HB14-1026: “In theory, it sounds good [flexible markets], but there are still not enough sideboards on it” — Jay Winner #COleg

April 19, 2014
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain (Chris Woodka):

Local officials still are skeptical of pending legislation that would establish a flex marketing water right. The bill, HB1026, as introduced would have allowed agricultural water to be used anywhere, any time and for any purpose, apparently in contradiction of the state’s anti-speculation doctrine.

[...]

It breezed through the state House, but has been snagged for weeks in the Senate agriculture committee.

“In theory, it sounds good, but there are still not enough sideboards on it,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District.

Winner has been trying to get a provision added to the bill that would limit fallowing of farmland to three years in 10 — a staple of current law regarding temporary transfers. Backers of the bill have pushed for allowing transfers to occur five years in 10, with nearly unlimited dry-up of farm ground during that time.

The bill was supposed to be heard in the Senate ag committee Thursday, but was again delayed. Winner thinks it should be referred to the interim water resources committee to work out differences.

Meanwhile, the Pueblo Board of Water Works also is backing off from supporting the bill. Even though provisions were added that prevent moving water from the water district where it originally was used, farms might be permanently dried up, said Terry Book, executive director of the water board.

“Our question is does it do what it’s intended to do?” Book said. “We would support something that allows farmers to market water, but not this bill.”

More 2014 Colorado legislation coverage here.


US Rep. Scott Tipton queries top Interior officials about federal policy (USAA vs. USFS)

April 6, 2014
Sheep Herders on the Uncompahgre Plateau

Sheep Herders on the Uncompahgre Plateau

From The Durango Herald (Katie Fiegenbaum):

Tipton’s questions for Vilsack focused on the ability of federal agencies to take or place conditions on water-use permits held by ski areas and ranches.

“I’d just be curious: How much of your resources are you going to be putting in to develop a taking (of) Fifth Amendment right(s) in the West when it comes to the private-property rights of water?” Tipton asked.

Vilsack said the agency understands the law, does not intend to infringe upon any private-property rights and will have a clarification forthcoming.

Tipton insisted that his bill, the Water Rights Protection Act, was necessary to ensure certainty on the issue. In an interview, Tipton expressed frustration at Vilsack’s ambiguous responses.

The Water Rights Protection Act, which would prohibit agencies from placing conditions on water-use agreements, was passed by the House on March 24 and awaits action in the Senate. Obama issued a statement in March opposing the bill.

Tipton also expressed concern to Vilsack about climate hubs, a multi-agency effort announced in February to deliver information to farmers and ranchers to help them adapt to climate change. Tipton wants clarity on their purpose and expressed concern that the hubs will be duplicating work done by the National Oceanic and Atmospheric Administration. One of seven regional climate hubs will be in Fort Collins.

“I’m not trying to make a judgment,” Tipton said in an interview. “I want to get clarity on why or how much, and if these are duplicative.”

He also was assured by Vilsack that progress was being made on preventing forest fires by increased leasing of air tankers…

He also inquired about progress of clean water projects in Colorado, hydroelectricity and the potential addition of the sage grouse to the list of endangered species, which Interior is considering. Tipton asked for some measurable species preservation goals to be identified before a decision is made about the endangered species designation.

Given the short amount of time allocated to each representative for questioning, many lawmakers choose to fill their time with questions and have the department follow up with them. In some other cases, answers could not be fully provided at the hearing.

“I think, as you saw, the answers that came from the secretary were ‘We’ll have to get back to you,’” Tipton said in an interview.


Roaring Fork Valley: Many eyes are on Tom Bailey’s court filing #ColoradoRiver

April 5, 2014
Roaring Fork River back in the day

Roaring Fork River back in the day

From the Aspen Daily News (Nelson Harvey):

Residents of the agricultural bottomlands along Catherine’s Store Road east of Carbondale have been deluged with legal paperwork in recent weeks, as various parties respond to billionaire Tom Bailey’s attempts to clarify his water rights on an irrigation ditch there.

Bailey, the founder of Janus Mutual Funds and a breeder of cutting horses at his Iron Rose Ranch near Carbondale, filed a so-called “quiet title” lawsuit against more than 60 of his neighbors last year attempting to clarify his right to about 5.7 cubic feet per second (cfs) of water on the Slough Ditch and Banning Lateral Ditch, enough to irrigate his 28-acre property several times over.

Since then, both the homeowners association for the Roaring Fork Preserve subdivision (RFPHOA) and Henry Hite, a neighbor of Bailey’s and the owner of the nearby Dragonfly Ranch, have responded to Bailey’s claim with their own assertions of water ownership. The RFPHOA is claiming to own 5.54 cfs of water on the ditch, while Hite is laying claim to about 2.44 cfs.

More water law coverage here.


CWCB: 2015 Proposed Instream Flow Appropriations

April 5, 2014

Colorado instream flow program map via the Colorado Water Conservation Board

Colorado instream flow program map via the Colorado Water Conservation Board


Click here to read the appropriation notice from the Colorado Water Conservation Board.


US Rep. Scott Tipton is watching the new EPA proposed rules closely

March 28, 2014

H.R. 3189 is winding its way through the US Senate committee logjam (NSAA vs. USFS)

March 26, 2014
Sheep Herders on the Uncompahgre Plateau

Sheep Herders on the Uncompahgre Plateau

From email from GovTrack.us:

Mar 25, 2014 9:46 p.m. — Bill Text

H.R. 3189: Water Rights Protection Act

This bill’s text for status Referred to Senate Committee (Mar 24, 2014) is now available.


The Shoshone hydroelectric plant and its 1,250 cfs, 1902 water right is not for sale according to Xcel #ColoradoRiver

March 26, 2014
Shoshone Falls hydroelectric generation station via USGenWeb

Shoshone Falls hydroelectric generation station via USGenWeb

From the Aspen Daily News (Brent Gardner-Smith):

“Shoshone is not for sale,” Eggleston told the Colorado River Basin Roundtable, which met Monday in Glenwood Springs, nine miles downstream from the Shoshone plant. “Don’t plan to sell it. Nothing in the future about selling it.”

That may be good news to those on the West Slope who fear a Front Range utility will buy the plant, shut it down, and extinguish the plant’s senior water rights — resulting in less water in the lower Colorado River.

But it also means the plant’s fate is left in the portfolio of Xcel Energy, a regional utility based in Minneapolis that operates 25 other hydro plants, serves 3.4 million electricity customers in eight states, and sees $10.1 billion a year in revenue.

Eggleston’s comments to the members of the Colorado roundtable were in response to an article in The Daily Sentinel of Grand Junction on March 17 about the prospect of the plant being bought by West Slope interests.

The Sentinel story quoted Louis Meyer of SGM Engineering, a consultant developing the Colorado roundtable’s “basin implement plan,” that buying the plant would be “one of the seminal things going forward in our plan.”

The article included several references to the plant not being for sale, and stated there was “no indication for now that the Shoshone Generation Station is even for sale.”

But an Xcel spokesman quoted in the story, Mark Stutz, said he couldn’t comment on whether the plant was for sale, or not.

That left the prospect lingering.

And Eggleston told the roundtable meeting he wanted to clarify any “mis-information.”

“Again, Xcel is not interested in selling,” Eggleston said. “They would not consider any first-right-of-refusals, or anything else that’s not within the interests of Xcel at this time.”

Eggleston said the article in the Sentinel caught the attention of Ben Fowke, the company’s chairman, president and CEO.

“It would be a good idea to do that every two or three years so that the executive management is reminded how important Shoshone is, and that Xcel Energy is making a commitment to everybody on the Western Slope to protect those water rights and operate that plant,” Eggleston said.

The real value of the Shoshone plant to the West Slope is its senior water rights from 1902, which keep up to 1,250 cubic feet per second of water flowing down the Colorado River.

“The whole reason the West Slope, lead by the River District, would be interested in gaining the plant is because we want that water right held intact,” said Jim Pokrandt, a communications and education specialist with the Colorado River District…

Denver Water has long chafed at the restrictions imposed by Shoshone’s water rights, but Travis Thompson, media coordinator for the utility, said via email that “Denver Water has not made an offer to purchase the Shoshone plant over the last few decades, and there are no standing offers.”

Denver Water also drove the framing and adoption of the Colorado River Cooperative Agreement (CRCA), signed in 2012 by a list of regional entities.

“Under the CRCA, if Xcel decides to sell the Shoshone assets, they agree to do so in an open bidding arrangement,” Thompson, said.

He added that if the West Slope wanted to buy the plant, Denver Water also agreed it would support the idea and “assist the West Slope in acquiring Shoshone assets.”

But fear of Front Range water interests is still discernable in the Colorado River basin.

On Monday, Chuck Ogilby, a member of the Colorado roundtable, read a passage from the group’s vision statement: “The Shoshone call shall be preserved and protected for the benefit of the West Slope. This is non-negotiable.”

More Colorado River Basin coverage here and here.


HB14-1026: ‘…seems like a Trojan horse for a permanent buy-and-dry’ — Peter Nichols

March 25, 2014
Flood irrigation -- photo via the CSU Water Center

Flood irrigation — photo via the CSU Water Center

From The Pueblo Chieftain (Chris Woodka):

A flex marketing water right bill that passed the state House earlier this year would, in effect, overturn a state Supreme Court decision that prevented moving water out of the Fort Lyon Canal. That’s the opinion of Peter Nichols, water attorney for the Lower Arkansas Valley Water Conservancy District, who has been working to change the bill, HB1026, to provide more assurances that agriculture would remain the primary use under the new type of water right.

“The way the bill has been amended overturns the High Plains decision,” Nichols said, referring to a 2004 ruling by former water judge Dennis Maes that was upheld by the state Supreme Court.

High Plains claimed multiple uses for unnamed end users in counties throughout Eastern Colorado in its attempt to move water out of the Fort Lyon Canal. Maes rejected the application under the state’s anti-speculation doctrine that requires an end user to be named in a water change case.

“The way it’s written, if you had 1,000 acres, you could dry up 999 acres every year,” Nichols said. “That seems like a Trojan horse for a permanent buy-and-dry.”

The district is working with key lawmakers to try to put better limits on the bill that would make it conform to current laws which limit the frequency of years when water could be put to alternative uses and the amount of land that can be dried up.

The Lower Ark district promotes the Arkansas Valley Super Ditch, but helped create it with the intent that water would be treated as another “crop” and not permanently removed from the land.

Nichols also suggested that removing ag water too often from fields would create environmental consequences for wetlands and return flows to rivers.

“For some reason, the environmental community has not paid attention to this bill,” Nichols said.

More 2014 Colorado legislation coverage here.


The Pueblo Chieftain editorial staff comes out in support of H.R. 3189, ‘…important and reasonable bill’

March 23, 2014
Trail map for Powderhorn Ski Area via liftopia

Trail map for Powderhorn Ski Area via liftopia

From The Pueblo Chieftain:

THE U.S. House of Representatives has passed an important and reasonable bill that prohibits the transfer of private water rights to the federal government as a condition of permits it issues. But the bill’s future is in doubt, according to sponsor U.S. Rep. Scott Tipton, R-Colo., because a majority in the U.S. Senate and President Barack Obama appear opposed to the legislation.

The Water Rights Protection Act (HR3189) is designed to protect Colorado water rights from federal encroachment. The proposal was developed in response to U.S. Forest Service contracts with Colorado ski areas that require the transfer of water rights as a condition of permit approval.

Most ski areas in the state operate on federally owned land, which requires them to secure permits and pay an annual fee. To make snow, however, the ski areas must secure water leases or rights through the state.

Federal authorities claim the management of water resources used by ski areas is important so that rivers and lakes can be protected for their recreational and environmental value. Bill backers suggest that the federal government’s attempt to collect water rights is a serious threat to long-standing water law that puts states in charge of regulating their own available resources.

The concern about making water right transfers a condition of federal permits goes well beyond ski areas. Grazers and other agricultural producers who lease federal land are worried that the surrender of water rights might apply to them as well.

That’s why passage of HR3189 makes sense. Colorado water law has worked well for more than a century and we don’t need the federal government to get involved.

We urge our U.S. senators — Mark Udall, D-Colo., and Mike Bennet, D-Colo. — to jump on board and help guide the bill through the Senate. It will take a bit of work to educate congressional members from other parts of the country about the importance of state water laws and about the impact of having large tracts of federal land in your state.

But if given the opportunity to debate the matter on the floor of the Senate, we’re confident that a majority of those elected officials will recognize the need to approve this simple measure.

More water law coverage here.


Scott Tipton takes the case for H.R. 3189 to the people

March 22, 2014
Trail map for Powderhorn Ski Area via liftopia

Trail map for Powderhorn Ski Area via liftopia

Here’s a guest commentary from US Representative Scott Tipton arguing the need for his bill, H.R. 3189, from The Denver Post:

Over the past decade, the federal government has attempted to take privately held water rights in Colorado and in other Western states, disregarding state water law that has been in effect for over a century.

Because of this, I introduced legislation to uphold long-held state water law and protect these rights from the federal government’s water grab. The Water Rights Protection Act, which passed the House with bipartisan support, prohibits the U.S. Departments of Agriculture and Interior from violating the 5th Amendment to the U.S. Constitution by taking private water rights without providing just compensation.

This legislation is supported by Colorado and national stakeholders, including the U.S. Chamber of Commerce, the National Ski Areas Association, American Farm Bureau, Colorado River Water Conservation District, and over 20 Colorado counties and water districts.

We’ve seen such diverse support because protecting our water rights isn’t a political issue. It’s a Colorado issue. Like these stakeholders, I believe Coloradans are better stewards of their water rights than Washington bureaucrats would ever be.

One of the recent federal efforts to take Colorado water involved the U.S. Forest Service. In 2011, the agency began to require ski areas to relinquish legally purchased and developed water rights — used to make snow — to the federal government as a condition for permits to operate on public lands. The administration claims the condition was necessary to ensure that water stayed with the land and rights weren’t improperly sold off.

While the administration insists this Forest Service permit condition was in the best interest of Coloradans, the devil was in the details, and it reeked of a massive federal water grab.

There was no language in the proposed Forest Service permit condition to guarantee that the agency could not divert water to other locations or direct water for another purpose altogether. Furthermore, Forest Service Chief Tom Tidwell testified in a congressional hearing that there hadn’t been any instances of private water rights on these lands being improperly sold off. There is, in effect, no basis for the administration’s concerns that these private water rights are being abused.

This raises significant questions about the administration’s true motives. Regardless of motives, by using the federal permit, lease, and land-management process to extort water rights from those who hold rights under long-held state law, the federal government is overreaching — violating private property rights and the U.S. Constitution.

Federal attempts to seize water rights aren’t limited to ski areas. The same tactics have been used by both the Bureau of Land Management and Forest Service to take water rights from family farms and ranches that rely on state-granted water for their cattle and crops. There are also circumstances in which water rights held by irrigation and sanitation districts and municipalities have been threatened by these uncompensated takings.

