Colorado Law School are pleased to announce the launch of a new lecture series in 2017. Colorado Law Talks features our faculty and other members of the Colorado Law community. It provides an opportunity hear about the lecturers’ current scholarship, and to discuss the questions and ideas that motivate, influence, and shape their work. The work of Colorado Law’s professors includes an extraordinary array of diverse projects-not just intriguing scholarship, but innovative teaching methods, and valuable contributions to communities beyond the law school. Colorado Law Talks will allow us to share some of these projects with you, providing an important opportunity for Colorado Law and the legal community to engage with ideas, and with one another.
The inaugural Colorado Law Talk “The Law of the River” will be delivered by Professor Sarah Krakoff on Wed., Feb. 8. Professor Krakoff will discuss the many legal and policy issues, including tribal consultation, endangered species, uranium mining, and of course the Colorado River compact, that affect the Colorado River and its surroundings. Professor Krakoff’s lecture will be followed by a reception and an opportunity to mix and mingle with members of our Colorado Law community.
When: Wed., Feb. 8, 5:30 p.m.
Location: Davis Graham & Stubbs LLP, 1550 17th Street, Suite 500, Denver.
Registration Information: The event is free for all Colorado Law students and 2012-2016 Colorado Law graduates, $10 for all other alumni, and $20 for other guests.
The evening’s proceeds will benefit Professor Krakoff’s Advanced Natural Resource Seminar (The Law of the River), which will address all of these issues and more, and will culminate in a two-week raft trip through the Grand Canyon.
Author and journalist John Fleck says misinformation makes it difficult to discuss the best way to manage H20
“Whiskey is for drinking, water is for fighting,” runs an old saw about water in the West, sometimes attributed to Mark Twain.
Trouble is, there are two problems with the adage. It hasn’t been true in more than a century, and Twain never said it.
Busting myths about water was the subject of a talk given Tuesday morning at Arizona State University by author and journalist John Fleck, director of the water resources program at the University of New Mexico.
The lecture was titled “How Much Water Does Arizona Need?” It’s part of an ongoing conversation at ASU, where researchers from a range of disciplines study every facet of the faucet, from science and conservation to law and policy.
Fleck, who has covered water for about 30 years, published a book last year: “Water is for Fighting Over: and Other Myths about Water in the West.” He debunked common delusions and folk wisdom, like the saying “Water flows uphill toward money.”
While the aphorism refers to the massive 20th-century infrastructure projects like Hoover Dam and the Central Arizona Project canal, it also references the myth that rich communities take water from poor communities.
The opposite is true, Fleck said. He compared Las Vegas to California’s Imperial Valley.
“You can see these buildings around the Bellagio (fountain) and they represent about $6 billion” in revenue and income, he said.
By comparison, the total take from agriculture in the Imperial Valley is about $2 billion. “Yet, Imperial gets 10 times as much water as Las Vegas,” Fleck said. “Imperial is not going to give up their water, and Las Vegas has no way of taking it away.”
Locally, that example extends between the lettuce farmers of Yuma County and metro Phoenix in central Arizona. “In general, the notion that the rich communities will take water from poor communities is not true,” Fleck said.
Myths such as those make it difficult to establish collaborative relationships, Fleck said.
“Overcoming those myths becomes an important piece for water management to move forward in the Colorado River Basin,” he said.
So how much water does Arizona need? “I don’t know,” Fleck said. “Probably less than you think you need.”
A phenomenon rarely discussed in water circles, according to Fleck, is that per capita consumption is declining in Western cities. “Economists call this ‘decoupling,’” he said. “This is especially true in Arizona. … Users are just doing this. Attitudes are changing.”
Decoupling gives water managers the opportunity to create more collaborative decision making, Fleck said. Technology like low-flow faucets, showerheads and toilets now use half the water they did 25 years ago, and “adaptive capacity,” or human flexibility in learning to live with drought conditions, has quietly disrupted the apocalyptic nature of most water reporting.
Decoupling also puts to bed discussions about finding huge sources of water elsewhere, like building a pipeline from the Columbia River or towing icebergs down from Alaska.
“I think this is a conversation we’re going to be having for the rest of our lives,” Fleck said.
