“Colorado water law…there is not such a thing as absolute certainty” — Eric Wilkinson

Windy Gap and C-BT Granby area facilities
Windy Gap and C-BT Granby area facilities

From The Longmont Times-Call (Karen Antonucci):

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.”

Colorado transmountain diversions via the State Engineer's office
Colorado transmountain diversions via the State Engineer’s office

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:

John,

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.

BGS

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.

Grand County Board of County Commissioners meeting recap

Windy Gap Reservoir
Windy Gap Reservoir

From The Sky-Hi Daily News (Travis Poulin):

Grand County Water Quality Specialist Katherine Morris and contract employee Lurline Underbrink-Curran gave a water quality update at the first Board of County Commissioners (BOCC) meeting of 2017.

WINDY GAP BYPASS

On Dec. 21, 2016 the Natural Resources Conservation Service, part of the federal US Department of Agriculture, announced The Colorado River Headwaters Project (CRHP) would receive a $7.75 million grant to apply to a series of river restoration and conservation projects in Grand County. The grant, totaling $7,758,830, comes to the CRHP through the Regional Conservation Partnership Program (RCPP), part of the NRCS. The grant equals 80 percent of the requested amount. Underbrink-Curran said, in an update, that there are several sources the RCPP will apply to for the remaining funds. With the amount of money secured, other funders may be more willing to sign on to a project that has the ability to be completed and do such great things for the environment, fish passage, water quality and temperature and agriculture.

The $7.75 million grant will be divided up between a series of water projects including the creation of a bypass channel that will connect the Colorado River below the Windy Gap Reservoir to the sections of the River above the Reservoir. A significant portion of the funds will also be used to improve river habitat downstream from the Windy Gap as well as improving irrigation systems for irrigating ranchers in the Kremmling area and to improve soil and water quality.

According to Underbrink-Curran, the water right issue for the bypass channel has made some progress. At the last meeting there was a real effort to find a path that all could agree upon. Steve Bushong with UCRA had drafted a position that all agreed might work. That draft was circulated with the attorneys and has undergone several revisions and inclusions but seems to be getting close to complete.

UPRR INJECTION WELL

Morris said in December of 2016 the Water Quality Board requested she submit a letter to the Colorado Department of Public Health and Environment (CDPHE) expressing the board’s dissatisfaction of a revised discharge permit for Union Pacific Railroad (UPRR).

UPRR plans to submit a Class V Injection Well permit for a site near the Moffat Tunnel in Winter Park. Class V wells are used to inject non-hazardous fluids underground. Most are used to dispose of waste into or above underground sources of drinking water. This disposal can pose a threat to ground water quality if not managed properly.

According to UPRR, The plant would treat and return 95 percent of the contaminated groundwater issuing from the tunnel and return it, clean, to the Fraser River.

Grand County shared their concerns with the Environmental Protection Agency (EPA) stating that the plant was designed to treat only metals and total suspended solids (TSS), but the current discharge permit only recognizes TSS and metals as contaminants. According to Morris, Grand County does not know what will be the fate of the organic pollution that will also be in the discharge during annual tunnel cleaning operations, which is what caused the pollution found in September.

Morris said she has not drafted the letter yet because the permit has not been released.

BERTHOUD PASS SEDIMENT CONTROL

Morris said the Colorado Department of Transportation (CDOT) is asking for comments by Jan.30 on a draft Berthoud Pass Sediment Control Action Plan (SCAP). The SCAP will identify potential scenarios for enhanced maintenance and sediment control features to be implemented when funding becomes available. The last meeting about this effort took place in October of 2015. Morris said she will be reviewing the SCAP this month.

Longmont delays Windy Gap rate increase

Water hauler early Longmont via the Longmont Times-Call
Water hauler early Longmont via the Longmont Times-Call

From The Boulder Daily Camera (Karen Antonucci):

Following a closed-door session on Longmont’s water supply, the City Council tabled some of the water rate increases that were slated to start on Jan. 1.

