Moffat Collection System Project will impact forest surrounding existing Gross Reservoir

The dam that forms Gross Reservoir, located in the mountains west of Boulder. Photo: Brent Gardner-Smith/Aspen Journalism

From The Boulder Daily Camera (Charlie Brennan):

The Federal Energy Regulatory Commission is expected to rule early next year on what would be the biggest public works project in Boulder County history, exceeding the original construction of the Gross Reservoir Dam, which was completed in 1954.

The tree removal plan outlined in Denver Water’s FERC application states that all trees and their associated debris on about 430 acres along 12.5 miles of shoreline will have to be removed in the course of the expansion, which is envisioned as being completed by 2025.

Denver Water spokeswoman Stacy Chesney said the agency has estimated that “the density of the forest ranges from approximately 150 to 1,800 trees per acre. Based on these initial plans, we estimate up to 650,000 trees will need to be removed in the area surrounding Gross Reservoir.”

In a recent interview, Denver Water President Jim Lochhead vowed that every aspect of the project’s completion is being designed and executed with an eye toward mitigation of its impacts on the high country environment and those who depend on it for their recreation or call it home.

“We recognize that this is a major construction project and it has adverse impacts to the community,” said Lochhead, whose utility serves 1.4 million in Denver and many of its suburbs — but not Boulder County.

“We are trying to understand exactly what those impacts are, and see what the needs of the community are, and do everything we can to help address them.”

Referencing project manager Jeff Martin, Lochhead said, “Whether it’s traffic, hauling on the roads, whether it’s noise associated with the quarry, whether it’s the tree removal issues, it’s Jeff’s job to make sure it goes in a way that we’re doing the best that we can by the local community.”

Martin said: “We recognize the brutal aspects of the project. We don’t want to hide from those. That’s not our objective.”

Stressing that Denver Water intends to factor the concerns of reservoir neighbors into its planning of what’s officially known as the Moffat Collection System Project, Martin said, “We look forward to getting that feedback, seeing how we can make it into the most palatable project we can, and turn it into, maybe not reducing all the impacts, but for the greater good, reducing them as much as we can.”

[…]

A 48-page plan for the required tree removal prepared by Denver Water describes a mix of ponderosa pine, Douglas fir and Rocky Mountain juniper.

According to data the agency compiled in 2005, most of the trees at that time were 20 to 50 feet high, with a breast-high diameter ranging from 4 to 14 inches.

“Because of the topography, e.g., very steep slopes, rock outcrops, etc., several more complex tree removal (logging) systems will need to be used, and some temporary roads will need to be constructed to remove the trees,” the plan states.

It estimates that 50,000 tons of forest biomass are expected to be produced during the required clearing for the expansion of Gross Reservoir, which is to see its dam raised by 131 feet, expanding the reservoir’s capacity by 77,000 acre feet to a total storage capacity of 118,811 acre feet.

While noting that, “Traditionally, most of the slash would have been piled and burned in place,” the plan acknowledges that, “Today, burning large quantities of forest residue, in close proximity to residential areas, is problematic in the extreme.”

Allen Owen, Boulder District forester for the Colorado State Forest Service — a contracted forest resource management partner to Denver Water through the Forests to Faucets program — said he had been unaware of the number of trees Denver Water is planning to pull out of the Gross Reservoir area, or that it will involve the leveling of all growth on 430 acres of shoreline.

He doubts it would actually reach the 650,000 figure.

“That would mean 1,500 trees per acre over the entire 430-acre unit, and I know that’s not the case,” he said. “The stand densities vary all around the perimeter of the shoreline. There are areas that are nothing but solid rock, with no vegetation on it, to units that may have those number of trees. But there are not that many trees over the entire 430 acres. The number seems high.”

Owen expects state foresters will be involved in plotting how the trees’ removal proceeds.

“It’s something way beyond the ability of the Colorado State Forest Service,” he said. “I would consider that a big logging job, on very steep slopes, with very poor access. It is going to be very difficult, at best.”

Martin discussed three different potential scenarios, including removal by truck, burning and burial of felled lumber, or some combination of those strategies.

In cases where trees are located on small rock bluffs, Denver Water’s current removal plan notes, “the use of helicopter may be necessary.”

Denver Water believes new emerging technologies may pose options for removal that weren’t contemplated when its plan was authored.