The lecture was sponsored by ASU’s Future H2O, the Kyl Center for Water Policy at the Morrison Institute, and the Decision Center for a Desert City.
Here’s the release from Colorado State University (Jim Beers):
The Cache la Poudre River, which flows from the mountains through Fort Collins, Timnath and Windsor to the plains east of Greeley, is at the heart of countless activities: from irrigating crops and lawns to providing drinking water for more than 365,000 people and hosting numerous recreational activities.
Those with connections to and concerns for the Poudre River will gather on Friday, Feb. 3 for the fourth annual Poudre River Forum. After its first three years at Larimer County Fairgrounds, the forum is moving down the river to Greeley as a reminder that the Poudre River is important to all who benefit from it — from its headwaters to its confluence with the South Platte. This year’s forum — the theme is “As the Poudre Flows — Forest to Plains” — will be held from 8:30 a.m.-4:30 p.m. at the Island Grove Events Center, 501 N. 14th Ave., Greeley. Pre-registration is required for all participants.
Understanding the river, each other
Sponsored by the Poudre Runs Through It Study/Action Work Group, the forum serves as a community-wide gathering of people from agricultural, municipal, business, recreational and environmental backgrounds to learn about and discuss issues related to the Poudre River.
“The Poudre River Forum brings together those who use the river for agricultural and urban diversions and those who work to improve its ecological health. In the past those groups have not necessarily seen eye to eye,” said MaryLou Smith, PRTI facilitator. “Increasingly our participants are open to the idea that it takes collective vision and action to make the Poudre the world’s best example of a healthy, working river.”
Once again, this year’s event will be facilitated by the Colorado Water Institute at Colorado State University. “The Forum is a great opportunity for the communities connected by the Poudre River to come together to better understand the entire watershed, and each other,” said Reagan Waskom, director of CWI.
Forests and water quality/quantity
Laurie Huckaby with the U.S. Forest Service, will present “The last 1,000 years in the Poudre according to the trees,” to kick off the topic of how important the upper watershed is to water quantity and quality.
“Water quality and forests are inextricably linked,” said Joe Duda of the Colorado State Forest Service, who will join Huckaby as one of the presenters. “Forest conditions and insects, disease and fire all can have profound impacts on water flow and quality. Only healthy, resilient forests can continuously supply clean water.”
Global lessons for local success
“Finding the Balance: Managing Water for People and Nature” is the message of keynote speaker Brian Richter. Richter has been a global leader in water science and conservation for more than 25 years, and currently serves as chief scientist for the Global Water Program of The Nature Conservancy in Washington D.C. Richter’s ideas about the importance of recognizing the balance of working river/healthy river are the basis for which PRTI was initially formed. He has consulted on more than 120 water projects worldwide, and has served as a water advisor to some of the world’s largest corporations, investment banks, the United Nations, and has testified before Congress on multiple occasions. Richter co-authored,with Sandra Postel, the 2003 book Rivers for Life: Managing Water for People and Nature and in 2014 wrote Chasing Water: A Guide for Moving from Scarcity to Sustainability.
Change affects all sectors
An afternoon panel session will probe the impacts of change — positive and negative — along the Poudre River and how they have been similarly and differently addressed by agriculture, urban, and environmental sectors. They will discuss what anticipated future changes might these three sectors see as opportunities or incentives for mutually beneficial collaboration that could result in a healthier, working river?
“It has been said that the only thing that is constant is change,” said John Bartholow, retired ecologist from U.S. Geological Survey, and panel coordinator/moderator. “The question is, can we learn to adapt to those changes sure to come on the Poudre in ways that benefit agriculture, municipalities, and the environment?”
The panel will include Eric Reckentine, deputy director, City of Greeley Water and Sewer; John Sanderson, director of science, Nature Conservancy of Colorado; and Dale Trowbridge, general manager, New Cache la Poudre Irrigating Company.
Videos, displays and music too
The day-long forum also includes “River Snapshots” highlighting more than 15 projects undertaken by a variety of groups on the Poudre last year; “My How the Poudre Has Changed,” featuring historical 1970’s footage of the Poudre; updates from both the cities of Greeley and Fort Collins on current water programs; and over two dozen river-focused displays from community organizations and agencies. The day concludes with a social hour including food, beer and other beverages, and river-themed door prizes.
