don’t like close calls, so if they diverted the water 11 years ago, we are going think, ‘Eh, I don’t know,’ because we are talking about somebody’s property right,” said Alan Martellaro, Division Engineer for Water Division 5.
After working through the objections with water-right holders, the division engineer publishes the revised abandonment list. If a water-right holder still protests their placement on the list, they can go to water court to argue that they did not intend to abandon the water right.
For the 2010 Division 5 abandonment list, Martellaro said the pre-compact rights comprised easily half the list before Wolfe instructed division engineers to take them off. The 2011 revised Division 5 abandonment list included about 75 water rights, one-third of which were related to the now-defunct Mid-Continent mine on Coal Creek near Redstone where a 1981 explosion killed 15 miners.
The 2020 abandonment list is expected to come out in July.
Aspen Journalism is a local, nonprofit and investigative news organization that covers water and river issues in collaboration with The Aspen Times and other Swift Communications newspapers. This story appeared in the June 22 edition of The Aspen Times.
That saying is at the heart of how access to water is managed in the western U.S. Laws that govern water in more arid states, like Colorado, incentivize users to always take their full share from rivers and streams, or risk the state rescinding it. The threat comes in the form of a once-a-decade document that lists those users on the brink of losing their access to one of the region’s most precious resources.
It’s called the Decennial Abandonment List — and being included on it strikes fear and paranoia into rural pockets of the state, where farmers and ranchers depend on water for their livelihoods. Farmers trade tales of neighbors who’ve been mistakenly listed, with a notice sent to a wrong address, and who eventually see their water rights effectively canceled. Abandonment horror stories are akin to urban — or in this case, rural — legend.
Western Colorado water lawyer Rob Pierce says there’s one thing his clients, mostly farmers and ranchers, are always asking him about.
“The whole concept of abandonment,” Pierce said. “It gets mentioned all the time.”
Pierce practices for the Grand Junction-based firm Dufford Waldeck, and he said interest in abandonment reaches its apex right before the state releases the list. Colorado’s initial abandonment list is scheduled for July 1, the first time it’s been updated since 2010. Preparations for this year’s list began in 2018.
By law, state regulators are required to compile the list every 10 years. It details all the water rights no longer being used to irrigate crops, flow through city plumbing systems or cool turbines in factories and power plants. If they’re determined to no longer be in use, they’re scrubbed from the record, and can’t be used again. Because the stakes are so high, Pierce said scuttlebutt about who’s on it and who’s not starts early…
The idea behind the abandonment list is rooted in Western water law. Ever since the 1800s, when the concept of prior appropriation became the dominant methodology to divvy up water in the region, Westerners have been able to petition for rights based on their ability to put it to “beneficial use.” Not using it? Then you can lose it.
But like many old adages in the West’s water lore, Pierce said, it’s more complicated than it sounds…
“It’s not as easy as ‘use it or lose it’ makes it sound I think,” [Kara] Godbehere said. “That terminology is maybe a little inflammatory or misleading because it’s not as though without you realizing it, your water right would just slip out of your hands.”
It’s actually pretty difficult to lose it, Godbehere said. First, a user has to stop diverting the water for a long time. She points out abandonment lists come out once in a decade, and it sometimes takes an even longer period of 15 to 20 years to establish non-use. Users aren’t likely to put their right in jeopardy unless there’s a strong pattern of non-use, she said. And, even more importantly, she said, you have to intend to abandon it. It’s not an accident.
“It’s not as though it just sort of disappears one day and somebody is left wondering, where did my water go?” Godbehere said…
Rights can either be fully or partially abandoned as well. If a farmer switches to a more water-efficient crop, like replacing a field of alfalfa hay with hemp for example, the water consumed over time could be less. And the water right used to irrigate that field could end up being partially, not completely, abandoned.
More than 2,700 individual water rights were initially listed as abandoned on the 2010 list. After going through a court process, where people who think they’ve been erroneously included have time to appeal, the list was whittled down to roughly 2,200 water rights that were officially declared abandoned, according to records from the Colorado Division of Water Resources. The vast majority of those rights were from farms and ranches, used to irrigate crops or pastureland. Agriculture uses about 80% of all available water in Colorado…
The abandonment list allows his department to clean up the books every now and then, and remove old rights from the record. Without abandonment, Rein said, a situation could arise where someone with old water rights, who hadn’t used them in a long time, all of a sudden starts using them again. That new use could upend how a whole water system functions, leaving some users short…
This year’s list also reflects some ongoing uncertainty in the realm of Western water politics. Earlier this year Rein sent a message to his division engineers, the state officials who compile the abandonment lists in their regions, telling them not to abandon rights that pre-date the 1929 Boulder Canyon Project Act, the piece of legislation that authorized the construction of Hoover Dam on the Colorado River.
Colorado is still uncertain what role abandonment might play in the hypothetical legal battle that could result from a violation of the Colorado River compact, which spells out a certain amount of water the states of Colorado, Wyoming, Utah and New Mexico are expected to send downriver to Arizona, Nevada, California and Mexico.
Those pre-1929 rights are called “present-perfected rights,” and likely aren’t subject to any sort of curtailment that would result from a compact call on the river. They’re some of the oldest, and most valuable, water rights in the entire Colorado River watershed.
But how those rights play into it is still unknown. Rein said after consulting with lawyers at the Colorado attorney general’s office, he instructed his division engineers not to include them. The same thing happened in 2010, so for more than 20 years, those pre-1929 rights haven’t been included on the list.
How do those present-perfected rights benefit Colorado’s standing in a protracted legal battle over the management of the Colorado River?
“That’s where I need to just honestly tell you, I don’t know,” Rein said. “And I’m not embarrassed to say I don’t know.”
“The most valuable thing that people have on a farm or ranch, is the water right,” said Jeni Arndt, a Democratic state representative from Fort Collins.
In general, the more water you have rights to, the more money it’s worth. The actual value can vary depending on drought conditions, and whether nearby residential development or other new demands for water are coming online. So if the volume is tied to a dollar amount, and a user can be paid big sums of money to transfer their right to a new use, why would anyone ever want to conserve it?