Rio Grande Basin Ag Producers workshop recap

Pond on the Garcia Ranch via Rio Grande Headwaters Land Trust

From The Valley Courier (Ruth Heide):

Division of Water Resources State Engineer Dick Wolfe tackled the “use it or lose it” concern during the Rio Grande Basin Ag Producers’ Water Future Workshop in Alamosa on Tuesday.

“People think they have got to divert everything under their water right or they will lose it,” Wolfe said.

He said the important thing to remember is historical consumptive use.

Most water in Colorado is diverted for irrigation, “for beneficial crop use,” he explained. Wolfe was involved in compiling a special report issued in February 2016 by the Colorado Water Institute in an effort to educate people on the “use it or lose it” concept.

The report addresses five main concerns: 1) maintaining conditional water right; 2) administering absolute water right; 3) abandoned water right; 4) changing use of a water right from agriculture to municipal use; and 5) implications of conservation program participation.

Wolfe specifically dealt with the fourth concern, changing the use of a water right, during Tuesday’s conference. He explained that water right changes come under dual administration, both from the state engineer’s office and the water court, which adjudicates the water right.

“Any change of water right can be time consuming and costly,” he said.

A change of water rights case has to consider whether the change will injure existing users or use more water than historically used.

Water rights come with restrictions such as the maximum that can be diverted, flow rate and area of land, Wolfe explained. The historic consumptive use is critical in water use change cases, he added, with the historical consumptive use of a water right often being less than the maximum that was allowed to be diverted under the original decree. Wolfe used a hypothetical example of a water right decreed for 150 cfs (cubic feet per second), but only 100 cfs had historically been used to irrigate the farmland, with only 60 cfs actually consumed by the crop and 40 cfs returning to the river. If the owner of the property wanted to dry up the farmland and sell the water right to a factory, for example, the owner could not transfer the full 150 cfs that was decreed in the water right, Wolfe explained. The owner could only transfer the 60 cfs that was historically consumed on that property. The water that has historically gone down the river must continue to do so.

Wolfe said someone might argue that they should divert their entire decreed right, then, but the crop can only consume so much water, and that consumptive use is what can be transferred.

“The measure of that is still historical consumptive use,” Wolfe said. “It’s limited by the amount the crop can consume.”

The duty of water is also something to consider, Wolfe added. If folks are diverting more water than they need, they could be depriving others and causing unintended impacts to the stream system, he explained.

Colorado water law does not permit wasteful water use, and Wolfe said he would be issuing an order in the next few months giving clear guidance on what wasting water means.

Water Rights and Governance Guide for #Colorado’ s Acequias (Revised 2016)

Click here to download the handbook. Here’s an excerpt:

This handbook is a joint effort of the Sangre de Cristo Acequia Association, the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment at the University of Colorado Law School, Colorado Open Lands, and dedicated private attorneys. The handbook was inspired by the New Mexico Acequia Association’s Acequia Governance Handbook, which served as a wonderful model.

The handbook represents the work of law student volunteers at the University of Colorado Law School, with supervision and guidance from Colorado law professors and attorneys.

Two Rivers Water Co. is suing farmers under the Welton Ditch

Cucharas Dam via The Pueblo Chieftain

From The FencePost:

For generations, this community under the Welton Ditch has been growing hay, winter wheat, barley, oats, vegetables and livestock, but all of that could soon come to a crashing halt…

Two Rivers Water & Farming Co. (Two Rivers) is suing Welton Water and its shareholders for what they are calling “wasteful and inefficient water use practices.”

In accordance with Welton Water’s senior rights, water is allocated from the Huerfano River in priority; however, satisfaction of those senior water rights, in accordance with Colorado law, means Two Rivers is sometimes precluded from filling its storage reservoirs while Welton Water’s senior rights are unsatisfied. If Two Rivers wins the suit, Welton Water, and its shareholders, will lose its right to divert and use water in accordance with their water rights in certain months of the year and a new precedent will be set for future water rights of Colorado farming and ranching families.