“One of the things we’ve committed to is developing a process with public input … going out and getting some public input and some stakeholder input and that includes the U.S. Forest Service, the Colorado state forester and Boulder County, and developing some concepts … and then seeing what fits best for the community from there, and then moving forward with the plan,” Martin said…

Denver Water points to steps it is taking to mitigate the effects of construction wherever possible, and also emphasizes measures that it contends offers some in Boulder County a benefit. Lochhead and Martin touted the provision of a 5,000-square-foot environmental pool in the expanded reservoir, to be available for replenishing South Boulder Creek for the benefit of both Boulder and Lafayette at times when it is running dangerously low.

“That’s kind of a neat partnership there,” Lochhead said.

That does not mean that Boulder supports the Gross Reservoir expansion — but nor does it oppose it.

“Boulder has a neutral position on the overall expansion,” said Boulder’s source water administrator, Joanna Bloom.

“If the project somehow falls apart, then Boulder will continue to try to establish the streamflows on South Boulder Creek through other means,” Bloom said…

Boulder County’s stance on the expansion is more complicated.

The county filed extensive comments on both the draft and final environmental impact statements in the Army Corps of Engineers’ review process, and doesn’t agree that the EIS adequately addressed “the myriad of impacts” that would result for Boulder County and its citizens.

On March 23, the county filed an unopposed motion to intervene in the FERC approval process. One of the points the county addressed at length in that intervention relates to tree removal — and its arguments are based on the presumption of a far more modest, but still significant, removal of trees, at a total of 200,000.

“County roads (Flagstaff Road, Magnolia Road and others) are windy with low volume residential traffic and would be inappropriate for use by trucks hauling trees,” the county argued.

“In addition, it may not be possible to safely navigate SH 72 with trucks full of trees. These heavily laden trucks will cause damage to the roads and present safety concerns for road users.”

Moreover, the county contends Denver Water’s project must come through its land use review process, while the utility maintains that the county’s role is superseded by the FERC review process.

Until that conflict is resolved, the county is tempering its remarks, pro or con, on the Gross Reservoir project, so that it will not be seen as having prejudged any application Denver Water might make in the future through the county’s land review process.

Martin recalled that Denver Water worked extensively with Boulder County in 2012 exploring a potential intergovernmental agreement to facilitate the reservoir expansion.

While such a pact was ultimately rejected by Boulder County commissioners by a 3-0 vote, Martin said, “What we did receive was a lot of information from Boulder County and the public on how we need to shape the project in order to meet the needs of both the community and Boulder County.”

However, independent of the environmentalists’ planned federal lawsuit, there might be a need for another judge to sort out the critical question of whether Denver Water’s plans for tree removal and many other aspects of its reservoir expansion must pass through the county’s land use review process.

“I would say that it is likely that it will take litigation, because neither party is willing to give up its position,” said Conrad Lattes, assistant county attorney for Boulder County. “We need some neutral third party to decide this for us.”

However, on a warm and sunny day back before the chill of approaching winter descended on Colorado’s high country, Denver Water’s brass were flush with optimism.

Martin said that for Denver Water, it’s not just about getting the project done.

“We’re also looking at the social responsibility,” he said, “making sure that when it’s said and done, that we did it in the right way; that we could look back and say we did everything within reason and practicality to make this really the most environmentally, socially responsible project we can.”

Gross Dam enlargement concept graphic via Denver Water

Supporters seeking rights for Colorado River meet in Denver, amend complaint

The Colorado River in Cataract Canyon.

By Lindsay Fendt, Aspen Journalism

DENVER — Beneath the dim red glow of string lights at the Mercury Cafe in downtown Denver, about 25 people gathered Tuesday afternoon to rally support for a lawsuit against the state on behalf of the Colorado River.

The case, the first of its kind in the United States, has the potential to shift American environmental law by granting nature a legal standing. The suit lists “the Colorado River Ecosystem” as the plaintiff along with people who hope to serve as “next friends” for the river and represent its interests in court.

Five potential next friends were named in the original complaint — Deanna Meyer, Jennifer Murnan, Fred Gibson, Susan Hyatt and Will Falk — all members of the environmental group Deep Green Resistance, which states its goal is to “deprive the rich of their ability to steal from the poor and the powerful of their ability to destroy the planet.”

In an amended complaint, filed on Nov. 6, two more “next friends” were added to the case.

Owen Lammers of Moab is the executive director of Living Rivers, “which empowers a movement to realize social-ecological balance within the Colorado River watershed,” the amended complaint states. Living Rivers is a member of the Waterkeeper Alliance, a New York-based nonprofit dedicated to clean water founded by Robert F. Kennedy Jr.