The water rates were slated to increase by 17 percent in both 2017 and 2018, 8 percent of which in both years would go toward financing Longmont’s 10,000 acre-feet participation level in the Windy Gap Firming Project. However, on Tuesday, council decided rates will rise 9 percent in both years.

The council voted unanimously to table the water rate increase, which was on second reading Tuesday, until the U.S. Army Corps of Engineers issues a 404 permit for the Windy Gap Firming Project.

While design work is ongoing for the Windy Gap Firming Project, no construction work can start until the Corps issues the permit, Dale Rademacher, Longmont general manager of public works and natural resources, told the council Tuesday. While staff hoped it would come before the end of 2016, that doesn’t seem to be the case.

The November 2016 eWaterNews is hot off the presses from @Northern_Water

First water through the Adams Tunnel. Photo credit  Northern Water.
First water through the Adams Tunnel. Photo credit Northern Water.

Click here to read the newsletter. Here’s an excerpt:

The C-BT Project water year ended on Oct. 31. C-BT Project storage levels on Nov. 1 were above average for a third consecutive year, with 548,274 acre-feet in active storage. The Nov. 1 average is 444,177 AF. Deliveries increased in 2016 over 2015 levels, with 204,078 AF delivered (including quota, Carryover Program and Regional Pool Program water). Forty-six percent of the deliveries were from Horsetooth Reservoir, 40 percent from Carter Lake and the remaining 14 percent went to the Big Thompson River, Hansen Feeder Canal and the South Platte River. Estimated deliveries to municipal and industrial users totaled 102,157 AF, while agricultural deliveries were approximately 101,921 AF.

Locals await grant news on #ColoradoRiver projects — Sky-Hi Daily News #COriver

Windy Gap Reservoir
Windy Gap Reservoir

From The Sky-Hi Daily News (Lance Maggart):

The long awaited Windy Gap Bypass Project may begin moving forward in the not-so-distant future.

Officials from Grand County as well as multiple local partnering agencies and groups are patiently awaiting news on a $10 million Regional Conservation Partnership Program (RCPP) grant. The announcement regarding which applicants will receive the grant is expected sometime in Dec. this year. If the grant award is approved full funding for the Windy Gap Bypass Project will be secured.

WORKIN ON THE RIVER

The RCPP grant is administered by the National Resources Conservation Service (NRCS) and is given to producers and landowners to provide conservation assistance. The grant application was submitted under a partnership of multiple local organizations and entities including: Grand County government, the Irrigators in the Lands in the Vicinity of Kremmling (ILVK), the Upper Colorado River Alliance (UCRA), Middle Park, the Colorado River District, Trout Unlimited, Colorado Parks and Wildlife (CPW) and Northern Water.

If awarded the $10 million grant monies will go directly to two specific projects: the Windy Gap Bypass Project and a streambed habitat improvement project in the Colorado River for the ILVK. Additionally CPW is working to secure funding from the States Wildlife Mitigation and Enhancement Plan to conduct a stream enhancement project on the Colorado River between the Windy Gap and the ILVK lands. If local organizers are able to secure funding for all three projects roughly 33-miles of the Colorado River will see stream improvements.

Lurline Underbrink-Curran is a contract employee for Grand County overseeing much of the County’s efforts on water issues. She worked closely with others to develop the RCPP grant application. “This will be a big deal if we are successful,” Underbrink-Curran said. “We think we have a strong application and we have a very strong partnership collaboration.”

She cautioned against expecting results too quickly though, even if full funding is approved. “The things that happened to the River didn’t happen over night and we won’t fix them overnight. But if we have methods and plans in place we will get them fixed.”

WINDY GAP BYPASS

The total cost of the Windy Gap Bypass Project is estimated at roughly $9.6 million. A total of $4.5 million has already been secured for the project and the $10 million RCPP grant would cover the remainder, with excess funds going to the ILVK Project.