“Two Rivers is suing each of the shareholders individually, and we believe that their game plan is to get us tied up in a legal battle that none of these farmers and ranchers can afford,” said Larry Morgan, Welton Land & Water Co. president. “If we can’t defend ourselves and we lose our water rights, we will all be in serious trouble.”

TENUOUS SITUATION
Welton Water’s senior rights are still junior to the water rights of appropriators who live higher up in the mountains, meaning that very little summer water is available to satisfy the water rights decreed to the Welton Ditch and therefore the shareholders receive very little summer water. Without the winter water, it could prove difficult for Welton Water’s shareholders to run livestock on this land, raise winter wheat or get the ground wet in the springtime for planting.

“We don’t know when we’ll go to court on this; I suppose, it depends on how much paperwork they throw at our attorneys,” Morgan said. “We think they are going to deep-pocket us to death, and without water, we won’t be able to water our cattle or crops, and our land becomes basically worthless.”

John Justus, legal counsel for Welton Water, says he questions the validity of Two Rivers’ claims.

“The litigation was initially triggered by a Colorado State Engineer’s enforcement action seeking enforcement of an unappealed administrative order requiring Two Rivers to cut down the dam associated with Cucharas Reservoir, one of Two Rivers two junior reservoirs,” Justus said. “That order was based on public safety concerns as a result of the condition of the dam at Cucharas Reservoir. Two Rivers, in its defense against the engineer’s enforcement action alleged that it was unreasonable to demand that the Two Rivers comply with the dam cut-down order, and the associated costs, unless the engineers addressed what Two Rivers characterized as ‘wasteful and unreasonable water practices’ by Welton Water and its shareholders. Consistent with that allegation Two Rivers brought a separate set of claims against Welton. Although Two Rivers ultimately entered into a consent decree with the state and division engineers, which requires it to cut down the dam and complete certain other tasks, it continues its litigation against Welton Water and its shareholders.”

According to Justus, Two Rivers has several “creative claims” against Welton Water.

The first is “Two Rivers claim that certain traditional winter irrigation practices of the Welton shareholders fail to constitute beneficial use of water under Colorado law,” Justus said. “Because of the nature of this claim and its impact on their individual water rights, the court required that Two Rivers join Welton Water’s shareholders to this action. However, many ditch companies and their shareholders utilize the same types of irrigation practices that Welton Water’s shareholders do, so this should be of great interest for other people with winter water rights across the state of Colorado.”

Justus further explained, “Prevention of the form of winter irrigation practiced under the Welton would mean irrigation practices that are necessary for maintaining viability of certain lands for agricultural production would no longer be permitted. Importantly, the Winter Water Storage Program in Pueblo Reservoir, and the decree confirming the change of water rights necessary for the operation of that program would have been improper if Two Rivers’ theories are correct.”

CONCRETE STRUCTURES
The second is “Two Rivers claim that Welton’s diversion structure from the Huerfano River must be a permanent concrete structure in order to be a reasonable means of diversion under Colorado law,” Justus said. “If that was to become the new standard, it would mean that hundreds and possibly thousands of structures in the state no longer constitute reasonable diversion methods. Although the court has declined to dismiss this claim at this point in the litigation, Welton Water is confident that the law paired with the facts to be demonstrated at trial will show Two Rivers’ allegations to ultimately be groundless.”

Third is “Two Rivers claim that stream losses which occur in the division engineer’s administration of the waters of the Huerfano River in response to a ‘call’ petition by Welton Water pursuant to its senior water rights constitute unreasonable and actionable waste by Welton Water.”

In a briefing to the court, which has yet to be decided, Justus said, “Both Welton Water and the state and division engineers have argued that no such claim is cognizable under Colorado law. The court has yet to issue an order on the matter.”