Officials in charge of the Windy Gap Firming Project are checking to make sure that a Dec. 7 Colorado Supreme Court decision won’t adversely affect the $387.36 million transmountain water diversion project that will benefit the Front Range…
…in December, the Colorado Supreme Court sided with western slope interests against Aurora in case that had to deal with pumping western slope water across the continental divide and storing it on the eastern slope. Aurora had a one-half interest in the Busk-Ivanhoe Diversion Project in western Colorado.
Jim Pokrandt, spokesman for the Colorado River District, said the case relied on storage rights for the water.
“The big crux of the Aurora case is that they didn’t have the storage rights for the transmountain water that they took,” Pokrandt said. “So I’m sure what a lot of folks are doing is looking at their water decrees and seeing if they actually have decreed storage rights for transmountain water. That’s the question for the Windy Gap Firming Project.”
Pokrandt said that in the Colorado River District’s view, the court made the right decision.
“Our position is that water law is water law and under ordinary water law, you need a water right to store water. And Aurora argued that transmountain water didn’t need an exact water right to store it,” Pokrandt said. “But, no you do need that because water law is water law and there’s nothing special about transmountain water.”
The municipal subdistrict of the Northern Colorado Water Conservancy District is leading the Windy Gap Firming Project.
Eric Wilkinson, general manager of the municipal subdistrict, said they have staff researching to make sure the Aurora decision is unique to the case and to verify that the Windy Gap Firming Project is on legally stable ground moving forward.
“The Busk-Ivanhoe decision has a very significant application statewide … what the (Colorado) Supreme Court decision did is apply, in essence, 2016 water rights administration and laws to a decree that is dated 1928,” Wilkinson said.
Wilkinson added that staff are verifying that they have the water decrees to store Windy Gap water on the within the basin of use, which would be on the western slope.
Northern Spokesman Brian Werner said they are fairly certain the Colorado Supreme Court decision shouldn’t have major impacts on the Windy Gap Firming Project, which has been in the works since 2004.
“I want to emphasize that intent to store, we’ve had that all along with the Windy Gap Firming Project,” Werner said. “So if you’re asking what the impact (of the decision) is on the Windy Gap Firming Project, I can tell you there shouldn’t be any.”
Wilkinson added that with Colorado water law, nothing is certain forever.
“That’s the intent of our research to get to that point (of certainty),” Wilkinson said.
“But in Colorado water law and some of the interpretations that come out, there is not such a thing as absolute certainty. This Busk-Ivanhoe decision introduced some change in thought that didn’t exist before so say ‘here’s how it will be always and forever in absolute certainty’ is probably unreasonable, but we’re trying to get to a reasonable amount of certainty.”
Coyote Gulch contributor Brent Gardner-Smith took a deep dive into the decision to extract a summary of the water court process for a change of use. Below is his email:
You might appreciate this. In the midst of the Busk opinion is summary of the factors that go into changing a water right. I’ve stripped it of the legal references, but otherwise, it’s the court’s words. Thought you might appreciate it. Not sure what else to do with it yet.
Under Colorado’s doctrine of prior appropriation, a water right is a usufructuary right that affords its owner the right to use and enjoy a portion of the waters of the state.
One does not “own” water, but owns the right to use water within the limitations of this doctrine.
The touchstone of Colorado’s prior appropriation doctrine is beneficial use. That is, an appropriator perfects a right to use water by applying a specified quantity of unappropriated water to a beneficial use.
“Beneficial use” is “that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.”
Colorado water law has long recognized the right of water users to make changes to the terms of their decrees—including changes to the type, place, or time of beneficial use; changes to the points of diversion; changes to storage; and changes from direct flow to storage and subsequent application and vice versa.
Permanent changes to a water right must be decreed through the adjudication process established by the legislature … and … parties wishing to change the use of a water right must obtain a water court decree allowing the change in use.
It is inherent in the notion of a ‘change’ of water right that the right itself can only be changed and not enlarged.
This is a basic predicate of water law dating to the nineteenth century; a change application merely continues the rights decreed in the original appropriation in a new form and may not expand the amount of water actually used under the original decree.