Map of the Colorado-Big Thompson Project via Northern Water
Map of the Colorado-Big Thompson Project via Northern Water

The Windy Gap Bypass Project is intended to create a free flowing channel for water from the Colorado River to [bypass] the Windy Gap Reservoir. The Windy Gap Reservoir is located just a short distance west of Granby on US Highway 40 and is one of several water storage reservoir[s] that make up the Colorado Big-Thompson Project’s water diversion system.

Water from the Windy Gap is pumped through the Northern Water diversion and pump network eventually reaching Grand Lake before moving across the Continental Divide through the Alva B. Adams Tunnel. When the Windy Gap Reservoir was initially constructed no free flowing channel was created. As such the Windy Gap Reservoir divides the river habitat above and below the reservoir, preventing fish and other creatures from migrating freely.

Additionally the Windy Gap causes the Colorado River to lose nearly all of its velocity, allowing for a substantial amount of sediment to develop in both the reservoir and in the river downstream. The sediment buildup negatively impacts bug habitat, which has a domino effect on all other species living in the river.

The work that will be done for the Windy Gap Bypass is fairly simple in concept. Excavators will dig out a channel within the existing Windy Gap Reservoir. The dirt from the excavations will be used to construct a berm inside the Reservoir. The berm will establish a smaller reservoir while also creating a separate channel for the free flow of water down the Colorado.

ILVK PROJECT

The ILVK streambed habitat improvement project seeks to address two concerns: issues with irrigation infrastructure and improvements of streambed habitat for bug and aquatic life.

As Paul Bruchez, one of the ILVK landowners helping to spearhead the project explained, the project hopes to accomplish both goals through the same work; by rebuilding the pools and riffles that create healthy river habitat and focusing most of those efforts on areas where the irrigation pumping infrastructure already exists.

The ILVK is a landowners organization made up primarily of irrigating ranchers near the town of Kremmling. The ILVK holds some of the most senior water rights on the upper Colorado River; their senior water rights are recognized in Senate Document 80 and their rights precede the famous Colorado-Big Thompson Project (CBTP).

Prior to the establishment of the CBTP there were virtually no water storage reservoirs in the high country and no ditches bringing water to the landowners of the ILVK. At that time they were considered as having, “meadows act water rights” meaning they did not irrigate their fields using irrigation ditches, rather their fields naturally flooded each spring/summer as snow runoff from higher elevations made its way to the Colorado River.

When the CBTP was established irrigation pumps were constructed to provide water from the Colorado River to the landowners of the ILVK. As time has passed and additional water diversions and storage projects were undertaken above the ILVK region the flows that provided the ILVK members with irrigation water have diminished, along with the overall water table.

“We have a fixed station (irrigation) pump system with a river that is dynamic and changing,” Bruchez explained. “My neighbors and family struggle with irrigation issues. But I am also watching the regress of the Colorado River from a fishery standpoint. The concept of the ILVK project is to fix and repair our irrigation systems to be sustainable while using construction techniques that will improve the health of the river overall.”

In that way the ILVK project proverbially kills two birds with one stone. But for Bruchez and other landowners along the Colorado the effort isn’t just about improving their ability to access the water that is theirs by right, it is about the broader health of the River as well.

“If we can cut down water temps by even a fraction we are making headway,” Bruchez said. “It almost becomes a water quality issue. We are not just improving segments but improving the whole river system. We can’t look at one part or another as the priority. It is a system that needs a system wide repair.”

#ColoradoRiver: @CWCB_DNR approves $90 million loan for Windy Gap project — Aspen Daily News #COriver

Map from Northern Water via the Fort Collins Coloradan.
Map from Northern Water via the Fort Collins Coloradan.

From Aspen Journalism (Brent Gardner-Smith) via The Aspen Daily News:

The board of directors of the Colorado Water Conservation Board gave conceptual approval Wednesday to a $90 million loan to help finance the $400 million Windy Gap Firming Project, which will divert more water from the Colorado River.