The concept is simple according to Justus, “an appropriator like Welton Water and its shareholders cannot legally waste water over which it has no control, until water is diverted by Welton Water, the water remains within the exclusive administrative control and authority of the state and division engineers.”

Not only is Two Rivers seeking year-round water rights for its cannabis business, but it appears development projects might be in the works.

“In an investor update to its shareholders dated December 2016, Two Rivers says they are a vegetable company, but that document suggests that the entity is pivoting its near term focus to utilizing its water to grow hemp and for the development of infrastructure for the cannabis industry,” Justus said. With respect to its long-term focus, “that document suggests Two Rivers wants to take its existing water rights and use it in a development fashion, generating revenue through selling taps for development. Interestingly, Two Rivers water rights are not decreed for nonagricultural uses like domestic or municipal purposes. Nonetheless that document suggests Two Rivers plans to invest approximately $42 million in Cucharas Reservoir over the next two years.”

Justus noted that “eliminating the effect of Welton Water’s downstream senior rights will however potentially increase the yield of Two Rivers more junior rights associated with its reservoirs and therefore its return on its investments.” 
The case is ongoing, and as Two Rivers is suing each shareholder individually, Justus said it’s unclear when this will go to trial; however, he anticipates a July setting conference with the court, with a trial following 6 to 9 months after.

COUNTER CLAIM
Meanwhile, Welton Water has a counter-claim against Two Rivers arguing that out-of-priority depletions to the Cucharas and Huerfano Rivers by Two Rivers’ Cucharas Reservoir, in amounts approaching 3,000-acre-feet per year, are injuring the water rights of Welton and others. Welton anticipates that the unabated depletions will continue again this irrigation season.

Park County commissioners approve water lease

Upper South Platte Basin

From The Fairplay Flume (Lynda James):

The commissioners signed a resolution that approves the second amendment to the county’s water court application March 2.

The case filed in 2008 is to obtain a water rights decree for public works to use water for dust suppression and road construction.

The case also asks approval of the county’s water augmentation plan to replace water used by the department when a call on the river is in place…

The original water rights case was filed for six diversion points and plan of augmentation for 5.6 acre feet with an appropriation date of Dec. 2008…

The first water court amendment in 2013 added 12 points of diversion with an appropriation date of Oct. 2013, increased water from 5.66 to 15 acre feet and added places of storage.

The second amendment approved March 2 adds the five acre feet of water recently purchased from Lone Rock Water LLC as a source of augmentation water…

Until the county obtains water court approval for water rights and plan of augmentation, the county is using water under a Substitute Water Supply Plan approved by the State Engineer’s Office.

A SWSP allows one to use and augment water according to a written plan until the water rights application is actually approved by water court.

Environmental Defense Fund looking for win-wins with farmers RE: groundwater depletion

The High Plains Aquifer provides 30 percent of the water used in the nation’s irrigated agriculture. The aquifer runs under South Dakota, Wyoming, Nebraska, Colorado, Kansas, Oklahoma, New Mexico and Texas.

[ed. Coloradans know that ranchers and farmers are key stakeholders in the preservation of habitat and water resources, and they grow our food.]

Here’s an interview with EDF staffers from Matt Weise writing for Water Deeply. Click through and read the whole article. Here’s an excerpt:

Environmental Defense Fund is launching a new Western water strategy that aims to solve the problems of groundwater depletion and habitat restoration by working jointly with farmers.

FARMERS AND ENVIRONMENTALISTS have often been at odds. Farmers, for instance, rarely want it known that their land might host an endangered species, for fear regulations could come crashing down. Environmentalists are fond of regulations to protect natural resources, but rarely do much to help farmers comply.

These old patterns are beginning to change as the two camps find they have more in common than stereotypes suggest. One group working along this path is Environmental Defense Fund, which is developing a new Western water strategy aimed at helping farmers cope with scarcity.