In other words, “the right to change a water right is limited to that amount of water actually used beneficially pursuant to the decree at the appropriator’s place of use.”
Thus, in order to determine that a requested change of a water right is merely a change, and will not amount to an enlargement of the original appropriation, the court must quantify the historic use of the right to some degree of precision.
Quantification of the amount of water beneficially consumed pursuant to the decree guards against rewarding wasteful practices or recognizing water claims that are not justified by the nature or extent of the appropriator’s actual need.
An absolute decree confirms that a right of appropriation has vested; the decree entitles the appropriator to use that right through its decreed point of diversion in a specified amount, usually expressed as a flow rate (for a diversion right) or in acre-feet of water (for a storage right).
The term “historic use” refers to the “historic consumptive use” or “historic beneficial consumptive use,” attributable to the appropriation of that quantity of water historically consumed by applying the water to its decreed beneficial use.
However, because “the period and pattern of use are not known with certainty at the time a water right is adjudicated,” the decreed flow rate at the decreed point of diversion is not the same as the matured measure of the water right.
Rather, over an extended period of time, “a pattern of historic diversions and use under the decreed right for its decreed use at its place of use” will become the true measure of the mature water right for change purposes, typically quantified in acre-feet of water consumed.
Crucially, proper analysis of the historic consumptive use of a water right measures the amount of water both actually and lawfully used in accordance with the decree.
Because beneficial use defines the genesis and maturation of every appropriative water right in this state, every decree includes an implied limitation that diversions are limited to those sufficient for the purposes for which the appropriation was made.
Importantly, the actual historic diversion for beneficial use may be less than the decreed rate because, for example, “that amount has simply not been historically needed or applied for the decreed purpose.”
Indeed, we have often observed that when an appropriator exercises the right to change a decreed water right, he runs the real risk that the right will be requantified at an amount less than his original decree, based on the actual historic consumptive use of the right.
In short, an initial change application reopens the original decree for determination of the true measure of the appropriative right’s consumptive use draw on the river system.
In sum, “the fundamental purpose of a change proceeding is to ensure that the true right — that which has ripened by beneficial use over time — is the one that will prevail in its changed form.”
The decision is actually a page-turner for water wonks.
This graphic shows the transmountain diversions in Colorado. The Bousted Tunnel, at 53,871 AF, the Twin Lakes Tunnel, at 46,930 AF, and the Busk-Ivanhoe Tunnel, at 4,123 AF, have taken (in this data set) a combined average of 105,024 AF a year from the top of the Roaring Fork and Fryingpan rivers headwaters.
A map of the Busk-Ivanhoe system, with Ivanhoe Reservoir on the left side of the map and Turquoise Reservoir on the right.
From the Nebraska Department of Natural Resources via The McCook Gazette:
The Nebraska Department of Natural Resources has determined that 2017 is a “Compact Call Year.”
On Dec. 31, 2016, DNR director Gordon W. Fassett made the announcement that this year is a “call year” according to provisions of and resolutions regarding the 1942 Republican River Compact between Nebraska, Kansas and Colorado.
Nebraska will now have to comply with terms of the Compact’s 2016 resolution, including providing Kansas with the ability to either call for delivery of its share of Republican River water as needed (from water storage in Harlan County Lake), or leave it in ground and available to Kansas water users at some future time when it’s needed more.
The resolution signed by the three states in August 2016 provides Kansas water users much more certainty that there will be a viable irrigation supply in dry periods. Nebraska will receive full credit in Compact accounting for its compliance activities, including its augmentation deliveries, provided that the water generated by its activities (“Compliance Water”) is delivered to Harlan County Reservoir in Nebraska for Kansas water users’ use.
During Compact Call Years, the Nebraska DNR regulates and administers surface water in the Republican River basin upstream of the Guide Rock Diversion Dam to ensure Nebraska’s compliance with the Compact, issuing the necessary closing notices on natural flow and storage permits in the basin until such time as DNR and river basin Natural Resources District determine that administration is no longer needed to ensure Compact compliance.