Colorado should be concerned about heavy-handed attempts by the government to gain control of private water rights. Because of the significant percentage of water that originates on National Forest System lands in Colorado, this issue could impact all users that have water rights passing through lands administered by the Departments of Interior and Agriculture. If adopted by other federal agencies, the scope of that impact could be even broader.

Those potentially impacted by this type of federal authority over water rights originating on public lands include cities, counties, water districts, conservation districts, owners of private residences, marinas and summer resorts, and other businesses such as ranching, mining or utilities.

The implications for Colorado are significant and severe, which is why I will continue to fight to keep control of Colorado’s water in the hands of Coloradans, regardless of President Obama’s veto threat.


The Rio Grande River Compact Commission meets today

March 20, 2014
Rio Grande and Pecos River basins

Rio Grande and Pecos River basins

From the Associated Press via the Houston Chronicle:

The tension is expected to be thick Thursday as top water officials from New Mexico, Colorado and Texas gather for an annual meeting focused on management of the Rio Grande.

Texas and New Mexico are in the middle of a legal battle before the U.S. Supreme Court over groundwater pumping along the border. The federal government is weighing in, claiming that groundwater falls under its jurisdiction and should be considered part of the massive system of canals and dams that deliver water to farmers in southern New Mexico and Texas.

It could be years before the court makes a decision, but some experts say the case could set precedent when it comes to state rights in the drought-stricken West.

In the meantime, farmers in southern New Mexico who are deciding whether to plant crops or leave their fields fallow are on “pins and needles,” said Scott Verhines, New Mexico’s top water official.

“Certainly the litigation, the threat of litigation, the fear of what’s going to come out of all this is clouding everybody’s ability to work toward a solution,” he said. “I think very unfortunately that we find ourselves fighting and not solving.”

Verhines will be among those gathering for the Rio Grande Compact Commission meeting. The decades-old compact spells out how much river water the states must share.

More Rio Grande River Basin coverage here and here.


Many eyes are on the Shoshone 1902, 1,250 cfs water right #ColoradoRiver

March 18, 2014
Shoshone Falls hydroelectric generation station via USGenWeb

Shoshone Falls hydroelectric generation station via USGenWeb

From The Grand Junction Daily Sentinel (Dennis Webb):

Western Slope interests are beginning to speak with one voice about their interest in purchasing a historic Glenwood Canyon hydroelectric plant viewed by many as more valuable for its water rights than for its electricity. But there’s no indication for now that the Shoshone Generation Station is even for sale. And a purchase presumptively would involve a high price tag due to the considerable and highly senior water rights, meaning that a funding mechanism would need to be identified, not to mention a buying party.

“I’m sure if the plant was for sale something like that would be put together,” said Jim Pokrandt, spokesman for the Colorado River Water Conservation District in Glenwood Springs.

Controlling river

The 15-megawatt plant, owned by Xcel Energy, is tiny by hydroelectric facility standards. But its 1905 water right of 1,250 cubic feet per second wields a lot of power in the water world, ensuring the flow of that much water down the Colorado River at least as far as the Glenwood Springs area. If the right didn’t exist, it could open the door to further diversions of water to junior rights holders wanting it for municipal purposes on the Front Range.

“Shoshone’s really the controlling right on the river,” Pokrandt said.

The Shoshone flows are so important to Western Slope governments, irrigation districts and other entities that part of a recently finalized, wide-ranging agreement dozens of them struck with Denver Water formalizes a protocol for generally continuing flows required by the plant during plant outages. The deal also seeks to mimic those flows even if the plant no longer is operational. Under the deal, Denver Water also would support possible purchase of the plant by a Western Slope entity.

Meanwhile, a Colorado River Basin roundtable group currently is helping draw up a basin-wide plan to submit for consideration as part of development of a state water plan. Louis Meyer, a Glenwood Springs engineer who is doing public outreach around the basin as the group prepares its recommendations, said he’s hearing a unanimous consensus in support of buying the plant.

“I believe that will be one of the seminal things going forward in our plan,” he said.

Revenue stream

He said one of the things driving the concern is that while there may be a deal with Denver Water, other Front Range entities aren’t bound by it. Pokrandt, who chairs the roundtable group, said the fear is that an entity would buy the plant just to close it down and retire its water rights, enabling it to divert more water with junior rights.

He said it’s good to see the concept of buying the plant take root, but added, “it would be a very expensive proposition.”

Meyer agreed, but said that if the cost is spread among numerous counties, “it’s not very much at all.”

Pokrandt said the river district would be the logical entity to take the lead in a purchase.

“But we certainly couldn’t do it on the revenues that we have for our current operations. A revenue stream would have to be figured out,” he said.

“… The financial package would definitely have to be a West Slopewide discussion.”

He said there’s an increasing recognition on the Western Slope of the Shoshone rights’ value in keeping water in the river for environmental and recreational purposes, and ensuring its availability for municipal consumption, Grand Valley irrigation and other purposes downstream of the plant.

Electricity demand

The water rights are designated for electricity generation, which would mean the buyer would have to continue operating the old plant to keep the rights. Pokrandt said that wouldn’t be easy for the river district, but it already does things such as operate reservoirs.

But he was quick to point out about the Shoshone plant, “It’s not for sale, though.”

Xcel spokesman Mark Stutz said he can’t comment on whether the plant is for sale, due to general company policy about not speaking on acquisitions or sales of assets “unless there is some cause for doing it.”

He said people “shouldn’t read too much into that one way or the other.”

Even with its small size, the plant is a component for meeting electricity demand in the area, he said.

“It’s obviously a relatively modest facility but it still provides a big benefit to the company in supporting the grid in what’s obviously a more geographically challenging part of our service territory,” he said.

Xcel investment

Building transmission and generation is harder in the mountains, and Shoshone “remains a very important piece from the grid support standpoint,” he said.

Xcel spent $12 million repairing the plant after a penstock ruptured in 2007, putting it out of service.

“We will continue to operate that facility based on that investment,” he said.

Pokrandt said that in probably the best of all worlds, Xcel would continue to own and operate the plant.

He added, “I think Xcel also understands the politics of the situation and the preferred status quo of operating the plant under the current conditions.”

Stutz said the company understands the significance of the plant to entities in the region, and tries to be a good neighbor.

“We’ve always tried to work with any agreements made with other entities in terms of where that water goes,” he said.

More Colorado River Basin coverage here and here.


‘Think about how we can work together to keep this community alive’ — Leroy Salazar

March 16, 2014
Artesian well Dutton Ranch, Alamosa 1909 via the Crestone Eagle

Artesian well Dutton Ranch, Alamosa 1909 via the Crestone Eagle

From the Valley Courier (Ruth Heide):

Heading a water solutions team, San Luis Valley resident LeRoy Salazar told those attending a groundwater advisory meeting on Wednesday it is time to get beyond the blame game and work together to preserve Valley communities and the agricultural livelihoods that keep them alive. Part of a group trying to find solutions to affordable, equitable and successful water sustainability, Salazar said a year ago he was only 20 percent convinced “we would be able to make this thing work.”

He said he is presently up to 60 percent and hopes by the time the state well rules are in place, “I will have an 80 percent probability we are going to be able to keep this thing going.”

He added, “We are all working really hard.”

He commended the state engineer’s office for working hard to develop a groundwater model that would work and rules that would work for everybody.

“The well owners want these as bad as surface users,” he said. “We want to know what hand we are going to be dealt with.”

He said some flexibility may be required in the next year or two as water users work through some of the challenges they will come up against in complying with the state’s new rules.

“Some of those things may take us five to six years to work out,” Salazar added. “We may not be able to live at exactly the letter of the law. We can create a little bit of flexibility in there.”

He said it might not be possible to always replace depletions to the river in exactly the right time and place that the regulations will require.

“Think about how we can work together to keep this community alive.”

State Engineer Dick Wolfe said he believed “our greatest successes come from our greatest challenges,” and he is at an 80-percent confidence level. The well rules Wolfe hopes to submit to the water court yet this spring will require wells to make up for the injuries and depletions they have caused senior water rights and the aquifers.

Salazar said he has both senior water surface rights, which date back five generations , in addition to wells, which are junior water rights. He said wells are part of the reason that rivers are drier and aquifers diminished, but they are not the sole problem. The multi-year drought and the demands of the interstate Rio Grande Compact are also responsible, he said.

However, he said those trying to reach solutions must get beyond the blame game “and think what’s in the best interest of keeping our communities alive and keep them going.”

He said he could see at least 100,000 acres of land going out of production, and if solutions cannot be reached to the Valley’s water problems, that total could be twice that.

“Think what that will do to communities,” he said.

He said the two main issues to address are sustainability and depletions.

He said some of the solutions to sustainability are fairly easy. Changing farming practices to use less water would be a better solution than shutting wells down, he said. For example, while alfalfa requires 28-30 inches of water annually, barley only requires 20 inches, so a switch from alfalfa to grain would cut water usage by one third.

“We can do a little bit better than that,” Salazar added. “A lot of us that are raising grain and potatoes, there are a lot of conservation crops that can apply 6-8 inches that will raise some pasture for cows.”

A crop like sorghum sudan grass would only require 6-8 inches but would still provide pasture for cattle, for example.

“There’s alternatives without having to shut a bunch of wells down to increase sustainability,” Salazar said. “We know we have to reduce the drain on the aquifers. I think sustainability can be dealt with fairly easily if we all agree we need to cut back. I don’t think there will be too many farms go out of business if we cut back.”

Addressing the issue of replacing depletions is a bit trickier, Salazar said. He explained it would take on the order of 20,000-30 ,000 acre feet to replace those depletions throughout the Valley, with the Conejos system owing about 6,000 acre feet. If the drought continues, however, that number could increase to 8,000-10 ,000 ace feet on that river system, he said.

Forbearance is one key way to deal with the depletions , he said. Some senior water users who have been injured by well pumping may be willing to accept money instead of water, Salazar explained. However , there will be water right holders who will want “wet water,” and that will not always be easy to provide, he said.

“A lot of depletions we are seeing are owed on the lower Conejos might owe 10,000-15 ,000 acre feet of depletions. How do we get 10,000 acre feet down to that lower part if we have to replace it exactly in time and place and we can’t find enough forbearance agreements ?”

Another obstacle is reservoir storage in that area. Salazar said the Platoro Reservoir would be a good place to store water that could later be used to replace depletions. However, that reservoir is often restricted under the Rio Grande Compact on whether it can store water or not.

“It’s a Compact reservoir and a post-Compact reservoir , which means we can’t really store water from one year to the next ” which is what we really need to do if we are going to make this thing work. Trying to find storage is going to be a big issue.”

Dry riverbeds create other obstacles, Salazar added. If water has to move from one part of the stream to meet depletions on the other end, but there’s a dry riverbed in the middle, “we lose it all.”

Folks have four options in responding to the state’s pending groundwater rules, Salazar said. One option is to join a sub-district ; another is to formulate an augmentation plan; a third is to take the rules to court and try to keep them there as long as possible “that’s not a real good solution;” and a fourth option is to seek legislative mandates to force polices on the well users. Salazar said he would rather see the Valley work out its own solutions than to go to the state legislature.

The solutions committee, or team, has been trying to develop alternatives since last April, Salazar said. The team set up technical and legal sub groups and has held numerous meetings in the past year.

The team has looked at several alternatives such as diverting numerous junior water rights to pay for depletions and replenish the aquifer. Some of the people who own those junior water rights are not producing that much with them and would just as soon get paid for them. The San Luis Valley Well Owners own some junior water rights that produce a lot of water on certain years, Salazar said. That could be a source of replacement water.

The solutions committee is looking at many options and trying to find the most affordable and efficient ones, Salazar said.

More Upper Rio Grande River Basin coverage here.


The Denver Post editorial board opposes H.R. 3189 (NSAA vs. USFS)

March 16, 2014

Trail map for Powderhorn Ski Area via liftopia

Trail map for Powderhorn Ski Area via liftopia


From The Denver Post Editorial Board:

A battle over ski-area water rights that has been simmering in Colorado — and across the country — for several years has gotten the attention of the White House, and we’re glad to see it.

President Obama on Wednesday issued a statement opposing the Water Rights Protection Act, which passed Thursday in the U.S. House but must still go to the Senate.

The White House is right to send a strong signal about the unwise nature of this measure, which could pre-empt a compromise in the public interest.

The bill, sponsored by Rep. Scott Tipton, R-Colo., would put up road blocks to stop the federal government from re- asserting greater control over ski-area water rights.

Initially, it might sound like a no-brainer. Of course the government should allow the ski areas to keep water rights so they can keep producing the snow that is such an economic and recreational boon, right?

Unfortunately, it’s not that simple.

The U.S. Forest Service is attempting to re-establish stewardship of rights for water that originates on federal land. The goal is to ensure water stays with the public land used by resorts, even if ownership of the resort changes.

Beginning about 30 years ago in the region that includes Colorado, federal authorities started requiring ski-area permit holders to put water rights from public lands in the government’s name.

In 2004, the Bush administration changed policy, allowing ski areas to jointly hold water rights. When the Forest Service, under Obama, tried to change permit conditions to more closely follow historic practice in the Colorado region, the ski industry sued.

A federal judge ruled in 2012 that the process used to make permit changes was deficient.

Fortunately, there is room for compromise without another legal battle.

The Forest Service is creating, but has not yet released, a new ski-area water rights clause that could provide a solution. A solid compromise would be to allow resorts to keep water rights ownership, but require that the water remain with the land, regardless of whether ski resorts changed hands or business plans.

When released this spring, the draft will go through a full public vetting process, as it should.

Entire Colorado mountain towns and economies depend upon recreation on federal land, and it’s vital to ensure the people, through their government, retain control of the water that is the lifeblood of those communities.

From The Grand Junction Daily Sentinel (Gary Harmon):

A measure that would prevent federal agencies from requiring ski areas, ranches, municipalities and others to sign over water rights passed the U.S. House on Thursday in the shadow of a threatened veto. The Water Rights Protection Act by U.S. Rep. Scott Tipton, R-Colo., lost the support of U.S. Rep. Jared Polis, D-Colo., who had co-sponsored the measure, but did garner a dozen Democrat votes in passing 238-174.

Sen. John Barrasso, R-Wyo., introduced a companion measure in the Democrat-dominated Senate and Tipton said after the vote that he hoped to win the support of Colorado’s senators, Michael Bennet and Mark Udall, both Democrats. Senate President Harry Reid, a Nevada Democrat, also ought to be supportive, Tipton said.

“We’re pleased to know it passed the House,” said Club 20 Executive Director Bonnie Petersen. “Hopefully it will pass in the Senate. This is critical to everybody in the West.”

The White House, in a statement of administration policy, said the bill “is overly broad and could have numerous unintended consequences,” including damaging the ability of the Agriculture and Interior departments’ ability to manage resources for the benefit of public land and the environment, as well as maximum beneficial use of federal water facilities ensuring that adequate water is available for fisheries or threatened or endangered species.