The new policy, still being developed, aims to help farmers and irrigation districts comply with California’s Sustainable Groundwater Management Act (SGMA). EDF also plans to help create water markets, so farmers can sell or trade water when they have a surplus…

To get a preview of the new strategy and how it can help both wildlife and farm economies, Water Deeply recently spoke with three EDF staffers: David Festa, senior vice president, ecosystems; Maurice Hall, associate vice president, ecosystems and water; and Ann Hayden, senior director, California habitat and Western water.

Water Deeply: What region are you focusing on, exactly?

Maurice Hall: Generally, we think of our problem set as the areas where irrigated agriculture is the prominent water use. That tends to correspond to the area where we have the biggest stresses on water and water scarcity issues.

Right now, there are two really big opportunities to insert new solutions. One is California, and in large part the opportunity we have now is due to passage of SGMA. Because of the stresses that is going to add to an already stressed system, it will cause us to have do a lot of things differently.

The second big opportunity is in the Colorado River Basin, especially in the Lower Colorado region. There are clear signs of imbalance on Lake Mead, the big storage reservoir that the Lower Basin states depend on.

Water Deeply: You’re developing an open-source toolkit to help people comply with California’s SGMA and a series of workshops. That’s kind of unusual for an environmental group, isn’t it?

Ann Hayden: We recognized that the responsibility SGMA was going to put on local agencies to figure this out was going to be a huge burden. Our strategy is really to target those folks in the Central Valley who seem more willing and better positioned to get out ahead of the far-off deadlines in SGMA, and figure out ways they can be credited for doing those things.

Specifically, we’re thinking of ways we can help with groundwater recharge and developing a groundwater market. We’re focusing on where those opportunities lie.

We also recognized that in order for this to be a sustainable solution, we really need to figure out ways in which we can get disadvantaged communities to have a seat at the table, and equip them with tools and resources to engage in decision-making. We’re working with partners on the ground in the Central Valley to establish a Water Leadership Program.

Water Deeply: And you’re actually working on trying to incubate new water markets. How will that work?

Hall: Consider, right now, the agriculture water users who have water rights. Because of the way we’ve built our system and the social norms and policies we have established, they have few choices of how they can use their water. They can either grow their crops or not use their water. Because if you don’t use your water, you lose the water right. So there’s an incentive to use the water whether or not it’s really economically viable, or whether it’s really what you want to do most.

So the value of water markets, generally, is to give those who have the rights some flexibility in how they use water, so they can manage it as an asset, as opposed to just an input of their agricultural production. That opens up a lot of options. Maybe I’m growing a crop I’m barely making money on, and somebody downstream needs some water to supplement their almond orchard. And I can trade my water to them and use less on my land, and we’re both better off.

One of the problems is that if you do that without the right sideboards in place, you can have some undesirable impacts. For instance, you might reduce the recharge to groundwater in your local areas because you’re not irrigating your field. So building water-trading programs that include those externalities is what is necessary going forward, and why we see the importance of us being involved in making this happen.

Water Deeply: You sponsored a bill last year, AB 2304, to help launch water markets in the state. What’s the status of that bill, and what comes next?

Hayden: We started working with the Association of California Water Agencies, which is also coming out with its policy principles on what should and could happen to improve water markets. There was a lot of common ground. Unfortunately, there’s a whole spectrum of perspectives among its members. When it came down to it, it was too challenging to gain full support of ACWA at this point to make movement on legislation. That said, we are committed to working with ACWA on other possible policy improvements, maybe those that don’t require legislation at first.

Hall: There have been really bad examples of what ill-planned water trades can do. A dramatic example happened on the Front Range of Colorado, where pretty significant communities have been dried up through purchase of agricultural land and the water rights that go along with them – so-called “buy-and-dry” transitions that have been in the news for decades. So we recognize we have more education to do.

Water Deeply: You also want to incentivize farmers to idle land for environmental purposes. Is this a kind of land trust?