“Because of Mr. Lammar’s significant relationship with, and dedication to, the Colorado River ecosystem, he is qualified to serve as next friend,” the amended complaint states.

This is a change from the original complaint, which did not cite any particular relationship between the Colorado River and the members of Deep Green Resistance.

Also added to the case was John Weisheit, who is “the person designated as the on-the-water ‘keeper’ per the Waterkeeper Alliance policies. In other words, Mr. Weissheit is the ‘Colorado Riverkeeper,'” the amended complaint states.

Wiessheit, 63, “has enjoyed the Colorado River and its tributaries since childhood,” the complaint says. A resident of Moab, he’s been a river guide since 1980 and “continues to lead river trips that support scientific research and public education, in fulfillment of Colorado Riverkeeper’s mission statement.”

Wiesheit is also a co-author of the 2004 book “Cataract Canyon, a human and environmental history of the rivers in Canyonlands,” which is a detailed 268-page guide to the “center of the universe.”

Jason Flores-Williams, the lawyer representing members of Deep Green Resistance in Colorado River Ecosystem v State of Colorado, speaks at a rights-for-nature meeting at the Mercury Cafe in Denver on 11.14.17. The state has moved to dismiss the lawsuit, and is expected to do so again in response to a recently amended complaint filed by Flores-Williams.

Signs of protest

Though the novel case is seeking personhood for the Colorado River ecosystem, the suit’s proponents hope to use it as a launching pad for a broader rights-of-nature movement.

“For you or I to defend a river in court right now we have to show how injury to the river injured us.” said Mari Margill, the associate director for the Pennsylvania-based Community Environmental Legal Defense Fund, a rights-for-nature legal group and a legal adviser on the Colorado River case. There is a growing understanding that our environmental laws are starting in the wrong place.”

Rather than maneuvering within existing environmental law, where nature is considered property, rights-of-nature lawsuits seek to give the natural world rights to exist beyond its use to humanity.

Margill and other rights of nature proponents say that our current environmental legal framework — which is based on legislation like the Clean Air and Clean Water Acts — does not go far enough. They point to past court decisions that have granted legal rights to corporations, like the 2010 Citizens United case, and say nature should have that same standing.

“I’ve long acknowledged that what we are doing in the environmental movement has not created change,” Meyer, one of the potential next friends in the lawsuit, said in a recent interview. “We see every biotic system on the planet in decline and nothing has gotten better. Until the river has rights, I don’t see any change happening in the way it is being used and exploited.”

At the meeting in the café in Denver on Tuesday, activists supporting the lawsuit propped up poster boards that said “The Colorado River runs through us” and “Legal standing for the Colorado River,” that were made for a courthouse rally held earlier that morning. They kicked off their meeting with a slow chant praising “sacred Colorado waters” before sitting down to strategize about building support around the lawsuit.

The group is planning protests, awareness campaigns and other rights-of-nature lawsuits in an effort to open up the courts for cases defending ecosystems from environmental ills.

“The court isn’t going to just give us anything,” Jason Flores-Williams, the Denver-based lawyer representing Deep Green Resistance the potential next friends in the lawsuit, said at the meeting. “How we won’t lose is not based on whatever will happen inside the courtroom, but what happens outside of it.”

So far, the case has moved forward only a couple of short steps. Flores-Williams filed the case on Sept. 25, which the state followed with a motion to dismiss on Oct. 17 on the grounds that the case does not fall under federal jurisdiction and lacked specific injuries attributable to the state.

“The complaint alleges hypothetical future injuries that are neither fairly traceable to actions of the state of Colorado, nor redressable by a declaration that the ecosystem is a ‘person’ capable of possessing rights,” reads the motion to dismiss, which was filed by the Colorado attorney general’s office.

The plaintiffs were then allowed to amend their complaint, and on Nov. 6 Flores-Williams filed a new complaint, invoking rights under the U.S. Constitution in order to keep the case in federal court.

The map of the Colorado River basin included in the amended complaint filed on behalf of the Colorado River ecosystem by members of Deep Green Resistance and other 'next friends.' The map understates the contribution of the Green River to the Colorado River system.

246,000 square miles

Flores-Williams used the opportunity clarify aspects of the original complaint. For example he added that the Colorado River has the right to “be restored” in addition to the right “to exist, flourish, regenerate (and) naturally evolve.”