In arguing against the measure, Polis also said the bill was overly broad and that he intended it only to apply to ski areas…

The breadth of the bill was intended from the beginning, when Polis originally signed on, Tipton said, noting that it still is supported by the National Ski Areas Association, which sued the U.S. Forest Service when it required ski areas, including Powderhorn Mountain Resort, to sign over water rights in order to obtain a permit to operate on the Grand Mesa National Forest.

The veto threat was pre-emptive, Tipton said, calling on the Senate to take a vote on the bill and let the legislative process go forward.

A federal judge ruled in the suit brought by the ski areas that the Forest Service had failed to comply with federal law in invoking the rule under which it demanded the water rights.

More water law coverage here.


‘Our water right requires us to replace the water in the Box Elder. That’s what they (Select Energy) should do’ — Mark Harding

March 16, 2014
Map of the South Platte River alluvial aquifer subregions -- Colorado Water Conservation Board via the Colorado Water Institute

Map of the South Platte River alluvial aquifer subregions — Colorado Water Conservation Board via the Colorado Water Institute

From The Denver Post (Mark Jaffe):

The meandering Box Elder Creek has become a battlefield as farmers and ranchers are facing off against a plan to drill wells along its banks to provide water for fracking and other oil-field operations. While the creeks wends its way north from Elbert County to the South Platte River in Weld County — Arapahoe County is ground zero for the fight.

Boxelder Properties LLC is proposing sinking four wells to draw 500-acre feet of water annually for the fracking and other oil-drilling operations. That is enough water to supply 200 average Denver homes for a year.

Ranchers and farmers along the Box Elder say the plan will dry out wells and pools used by cattle, as well as kill vegetation along the creek’s banks east of Aurora.

“These boys from Texas think they can just ride in. Well, the people on Box Elder are going to meet ‘em at the hill,” said Jerry Francis, who grazes about 30 head of cattle on the creek.

The dispute underscores the problem of trying to balance oil and gas development in Colorado with other economic activities.

“We want oil and gas development, but we have to do it so we don’t jeopardize our agricultural community,” Arapahoe County Commissioner Rod Bockenfeld said.

The county commissioners have sent a letter opposing the project to the Colorado Division of Water Resources, which must decide on the proposal.

The proposal has become so controversial that Houston-based Conoco-Phillips, the main company drilling in the area, announced that it wouldn’t use water from the wells. Houston-based Select Energy Services, the Conoco contractor that initiated the plan, has also abandoned the idea, according to company spokeswoman Brooke Jones.

Still, the permit application to drill the wells is pending with the water division, also called the Office of the State Engineer.

“The project isn’t dependent on Conoco; there are other oil service companies,” said Walraven Ketellapper, head of Boulder-based Stillwater Resources and Investment.

Stillwater, a water broker and agent, is handling the permit for Boxelder Creek Properties.

The state engineer has received 16 letters — from farmers, public officials, water districts — objecting to the plan and raising concerns about its impact on water supplies.

“We are going to do the engineering analysis, the groundwater modeling to show the wells can withdraw water without adverse impacts,” Ketellapper said. “That is our burden of proof.”

Just 15 miles east of Denver, suburban sprawl gives way to silos, barns and broad fields seemingly running all the way to the snow-capped Rockies. It is through this landscape that Box Elder Creek snakes its way to the South Platte River, 2 feet deep in some places, sometimes as wide as 12 feet, while in other spots it is just a dry, sandy bottom most of the year.

“We are a dry county,” said Bockenfeld, the Arapahoe County commissioner. “Many farms dry farm; there just isn’t a lot of water.”

Only in the early spring with the first snowmelt does the creek run full, but all year long a subterranean stream feeds ponds and pools, residents say.

“This pool is here all summer long,” Francis said as he stood in a field next to the creek. “The water and this buffalo grass gets cattle fat as a fritter.”

A retired John Deere worker who raises cattle to keep busy, the 67-year-old Francis said what he is most concerned about is the future.

“They take away the water, what’s left for my kids and grandkids?” he said.

A neighboring farmer, Bill Coyle, 60, has more immediate concerns. Coyle estimates he spent about $300,000 in an eight-year battle with the state engineer to get a water right for four irrigation wells on his 1,000-acre farm. Standing at one of his center-pivot wells, Coyle can see the spot where one of the proposed wells would be. It is beyond the state-required 600-foot setback — but still within sight.

The application for the four water wells says that they are drawing water from the creek and won’t impact local wells. Coyle doesn’t believe it.

“They are proposing pumping at 1,000 gallons a minute,” Coyle said. “My well is 42 feet deep. It will have an impact on the well, and it will be immediate.”

The decision to issue a temporary permit to drill and pump the four wells to produce 500-acre feet a year or 163 million gallons rests with the state engineer. The award of a long-term water right would be determined in Colorado Water Court — a process that can take as much as five years. The process is governed by Colorado water law — a byzantine set of rules organizing the right to draw water based on a priority system.

The key to being allowed to pump the water is a so-called augmentation plan to replace it so that the older or “senior” water rights are not impaired. This is an expensive process.

Select Energy offered four landowners — none of them local residents — $10,000 to drill a water well on their land and 1 cent for every barrel of water — about 42 gallons — pumped, according to one of the contracts.

They also purchased shares in the Weldon Valley Ditch to replace the pumped water. The application estimates that 10.4 shares — worth about $950,000 — would be needed to replace the 500 acre-feet drawn from the water wells.

Water, however, is vital to the oil and gas industry, with demand growing 35 percent to 18,700 acre-feet from 2010 to 2015, according to state estimates. The water, mixed with sand and chemicals, is pumped into wells under pressure to “hydrofracture” or frack shale rock and release oil and gas. About 4 million gallons is pumped into a single horizontal well.

“Water has always responded to the market in Colorado,” said Ken Carlson, director of the Center for Energy and Water Sustainability at Colorado State University. “First it was urban areas buying the water rights of farms. Now it is oil and gas.”

Select Energy is now getting its water from Denver-based Pure Cycle Corp., which has deep wells on the former Lowry Bombing and Gunnery Range, in Arapahoe County. Pure Cycle is opposing the plan because it also has a water right on the Box Elder that would be hurt, said Mark Harding, Pure Cycle’s president. The problem is that the plan calls for pumping along the Box Elder but returning the water about 50 miles to the north near Wiggins.

“Our water right requires us to replace the water in the Box Elder. That’s what they should do,” Harding said.

The state engineer will rule in the next few months on the temporary permit, which could enable pumping this year and last for as long as five years.

“This application is unusual in that the Box Elder isn’t a continuously flowing stream where the groundwater is continuously replenished,” Deputy State Engineer Kevin Rein said.

“We take the concerns seriously, and we’ve asked the applicant to respond to them,” Rein said. “We’ll have to see what they say.”

More oil and gas coverage here and here.


H.R. 3189 passes the US House of Representatives

March 15, 2014

From The Pueblo Chieftain (Chris Woodka):

A bill that prohibits the transfer of private water rights to the federal government as a permit condition passed the U.S. House on Thursday. The bill was sponsored by U.S. Rep. Scott Tipton, R-Colo., with support from U.S. Rep. Cory Gardner, R-Colo. The Water Rights Protection Act, HR3189, passed 238-174, with 12 Democrats joining Republicans in an otherwise party-line vote. It is awaiting action by the Senate and could face a veto from President Barack Obama,

The bill is in response to U.S. Forest Service contracts with Colorado ski areas that required transfers of water rights as a condition. State water users feared the federal government would apply the same conditions to grazing contracts as well.

The bill protects Colorado water rights from federal encroachment.

The bill had widespread support from conservancy and conservation districts in both the Arkansas River and Rio Grande basins, as well as from numerous Western Slope groups.

“Water is the lifeblood of the Western United States and all water users including grazers, ski areas, businesses, tribes and municipalities need certainty that all federal land management agencies, not just the Forest Service, are prohibited from future attempts to take privately held water rights,” Tipton said.

“Water is everything to communities in Colorado,” Gardner said. “Our farmers and ranchers, our commerce, and our towns and municipalities can only thrive when there is certainty that they will have access to water.

From American Rivers (Matt Niemerski):

The House of Representatives voted today to approve a bill that could dry up countless stretches of rivers and harm river restoration efforts nationwide. H.R. 3189 – the so-called “Water Rights Protection Act” – passed by a 238-174 vote.

This bill is terrible news for rivers nationwide. It puts the interests of the oil and gas industry, corporate agriculture, and other private interests over the health of our rivers, fish and wildlife, and the millions of Americans who fish, boat, and enjoy river recreation. It is ultimately a broad swipe at federal natural resource agencies’ authority to protect public lands and recreation.

The bill, pushed by the National Ski Areas Association and Aspen’s SkiCo, as well as the Farm Bureau, the U.S. Chamber of Commerce, the National Cattlemen’s Beef Association, the Colorado Petroleum Association, and the Colorado Oil and Gas Association, would strip away critical safeguards for rivers, fish and wildlife.

The bill was originally introduced to address a specific conflict between Colorado’s ski industry and the U.S. Forest Service. Even though the Forest Service has already acted to address the ski industry’s issue, the bill became a vehicle for the oil and gas industry, corporate agriculture, and other industries, putting their interests ahead of the public’s interest in healthy rivers and recreation.

This bill was so badly written, that in a last ditch effort to try to bring some sanity to the legislative process, House Democrats offered an amendment that would, at the very least, allow federal agencies to protect rivers enough to guarantee recreation jobs, fire suppression, and communities threatened by drought. But apparently those restrictions did not work for the ski industry, the CAFO operators, and the hydrofrackers. So their supporters in the House voted no.

In a rare and almost unprecedented move, Congressman Jared Polis (D-CO) took a bold step to protect rivers in Colorado and across the nation by removing his support for a bill of which he was an original sponsor. Rep. Polis introduced an amendment that would rectify the flaws in the bill by narrowing it to address the ski areas’ original concerns, but that was ultimately rejected by the House. Congressman Polis went down to the floor of the House to oppose the bill and offer a passionate defense for rivers and the outdoor recreation economy.

River advocates spoke up, and Congressman Polis listened. We should all applaud Congressman Polis for having the courage to stand up and do what is right. Jared Polis is a true champion for healthy rivers, and for everybody who fishes, boats, and enjoys the outdoors and he called this bill out for what it truly is: a job killing water grab. His leadership sets a great example, and we hope his colleagues follow this example in the future.Additionally Rep. Grace Napolitano (D-CA), Rep. Peter Defazio (D-OR), Rep Jared Huffman (D-CA), Rep Niki Tsongas (D-MA), Rep. Ann Kuster (D-NH) all engaged the fight on behalf of the America’s rivers on the floor of the House to fight a bill which Rep. DeFazio described as “just another attempt to undermine critical environmental protections and target federal agencies that manage our public lands for future generations.” They deserve our thanks.

Most importantly I thank you, our friends who care deeply about our nations rivers. Although this bill passed the House, your voice was heard. Passing legislation like this comes with a price for its supporters, and it took the full weight of some of the nation’s most powerful interests to get it through the House. River advocates and our allies in Congress landed the blows needed slow this legislation down.

Even though the President declared his strong opposition to the bill, the ski industry and their polluter allies don’t appear to be giving up. Well, neither will we.

The bill is now in the Senate’s hands, and we have to keep the pressure on. American Rivers and our partners across the country will continue to stand against this bill and we urge the Senate to oppose this sweeping attack on our rivers. But we are only as strong as our supporters. River advocates must also stand firm and keep the pressure on the National Ski Areas Association to break with big polluters like the hydrofrackers and the CAFOs, and instead work on a solution that addresses their concerns.

More water law coverage here.


H.R. 3189 and HB14-028 (NSAA vs. USFS): Ski area water rights bills in Denver and Washington DC are both in trouble #COleg

March 14, 2014
Trail map for Powderhorn Ski Area via liftopia

Trail map for Powderhorn Ski Area via liftopia

From The Durango Herald (Joe Hanel):

A dispute between Colorado ski areas and the Forest Service has caught the attention of the White House, which on Thursday threatened to veto a water-rights bill that U.S. Rep. Scott Tipton, R-Cortez will present on the House floor today.

Meanwhile in Denver, state senators delayed a vote on a related bill by Sen. Ellen Roberts, R-Durango, out of concerns that it improperly singles out the Forest Service.

The bills in Washington and Denver address an effort by the Forest Service to gain title to water rights used by ski resorts that lease federal land.

“This is important to the West. We hope the president won’t politicize this because this isn’t a Republican or Democrat issue,” Tipton said in a phone interview.

Rep. Jared Polis, D-Boulder, is a co-sponsor of Tipton’s bill, and a few other Western Democrats also support it…

“Basically, it comes down to, does Colorado decide its water-rights system, or does the federal government?” [Sen. Ellen Roberts] said Wednesday at a meeting of the Senate State Affairs Committee…

Cities that have reservoirs on federal land worry that if the Forest Service can take ski water rights, nothing would stop them from claiming reservoirs, too, Moseley said.

However, Sen. Matt Jones, D-Louisville, defended the Forest Service and said most Coloradans would support the principle of keeping ski water rights reserved for skiing.

“This isn’t the mean old federal government telling people what to do. This is the steward of our lands,” Jones said.

Sen. Jessie Ulibarri, the committee’s chairman, delayed a vote on Roberts’ bill, saying he thinks it’s an important topic but that the bill might illegally single out one entity, the Forest Service.

As the hearing was happening in Denver, the Obama Administration lowered the boom on Tipton’s bill in Washington by releasing a “statement of administration policy” – essentially, a veto threat.

The U.S. House is scheduled to vote on Tipton’s bill today. It would forbid federal land-management agencies from claiming water rights as a condition of a land-use permit.

“The bill threatens the Federal government’s longstanding authority to manage property and claim proprietary rights for the benefit of Indian tribes and reserved Federal lands, and the broader public that depends on the proper management of public lands and resources,” the unsigned administration statement said…

Tipton has allies, as well. The influential U.S. Chamber of Commerce has come out in support of his bill, and it is expected to pass the House this afternoon.

However, the version of Tipton’s bill in the Democratic-controlled Senate has stalled and has not received a hearing, and Obama’s veto threat could seal its fate.

From the Seattle Times (Kyung M. Song):

The U.S. House on Thursday passed a controversial bill triggered by the U.S. Forest Service’s equally controversial move to assert federal ownership over water rights held by ski areas to tap public streams for snow-making.

The 238-174 vote — with every Republican in favor and all but 12 Democrats opposed — capped a twisted legislative journey that began with a 2012 court fight in Colorado and ended with a bill that critics fear would handcuff federal oversight of water use by ranchers, farmers, oil companies, municipalities and other parties…

The Water Rights Protection Act had the backing of virtually all ski resorts in the United States. Among them are 13 ski areas in Washington, including Crystal Mountain, The Summit at Snoqualmie and Stevens Pass.