Festa: What we’d like to do is create the economic systems that will allow farmers and ranchers to look at the environment, essentially, as a crop. They can manage their lands in ways that produce a very specific environmental benefit and get paid to do it. The concept is a cousin to things like conservation easements and land banks, where land is taken out of production. But in a lot of those cases, not much, oftentimes, is actually done to manage it for a particular environmental outcome.

Hayden: In the groundwater context, it is one area where we may have a nice linkage with land restoration. We’re probably going to see more land that has to go idle in order for farmers to adjust to how water supply is going to change under SGMA. We want to get out ahead of that and help farmers design good habitat on their land – and have them be paid for that. There also could be opportunities for farmers to do on-farm groundwater recharge, and ways we can design those activities that are also beneficial to creating habitat.

Water Deeply: Any examples on the ground now?

Hayden: We have a number of pilot projects where we have been able to test our habitat quantification tool. It’s a tool to be able to measure a habitat function on a parcel of agricultural land. It allows you to plug in different practices a farmer could implement to improve that function for a suite of at-risk species.

The one site where we’re about to launch a restoration project is called Elliott Ranch in West Sacramento. We were able to get Proposition 1 funding from the Delta Conservancy to be able to compensate that landowner to make some changes in agricultural practices and direct deliberate restoration on the property. We’re about to start on the actual project and get shovels in the ground in the next couple of months. That’s a project that’s really focused on Swainson’s hawk.

Groundwater movement via the USGS

HB-1228 Notice — #Colorado Division of Water Resources

Flood irrigation in the Arkansas Valley via Greg Hobbs

From DWR/CWCB:

In early April, the Division of Water Resources (“DWR”) and the Colorado Water Conservation Board (“CWCB”) will jointly hold four informational meetings and solicit public input related to the implementation of House Bill 16-1228, known as the Agricultural Water Protection Water Right Bill. This legislation, enacted in 2016, allows water users, if they choose, to change an irrigation water right through the water court to an “Agricultural Water Protection Water Right.” The change allows a portion of the water right to be put to a new beneficial use through a substitute water supply plan (“SWSP”) approved by the State Engineer, while a portion of the original water right must continue to be used for agricultural purposes. The legislation directed the CWCB to develop Criteria and Guidelines to address provisions in the bill and directed the State Engineer to promulgate rules that would guide the approval of a SWSP.

The meetings will be held at the following times and locations:

  • Monday, April 3, 3 – 6 p.m., Island Grove Regional Park, Events Center Conference Room A, 501 N 14th Ave, Greeley, CO 80631
  • Tuesday, April 4, 3 – 6 p.m., Otero Junior College Student Center Banquet Room, 1802 Colorado Ave, La Junta, CO 81050
  • Wednesday, April 5, 3 – 6 p.m., Sterling Public Library Community Room, 420 N 5th St, Sterling, CO 80751
  • Thursday, April 6, 3 – 6 p.m., Upper Arkansas Water Conservancy District Board Room, 339 E Rainbow Blvd # 101, Salida, CO 81201

The agenda for each meeting will be the same: description of House Bill 16-1228; discussion of the draft SWSP Rules; and discussion of the draft Criteria and Guidelines for the Agricultural Water Protection Program. Please visit the DWR website for more information on the legislation, public meetings, and process for providing feedback. The CWCB’s draft Criteria and Guidelines and the State Engineer’s draft Rules related to the implementation of House Bill 16-1228 are also available on the website, and the public is encouraged to review these drafts before the meetings.

Please use this link to RSVP to a particular meeting location by March 30 if you plan to attend.

From The Sterling Journal-Advocate (Jeff Rice):

The Colorado Water Conservation Board and the Colorado Division of Water Resources will hold a series information and input meetings on the new Agricultural Water Protection Water Right law.

There will be a meeting in Sterling April 4 from 3 to 6 p.m. at the Sterling Public Library.