The CWCB, charged with facilitating water supply projects in Colorado, has both a loan program and a grant program. And while its grant program is being challenged by a sharp drop in severance tax revenue from the oil and gas sector, the agency’s loan program remains robust, especially as Aurora just repaid a $70 million loan ahead of schedule.

The $90 million loan to Northern Water, which is developing Windy Gap, is the largest in the agency’s history. It will help facilitate a project that is more popular on the Eastern Slope than the Western Slope, given it will increase the level of water sent under the Continental Divide.

The loan, which still needs final approval from the CWCB board, will be part of a financing package for a new reservoir near Loveland called Chimney Hollow Reservoir, which will cost $400 million to construct.

Eric Wilkinson, the general manager of Northern Water, said he expects the project to be approved in 2017, that test drilling has begun at the dam site — next to Carter Lake Reservoir in Larimer County — and design work is well underway. Gov. Hickenlooper has also endorsed the Windy Gap project, even though final federal approval is still outstanding.

Wilkinson also said that the prospect of a CWCB loan has galvanized financing discussions among the 12 different entities – including 10 cities from Broomfield north to Greeley — who are involved in the project as members of the Northern Water Municipal Subdistrict.

“The difference that this has made cannot be overstated,” Wilkinson told the CWCB board about the loan.

Savings needed to backfill drop in severance tax funding

The $90 million loan makes up a big chunk of this year’s “projects bill,” which is submitted annually by the CWCB to the state Legislature for approval. This year’s projects bill is $165 million in all, which makes it the largest annual spending request in the history of the CWCB, which dates back to 1937.

Another big part of the projects bill is $55 million for an array of grants and loans spurred by the Colorado Water Plan, which was approved a year ago by the CWCB board and presented to the governor.

Of the $55 million, $10 million is for projects to be funded at the discretion of the CWCB directors, and $5 million is specifically for watershed restoration efforts and stream management plans, which is a nod to environmental interests in the state.

Another $10 million is used to fund the agency’s Water Supply Reserve Fund, which helps fund local water supply projects identified and approved by the nine basin roundtables around the state, including the Colorado River Basin Roundtable, which meets in Glenwood Springs.

Site of Chimney Hollow Reservoir via Northern Water.
Site of Chimney Hollow Reservoir via Northern Water.

Funding for roundtable projects is supposed to come from severance taxes paid by oil and gas producers in the state to the tune of $10 million a year. But the combination of the slowdown in the gas patch and property tax rebates given to the industry means that the CWCB is only going to see about a quarter of the severance tax revenue this year that it normally receives.

As such, the CWCB is asking the Legislature to let it spend severance tax revenue it has tucked away from the good years. That approach, however, is fraught with danger, as the Legislature is busy trying to figure out how to fill a $500 million to $800 million hole in the state’s budget, which must be balanced each year by law.

James Eklund, director of the CWCB, said the Legislature will be looking in all nooks and crannies for funds, but he’s hopeful that the approval of the state water plan last year will help convince lawmakers that the CWCB has a legitimate need for the money it has set aside for future projects.

Also in the $55 million bucket in the projects bill is a $30 million “loan guarantee fund” to help water suppliers with varying credit ratings to gain better interest rates when funding new projects together.

Eklund is sensitive to criticism that not enough has been achieved after the publication of the Colorado Water Plan a year ago, which itself was the product of an intense two-year collaborative effort among water interests in the state.

On Wednesday, he told the CWCB directors that while the Water Plan was now a year old, it was “only five days old in water years.”

“We are moving forward aggressively,” Eklund said. “And I don’t think slowly at all, especially if you look at it in water time.”

Board renews Ruedi fish-water lease

Also at last week’s CWCB meeting, Eklund said that the Ute Water Conservancy District in Grand Junction has offered to once again lease 12,000 acre-feet of water it owns in Ruedi Reservoir to the CWCB, so the agency can help maintain flows in the Colorado River, as it has done the last two years.

While the water from Ruedi benefits endangered fish in a critical 15-mile reach of the Colorado, it has also kicked up river levels in the lower Fryingpan River below Ruedi Reservoir in the late summer and fall to the consternation of some anglers.