He also defined the scope of the plaintiff in the case, the “Colorado River Ecosystem,” saying it “encompasses the area bound by the highpoints and ridgelines where drop-by-drop and grain-by-grain, water, sediment, and dissolved materials ebb their way toward the Gulf of California: some 246,000 square miles (640,000 km2) in southwest North America including portions of Colorado, New Mexico, Wyoming, Utah, Nevada, Arizona, California in the United States, and portions of Baja California and Sonora in Mexico.”

The amended complaint states that the Colorado River ecosystem includes the river’s “major tributaries” and “all the creeks, streams, and tributaries that feed them, along with the surrounding landscape where water percolates and flows underground,” and it includes a map of the entire Colorado River basin.

It also cites the native endangered fish species that are struggling to survive in the Colorado River basin and says the Endangered Species Act “has failed to reverse the pace of biodiversity degradation.”

In terms of the connection between the river ecosystem and those who wish to be seen as “next friends” by the court, the amended complaint claims that “as the human part of the Colorado River ecosystem, next friends and guardians are capable of speaking through words on behalf of the natural communities that comprise the Colorado River ecosystem.”

The amended complaint also elaborates on the idea of personhood for the river, noting “the recognition of the Colorado River ecosystem as a ‘person’ is far less of a stretch than bestowing upon inanimate corporations the status of personhood.'”

And the amended complaint argues that by lack of such recognition the river’s rights are being denied under the due process and equal protection provisions in the U.S. Constitution.

On thing the amended complaint did not do is correct claims in the original complaint that the state of Colorado operates a number of dams and reservoirs on the Colorado River system that are, in fact, operated by the Bureau of Reclamation or other water-management organizations, including Blue Mesa Reservoir on the Gunnison and Green Mountain Reservoir on the Blue River, both tributaries of the Colorado River.

Will Falk,a member of Deep Green Resistance, speaking at the Mercury Cafe in Denver on 11.14.17. Falk is one of the named plaintiffs in Colorado River Ecosystem v State of Colorado, and has recently been traveling along portions of the Colorado River.

Beyond the law

The courthouse rally and the following rights-of-nature meeting were originally scheduled around a status conference slated for Tuesday, but the court vacated the hearing and gave the state until Dec. 1 to respond to the amended complaint. Flores-Williams expects the state will again move to dismiss the case.

Regardless of the outcome of the lawsuit, the case’s plaintiffs plan to keep fighting against what they see as exploitation on the Colorado River and hope to inspire other to file rights of nature cases.

“Our case by itself is not going to transform the American legal system,” Falk, a potential “next friend” in the case said in an interview. “People who care about the environment need to realize that one court case is not going to be a quick fix for a system that has a tradition of exploiting the natural world.”

The amended complaint notes that Falk “recently traveled the waters of the Colorado River.”

“To support the idea that the Colorado River needs rights, I wanted to go see first hand the problems along the river,” Falk said in a recent interview.

Grand River Ditch July 2016. Photo credit Greg Hobbs.

“It started a couple weeks ago when we went up to La Poudre pass north of Rocky Mountain National Park to see the headwaters of the river,” Falk said. “And you don’t really find a whole lot of natural or wild water. What you find is the Grand Ditch, which is a ditch build in the 1880s that is still carrying water across the Continental Divide and over the Rocky Mountains and to the Front Range. From the very beginning, the river is being exploited. The water is taken from her birthing grounds. From the moments she begins to flow she is being stolen.”

Editor’s note: Aspen Journalism is covering rivers and waters in collaboration with the Glenwood Post Independent, The Aspen Times, the Vail Daily and the Summit Daily News. The Post Independent published a shorter version of the story on Sunday, Nov. 19, 2017.

Long Hollow Reservoir late season augmentation water working as planned

Long Hollow location map via The Durango Herald

From The Durango Herald (Jonathan Romeo):

In the 1960s, irrigators in southwestern La Plata County had their dreams dashed when plans for a major transmountain diversion, which would have taken water from the Animas River into the low-flow La Plata River, were quashed.

The water project – called the Animas-La Plata Project – was considered the last major water storage effort in the American West. Then in 1990, the project was downsized again, removing plans for irrigation out of Lake Nighthorse.

“That’s when we started thinking seriously about this,” said Brice Lee, president of the La Plata Water Conservancy District.

Irrigators on the western side of the county have historically had to rely on the La Plata River, a generous moniker for a relatively low-flow waterway that is reduced to a trickle, and even dries up, after a short spring runoff.

Yet despite the lack of natural flows, the water has been terribly over-appropriated.

In the 1920s, Congress approved a water compact that requires the state of Colorado to deliver one-half of the daily flow of the La Plata River, measured at Hesperus, to the New Mexico state line for the use of irrigators to the south.