But the National Ski Areas Association in recent weeks had been pushing lawmakers to narrow the legislation’s scope out of fear the Democrat-controlled Senate would otherwise reject it. Rep. Jared Polis, a Colorado Democrat and one of the bill’s 15 co-sponsors, withdrew his support and pushed for an amendment to restrict the bill only to ski-area permits.

Instead, House Republicans approved a broader bill that would apply to the Interior Department and the Department of Agriculture, agencies that encompass the Fish and Wildlife Service, Bureau of Land Management, National Park Service as well as the Forest Service.

Rep. Doc Hastings, R-Pasco, chairman of the House Natural Resources Committee, managed the bill on the House floor as Democrats denounced it as sloppy legislation that would bring far-reaching consequences.

Democrats also repeatedly pointed out that Hastings’ committee held the only hearing on the bill on Oct. 10, in the middle of the 16-day federal- government shutdown and with no witnesses testifying in opposition.

Hastings rejected the criticisms and said the bill simply would protect private property from confiscation under President Obama’s “imperial presidency.”

More 2014 Colorado legislation coverage here.


H.R. 3189: The House Majority Leader indicated on Mar 06, 2014 that this bill may be considered in the week ahead.

March 11, 2014
Trail map for Powderhorn Ski Area via liftopia

Trail map for Powderhorn Ski Area via liftopia

Click here to go to the GovTrack page for the bill.

More water law coverage here.

From The Goat (Krista Langlois):

The German philosopher with the impressively bushy mustache, Friedrich Nietzsche (below), said that all things are subject to interpretation. Had he lived in the Western U.S., he might have tacked on a clause: “Especially when it comes to water policy.”

A House bill to be voted on this week hammers his point home, with policy experts, conservation groups, the U.S. Forest Service and the ski industry each reaching different conclusions about the potential consequences of HR 3189, the “Water Rights Protection Act.” The bill seeks to prevent the federal government from imposing cond­itions on water rights owned by public land leaseholders. Opponents contend it would also weaken federal agencies’ ability to conserve stream flows for wildlife and recreation…

“This bill is written way too broadly,” says Matt Niemerski, Western water policy director for Washington, D.C.-based American Rivers. “It would undermine efforts to improve the health of rivers and public lands, and force federal agencies to put private water use ahead of public uses, like wildlife, fishing or boating.”[...]

The mess began decades ago. Reed Benson, water law professor at the University of New Mexico School of Law points to the late ‘90s, when the Forest Service began claiming authority over “bypass flows” on public lands – meaning that to get their permits renewed, entities that operate on public lands had to keep a modicum of water in streams and rivers to ensure that enough water was retained for other uses, including fish and wildlife conservation. Water users in Colorado and beyond fought for local control, but ultimately two court cases ruled in favor of the feds, Benson says.

Geraldine Link, director of public policy for the National Ski Areas Association, says the issue began even earlier, when the Forest Service changed its policies to take ownership over private water rights. Either way, the fight was renewed in 2011, when the Forest Service demanded that the 122 ski resorts that operate in national forests turn their water rights over to federal management. The ski industry sued and won. In response, the Forest Service began working on new regulations that would protect stream flows without taking rights away from ski resorts. But the process has been slow, and the ski industry doesn’t believe that the federal goernment will ultimately act in their best interest.

More H.R. 3189 coverage here.


The March 2014 Colorado Stewardship Project newsletter is hot off the presses

March 11, 2014
Justian I first codifier of riparian rights

Justian I first codifier of riparian rights

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

Public Trust Ballot Initiative Introduced

A proposed Public Trust Doctrine Ballot Initiative is progressing through the state’s review process. The proponents made changes to their initial version and re-submitted the amendment on February 25. It is set for a Review and Comment Hearing March 11 at 1:30pm.

The current version of proposed Initiative 83 would amend the Colorado Constitution by adding a new section to Article XVI (the provisions of the constitution that govern mining and water rights). This amendment would, among other issues, establish an “inalienable right” of the people of Colorado to clean air, clean water (including groundwater), and the preservation of the environment and natural resources (called “Public Trust Resources”), as common property of all people including future generations.

For additional summary of proposed Initiative 83 click HERE or visit http://www.cowaterstewardship.com.

CWSP and the Colorado Water Congress are monitoring all initiatives that could affect water resources. To view the full initiatives tracking document click HERE.

More 2014 Colorado November election coverage here.


Breakthrough water agreement benefits cities and rivers

March 11, 2014

Originally posted on Mile High Water Talk:

Water management is never easy. And in Colorado, where the resource is scarce, everyone’s interest is valuable, and needs are often widely divergent.

Last year, Denver Water and Trout Unlimited came together to pen a guest editorial for The Denver Post, Together, we can meet Colorado River challenges, acknowledging the fact that there are differences over how to best use water to meet our diverse needs. But, more important, the editorial highlighted the fact that smart water planning and cooperation are the only way to meet the future water needs of all interests along the Colorado River.

Less than a year later, Denver Water and Trout Unlimited have come together again, this time with Grand County, to reveal an agreement that balances municipal needs and environmental health. And, just like the recently finalized Colorado River Cooperative Agreement, this partnership demonstrates the benefits of working together to protect our…

View original 790 more words


Trout Unlimited, Denver Water, Grand County reach agreement on river protections for Moffat Project #ColoradoRiver

March 4, 2014
Denver Water's collection system via the USACE EIS

Denver Water’s collection system via the USACE EIS

Here’s the release via Denver Water, Grand County, and Colorado Trout Unlimited (Stacy Chesney/Lurline Curran/Mely Whiting):

Denver Water, Trout Unlimited and Grand County today announced agreement on a package of river protections designed to keep the Fraser River and its trout populations healthy.

The Mitigation and Enhancement Coordination Plan brings to a close several years of discussions over the proposed Moffat Collection System Project and its potential impacts on the Fraser River. All sides hailed the stakeholder agreement as a breakthrough that balances municipal needs and environmental health.

Trout Unlimited called the agreement “a victory for the river.”

“This package of protections and enhancements, if adopted in the final permit, gives us the best opportunity to keep the Fraser River and its outstanding trout fishery healthy far into the future,” said Mely Whiting, counsel for Trout Unlimited. “This pragmatic agreement underscores the value of a collaborative approach to water planning — one that recognizes the value of healthy rivers. It shows that, working together, we can meet our water needs while protecting our fisheries and outdoor quality of life.”

“In an effort to move past a disagreement on impacts from the Moffat Project, Grand County reached out to Denver Water and Trout Unlimited to propose additional environmental mitigations,” said Lurline Curran, Grand County manager. “To all parties’ credit, this effort has succeeded.”

“The Fraser is a river beloved by generations of anglers, boaters and other outdoor enthusiasts — it’s the lifeblood of our community,” said Kirk Klancke, president of TU’s Colorado River Headwaters chapter in Fraser and a longtime advocate for the river. “As an angler and Fraser Valley resident, I’m gratified that this agreement keeps our home waters healthy and flowing.”

The package includes environmental enhancements and protections to ensure the Fraser River will be better off with the Moffat Project than without it, said Denver Water. The Moffat Project will improve the reliability of Denver Water’s system, which serves 1.3 million people in the Denver-metro area.

The centerpiece of the agreement is Learning by Doing, a monitoring and adaptive management program overseen by a management team that includes Denver Water, Grand County, Trout Unlimited, Colorado Parks and Wildlife, the Colorado River District and the Middle Park Water Conservancy District. Upon the project permit being issued, the management team will implement an extensive monitoring program to assess stream health based on specific parameters including stream temperature, aquatic life and riparian vegetation health. Water, financial and other resources committed by Denver Water through project mitigation, the Colorado River Cooperative Agreement and other agreements will be deployed to prevent declines and improve conditions where needed.

Learning by Doing is a unique and groundbreaking effort to manage an aquatic environment on a permanent, cooperative basis. Notably, the program will not seek a culprit for changes in the condition of the stream, but will provide a mechanism to identify issues of concern and focus available resources to address those issues. Mitigation measures to prevent impacts of the Moffat Project on stream temperature and aquatic habitat will also be implemented through Learning by Doing.

“Like the Colorado River Cooperative Agreement, this plan represents a new, collaborative way of doing business together when dealing with complex water issues,” said Jim Lochhead, CEO/manager of Denver Water. “Since the beginning of our planning for the Moffat Project, we set out to do the right thing for the environment, and we believe coming together with Trout Unlimited and Grand County on the Mitigation and Enhancement Coordination Plan demonstrates a monumental step in making the river better. It’s satisfying that after more than 10 years of study and discussion, Trout Unlimited and Grand County have stayed at the table with us in good faith.”

Denver Water, Grand County and Trout Unlimited have submitted the Grand County Mitigation and Enhancement Coordination Plan to federal and state agencies charged with permitting the Moffat Project and have requested that it be made part of the U.S. Army Corps of Engineers’ permit.

The Final Environmental Impact Statement for the Moffat Project is expected by the end of April, and a final permitting decision by the Army Corps of Engineers is expected in early 2015.

For more information about the Mitigation and Enhancement Coordination Plan, see the full agreement here.

More Moffat Collection System Project coverage here and here.


Aspen: Both sides in the city’s hydropower abandonment case have engaged experts to determine streamflow needs

March 4, 2014
Pelton wheel

Pelton wheel

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

A collaborative committee, formed by opposing parties in a lawsuit claiming the city of Aspen has abandoned its rights to divert water from Castle and Maroon creeks for a proposed hydro plant, is making slow progress toward its goals.

When the settlement effort was announced last year after a “stay” was filed in the case, there were hopes that a stream ecologist could be agreed upon and hired early this year to study the proposed hydro plant and the streams and make recommendations about “stream health goals.”

Steve Wickes, a local facilitator guiding the committee and working for both parties in the case, said the committee’s goals were narrowly defined: Can the two sides, with the help of a mutually trusted expert, agree on how much water can be taken out of the creeks?

But before a “request for proposals” can be written to attract a third-party stream ecologist, the committee has agreed that two experts who are working for either side should first review the list of prior studies done on the two rivers to determine where there are information gaps…

To help review the existing studies and draft the request for proposal, the city has hired Bill Miller, the president of Miller Ecological Consultants of Fort Collins, who has been working for the city on river issues since 2009.

And the plaintiffs have hired Richard Hauer, a professor of limnology (freshwater science) at the University of Montana and the director of the Montana Institute on Ecosystems. Hauer appeared at an event in Aspen in 2012 to discuss the importance of keeping water flowing naturally through a river’s ecosystem…

On the committee from the city are Steve Barwick, Aspen’s city manager, Jim True, the city attorney, and David Hornbacher, the head of the city’s utilities and environmental initiatives.

Representing the plaintiffs on the committee are Paul Noto, a water attorney with Patrick, Miller, Kropf and Noto of Aspen, and Maureen Hirsch, a plaintiff in the suit who lives along Castle Creek.

The other plaintiffs include Richard Butera, Bruce Carlson, Christopher Goldsbury, Jr. and four LLCs controlled by Bill Koch. All of the plaintiffs own land and water rights along either Castle or Maroon creeks.

Wickes said the members of the committee have agreed with his suggestion that they not discuss their ongoing work with the media, and instead refer questions to him.

The claim of abandonment against the city was filed in 2011 water court, in case number 11CW130, “Richard T. Butera et al v. the city of Aspen.”

The case was poised to go to trial on Oct. 28, 2013 and both sides filed trial briefs on Oct. 14.

On Oct. 18, however, the parties filed a stay request with the court so they could “cooperate in engaging a qualified independent, neutral, stream ecology expert.”

The ecologist is to study the rivers and the proposed plant and then “determine a bypass amount of water, to be left in the stream by Aspen.”

The opposing parties are then supposed to “use their best efforts to define the stream health goals to be achieved by said amount of water.”

That could mean, as one example, that a flow regime is agreed upon, with varying levels of water being left in the rivers below the city’s diversions at different times of year, depending in part on the natural amount of water in the rivers during any given year.

Such a protocol exists today on Snowmass Creek as it relates to diverting water for snowmaking at the Snowmass Ski Area.

The city is currently proposing to divert up to 27 cubic feet per second of water from Maroon Creek and 25 cfs of water from Castle Creek for the proposed hydro plant, on top of the water it currently diverts from both streams for municipal uses and the existing Maroon Creek hydro plant.

The city also has a policy to keep at least 13.3 cfs in Castle Creek and 14 cfs in Maroon Creek below its diversion dams in order to help protect the rivers’ ecosystems…

The plaintiffs in the suit against the city have told the court they are concerned that if the city diverts more water for hydropower, it could hurt their ability to use their junior water rights on Castle or Maroon creeks. They also claim the city intended to abandon its hydro rights connected to an old hydro plant on Castle Creek, which the city concedes it has not used since 1961.

But the city has denied it ever intended to abandon its water rights and has challenged the plaintiffs’ standing to bring the suit.

Whether the September court dates are needed likely depends on whether the two sides can agree to hire a third-party stream consultant, and then agree to follow their recommendations.

If so, Wickes thinks such an exercise could influence how rivers and streams around the West are managed.

“I’m actually hopeful that when the study is completed, not only will it inform future conversations about the hydroelectric plant, it will inform a wide number of decisions about stream ecology, how we treat our streams, and how things are interconnected,” Wickes said.

More hydroelectric coverage here.


Glenwood Springs proposed RICD application is drawing the attention of other #ColoradoRiver users

February 17, 2014
City of Glenwood Springs proposed whitewater parks via Aspen Journalism

City of Glenwood Springs proposed whitewater parks via Aspen Journalism

From the Aspen Journalism (Brent Gardner-Smith):

The West Divide Water Conservancy District of Rifle filed a “statement of opposition” with District Court, Water Division No. 5 on Jan. 27.

West Divide said it is “the owner of vested water rights that may be injured by the granting of this application” to Glenwood Springs.

Other such filings are expected from Denver Water, the Colorado River District and the Colorado Water Conservation Board.

A “statement of opposition” is typically formulaic and opaque. The filer’s true intent can be hard to discern. It may be genuine opposition, curiosity, or an easy way to monitor a case.

In most cases, parties eventually agree to limits on the proposed water right, which are ultimately reflected in a decree from the water court.

“It’s a long process,” attorney Mark Hamilton of Holland and Hart in Aspen told the Glenwood Springs City Council on Dec. 19. “It can be a slow process. There’s a lot of opportunities for issues to be raised and resolved.”

On Dec. 31, Glenwood Springs applied to secure a steady flow of water in its proposed whitewater parks. It is seeking a base flow of 1,250 cubic feet per second (cfs), from April 1 to Sept. 30. It is also claiming the right to 2,500 cfs of water for 46 days between April 30 and July 23.

And it wants the right to 4,000 cfs of water for five days of big-water boating during peak flows between May 11 and July 6.

The rights would be dependent upon rock structures being anchored in the river to create play waves at No Name, Horseshoe Bend and on the stretch of river between the Grand Avenue Bridge and Two Rivers Park, just below downtown Glenwood.