The CWCB board also approved a $1.7 million loan for improvements to the Grand Valley Power Plant, which controls one of the senior water rights that make up the “Cameo Call” on the Colorado River above Grand Junction.

The loan to the Grand Valley Water Users Association and the Orchard Mesa Irrigation District will help cover the costs of a $5.2 million project to modernize the hydropower plant, which was built in the 1930s.

Contracts were also finalized this week with a bevy of water consultants to prepare the next edition of the Statewide Water Supply Initiative, or SWSI, which is a more technical version of the state water plan.

The SWSI plan is slated to be finished by December 2017 and is designed to inform regional water plans created by the basin roundtables, known as “basin implementation plans,” as well as provide a base of data for the next version of the more policy-driven Colorado Water Plan.

Also, State Engineer Dick Wolfe informed the CWCB board he’ll be retiring in June 2017 at age 55, after nine years in his role as the state’s top water cop.

Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of rivers and water in Colorado. More at http://www.aspenjournalism.org.

#ColoradoRiver: Beauty, “It’s not a concept that lends itself very well to science” — Esther Vincent #COriver

Grand Lake via Cornell University
Grand Lake via Cornell University

From Aspen Journalism (Allen Best) via The Aspen Daily News:

Nobody disputes that the Colorado-Big Thompson project has changed Grand Lake, the state’s largest, deepest natural lake. How could it not?

In the 1940s, Grand Lake was integrated into the giant C-BT, what the late historian David Lavender called a “massive violation of geography.” It’s Colorado’s largest transmountain diversion project. By one tally in the 1990s, it delivers an average 231,060 acre-feet annually from the headwaters of the Colorado River to cities and farms east of the Continental Divide. This compares to the 105,024 acre-feet from three tunnels through the Sawatch Range east of Aspen.

Almost immediately after the C-BT was completed in 1953, locals began to complain that the project shoehorned into the lake had sullied the lake’s clarity by introducing algae and sediments. This is, they insist, a violation of federal law.

The controversy pivots on Senate Document 80, a part of the Congressional authorization for project funding in 1937. The document describes the needs of irrigation, industrial and power production but also warns against impacts to nearby Rocky Mountain National Park.

The lake, if outside the park, has one of Colorado’s most memorable backdrops. The document specifies the need “to preserve the fishing and recreational facilities and the scenic attractions of Grand Lake…”

On that, say many locals, the C-BT has failed, and they say that until recently they got little response from the U.S. Bureau of Reclamation, the agency that built the C-BT.

But now, in a reversal, the bureau is working with 18 other stakeholders in an effort to solve the problem. Parties include Northern Colorado Water, the agency that manages the diversions for cities and farmers of northeastern Colorado, Grand County and other state and local organizations.

Grand Lake’s story fits into a broad theme of changed sensibilities in Colorado about 20th century river alterations. Restoration and remediation projects are starting or underway on the San Miguel River in Telluride, on the Eagle River at Camp Hale and on the Fraser River near Winter Park.

“It’s possible that at one time, the impacts of the CBT Project on Grand Lake clarity were thought to be just part of the price we pay for valuable water projects,” said Anne Castle, a fellow at the Getches-Wilkinson Center for Natural Resources, Energy and the Environment at the University of Colorado-Boulder. “Now, we are more inclined to believe that the environmental values have significance, including economic significance, and that operations can and should be adjusted to better accommodate these values.”

The work at Grand Lake also illustrates the power of persistence and spunk by advocates of environmental protection. And it involves a collaborative process called adaptive management that emphasizes consensus-based decision-making in solving stubborn issues involving water diversions.

Nobody thinks solving this problem will be easy, though. In April, after several years of working together, the Grand Lake stakeholders submitted a plan to the Colorado Water Quality Control Commission. The plan approved by the commission sets an interim clarity goal for summer pumping during the next five years.