However, Colorado, which must live up to those terms from Feb. 1 to Dec. 1, has not always made good on that requirement for a number of reasons, including drought and water demands.

As a result, Long Hollow Dam was concocted in the 1990s, with construction starting in 2012. It cost nearly $23 million. Funds set aside from the Animas-La Plata Project paid for the 151-foot-high, 800-foot-wide dam.

The reservoir, located along Colorado Highway 140, has a capacity of nearly 5,400 acre-feet – small change when you consider Vallecito Reservoir has a capacity of 125,000 acre-feet and Lake Nighthorse, also relatively new, has a capacity of 123,541 acre-feet.

Still, the stored water in Long Hollow Dam functions as a win-win water exchange.

About 100 to 150 irrigators in southwestern La Plata County can draw and divert water out of the La Plata River farther north of Long Hollow Dam.

Then, to meet the terms of the compact, water is released from the Long Hollow Dam into the La Plata River, which takes water from Long Hollow Creek and Government Draw, tiny tributaries of the La Plata River that drain 43 square miles east of Colorado Highway 140.

Lee said thanks to strong winter snowfall and spring rains, Long Hollow Dam was able send 2,000 acre-feet to New Mexico this year. That means irrigators in southwestern La Plata County were able to use an additional 2,000 acre-feet out of the La Plata River.

“We’re pretty pleased,” he said. “We had a good year.”

The uptick in available water has had a predictably positive affect for ranchers and farmers, extending the growing season anywhere from 10 to 14 days – a vital extension in an industry that runs on margins.

“This is helping families that were drying up and getting discouraged,” said Ron Crawford, a fourth-generation La Plata County resident who is in charge of dam maintenance.

Taylor, whose father, Bobby, sold the land for the dam, said he was able to produce 30 to 40 percent more hay and grain than in years past because of the water Long Hollow Dam freed up.

Windy Gap Firming Project update

Windy Gap Reservoir

From KUNC (Luke Runyon):

Collaboration is a lofty goal touted by political and business leaders as a potential way forward on anything from climate change to healthcare to obesity. Drop your weapons, turn your enemies into partners and achieve great things — or so the thinking goes. But collaboration is a concept that sounds great in the abstract and quickly turns messy in practice, with plenty of pitfalls along the way toward a common goal.

Avoiding drawn out fights has always been tough when dealing with water issues in the West. Collaboration wasn’t always the go-to strategy for environmentalists, political figures and water managers who held competing interests on overtaxed, overdrawn rivers.

But with the Windy Gap Firming Project in northern Colorado’s mountains, old grudges are being put aside in favor of new, collaborative tactics. While some of the West’s oldest enemies are working together, those who feel left behind by all the newfound teamwork aren’t ready to sing “Kumbaya.”

[…]

Windy Gap Reservoir — at the heart of the dispute — is a shallow, human-made lake just west of Rocky Mountain National Park. Colorado River water sits in a wide, shallow pool, kept in place by a dam…

It’s just one piece of a much larger diversion project that moves water from the headwaters of the Colorado through the mountains for use along the Front Range. Water managers have proposed, and received the federal permits needed, to use this small reservoir to move more water eastward, exercising water rights they say they’re unable to use now because the system is full to the brim at inopportune times.

That type of proposal — to send more Colorado River water eastward to supplement urban and suburban growth — stirs up all kinds of West Slope anxiety about Front Range growth.

“We know the flows are going to be diverted,” [Kirk] Klancke says. “We know the state’s not going to stop growing, that’s reality.”

“The pragmatic approach would be then to figure out how to keep your aquatic habitat healthy with those diminished flows, and that’s what we’re doing,” he says.

Rather than fight powerful water managers like Denver Water and Northern Water in the duke-it-out, courtroom-style battle some environmental groups have perfected over the years, Trout Unlimited and some of its allies took an unprecedented step: working together. Since the Windy Gap project’s revival more than a decade ago, they’ve had a seat at the negotiating table. If cities want to siphon away West Slope water, Klancke says, they need to give something in return.

“These are some of the most powerful people in the state because they control one of the state’s most important resources,” he says.

Which is exactly why other environmentalists, like Ken Fucik, don’t trust the water diverters and, by association, environmental groups like Trout Unlimited for working with them.

“When you look at the process over here, there are some of us over here who are unhappy,” Fucik says.