Given the size of the water rights being requested, and because they are on the heavily managed Colorado River, Glenwood’s application is likely to draw interest…

Glenwood’s “non-consumptive” rights would be legally tied to the eventual building of six rock structures in the river, creating two play waves in each of the three parks.

The water would stay in the river, but would run over boulders secured in the riverbed to form waves at high, medium and low flows…

The whitewater park at No Name, about two miles upriver from downtown Glenwood, would use the existing parking lot and restrooms at the CDOT rest stop on Interstate 70. The structures would be just upriver of the rest stop and Glenwood Canyon Resort.

Horseshoe Bend is about a mile above Glenwood, where the existing bike path crosses over the highway and runs by a picnic shelter on BLM land, in a narrow and deep part of Glenwood Canyon.

The third park would be on a wide stretch of river below the Grand Avenue Bridge, but above the confluence of the Colorado and the Roaring Fork rivers, where a pedestrian bridge crosses the Colorado at Two Rivers Park.

The three new parks would be upriver of the existing “Glenwood Wave” in the Glenwood Springs Whitewater Park, in West Glenwood…

The River District board voted in January to file a statement in the case, citing protection of its water rights and interstate water agreements.

It also wants to maintain the recently approved Colorado River Cooperative Agreement, which speaks to managing the upper Colorado River…

A January memo from Peter Fleming, the general counsel of the River District, said Denver Water “might assert that the claimed flow rates do not follow the strict language of the Colorado River Cooperative Agreement.”

As such, Fleming said, Denver Water “likely will oppose” Glenwood’s application.

More Colorado River Basin coverage here and here.


Water court approves new RICD for Carbondale

February 10, 2014
Roaring Fork River in winter

Roaring Fork River in winter

From the Aspen Daily News (Nelson Harvey):

Colorado District Five Water Court Judge James Boyd signed a decree on Feb. 3 granting Carbondale the recreational, in-channel water right necessary to built a whitewater park consisting of five obstructions — rocks or concrete barriers that would create waves of varying sizes — placed in the river over a 1,425-foot span between the Highway 133 bridge and the confluence of the Roaring Fork and Crystal Rivers.

The new water right is non-consumptive, meaning Carbondale can use the water for its kayak park so long as it leaves that water in the river and doesn’t divert it for irrigation, municipal use or other purposes.

Judge Boyd’s decree entitles Carbondale to varying amounts of water throughout the year, which would translate into waves that changed with the seasons.

Between March 15 and April 14, Carbondale could run 230 cubic feet per second (cfs) through its kayak park between the hours of 8 a.m. and 8 p.m. That same rate would apply in the late fall, between Nov. 1 and Nov. 30.

During periods of historically high runoff, such as between May 15 and July 14, the flow rate would be boosted to 1,000 cfs. Carbondale would also have the right to as much as 1,600 cfs for two special events such as kayak competitions lasting up to four days apiece in June, and to as much as 1,160 cfs for another special event between May 15 and May 31. During the June events, water could be used until midnight to facilitate the possibility of nighttime competition.

Although Carbondale has long contemplated building a kayak park to boost recreational opportunities for locals and tourists alike, there are no active plans to do so at this point. Placing obstructions in the river to create the park would require permits from other government agencies, including the U.S. Army Corps of Engineers and perhaps Colorado Parks and Wildlife.

Still, the recent water decree provides the town with the legal foundation necessary to proceed with the project sometime over the next six years if desired…

Over the last eight years, Hamilton has been negotiating to placate several local and Front Range water interests who registered objections to Carbondale’s application for the new water right, including the Colorado Water Conservation Board, the State and Division Engineers, Colorado Springs Utilities, the Southeastern Water Conservancy District, the Basalt Water Conservancy District, the Colorado River Water Conservation District, and Stanley and Valerie Koziel, who used to own Gateway Park near the intersection of Highway 82 and Highway 133.

More whitewater coverage here.


2014 #COleg HB14-1026: ‘…would turn Colorado’s time-honored anti-speculation doctrine on its head’ — Pueblo Chieftain

February 3, 2014
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain editorial staff:

THE WATER buffaloes are relentless in their devious pursuit of easier, quicker ways to take Colorado’s irrigated agricultural water and market it to the urban Front Range. If they have their way, these voracious urban-suburban interests would destroy rural communities while fueling lucrative but unwise population growth up north.

The latest wolf at the door is House Bill 1026, which cleared the state House Agriculture Committee on a 10-3 vote Monday. This so-called “flexible water markets” — or flex water rights — bill would turn Colorado’s time-honored anti-speculation doctrine on its head by allowing speculators to convert ag water rights to any use of their choosing — essentially at any time.

“Our big fear is that this could be a Trojan horse for municipalities to come in and take water from farms,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District.

We share Winner’s alarm at the threat of speculation, which current Colorado water law prohibits.

However, even if speculation somehow was prevented with a bill amendment, [HB14-1026, Water Flexible Markets] still would pose a grave threat to the Arkansas Valley’s rural economy and future viability.

House committee amendments that did make it into the bill were touted as making it more palatable. However, that’s just so much propaganda.

One amendment would allow a change to flexible markets water rights only within the basin of origin. This might prevent Aurora, which is in the South Platte basin, from raiding the Lower Arkansas Valley again. However, it wouldn’t stop the same damage from being inflicted within our basin by, say, Colorado Springs.

Another amendment would allow a water judge to reconsider previous approval of a “flex water right” to “remedy or preclude” injury to other water rights. But it’s stated in such convoluted language that the “big guy’s” high-priced water lawyers and experts would bury the opposition in court.

There’s a lot of other things wrong with HB1026 and absolutely no compelling reason to pass it. The wolf is again at the door and must be stopped before destroying its prey.

More 2014 Colorado legislation coverage here.


Rio Grande River Basin: ‘Asinine — That’s the best word I can think of’ — Ruth Heide

February 1, 2014
Rio Grande Silvery Minnow via Wikipedia

Rio Grande Silvery Minnow via Wikipedia

The editor of the Valley Courier believes the WildEarth Guardians potential lawsuit is unwarranted and that the Rio Grande Compact is the law of the river. Click here to read the editorial from Ruth Heide Still Waters: Of minnows and men:

Asinine.

That’s the best word I can think of to describe the recent intent by the WildEarth Guardians to sue Colorado for not providing enough water downstream to keep the silvery minnow afloat.

What about the Rio Grande Compact do these folks not understand? We’re not hoarding our water up here at the headwaters just to dry up minnow habitat, for crying out loud. Colorado is keeping its part of the bargain of the longstanding interstate compact governing how the Rio Grande is managed from the headwaters in Colorado through New Mexico to Texas. We as a state have been complying with the terms of that compact for years. This past year we even sent more water downstream than we were required to, so we have a “credit” with our downstream neighbors.

From The Pueblo Chieftain (Chris Woodka):

Already stressed by a five-year drought, water use in the Rio Grande basin could be affected by legal action from downstream states. The U.S. Supreme Court this week agreed to hear a lawsuit brought by Texas against New Mexico and Colorado over groundwater pumping, primarily in New Mexico.

“Colorado’s belief is that this is not a compact issue,” said Craig Cotten, Water Division 3 engineer.

That decision came just days after Wild Earth Guardians filed its 60-day notice of intent to sue the state of Colorado in federal court over depletions of water in reaches of the Rio Grande in New Mexico considered critical to endangered species. The group charges that Colorado water administration has endangered habitat for the Rio Grande silvery minnow and the Southwestern willow flycatcher.

The Colorado Water Conservation Board met with the attorney general’s office and other state agencies in executive session this week to discuss a state response.

The actions come at a time of advanced drought in the Upper Rio Grande in Colorado, Cotten said. Water supply for ditches and wells has suffered through 12 years of drought, including the last five where moisture has been less than 70 percent of normal.

About 75 percent of the 6,000 high-capacity wells in the San Luis Valley are active, but farmers are voluntarily cutting back production in hopes of reaching sustainable groundwater levels in 20 years, Cotten said. The state is attempting to draft groundwater rules for the Rio Grande after efforts failed during the 1980s. For farmers there is little choice.

“They can obtain groundwater augmentation plans, join a groundwater management subdistrict or shut off the wells,” Cotten explained.

More Rio Grande River Basin coverage here and here.


CWCB finds that Pitkin County’s proposed RICD meets requirements to go forward

January 30, 2014
Roaring Fork River in winter

Roaring Fork River in winter

From the Aspen Daily News (Brent Gardner-Smith):

The CWCB is required by state law to determine if a proposed recreational in-channel diversion, or “RICD,” meets certain requirements. Having found that the county’s proposed water right for the Basalt kayak park passes the test, its written finding will now be sent to District 5 water court, which is reviewing the county’s water right application.

If the water court ultimately issues a decree for the new in-channel water right, it will form the basis of what will be known as the “Pitkin County River Park.”

The kayak park will include two surf waves created by placing two rock structures in the Roaring Fork River. The waves are designed to be accessible for beginner and intermediate kayakers, and would be rated at “green” and “blue” levels of difficulty, akin to the rating of ski trails.

The section of river is just below the Basalt bypass bridge on Highway 82 and above the confluence of the Roaring Fork and the Fryingpan rivers near downtown Basalt…

If the water right is decreed as presently configured, it would allow the county to call for differing levels of water to be sent down the Roaring Fork River to the Basalt kayak park.

From April 15 to May 17, the county could call for 240 cubic feet per second (cfs) of water to flow through the park. By comparison, the Roaring Fork River below Maroon Creek has been flowing at about 100 cfs in January.

Then, from May 18 to June 10, the county could call for 380 cfs. And during peak runoff, from June 11 to June 25, it could call for 1,350 cfs of water to flow through the kayak park and create the biggest surf waves of the season.

After June 25, the water right steps back down to 380 cfs until Aug. 20, and then back to 240 cfs until Labor Day…

The new water right would be “non-consumptive,” meaning the water would stay in the river and not be diverted for a “consumptive” use, such as irrigation.

The county applied for the new water right in water court in December 2010. If it is approved, the water right would have an appropriation date of 2010, making it a “junior” water right, compared to “senior” water rights dating back to the early 1900s or late 1880s, as many water rights in the region do.

As part of the water court process, the county has negotiated settlement agreements with over a dozen other water rights holders in the Roaring Fork River basin. As such, the scope of the county’s proposed water right has been narrowed.

For example, the length of the season when the new water right would be in effect was reduced by 25 days to a period between April 15 and Labor Day, and the county can only call for water from upstream junior water rights holders to flow through the park during daylight hours.

And the county agreed to a “carve out” provision that allows up to 3,000 acre-feet of new water rights to be developed upstream of the kayak park over the next 15 years, without being subject to the local government’s new water right.

Those provisions, and others, were enough to convince the CWCB board on Monday to rule in favor of the in-channel diversion water right.

There is, however, still one party objecting to the water right in state water court, the Twin Lakes Reservoir and Canal Co.

Twin Lakes diverts about 50,000 acre-feet of water each year off the top of the Roaring Fork river basin, primarily for municipal use in Colorado Springs, Pueblo, Pueblo West and Aurora.

Twin Lakes is concerned the water right for the kayak park will limit its ability to develop other new water rights in the Roaring Fork River basin in the future.

However, at the CWCB meeting, the water attorney for Twin Lakes sounded OK with new language approved by the board that was designed to address Twin Lakes’ concerns.

“It sounded positive,” [Pitkin County Attorney John Ely] said of Twin Lakes’ evolving position. “They have to go back to their board, and so, we’ll see.”

More whitewater coverage here.


HB14-1026: ‘In the form it’s in, this bill isn’t the way to do it’ — Jay Winner #COleg

January 29, 2014
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain (Chris Woodka):

A bill that would create a new class of water rights called flex marketing was given the blessing of the state House agriculture committee Monday on a 10-3 vote. Supporters say it allows water to stay in the hands of farmers, while increasing potential uses. Opponents say it could be a “Trojan horse” for cities to take more farm water.

Opposing the bill was state Rep. Leroy Garcia, D-Pueblo, joined by Republicans Don Coram of Montrose and Ray Scott of Grand Junction.

“I think that based on what I was hearing in the committee, and from people in my district, that this bill is not in the best interests of the Arkansas Valley,” Garcia said.

The bill, [HB14-1026], is backed by Aurora and other interests in the South Platte River basin as a way to allow transfers of agricultural water that do not require complete dry-up of farmland. It would allow consumptive use to be transferred in exchange for fallowing land or reduced irrigation.

After the bill was amended to allow projects to circle back to water court if other water rights were injured, return flow issues and a basin-of-origin provision was added, the bill got the support of the Colorado Water Congress state affairs committee.

The bill also interests the Pueblo Board of Water Works, which could use it to enhance its shares of the Bessemer Ditch.

“The amendments satisfied most of the objections of committee members,” said Paul Fanning, water board spokesman and a member of the CWC state affairs committee.

Opponents of the bill, including The Pueblo Chieftain editorial board, say that it amounts to an end-run around the anti-speculation doctrine of state water law. There also are concerns that the new flex water right would facilitate permanent dry-ups.

Lower Arkansas Valley Water Conservancy District’s attorney Peter Nichols told the House committee the bill needs more controls in order to avoid speculation.

“Our big fear is that this could be a Trojan horse for municipalities to come in and take water from farms,” said Jay Winner, general manager of the Lower Ark district.

The district will ask the sponsor, state Rep. Randy Fischer, who chairs the ag committee, to amend it in order to prevent speculation.

“Farmers need tools like this if alternative transfer methods like the Super Ditch are going to be successful,” Winner added. “In the form it’s in, this bill isn’t the way to do it.”

While other amendments still could be added to the bill, Garcia said he ultimately will not support it.

“I don’t think the bill is going to change enough,” Garcia said. “It does little to protect existing water rights.”

Here’s the summary of the bill from the Colorado Water Congress website:

Under the anti-speculation doctrine, current water court proceedings governing an application to change the beneficial use of an irrigation water right require the applicant to designate a specific alternative beneficial use identified at the time of the application. The bill creates a more flexible change-in-use system by allowing an applicant who seeks to implement fallowing, regulated deficit irrigation, reduced consumptive use cropping, or other alternatives to the permanent dry-up of irrigated lands to apply for a change in use to any beneficial use, without designating the specific beneficial use to which the water will be applied. Section 1 of the bill defines “flex use” to mean an application of the fully consumptive portion of water that has been subject to a water right change-in-use proceeding to any beneficial use. It also redefines “appropriation” to exclude flex use from the anti-speculation doctrine. Sections 2 and 3 describe the procedures for obtaining a flex use change-in-use decree and a flex use substitute water supply plan.

Status
01/08/2014 Introduced In House – Assigned to Agriculture, Livestock, & Natural Resources
01/27/2014 House Committee on Agriculture, Livestock, & Natural Resources Refer Amended to House Committee of the Whole

More 2014 Colorado legislation coverage here.


Fort Collins loses 1985 conditional right for Halligan Reservoir

January 28, 2014
Reservoirs NW of Fort Collins

Reservoirs NW of Fort Collins

From the Northern Colorado Business Report (Steve Lynn):

Fort Collins Utilities is working to assess the value of the water right it lost that was meant to expand Halligan Reservoir.