During that time, the Bureau of Reclamation is to develop a plan for long-term solutions. Alternatives include expensive new tunnels, possibly bypassing Grand Lake altogether. A preview of the alternatives may emerge at a meeting of stakeholders in late November.

Not everybody in Grand Lake thinks that reduced clarity is a problem. “There are people who think there’s a problem, but there is no problem,” says Jim Gasner, a member of the Grand Lake Board of Trustees, the town’s elected body, and a fishing “teacher” at Rocky Mountain Outfitters.

But Elwin Crabtree, a real estate agent and former Grand County commissioner, sees something different. “It’s adverse to its natural being,” he said in early August in an interview at his office along the town’s main street of knotty-pined stores and lodges. “I think we look at it as a moral issue,” he added. “I think we believe in having responsibility to be good stewards of our environment.”

The C-BT is an effort to address what one historian in the 1950s called “nature’s error.” Even as Aspen was putting on its silver-lined britches in the 1880s, farmers along the South Platte River and its tributaries were struggling with inadequate water in late summer to finish their corn and other crops.

Grand River Ditch July 2016. Photo credit Greg Hobbs.
Grand River Ditch July 2016. Photo credit Greg Hobbs.

Irrigators set out to remedy this. The first large-scale transmountain diversion from the headwaters of the Colorado River began in 1890. Called the Grand River Ditch, it’s beveled into the side of the Never Summer Range in what is now Rocky Mountain National Park, collecting water like a rain gutter from a roof.

Then came the 1930s, the decade of the Dust Bowl, the Great Depression and the New Deal. Farmers in northeastern Colorado had long been agitating for added infusions of water from the Colorado River headwaters. But they couldn’t get it done themselves. They needed federal funding.

Map of the Colorado-Big Thompson Project via Northern Water
Map of the Colorado-Big Thompson Project via Northern Water

The flawed design

But the work along the Continental Divide from 1939 to 1953 created a wound at Grand Lake. In retrospect, the design was flawed.

The C-BT at the Colorado River headwaters consists of three main bodies of interconnected water. Only one, Grand Lake, is natural.

Farthest downstream is Granby Reservoir, which is Colorado’s third largest, capable of holding 539,758 acre-feet of water during runoff of spring and early summer. This compares to Ruedi Reservoir’s 102,373 acre-feet and Dillon’s 257,304 acre-feet.

From Granby, water is pumped upstream as needed by Eastern Slope diverters to Shadow Mountain Reservoir. Shallow, no more than nine feet deep, Shadow Mountain is directly connected through a short canal to Grand Lake.

In 2011, reservoirs east of the divide were full, so water was allowed to continue down the Colorado River without diversion. This photo shows what the lake looked like on Aug. 30, without pumping. Photo courtesy of Byron Metzler and pilot Steve Paul
In 2011, reservoirs east of the divide were full, so water was allowed to continue down the Colorado River without diversion. This photo shows what the lake looked like on Aug. 30, without pumping. Photo courtesy of Byron Metzler and pilot Steve Paul

The canal occupies the original path of the Colorado River emerging from Grand Lake. From the interconnected Grand Lake and Shadow Mountain Reservoir, water is then pumped through the 13.1-mile Alva Adams Tunnel underneath the national park to the Estes Park area for storage in reservoirs there and along the northern Front Range.

Shadow Mountain is a problem, though. Its shallowness allows water to be easily warmed in summer, producing algae that can float into Grand Lake. The shallowness also allows lake-bottom sediments to be disturbed more easily and dispersed into Grand Lake.

Evidence for the historic, pre-construction clarity of Grand Lake is scant: Just one measurement, taken in 1941, of 9.2 meters (30 feet).

Detailed observations during the last decade show clarity down to 6 meters (19.6 feet), but no more.

The standard adopted in April by the state agency specifies a minimum of 2.5 meters and an average of 3.8 meters (8.2 feet to 12.4 feet) during summer diversion season.