Fucik, a retired environmental consultant from Grand Lake, is opposed to a 2012 deal brokered by Trout Unlimited, county officials and others. In exchange for a permit to allow more water be sent to the Front Range as part of Windy Gap, the negotiators got $10 million in required mitigation to upgrade water quality in the headwaters and an additional $12 million in mitigation work for fish and wildlife, projects not required by law. That includes partial funding for a bypass channel that would skirt around Windy Gap dam and reservoir, reconnecting the upper reaches of the Colorado River, allowing fish to move more freely.

Grand County was also able to negotiate additional flows out of Windy Gap Dam to flush out sediment, an agreement that Northern Water be in charge of operation of the new bypass and more flows to support endangered fish in a stretch of the Colorado near Grand Junction…

Environmental consultant Geoff Elliott agrees. He lives in Grand County and says when you’re not part of collaborative agreements and weren’t invited to the negotiations, you end up feeling left out and unheard.

“It comes down to trust and we’re asked to trust in a process where we’ve been eliminated, pushed out and punished,” he says. “It’s hard for us to trust in that process.”

Fucik and Elliott are now supporting a recently filed lawsuit from a handful of environmental groups who take a different tactic with water projects, like Save The Colorado and WildEarth Guardians. Their goal is to prevent more water pulled from the Colorado River watershed from traveling to the Front Range…

For an environmentalist concerned about the health of the river, this conundrum has become the fork in the road: When do you collaborate with someone who’s supposed to be your enemy? And when do you roll the dice in court?

Lurline Curran photo credit Aspen Journalism.

Lurline Underbrink Curran says the path of most resistance has been tried before, with pretty erratic results. She’s the former Grand County manager and sat at the negotiating table with Northern Water.

“I don’t understand collaboration becoming a dirty word,” she says. “Because I can tell you, I can throw out some dirty words that will curl your hair, and that is not one of them.”

Because Grand County officials, like Curran, held the key to a permit that would allow the project to move forward, she joined forces with environmental groups like Trout Unlimited and ranchers concerned about the river’s flow downstream of Windy Gap. The negotiations took years and Curran says her team was a formidable opponent to the Front Range water suppliers, despite what detractors might think.

Curran admits some of the negotiations were done behind closed doors, as she says, to build trust among old enemies. But adds that the solutions they came up with will benefit the river in the long-term.

“Will the Colorado be as wide and deep as it used to be? Hell no. But that’s gone. Like it or not that’s been gone for decades,” she says. “But you can make it so it’s functional.”

Map from Northern Water via the Fort Collins Coloradan.

The idea of bringing parties with old grudges to the negotiating table was meant to avoid lawsuits in the first place. Now that one’s been filed it threatens to bring down the whole deal. Northern Water has already started planning the $400 million Chimney Hollow Reservoir. Trout Unlimited is still fundraising to secure enough money to build the Windy Gap bypass channel, the crown jewel of the agreement.

Northern Water spokesman Brian Werner says the agency is moving ahead with its plans.

“I’d be lying if I said there weren’t any concerns, we’d rather not have a lawsuit filed,” Werner says.

Werner doesn’t have any regrets on how the compromise went down. For decades, water managers have been seen as bullies who strong arm their opponents to get what they want. He says the Windy Gap Bypass project seemed like a turning point.

“What’s best for the river?” he asks. “We need water for growth in Colorado, there’s no question about that. How are we going to do it, folks?”

Either by working with your enemies. Or against them.

#Texas v. #NewMexico and #Colorado lawsuit update

Elephant Butte Reservoir back in the day nearly full

From the Associated Press (Susan Montoya Bryan) via The Torrington Register-Citizen:

Farmers in southern New Mexico, water policy experts, lawyers and others are all working behind the scenes to craft possible solutions that could help to end a lengthy battle with Texas over management of the Rio Grande.

The case is pending before the U.S. Supreme Court and all sides say the stakes are high given uncertainty about the future sustainability of water supplies throughout the Rio Grande Valley.

The New Mexico Attorney General’s Office, Las Cruces city officials and agricultural interests provided state lawmakers with an update Tuesday.
Lawyers involved in the case say the court could schedule arguments early next year, but New Mexico is still open to settlement talks. Separately, the farmers, municipalities and commercial users that would be affected by a ruling have been meeting regularly to build a framework for a possible settlement.

Details of what that might look like are under wraps because of a court-issued confidentiality order.

Samantha Barncastle, an attorney representing the irrigation district that serves farmers from Elephant Butte south to the U.S.-Mexico border, said there’s no question groundwater will continue to be relied upon into the future to protect everyone’s access.