The Coloradoan first reported last week that the city had lost the water right due to failure to file the required paperwork. Utilities officials said Wednesday they did not know the value of a water right canceled by a water court last month.

“It’s not a straight calculation,” Lisa Rosintoski said. “There are a lot of variables involved. Our efforts are to quantify that accurately.”

The city bought the junior water right in 1985 as part of a project to expand Halligan on the North Fork of the Poudre River from 6,400 acre-feet to 21,000 acre feet. The expansion is part of the Halligan-Seaman Water Management Project, which involves expanding Fort Collins’ Halligan Reservoir and Greeley’s Milton Seaman Reservoir…

The utility’s conditional water right amounted to more than 33,000 acre feet…

City officials say, however, that the loss of the water right will not affect the Halligan expansion.

“We have the water rights to support filling the bucket,” Rosintoski said.

Utilities officials will report to City Council on the value of the water right and what impacts the lost water right might have, if any. A date for such a presentation hasn’t been set yet.

“We need to do some internal analysis on how you break out what we spent on the project to try to figure out what the price of the right would be,” said Donnie Dustin, water resource manager for Fort Collins Utilities.

More Cache la Poudre watershed coverage here.


Rio Grande River Basin: The US Supreme Court allows Texas lawsuit against New Mexico to go forward

January 27, 2014
Rio Grande and Pecos River basins

Rio Grande and Pecos River basins

From the Albuequerque Journal (John Fleck):

The U.S. Supreme Court this morning ruled Texas can proceed to the next step in its lawsuit against New Mexico over the use of Rio Grande water. The brief order suggests the court thinks it may have jurisdiction over the interstate water dispute, but the order invites New Mexico to shortcut a potentially lengthy proceeding by filing a motion to dismiss the action.

Texas has charged that groundwater pumping in New Mexico is draining water from the Rio Grande, depriving Texas water users of their share of the river. New Mexico counters that it is in full compliance with the Rio Grande Compact, the interstate water deal that divides the river’s waters, and that the Supreme Court has no business even taking up the case.

Today’s ruling is a step toward the Supreme Court giving Texas its day in court, but it leaves the door open for New Mexico to cut that courtroom time short.

More Rio Grande River Basin coverage here.


Colorado River Gains Recreational Flow Rights for Whitewater Parks

January 24, 2014

kayaker

From email from White & Jankowski, L.L.P. (Melanie Cabral):

The Grand County Board of County Commissioners was awarded historic water rights for two whitewater parks on the Colorado River in a recent water decree entered by Judge Boyd in Division 5 Water Court. The Hot Sulphur Springs Whitewater Park was granted water rights for flows ranging from 250 to 850 cfs. The Gore Canyon Whitewater Park was granted water rights for flows ranging from 860 to 1500 cfs. Uniquely, the decree also protects deliveries of water up to 2,500 cfs to the Gore Canyon Whitewater Park.

“This decree represents a significant investment by Grand County to gain water rights for recreational use by river rafters and kayakers, which is a huge economic driver in the area,” Commissioner Gary Bumgarner said. These water rights were part of an agreement reached in the Colorado River Cooperative Agreement with Denver Water and the Windy Gap Firming Project Intergovernmental Agreement with the Municipal Subdistrict of the Northern Colorado Water Conservancy District. “Although there was a lot of pushing and shoving to get these water rights through water court, the decree represents a good balance of the multiple uses that are made of water in our state” said Commissioner Merrit Linke. “We had 25 objectors in our case, but were able to reach a settlement with everyone,” Commissioner James Newberry said.

Recreational in-channel diversions (RICDs) have had a controversial history due to concerns that RICDs “tie-up” stream systems and impede more traditional, consumptive uses of water. As a result, the Colorado General Assembly substantially revamped the law in 2006 to require the Colorado Water Conservation Board (CWCB) provide findings that RICDs: 1) will not impair Colorado’s ability to develop water under its compacts: 2) will promote maximum utilization of waters of the State; and 3) will not injure CWCB’s instream flow water rights. The CWCB made favorable findings on the Grand County RICDs in March 2012.

“This is the first RICD decree entered under the new statutes,” noted David Taussig, an attorney with White & Jankowski, LLP in Denver who represents Grand County on water matters. “It is the largest RICD water right decreed in Colorado and the only one on the Colorado River mainstem to date,” he said. “The beauty of Colorado water law is its ability to accommodate new uses of water and to fit them into the prior appropriation system,” Taussig said.

Grand County is presently planning construction of the Gore Canyon Whitewater Park, with hopes to begin construction as early as this fall. Grand County has secured a grant from the CWCB for $500,000. Eagle County has pledged to contribute $340,000, and the County is raising the remainder of funds for the $1.2M project. Contributions to complete the project may be made to the Grand Foundation at http://www.grandfoundation.com/page/49/gore-canyon-whitewater-park/.

For more information, contact Lurline Underbrink Curran (970) 725-3347, or David Taussig or Mitra Pemberton (303) 595-9441.

More whitewater coverage here and here.


Rio Grande Basin: WildEarth Guardians hope to snag higher springtime streamflow via a lawsuit against DWR

January 22, 2014
Rio Grande Silvery Minnow via Wikipedia

Rio Grande Silvery Minnow via Wikipedia

From the Albuquerque Journal (John Fleck):

Colorado’s use of Rio Grande water is depriving the river of spring flows needed to keep the endangered Rio Grande silvery minnow alive, an environmental group charged in a legal notice filed this week.

The notice by the Santa Fe-based group WildEarth Guardians opens a new legal front in the struggle over environmental flows in the Rio Grande, a struggle that until now had focused on tradeoffs among water interests within New Mexico.

The filing, a formal notice of intent to sue the Colorado Department of Natural Resources over its water management on the Rio Grande, charges that irrigation in the San Luis Valley, north of the New Mexico-Colorado border, is significantly reducing the spring runoff peak, which the minnow depends on for spawning.

More endangered/threatened species coverage here.


Arkansas Valley Super Ditch update: ‘The objective is to develop a tool to look at lease-fallowing effects’ — Rick Parsons

January 22, 2014
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain (Chris Woodka):

A comprehensive study of Arkansas River water use that will aid the Arkansas Valley Super Ditch in temporary water transfers is nearing completion. “The objective is to develop a tool to look at lease-fallowing effects and quantify the amount of water to be exchanged,” Rick Parsons, an engineering consultant, told the Lower Arkansas Valley Water Conservancy District on Wednesday. The district has helped Super Ditch since its formation in 2008 as a way to allow farmers to lease water without selling their underlying water rights, preventing the dry-up of farmland. The district and Super Ditch are working on a pilot program with Fowler this year.

The Super Ditch has contemplated several strategies for moving water, including filing an exchange decree in water court, using existing substitute water supply plans and creating pilot projects under last year’s HB1248. The problem has been getting water users to agree to how those exchanges will avoid damaging other water rights.

Since 2011, Parsons has been compiling information about how water is used in the Arkansas River basin, looking at river operations from 1980-2013. His model should be complete in May. The Super Ditch needs a model that will be generally accepted by other water users, Parsons said. Parsons has met with the state, Colorado Springs Utilities, Aurora and the Pueblo Board of Water Works to glean information. He also has worked with ditch companies to obtain additional data.

The major obstacles at this point are reconciling data from different sources and understanding reservoir operations. Some Lake Pueblo operations related to Southern Delivery System are not clear because of proprietary information held by Colorado Springs Utilities, Parsons said. Reservoirs on the Colorado, Holbrook and Fort Lyon systems are operated by private companies.

“There are a million numbers in this model, and a million in the state database. Some of them are wrong,” Parsons said. “If this is used in a court document, it will be challenged to the nth degree. It has to be as transparent as possible.”

More Arkansas Valley Super Ditch coverage here and here.


@fortcollinsgov loses 1985 Halligan conditional water right, throws law firm under bus

January 21, 2014
Reservoirs NW of Fort Collins

Reservoirs NW of Fort Collins

From the Fort Collins Coloradoan (Kevin Duggan):

Vranesh and Raisch LLP, which represents the city on variety of water and environmental legal matters, failed to file a “diligence” application with the state Water Court to maintain the right by a Nov. 30 deadline, city officials said. As a result, the conditional storage right was canceled. The city has since reapplied for its claim on 33,462 acre feet of water on the North Fork of the Poudre River and streams that flow into it. The North Fork ties into the main stem of the Poudre River west of Fort Collins.

Managing the city’s water rights is the responsibility of the Water Resources Division of Fort Collins Utilities. The city has relied on internal documents, such as lists and spreadsheets, and communication with outside water lawyers to keep track of its conditional rights, stated Deputy City Attorney Carrie Mineart Daggett in an email to the Coloradoan.

In this case, utilities officials forwarded a notice from Water Court that an application was due on the Halligan conditional right to Vransh and Raisch on Sept. 5. But the firm did not follow through by sending in the required diligence application and $224 filing fee as expected.

Steps are being taken to ensure similar mistakes don’t happen, Daggett stated.

“The city is in the process of evaluating professional tracking systems and expects to acquire and use such a system in the near future in order to better assure timely completion of necessary actions related to city water rights,” Daggett wrote.

Eugene Riordan, a partner with Vranesh and Raisch, said the firm has communicated with Fort Collins officials about the matter…

The firm has borne the cost of reapplying for the conditional right, Daggett said.

The conditional storage right for an expanded reservoir was established in 1985 by the North Poudre Irrigation Co. and the Halligan Resources Co. The city acquired Halligan Resources’ interest in the right in 1987, and then North Poudre’s interest in 1993, city officials said…

Fort Collins has proposed expanding Halligan Reservoir, which is on the North Fork of the Poudre River, by 40,000 acre feet to shore up its water supplies for future growth and as protection against drought. The proposal is undergoing a lengthy Environmental Impact Statement and permitting process through the U.S. Army Corps of Engineers…

Before problems with Halligan right popped up, the City Attorney’s Office received approval from the City Council to add a lawyer and a paralegal to its staff to handle water-related issues. The hiring process has begun. Salaries for the posts in 2014 are expected to total about $200,000, Daggett stated.

More water law coverage here and here.


CSU Sponsors First Poudre River Forum Feb. 8

January 21, 2014
Cache la Poudre River

Cache la Poudre River

Here’s the release from Colorado State University (Jennifer Dimas):

The Cache la Poudre River is life-blood for Northern Colorado. In recognition of its importance to the area, the community is invited to the first Poudre River Forum, 10 a.m. – 4:30 p.m. on Saturday, Feb. 8 at The Ranch Events Complex in Loveland. The forum, “The Poudre: Working River/Healthy River,” will focus on all of the river’s stakeholders, representing perspectives from agricultural, municipal, business, recreational and environmental backgrounds. Topics to be discussed include:

• The water rights of agricultural and municipal diverters;
• Where the water in the Poudre comes from and what it does for us;
• Ecological factors such as flow, temperature, fish and sedimentation.

The forum will feature presentations and dialogue, including remarks by State Supreme Court Justice Greg Hobbs about how the Poudre itself was the site of early conflict and cooperation leading to the development of the doctrine of prior appropriation in the West, and how water law has evolved in recent years.

Following the event, a celebration of the river will be held until 6 p.m. with refreshments and jazz by the Poudre River Irregulars.

Pre-registration is required by Jan. 31. The cost is $25; students 18 and under are free and scholarships are available. To register, visit http://www.cwi.colostate.edu/thepoudrerunsthroughit

The event is sponsored by The Poudre Runs Through It Study/Action Work Group facilitated by CSU’s Colorado Water Institute.

More Cache la Poudre River watershed coverage here and here.


Colorado’s Instream Flow Program: ‘There is no more important resource than the water resource’ — Greg Hobbs

January 21, 2014
Colorado instream flow program map via the Colorado Water Conservation Board

Colorado instream flow program map via the Colorado Water Conservation Board

From the Aspen Daily News (Brent Gardner-Smith):

At least $100 million a year is available annually in Colorado to spend on land conservation, but only about $1.5 million a year is available for buying water to leave in the state’s rivers. That’s according to Amy Beatie, the executive director of the Colorado Water Trust, who spoke last week at a forum in Denver marking the 40th anniversary of the state’s instream flow law…

As a result of two laws passed in 2008, the CWCB can use $1 million a year from a departmental construction fund to buy or lease water rights for instream flow purposes, and can use $500,000 a year from a species conservation trust fund to preserve endangered fish habitat.

Beatie said the Colorado Water Trust, a nonprofit that facilities the acquisition and leasing of instream flow rights, “longs for a resource” as robust as GOCO to help the “flow restoration movement” grow in Colorado.

“Don’t we all want to see healthy and flowing rivers?” Beatie asked the crowd gathered on Wednesday in the courtroom of the Colorado State Supreme Court for the event. “Don’t we all want to see healthy aquatic ecosystems in every river in the state?”

Forty years ago, Senate Bill 73-97 recognized “the need to correlate the activities of mankind with some reasonable preservation of the natural environment.”[...]

Since 1973 the CWCB has appropriated — or created — instream flow rights on 1,500 river and stream segments in Colorado, totaling 9,005 river miles. It has also acquired, through donations or long-term contracts, rights for 500 cubic feet per second (cfs) of flow in various rivers.

It may not have been. In 1975, the Colorado River District challenged the instream flow law, arguing that water had to be diverted from a river in order to be a legal water right. But Colorado’s Supreme Court upheld the law as a valid act of the state Legislature.

“As long as it’s junior to the seniors,” Colorado Supreme Court Justice Gregory Hobbs said Wednesday, standing in front of the bench he normally sits on, explaining the court’s reasoning, “and doesn’t cause injury to prior water rights, which is always the lodestar.”

Hobbs said the legal challenge made the instream flow law stronger, giving legal standing to instream flow rights. Another lawsuit in 1995, from the Aspen Wilderness Workshop, prompted a court ruling that the CWCB has a duty to enforce its instream flow rights.

In 2001, the law was expanded to allow instream flows to be used for “improving” rivers, and not just protecting them at minimum streamflow levels. And provisions have since been added to allow the CWCB to lease water from private owners without it counting against an owner’s “historic consumptive use” record — the core monetary value of a water right.

“In the future, we will see this program grow, mature,” Hobbs said. “There is no more important resource than the water resource.”[...]

But lest the waters of praise for the program rise too high during the event, Ken Ransford, an attorney and CPA from Basalt who sits on the Colorado River Basin Roundtable, stood to offer a stark assessment of the instream flow law.

“I compared the pre-1923 water rights that the CWCB holds as instream flow rights, and they amount to .31 percent of the water that we consumed in agriculture in 2005, the last year that (data) is available,” Ransford said. “If we look at our pre-1900 water rights, the CWCB holds .21 percent, so that means that two-tenths of one percent is the amount of water that the CWCB holds compared to the water that we consume in agriculture in a typical year. My point is that we have a long way to go to really make this a robust program.”