The Republican River Compact, signed Dec. 31, 1942, entitles Nebraska to 49 percent of the river’s water, while Kansas receives 40 percent and Colorado gets 11 percent. The Republican River originates in Colorado, crosses the northwestern tip of Kansas into Nebraska, then runs through Nebraska before re-entering Kansas in its northeastern corner.
FromThe Grand Junction Daily Sentinel (Erin McIntyre):
If you notice that some fields across the valley remain bare when others are sprouting with crops this spring, don’t be alarmed.
Behind those temporarily empty rows is an innovative experiment targeting water savings.
Farmers with the Grand Valley Water Users Association are participating in a pilot study to help determine if it’s feasible to intermittently fallow fields to save water in reservoirs.
The move to pay those in the agricultural community to not plant a portion of their crops is the first time an experiment of its kind has been done in the Grand Valley, and it’s one that could change the way water providers operate in the future to conserve precious resources during drought.
With reservoir levels dwindling and low snowpack levels across many areas in the West, water managers are trying this new tool out to see if it could help them hedge against dry years and protect against catastrophe that could result from scarcity along the Colorado River.
This experiment has a goal of helping to shore up water reserves in Lake Powell, which isn’t just a recreation destination, but an insurance policy to protect Upper Basin states like Colorado against demands on water from the Lower Basin, including California.
The Conserved Consumptive Use Pilot Project began last year, and 10 farmers were chosen from a lottery to participate in the program, which compensates them for not planting a portion of their fields. Instead, the water would be banked in storage, hedging against scarcity in times of drought.
The initial phase of the pilot project is projected to save 3,200 acre-feet of water, which is a drop in the bucket of the 7.5 million-acre feet of Colorado River water earmarked for delivery to Arizona, Nevada and California per year by compact agreement. But it’s a start in exploring how water managers can be flexible and avoid heavy-handed edicts from the federal government, pilot participants said.
“We’re trying to find ways to protect ourselves,” said Luke Gingerich, an engineer contracted to manage the pilot program with GVWUA Manager Mark Harris.
“How do we get ahead of this curve for our benefit?” Harris said. “And how do we do it without damaging people’s interests?”
Organizers of the project have spent extensive time researching the legal implications of fallowing fields and leaving agricultural water in the stream to collect in reservoirs.
Farmers interested in the pilot needed to meet several criteria. They needed to be actively farming at least 120 acres for the past three years, and could only commit half of their acreage for fallowing, among other rules. Some of the stipulations are meant to discourage speculation, which has happened in other lease-fallow situations, Gingerich said.
Commodity prices for crops are hovering near multiyear lows, making the deal more attractive for farmers who are guaranteed at least $356 per acre for participation in the pilot.
Harris called the record-low commodity prices in agriculture an “unhappy coincidence” that may have led some farmers to be more open to the experiment. He said some growers were attracted to the staggered fallowing agreements, allowing them to fallow until August, September or October, which would allow them to plant crops like winter wheat for the next season. Overall, the fallowed land is distributed across the association’s service area, and amounts to less than 5 percent of the total acreage.
The pilot project is about building a contingency plan, preparing for the worst-case scenario. In this case, that would be if water levels at Lake Powell drop below the point where power can be generated, which would likely trigger water curtailment in Colorado and other Upper Basin states.
The program has been funded by a number of entities, including the Colorado River Water Conservation District, the Nature Conservancy and the Water Bank Work Group.
Dan Birch, deputy general manager of the Colorado River Water Conservation District, said his agency has been working on this plan for about eight years. He said the motivation is to find a sensible compromise to avoid dire consequences if Lake Powell’s water levels continue to drop.
“What’s going on overall in the Colorado River system is, things aren’t that good,” Birch said. “You really don’t have to look any further than the reservoir levels in Lake Powell and Lake Mead. Those are our savings accounts.”
The reality that water managers are facing is that if water demands continue to increase while snowpack levels dwindle, everyone who depends on the Colorado River isn’t more than a few dry years away from dire straits, said Hannah Holm, coordinator of Colorado Mesa University’s Hutchins Water Center.
“It’s just becoming more and more clear that the Colorado River Basin as a whole could be in real trouble because there’s more water coming out of our system than what’s going into the system, since about 2000,” Holm said. “This is an effort to get in front of it and avoid a crisis.”