She said the parties are looking at managing the aquifer in ways New Mexico has never seen before. That could include more flexibility and policies aimed at avoiding the permanent fallowing of farmland…

Texas took its case to the Supreme Court in 2013, asking that New Mexico stop pumping groundwater along the border so that more of the river could flow south to farmers and residents in El Paso.

In dry years when there’s not enough water in the river, chile and onion farmers and pecan growers in southern New Mexico are forced to rely on wells to keep their crops and trees alive. Critics contend the well-pumping depletes the aquifer that would otherwise drain back into the river and flow to Texas.

New Mexico has argued in court documents that it’s meeting delivery obligations to Texas.

The Rio Grande is one of North America’s longest rivers, stretching from southern Colorado to Mexico and irrigating more than 3,100 square miles (8,000 square kilometers) of farmland along the way. Several major cities also rely on the river’s water supply.

Depending on the outcome of the case, New Mexico could be forced to pay millions of dollars in damages. The New Mexico attorney general’s office plans to ask the Legislature for $1.5 million to handle the Rio Grande litigation for the next year.

Tania Maestas with the attorney general’s office said the willingness of New Mexico water users to work together could lead to a “dream settlement.”

State gives Aspen officials until Dec. 29 to answer dam questions

The location of the potential Maroon Creek Reservoir, just below the confluence of East and West Maroon creeks, where a beaver dam now backs up water. The Maroon Bells are well within view from the dam site.

By Brent Gardner-Smith, Aspen Journalism

The city of Aspen now has until Dec. 29 to provide a “substantive” response to central questions raised by state officials in water court regarding the city’s efforts to develop dams and reservoirs on upper Maroon and Castle creeks.

The questions raised by the state include whether the city can get a permit for the dams, if it can build the dams in reasonable time, if it has a specific plan to build them, and if it needs the water the reservoirs would hold.

After a status conference on Nov. 9 in water court in Glenwood Springs regarding two due diligence applications the city filed in December 2016 for the two potential dam-and-reservoir projects, a water court referee said, for the second time since August, that the city must provide a substantive response to key issues raised by the state.

Susan Ryan, the referee in Division 5 water court, said the city must do so whether or not it is able to reach settlement agreements with the 10 opposing parties in the two cases.

“It is going to require a written response to that summary of consultation regardless of whether or not settlement is reached with all the opposers in the case,” Ryan said during the status conference. “And so I just wanted to clarify that that is what I typically require in every water case and that is what I will require here.”

A summary of consultation in water court can be a routine review of a water rights application by two state officials, the division engineer, who administers water rights, and the water court referee, who functions as an administrative judge and seeks to resolve cases, if possible, before they are sent to a water court judge.

But the twin summaries of consultation released on Jan. 23 concerning the city’s diligence applications for the Castle and Maroon creek reservoirs raised threshold questions.

They said the city “must demonstrate that it will secure permits and land-use approvals that are necessary to apply the subject water rights to beneficial use” and the city must show it “will complete the appropriations within a reasonable time.”

They also said “a specific plan is in place to develop the subject water rights,” that the city “must demonstrate substantiated population growth in order to justify the continued need for these water rights” and that the city is “not speculating with the subject water rights.”

Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam and encroach on portions of the Maroon Bells-Snowmass Wilderness. Castle Creek Reservoir, as currently decreed, would hold 9,062 acre-feet of water behind a 170-foot-tall dam, and would also flood some land in the wilderness boundary.

In two diligence applications filed on Oct. 31, 2016, the city told the court it has “steadily applied effort to complete the appropriation” of the conditional water rights for both of the reservoirs over the past six years, and that it has done so “in a reasonably expedient and efficient manner under all the facts and circumstances.”

In July, the city said it was seeking a way to transfer decreed storage rights to locations other than the decreed locations on Castle Creek and Maroon Creek.

On Nov. 7, city of Aspen voters rejected a ballot question that would have given the city the go-ahead to issue $5.5 million in general obligation bonds to purchase a 60-acre parcel in Woody Creek to use for water storage, in conjunction with the gravel pit operated by Elam Construction.

But city officials, before the vote, had stated they intended to buy the Woody Creek parcel whether the ballot question was approved or not. A recent study for the city found that between 1,000 acre-feet and 8,000 acre-feet of water could be stored using varying combinations of the land the city intends to buy and the gravel pit.

Also in July, the city filed brief responses to the summaries of consultation. But in August the water court referee said the city’s effort fell short.