“I think the clarity standard has really elevated the discussion,” says Lane Wyatt, co-director of the water quality/quantity committee in the Northwest Council of Governments. “This is the only clarity standard in Colorado. It’s the first one we’ve ever done.”

Clarity is not the only issue, though. Water must be delivered to farms and cities. As it is flows downhill toward the Great Plains, it generates electricity distributed by the Western Area Power Authority. Purchasers of this low-cost power include Aspen Electric and Holy Cross Energy.

Canton “Scally” O’Donnell, president of the Three Lakes Watershed Association, remembers a more pristine past.

As a boy, his family summered at Grand Lake. That was in the 1930s and 1940s. “We drank the water right out of the lake, and many families did that,” O’Donnell said.

The first complaint about the sullied water was filed in 1954, the year after the project’s formal completion. In 1956, Grand Lake trustees adopted a resolution that informed Colorado’s congressional delegation of problems. The resolution was aimed at the Bureau of Reclamation.

“I think it’s fair to say that up until seven or eight years ago, the bureau pretty much stonewalled,” O’Donnell said. “They just did not want to recognize the problem, and Northern Colorado Water, the same.”

Movement has occurred during the last decade. One avenue for local protest was a proposed expansion of an existing diversion of the Colorado River at Windy Gap, about 15 miles downstream. Completed in 1985, the Windy Gap dam uses the C-BT infrastructure to deliver additional water to the Rawhide power plant north of Fort Collins, Greeley, Boulder and other cities.

The Windy Gap Firming, or expansion, plan was formally introduced after the drought of 2002. It proposes diversion of remaining water rights owned by a string of northern Front Range cities.

The effect of persistence

O’Donnell, of the Three Lakes Watershed Association, thinks the changed attitudes is explained by the persistence of individual public officials.

He singles out Lurline Underbrink Curran, then the Grand County manager. “She’s smart and she’s tough,” he said. “She just kept on beating on everybody to make it happen.”

He also points to the influence of Anne Castle, a long-time Denver water lawyer who served from 2009 to 20014 as assistant secretary for water and science in the Interior Department. Her responsibilities included oversight of the Bureau of Reclamation.

“I think part of the reason it has attention now is the fact that the Windy Gap Firming Project required the federal government to pay attention to Senate Document 80 and both C-BT and Windy Gap Firming Project do have an impact on Grand Lake’s recreation and scenic attraction. Calling attention to that issue, as both Lurline and I did, with prodding from Scally, had an impact,” Castle said.

But again, agreeing there is a problem is not the same thing as finding a solution.

“There is a lot of uncertainty about how our operations affect clarity,” said Victor Lee, an engineer for the Bureau of Reclamation.

The precise circumstances that cause algae and sediments to degrade clarity are poorly understood. Northern has been altering its diversion regimes, to see if that will improve clarity.

This year, from July until late August, pumping was conducted about 15 hours a day at 250 cubic feet per second. Clarity degraded, though. Algae growth was suspected. So the pumping was accelerated to about 20 hours a day with two pumps. Results were mixed.

It was a success, said Lee, in that they learned something. Clarity readings exceeded the minimum but did not meet the average standard. “I would say the experiment was successful, but we did not meet our objective,” he said.

Esther Vincent, water quality manager for Northern Water, said the effort to address Grand Lake’s muddled clarity is attracting attention across Colorado by water professionals. Spurring their interest, she said, is the possibility of other bodies of water being assigned clarity standards.

There’s also interest in the adaptive management process created for Grand Lake. It’s similar to but separate from Learning By Doing, which was created in response to expanded water diversions from both Windy Gap and by Denver Water’s Moffat Tunnel collection system.

Vincent also points out a deeply philosophical question. In 1937, when adopting S.D. 80, did Congress have the same notion about what constitutes “scenic attraction” as we do today?

“I am an engineer,” she said. “Asking an engineer to define what beauty is, is an interesting dilemma. It’s not a concept that lends itself very well to science.”

Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of Colorado’s rivers and water. More at http://www.aspenjournalism.org.