Pre-1923 water rights are valuable because they are not subject to a “compact call” from California and other downstream states, and pre-1900 water rights are generally very senior in nature.

“The Fraser River got down to 4 cfs in 2002,” Ransford continued. “The Crystal River got down to 1 cfs in 2012. The Roaring Fork River got down to 5 cfs in 2012. The Dolores River regularly dries up. These are some of our biggest rivers in the state and they all but dry up.”[...]

In addition to creating new instream flow rights, the CWCB can also buy, lease or accept as a donation senior water rights. But the process can be daunting, as the water right needs to be changed in water court.

Ransford said it took Pitkin County several years in water court and over $200,000 in legal fees to enter into a long-term lease with the CWCB to leave water in sections of Maroon Creek and the Roaring Fork River.

Drew Peternell, the director of Trout Unlimited’s Colorado Water Project, said the process should be easier.

“The irrigator who wants to make that transfer of water has to go to water court, and that’s going to be a risk for him,” Peternell said. “There is a potential that the water right could be quantified at a level that is smaller than the irrigator thinks is appropriate.”

That’s what happened to Pitkin County, which sought to leave 4.3 cfs of water in lower Maroon Creek and a section of the Roaring Fork River below its confluence with Maroon Creek. Instead, it came away with the right to leave up to 3.83 cfs in Maroon Creek, but with only 1.22 cfs being left in the stream on average between May and October. In the Roaring Fork, the county can leave up to 3.54 cfs of water, but with an average of only 1.13 cfs.

The county, however, still intends to transfer up to 35 more water rights from its open space properties to instream flow rights to the benefit of local rivers.

More instream flow coverage here.


‘There’s a real urgency to this. We only have two years before wells are shut down’ — LeRoy Salazar

January 20, 2014
Acequia San Antonio via Judy Gallegos

Acequia San Antonio via Judy Gallegos

From the Valley Courier (Ruth Heide):

A water purchase nearly four decades ago may provide a major solution in the current challenge to keep farmers in business in the San Luis Valley. Representatives from the San Luis Valley Irrigation Well Owners Inc. received unanimous support from the Rio Grande Interbasin Roundtable on Tuesday to perform a feasibility study to see if surface water rights they own can be used to offset depletion requirements for various groundwater management sub-districts throughout the Valley. The budget for the study is $180,000, with the local roundtable approving $8,000 of its basin funding for the project and supporting a request for $142,000 in statewide funds, which will be considered at the state level in March. The well owners group will provide $30,000 as its match.

The nonprofit well owners corporation was formed in 1973 to address groundwater rules and regulations that appeared imminent at the time, SLV Irrigation Well Owners Vice President Monty Smith told members of the Valley-wide roundtable group on Tuesday. In preparation for the rules/regs at that time, the well owners group, comprised of people who own irrigation wells, began an augmentation plan that incorporated the purchase of Taos Valley #3 water rights on the San Antonio River for augmentation water, Smith added.

“The augmentation plan was never completed and never needed to be used,” Smith explained.

“Thirty eight years later we find ourselves in a situation where we need to use that water and we need to complete the project.”

He added, “We feel this water is an absolutely crucial piece of our replacement for not only the Conejos area but it provides benefit for the entire basin. We need to figure how it can best be used.”

Agro Engineering Engineer Kirk Thompson provided more information about this potential water project and its importance to Valley water users, especially now that state groundwater rules and regulations for the Rio Grande Basin will soon be promulgated. Thompson said the Taos Valley #3 water rights were a relatively junior water right on the San Antonio dating to 1889. They were originally adjudicated for 500 cubic feet per second (cfs) and used for irrigation and storage. Since that time, however, a portion of the water rights was abandoned, leaving 245 cfs, which is what the well owners bought in 1976 for their augmentation plan. They converted 230 cfs of the 245 cfs total from irrigation to augmentation water and left the remaining 15 cfs in irrigation, Thompson explained. The well owners are considering converting that 15 cfs into augmentation water as well.

The well owners bought the water for the purpose of augmenting injurious depletions in the streams resulting from well pumping, Thompson said. Since 1976, the 230 cfs, also known as the Middlemist water, has been left in the San Antonio for the benefit of the entire river system, Thompson said. Since the state did not promulgate groundwater rules in the 1970′s , there was no formal requirement for augmentation in the intervening 38 years, he added.

Since this was a junior water right, some years the Middlemist water produced zero effect on the river system, and in other years it provided as much as 29,000 acre feet, Thompson said. Most years averaged about 10,000 acre feet of water from this water right to the river systems.

“This is a significantly large amount of water we are talking about and a valuable consideration as we move forward,” Thompson said.

Thompson reminded the attendees at the Tuesday roundtable meeting that the state is in the process of promulgating rules governing groundwater use in the San Luis Valley, and wells will no longer be allowed to pump unless their injurious depletions to surface rights are covered in a groundwater management sub-district or augmentation plan. Thompson said the state engineer’s goal is to have the rules/regulations to the water court by this spring, and Colorado Division of Water Resources Division 3 Division Engineer Craig Cotten confirmed that in his report to the roundtable.

Cotten also confirmed that the well owners’ augmentation plan would have to go back to court, since it never was finalized in the ’70′s . The plan would have to be more specific on how it would provide augmentation and would have to prove it could deliver water where it needed to go, he said.

Thompson said the well owners group wants to perfect its Middlemist/Taos Valley #3 water right so that water can be used for augmentation purposes in a way that will benefit well owners in sub-districts throughout the Valley. Individual augmentation plans for every well owner would not be realistic at this point, so most well owners plan to join sub-districts as a means of meeting the pending state regulations. The purpose of the well owners’ project is to consider ways in which their surface water right could benefit those sub-districts , Thompson explained.

“As of today, there’s certainly not enough augmentation water currently perfected to go around and ” will be in very short supply and probably at high value,” Thompson said.

He said the average total depletions that well owners throughout the entire basin will have to replace will be about 30,000 acre feet every year. If the approximately 10,000 acre feet the Middlemist water produces every year could be used to offset those depletions, it could amount to about a third of the annual requirement.

Smith said, “This is a way to carry on our living and our way of life that we all enjoy in this Valley and to keep the Valley a viable place to live. I have farmed my entire life. I am third generation. My goal is to be able to continue to preserve my wells, to replace my injuries to the streams. This is one piece in that puzzle to bring that all together.”

The group asked the roundtable for help in funding a hydrologic feasibility study to consider the potential for using the Taos Valley #3 water for either surface water storage or groundwater recharge. Thompson said storage options are limited, so he believed recharge was a more viable option. The feasibility study would look at how the recharge could be accomplished so the water would go into the ground where it was needed to replace injurious depletions. The study would look at both confined and unconfined recharge options..

Those who will be involved in conducting the feasibility study will be Thompson of Agro Engineering, Eric Harmon of HRS Water Consultants, Allen Davey of Davis Engineering and in an advisory capacity, Steve Vandiver of the Rio Grande Water Conservation District , the sponsoring entity for the water management sub-districts .

The study would be the first of a multi-phased project . Phase 2 would look at physical infrastructure to get surface water where it needs to go, and the third phase would involve the court process to perfect the water right as an augmentation right, Thompson explained.

He said the well owners want to begin some wintertime well monitoring right away, using their $30,000 match. They want to begin this study as soon as possible since Harmon envisions the feasibility phase as taking a full year.

“If we don’t have the feasibility done this year we are talking another one or two years to get into the courts,” Thompson said. “If rules are released this spring, the subdistricts are under the gun to get formed and under the gun to find sources of water to replace injurious depletions in short order.”

LeRoy Salazar added, “There’s a real urgency to this. We only have two years before wells are shut down ” We don’t have a lot of time.”

Salazar said this project is key to replacing injurious depletions to surface water rights; creating a sustainable water table; and maintaining the Valley’s economy.

More Rio Grande River Basin coverage here.


Fort Collins loses 1985 Halligan Reservoir conditional storage right, no diligence filing

January 16, 2014
Reservoirs NW of Fort Collins

Reservoirs NW of Fort Collins

From the Northern Colorado Business Report (Steve Lynn):

The Coloradoan first reported last week that the city had lost the water right due to failure to file the required paperwork. Utilities officials said Wednesday they did not know the value of a water right canceled by a water court last month.

“It’s not a straight calculation,” Lisa Rosintoski said. “There are a lot of variables involved. Our efforts are to quantify that accurately.”

The city bought the junior water right in 1985 as part of a project to expand Halligan on the North Fork of the Poudre River from 6,400 acre-feet to 21,000 acre feet. The expansion is part of the Halligan-Seaman Water Management Project, which involves expanding Fort Collins’ Halligan Reservoir and Greeley’s Milton Seaman Reservoir…

The utility’s conditional water right amounted to more than 33,000 acre feet…

City officials say, however, that the loss of the water right will not affect the Halligan expansion.

“We have the water rights to support filling the bucket,” Rosintoski said.

Utilities officials will report to City Council on the value of the water right and what impacts the lost water right might have, if any. A date for such a presentation hasn’t been set yet.

“We need to do some internal analysis on how you break out what we spent on the project to try to figure out what the price of the right would be,” said Donnie Dustin, water resource manager for Fort Collins Utilities.

More Cache la Poudre River Watershed coverage here and here.


Public Trust Doctrine effort spurs the Colorado Water Congress to respond

January 10, 2014
Justian I first codifier of riparian rights

Justian I first codifier of riparian rights

From the Northern Colorado Business Report (Steve Lynn):

One of Colorado’s oldest, most powerful water groups is raising a war chest to battle an initiative that would place the public’s interest in the state’s hallmark rivers and streams ahead of the interests of private water-right owners, changing the state Constitution.
The notion that the public has an inherent interest in free-flowing water is well-established in other states, which embrace what’s known as the “public trust doctrine.”

California, Wisconsin, Montana and New Jersey, for instance, have such a doctrine, according to a 2009 report from the Center for Progressive Reform, a nonprofit policy research organization based in Washington, D.C. In Wisconsin, for example, the public interest in a water source is paramount and a water permit only can be granted if its use does not obstruct navigation, reduce flood-flow capacity or harm the public interest.

This would mark a radical shift from Colorado’s prior appropriation system, which favors individual water rights owners, especially those with older water rights. During drought periods, water is provided to those with senior water rights while those who have junior, or newer, water rights don’t get water.

But the Colorado Water Congress, which represents private water-right owners, contends the Public Trust Doctrine runs counter to state law and 150 years of case law. The legal principle would make rivers and streams public property, superseding water rights of property owners in some cases.

Richard Hamilton, a retired aquatic microbiologist from Fairplay, is behind recent efforts to introduce a ballot initiative to ask voters to enact the public trust doctrine in Colorado. Hamilton and Phillip Doe have tried several times since 1988 to enact a public trust doctrine.

“The state does not now act as a steward of the people’s property,” Hamilton said.

“It goes ahead and decides what is the best interest of everybody and the government makes up its mind as to which of those interests shall supersede the public’s ownership.”

Hamilton said his measure failed last year because the state did not give him enough time to gather signatures for a ballot initiative. He said he does not know whether he will pursue a ballot initiative this year.

The Colorado Water Congress, nonetheless, is spending $325,000 on a campaign to oppose any effort to launch a public trust doctrine initiative. Founded in 1958, the not-for-profit lobbying organization represents water-right owners. The Colorado Water Congress claims an 85 percent “success rate” on state water legislation it endorses, and Colorado governors rarely have signed bills it has opposed.

More Public Trust Doctrine coverage here.


Colorado Water Plan the focus of three-evening course — Glenwood Springs Post Independent

January 10, 2014
Colorado Water Plan website screen shot November 1, 2013

Colorado Water Plan website screen shot November 1, 2013

From the Glenwood Springs Post Independent (Hannah Holm):

…the Water Center at Colorado Mesa University is focusing its annual three-evening water course on what citizens need to know to understand what’s at stake and how to make their voices heard as the Colorado Water Plan is developed.

This course is open to the public. It will be held on Colorado Mesa University’s campus in the University Center Ballroom from 6-9 p.m. on three consecutive Mondays: Feb. 3, Feb. 10 and Feb. 17. The cost is $45 for the whole series, or $20 per session, with scholarships available for those who can’t afford the cost.

Feb. 3 – Physical Realities of Colorado Water Supply and Demand

On Feb. 3, Dr. Gigi Richard will provide an overview of how Coloradans currently meet their needs for irrigation, drinking water and recreation, and what factors are necessary for healthy streams. She will also touch on the climate factors that affect our water supplies. Speakers from the Colorado and Gunnison Basin Roundtables will then discuss the water needs that have been identified for these two river basins, which meet in Grand Junction. The basin roundtables are groups of stakeholders responsible for assessing water needs and recommending projects in their river basins. Plans developed by basin roundtables across the state are to be building blocks for the statewide water plan.

Feb. 10 – Laws, Compacts and Agreements for Meeting Future Water Needs

On Feb. 10, attorney Aaron Clay will provide an overview of Colorado water law, focusing on how it relates to strategies for meeting future water needs. Then John McClow, Colorado’s representative to the Upper Colorado River Basin Commission, will discuss the importance of the Colorado River Compact, the 1922 agreement on how to allocate the Colorado River’s water between states. Peter Fleming, attorney for the Colorado River District, will then discuss recent and still-developing agreements designed to help address growing water needs on the Front Range while addressing the West Slope impacts of piping water over the Continental Divide.

Feb. 17 – The Colorado Water Plan: Process and Perspectives

On Feb. 17, Mike King, executive director of Colorado’s Department of Natural Resources, will discuss the need for a Colorado Water Plan and how the plan will be developed. Mr. King’s presentation will be followed by a panel that provides perspectives on how the Colorado Water Plan could affect the East Slope, the West Slope, agriculture and the environment. The public will also have the opportunity to provide input regarding what they would like to see in the plan.

More education coverage here.


@fortcollinsgov loses 1985 storage right for Halligan Reservoir, no diligence filing

January 10, 2014
Reservoirs NW of Fort Collins

Reservoirs NW of Fort Collins

Here’s the story from Kevin Duggan writing for the Fort Collins Coloradon. Here’s an excerpt:

Failure to file required paperwork has cost Fort Collins a water right on the Poudre River it has held for 28 years.

The right was intended to help fill Halligan Reservoir, which sits on the North Fork of the Poudre River, if a project to enlarge the reservoir is ever approved and built.

The city has been working on the enlargement proposal for many years. It secured a conditional right to receive up to 33,462 acre-feet of water in 1985 in hopes of storing part of it in Halligan to meet future water needs and protect the city’s water supply during times of drought.

More Halligan Seaman expansion coverage here and here.


The latest Colorado Water Stewardship Project newsletter is hot off the presses

December 26, 2013

Justian I first codifier of riparian rights

Justian I first codifier of riparian rights


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

The Colorado Water Congress Board unanimously adopted a resolution opposing a public trust doctrine at its December 6th meeting.