A wetland that would be flooded under the potential Castle Creek Reservoir. The reservoir would stand across the main channel of Castle Creek, about two miles below Ashcroft.

City not eager to file response

During the Nov. 9 status conference, the city’s water attorney, Cynthia Covell of Alperstein and Covell, told Ryan the city would still prefer not to lay out its case in a substantive response at this stage of the proceedings.

“Since the last status conference the city has been working to finalize the reports that it has needed to assist in the settlement process, including its supply-and- demand risk assessment study, and its evaluation of one or more alternative storage sites that are not located in federal wilderness areas or on Castle Creek or Maroon Creek,” Covell said.

Covell said the city has only this week received responses from all 10 of the opposing parties to a Sept. 20 settlement proposal from the city, and that the City Council was scheduled meet in executive session Monday to discuss the responses.

“So at this point, Aspen would like to devote its time and resources to seeing if we can reach a settlement by the end of the year, we hope in both cases,” Covell said.

Attorneys in the cases said in August the main sticking point in the settlement negotiations was that the city wanted to keep open its options regarding transferring rights tied to the potential Castle Creek reservoir, while opposing parties want the rights for the potential reservoirs fully removed from both valleys.

During the status conference, after determining it was still the city’s position that it would prefer not to provide substantive answers at this time, Ryan asked the opposing attorneys what they thought.

“I frankly don’t buy the argument that it’s a hiccup or roadblock in terms of settlement,” attorney Paul Noto said. “I actually feel that it may lay some cards on the table that may in fact help settlement.”

Noto is representing American Rivers, Colorado Trout Unlimited, and the Roaring Fork Land and Cattle Co. in the Maroon Creek case, and the two environmental groups in the Castle Creek case.

Also opposing the city in the cases are Western Resource Advocates, Wilderness Workshop, Pitkin County, USFS, Larsen Family Limited Partnership in the Maroon Creek case, and Double R Creek Ltd. and Asp Properties LLC in the Castle Creek case.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times on coverage of water and rivers. The Times published this story online on Wednesday, Nov. 15, 2017.

Sterling: Northeast Livestock Symposium recap

North Sterling Reservoir

From The Sterling Journal-Advocate (Jeff Rice):

Increased water conservation along Colorado’s Front Range doesn’t translate into increased water supplies in the farmlands along the South Platte River.

That was part of the message Jim Yahn had for the Northeast Livestock Symposium in Sterling Tuesday. Yahn, who is manager of the North Sterling and Prewitt reservoirs and who represents the South Platte Basin on the Colorado Water Conservation Board, briefed the three dozen people attending the symposium on the Colorado Water Plan of 2015 and how that plan is being put into effect.

Yahn repeated the assertion that, by 2030, the need for water in Colorado will exceed supplies by 560,000 acre feet, or 182 billion gallons per year, and most of that is here in the South Platte River Basin.

The Colorado Water Plan is the road map to closing that gap…

Yahn said the plan is important because developers along the Front Range, where the building and population booms continue unabated, have no plan to provide water for the growth other than to heavily promote water conservation. The Colorado Water Plan calls for conservation measures to save 400,000 acre feet of water per year by 2030. While conservation is important, Yahn said, it’s not nearly enough to close the gap between supplies and demand.

“When cities start conserving (water) less water comes downstream, and we rely on those return flows to irrigate,” he said. “So the 400,000 acre feet of conservation does not apply directly to the gap. It’s not a one-to-one return, one for one, so if municipality has xeriscaping, we don’t see that runoff down here for agricultural use.”

That’s why increasing storage is vital to closing the water gap by 2030, Yahn said. He told the symposium that $21 million in water supply reserve funds already has been approved to find new storage and more than $65.6 million in loans has approved since the governor’s receipt of the Colorado water plan two years ago.

Yahn also pointed to what are called “alternative methods of transfer” to temporarily move water from agricultural uses to non-ag uses when the water isn’t needed for irrigation. He said there are seven known ATMs in Colorado; two in the Arkansas River Basin, four in the South Platte basin and one in the Colorado River basin.

Two of the four in the South Platte basin are with the North Sterling Irrigation Co., which Yahn manages; one is for 3,000 acre feet with Xcel Energy for its Pawnee Generation Plant at brush, and one for 6,000 acre feet with BNN Energy for hydraulic fracturing of oil and gas wells in Weld County.

Yahn pointed out that ATMs aren’t a panacea to closing the water gap, but are better than permanent sale of irrigated crop land to obtain water rights.