Correction: The meeting is April 5th.

The new law, which was sponsored by both Rep. Jon Becker, R-Fort Morgan, and Sen. Jerry Sonnenberg, R-Sterling, installs safeguards in the event that irrigators want to change part of their water right to a new beneficial use.

Under Colorado water law, an irrigator who wants to lease part of his water to another end-user must go through a state water court process to get what is called a “decree change.” A key to the decree change is making sure the irrigator maintains the return flow that would have resulted from using the water for irrigation. Return flow is water that has been used to irrigate a crop and either runs off or seeps down into the river aquifer to be used by irrigators downstream.

Because water leases tend to be temporary, they are called “alternative transfer methods” because they are an alternative to buying the irrigated land outright and drying up the farmland, a practice called “buy and dry.”

Previously, the irrigator had to have a specified end user for the ATM. If a change in the end user was desired, the irrigator had to go back to water court and repeat the decree change process.

Under the new law, an irrigator will be able to change the end-user by submitting a substitute water supply plan to the state engineer’s office. The SWSP will have to include an explanation of how the irrigator will maintain his return flow obligation. The irrigator will still have to have a conservation program in place through a local agency such as a water conservancy district or irrigation district.

Joe Frank, manager of the Lower South Platte Water Conservancy District, said the new law is an improvement over a similar measure that was introduced a year before.

“Before, there was some fear that (water transfers) could lead to speculation, and that’s just not something we want to see,” Frank said. “(SB 16-1228) allows some flexibility, but reins in on the speculation piece so you can’t change all of your water right.”

He said that while such alternative transfer methods are becoming more common, they aren’t ideal as a solution to the water shortage.

“We don’t want to make this the end-all solution to the gap (in water supply) because it is still drying up some ag, but it isn’t a permanent dry-up,” Frank said. “The good part is you don’t have to keep going back to change your end-user.”

More Coyote Gulch coverage of HB16-1228 here.

2017 #coleg: SB17-036 stalls in House Committee

George Washington addresses the Continental Congress via Son of the South

From The Grand Junction Daily Sentinel (Charles Ashby):

SB36, that cleared the Colorado Senate unanimously, got a bit bogged down in the House Judiciary Committee because of lengthy discussions about what it would do.

Under the bill, introduced by GOP Sens. Ray Scott of Grand Junction and Don Coram of Montrose, appeals of groundwater rights decisions by the Colorado Ground Water Commission shouldn’t include new evidence, just like in any normal court appeal.

Scott, and the House sponsors of his bill, Reps. Jenni Arndt, D-Fort Collins, and Jon Becker, R-Fort Morgan, say the current practice that does allow that isn’t fair.

The lawmakers say most disputes pit farmers and ranchers against water developers who are trying to sell water rights for municipal use, something that can be highly profitable.

Those developers often will drag farmers into court, retrying the case at the appellate level using evidence not considered before the commission the first time, supporters of the bill said.

“It is a matter of being out monied,” said Dan Farmer, a member of the commission and a Colorado Springs rancher. “When we win, we don’t win because we’re short $60,000 (in attorneys’ fees). It’s just not possible to continue to operate a farming operation and try to protect your water rights.”

Opponents of the bill say there is nothing wrong with how cases are tried, saying only a few end up being appealed.

Denver water attorney Sheela Stack, who routinely represents municipalities in water disputes, said it isn’t just the farmers and ranchers who see high litigation costs.

“It goes both ways,” she said. “It’s not just a municipality coming into a groundwater district. We are not trying to bleed the farmers dry. All we are doing, what anybody is trying to do is do the maximum utilization of water.”

The commission is the only state agency that has quasi-judicial powers that current law, established about 40 years ago, allows appeals to include new evidence. Disputes are first reviewed by administrative law judges in the State Engineer’s office, an agency under the Colorado Division of Water Resources, and then decided by the commission.