The resolution declared:
A public trust doctrine is unwise, unnecessary, disruptive to the fair and responsible allocation and stewardship of Colorado’s scarce water resources, and an unwarranted taking of vested property interests. –December 6, 2013

The resolution cites the risks to agricultural users and major concerns for Colorado’s economic stability. The Board also opposed the doctrine because it would increase uncertainty in the ownership and right to use water, and shift control from the local water providers to the courts in the form of litigation.

Board Chairman Regan Waskom said the Colorado Water Congress will strongly encourage its membership to adopt similar resolutions. “It is important that the water community be absolutely clear that the public trust doctrine, in whatever form it might be offered, would be a disaster for Colorado citizens and for good water management.”

View the Colorado Water Congress Resolution on a Public Trust Doctrine HERE.

More Public Trust Doctrine coverage here.


“Are you willing to really face up to the responsibilities of those water rights? — Jack Flobeck

December 23, 2013
The Code of Hammurabi via Wikipedia Commons

The Code of Hammurabi via Wikipedia Commons

Here’s a guest column about the east-west chasm in water planning in Colorado, from Jack Flobeck writing for The Colorado Springs Gazette. Here’s an excerpt:

OK, so it’s your water, but the $64 million question is: Are you willing to really face up to the responsibilities of those water rights, and what do we mean by responsibilities? We were taught years ago that if you were a citizen, you had rights, but also responsibilities.

Solomon said, “There’s nothing new under the sun,” and wouldn’t you know, someone thought this problem through, over 4,000 years ago. I am indebted to local law historian, David Griffith, for suggesting my research into this subject.

The Code of Hammurabi was written in stone on an 8-foot black diorite column in what is now Baghdad and contains several concepts worth considering in 21st-century America. Consider:

No. 53 – If any one be too lazy to keep his dam in proper condition, and does not so keep it, if then the dam break and all the fields be flooded, then shall he in whose dam the break occurred be sold for money, and the money, and the money shall be paid to replace the corn which he has caused to be ruined.

No. 54 – If he be not able to replace the corn, then he and his possessions shall be divided among the farmers whose corn he has flooded.

No. 55 – If anyone open his ditches to water his crop, but is careless, and the water flood the field of his neighbor, then he must pay his neighbor corn for his loss.

No. 56 – If a man let in the water, and the water overflow the plantation of his neighbor, he shall pay ten gur of corn for every ten gan of land.”

Did Hammurabi nail responsibility; and are our irrigators with ‘first in time and first in right,’ ready to accept the consequences, which follow from most favored ownership? Is it now time, with imminent water shortages; to open the debate to include discussion of private, public, or combined public/private efforts to construct catch basins, rain harvesting culverts, and efficient localized storage for drought relief as well as for fire mitigation.


Glenwood Springs: The city council green lights RICD application for the #ColoradoRiver

December 23, 2013
The Glenwood Wave

The Glenwood Wave

From the Glenwood Spring Post Independent (John Stroud):

A unanimous City Council, at its Dec. 19 meeting, supported filing an application in Colorado Water Court to secure what’s known as a Recreational In-Channel Diversion (RICD) surface right on the Colorado during peak spring and summer months for a second whitewater park. The application seeks a protected junior water right to be granted under the same priority system as other types of water rights, attorney Mark Hamilton explained…

If successful, the new park would be in addition to the city’s existing West Glenwood whitewater “wave” park.

Consultants narrowed down potential sites to a stretch of river upstream from the No Name Rest Area at the west end of Glenwood Canyon, another at west side of Horseshoe Bend downstream from No Name, and a third just upstream from the confluence with the Roaring Fork River. Each location provides direct access from bike paths, and exhibit in-stream features that would make them ideal for developing a whitewater park for kayaks, stand-up boards and other types of recreational water craft, according to the consultants.

Glenwood Springs is unique compared to other parts of the state, Hamilton said, because the Colorado River has flows that could accommodate a whitewater event after the usual mid-June peak runoff, into early July.

The application requests a maximum flow rate not to exceed 4,000 cubic feet per second (cfs) for up to five days between May 11 and July 6 each year, and 2,500 cfs for as many as 46 days between April 30 and May 10 and July 7-23. “Shoulder season” flow rates of 1,250 cfs are sought between April 1-29 and from July 24 through Sept. 30. The in-stream claim would be limited to the hours of 6 a.m. to 9 p.m. each day, “except during competitive events when these hours may be extended to midnight each day,” according to the application.

Hamilton cautioned that it can be a long, drawn-out process to secure a legal RICD, including opportunities for other affected water users to comment on the request. Recent efforts by Pitkin and Grand counties to secure an RICD have taken about three years, he said…

As a conditional water right, the city would need to have whitewater park structures in place in order to enforce the right, he said…

Glenwood Springs resident Lori Chase cautioned against the Horseshoe Bend location for a future whitewater park.

“I don’t believe that is a viable location, mainly because the bighorn sheep access the water there,” she said of the sheep herd that lives in that area of the canyon. “And, to put more and more stress on our natural features might not be a good idea.”

Councilman Dave Sturges said the RICD is an opportunity for the city to build on the success of the existing whitewater park to attract more recreation tourism.

More whitewater coverage here.


Colorado takes important step in resolving Republican River dispute

December 21, 2013
Republican River Basin

Republican River Basin

From email from the Colorado Department of Natural Resources (Todd Hartman):

Colorado this week completed successful negotiations with Kansas and Nebraska to allow for operation of the Compact Compliance Pipeline to deliver water to the North Fork of the Republican River in 2014. The agreement marks an important step toward resolving long-standing disputes under the Republican River Compact and providing more certainty to the agricultural economy across the region.

The agreement allows Colorado to operate the pipeline in 2014 and demonstrate its benefits to agricultural operators in Kansas and Nebraska. The 12-mile pipeline will deliver irrigation water directly to the North Fork of the Republican River near the Nebraska state line, providing the water necessary for Colorado to meet its Compact obligations with Kansas and Nebraska.

“This is a great step forward,” said Colorado’s State Engineer Dick Wolfe. “This has been a hard-fought matter, and hopefully this demonstrates that we can work together as three States to address these challenging issues and come to a permanent resolution on the Republican River.”

Colorado sought arbitration of this matter in May after Kansas denied Colorado’s request to operate the pipeline indefinitely to comply with the Compact. This fall, Kansas proposed a path forward that would allow Colorado to operate the pipeline for Compact compliance in 2014 so all parties could gain experience with its operations.

On Thursday, the three states voted to approve a resolution to use the pipeline in 2014. The Colorado Department of Natural Resources and its Division of Water Resources, along with the State Engineer, express their appreciation to the Attorney General’s Office in its efforts to negotiate with Kansas, and also thank the Republican River Water Conservation District and the Sandhills Ground Water Management District for their efforts to assist in reaching a resolution.

From The Denver Post (Bruce Finley):

Colorado, Nebraska and Kansas have agreed to use a 12-mile pipeline to transfer water from wells in northeastern Colorado to the Republican River for agriculture in Kansas and Nebraska in 2014.

The deal made this week may help resolve a decades-old dispute over rights to water in the river, which flows from eastern Colorado into Kansas and Nebraska. Colorado hasn’t been meeting its obligations under the 1942 Republican River Compact that governs use of the river.

In May, Colorado officials sought arbitration after Kansas rejected a request to use the pipeline to meet its obligations under the compact.

Kansas also has argued that Nebraska farmers took more than their share of river water and tried to stop Nebraskans from irrigating 500,000 acres in the 5.8 million-acre Republican River Basin.

The pipeline would carry irrigation water pumped out of the ground into wells north of Wray and deliver that water to the North Fork of the Republican River near the Nebraska state line. Colorado natural resources officials said Friday the pipeline potentially could deliver 13,000 acre-feet of water a year to Nebraska.

State engineer Dick Wolfe called the deal to use the pipeline “a great step forward” in a hard-fought matter. “Hopefully this demonstrates that we can work together as three states to address these challenging issues and come to a permanent resolution on the Republican River.”

Colorado Attorney General John Suthers in recent years has convened state legal officials to encourage collaboration. Past agreements have aimed at state monitoring and control over water use to comply with the compact, which allotted 300,000 acre-feet a year for Nebraska, 240,000 acre-feet a year for Kansas and 40,000 acre-feet a year for Colorado.

More Republican River Basin coverage here and here.


Water Court cancels @fortcollinsgov 2007 Halligan Reservoir expansion conditional water right — no diligence filing

December 7, 2013

The Tweet above has been deleted from Twitter.

Update (January 10, 2014): The right is actually a 1985 right. I got that wrong and the source document is now unavailable. Also, the right is not directly associated with the Halligan expansion. Fort Collins has other rights that will fill the expanded vessel.

Here’s the story from Kevin Dugan writing for the Fort Collins Coloradoan. Here’s an excerpt:

Failure to file required paperwork has cost Fort Collins a water right on the Poudre River it has held for 28 years.

The right was intended to help fill Halligan Reservoir, which sits on the North Fork of the Poudre River, if a project to enlarge the reservoir is ever approved and built.

The city has been working on the enlargement proposal for many years. It secured a conditional right to receive up to 33,462 acre-feet of water in 1985 in hopes of storing part of it in Halligan to meet future water needs and protect the city’s water supply during times of drought.

More Halligan/Seaman expansion coverage here.


Many eyes are on the 1,250 cfs Shoshone right #ColoradoRiver

December 7, 2013
Shoshone Falls hydroelectric generation station via USGenWeb

Shoshone Falls hydroelectric generation station via USGenWeb

From KUNC (Maeve Conran):

There’s popular launch site for rafters a few miles east of Glenwood Springs. It’s right beneath Interstate 70, and is in front of an old tan brick building, set back into the canyon wall. Chances are, highway drivers might not even see this place. But it’s the reason the rafting is so good here all the time.

The Shoshone Hydro Plant, built to harness Colorado River water and turn it into 15 megawatts of electricity has two nine-foot tall turbines, which were manufactured and installed in 1906 and are still humming along today. It’s the linchpin of the river, according to Jim Pokrandt, Education and Outreach Specialist with the Colorado River District.

“Not because of producing electricity,” said Pokrandt. “But because it takes water to produce that electricity, and that water is supplied via a 1902 water right for 1250 CFS. That’s the biggest, oldest water right on the river.”

1250 CFS, or cubic feet per second, is a lot of water. It’s labeled “non-consumptive use,” which means the water is not taken out of the river to grow food or flush toilets. It flows onto the turbines and right back out—sustaining an important part of the local economy: rafting, kayaking and fishing.

Maintaining that primary water right is critical to keeping flow levels adequate for the turbines, and to help create rapids.

Pokrandt says Shoshone also helps towns that draw water from the river, because the high flows the plant requires helps keep the water cleaner.

“Silt, Rifle, Parachute and Clifton are all taking drinking water out of the Colorado River,” said Pokrandt. “The greater the flow, the less intensive you have to treat the water.”

Agriculture in the Grand Valley also benefits from Shoshone’s water right.

Mel Rettig is a vegetable and fruit farmer in Palisade, about 80 miles southwest of the Shoshone plant. Rettig says the higher flows due to Shoshone help keep salinity levels low…

Some West Slope water irrigators who depend on Shoshone would love to buy the plant and its water right to protect the interests of the Grand Valley. A 15-megawatt output is small by today’s standards — modern power plants produce hundreds of megawatts. But Xcel continues to invest millions in maintenance at the plant and the utility says they have no plans to sell Shoshone or its water rights…

“This little, old, two turbine, 15-megawatt 1905 vintage power plant in Glenwood Canyon,” said Pokrandt. “It doesn’t look like much but it’s a big dog on the river.”

More Colorado River Basin coverage here and here.


Republican River Basin: Arbiter Martha Pagel issues ruling on compliance pipeline

December 5, 2013
Republican River Basin

Republican River Basin

From the Yuma Pioneer (Tony Rayl) via the Imperial Republican:

Colorado and Nebraska entered into arbitration with Kansas earlier this year after Kansas’ representative on the Republican River Compact Administration voted against Colorado’s proposals on both issues.

The hearing was held before arbiter Martha Pagel earlier this fall, and Pagel issued separate rulings on both issues last Wednesday, November 27. In essence, Pagel ruled Colorado is taking the proper steps, but that Kansas remains “reasonable” in its objections.

“Although the Arbitrator found that Colorado’s revised Compact Compliance Pipeline (CCP) proposal had made significant progress in addressing unresolved issues from the prior arbitration proceeding, and that Colorado had offered a reasonable and persuasive proposal for modifying inputs to the Groundwater Model, the district is disappointed that Arbiter Pagel was not able to provide Colorado with any relief from the obstructionist behavior of Kansas officials,” stated the Republican River Water Conservation District in a statement issued by its legal representative, Peter Ampe of Hill & Robbins. Read the rest of this entry »


‘Groundwater will be a part of the state water plan’ John Stulp #COWaterPlan

December 5, 2013
Colorado Water Plan website screen shot November 1, 2013

Colorado Water Plan website screen shot November 1, 2013

From The Pueblo Chieftain (Chris Woodka):

Call it a wet-headed stepchild. Colorado has puzzled for years about how to account for its underground water resources, with about the same impact as water sloshing in the bottom of a precariously carried bucket. A state water plan will attempt to incorporate groundwater management, including possible aquifer storage, even though the relationship between surface water and well water is not fully understood.

“Groundwater will be a part of the state water plan,” John Stulp, the governor’s water adviser, told about 80 attendees of a groundwater conference this week. “There are a number of studies and plans that will go forward as the state water plan is developed.”

The conference, organized by the American Groundwater Trust, was designed to address policy as a follow-up to more technical reports generated from a 2012 conference.

While Colorado water rights stretch back to the mid-1800s, groundwater in the state was of little concern until more high-capacity wells were drilled in the 1950s and 1960s. It wasn’t until 1969 that well use was incorporated into the elaborate web of prior appropriation water right, explained Steve Sims, a water lawyer who once defended the state’s water rights in the attorney general’s office. But since then, a tug-of-war between the General Assembly and water courts has muddied how groundwater is treated. Non-tributary wells are regulated by a separate commission.

“What we got was a hodgepodge of rules,” Sims said. “It’s been driven by real estate developers.”

Key court cases eroded the jurisdiction of water courts themselves as well as the power of the state engineer to regulate wells, he said. The Empire Lodge case triggered a legislative fix to substitute water supply plans in 2002. The 2009 Vance case changed the way the state accounts for water produced by oil and gas drilling.

Geography also plays a part. Alluvial well regulations differ in all of the state’s major river basins, as well as in non-tributary basins. There is little scientific understanding of the relationship of groundwater levels to surface flows, other than the common wisdom that surface irrigation or flooding increase the levels, while pumping and drought decrease them. But the timing of return flows, availability of underground storage sites and long-term effects of pumping are still unknown.

“It’s not a precise science,” said Reagan Waskom of the Colorado Water Institute, which is completing a study of the South Platte basin mandated by the state Legislature in 2012. “If you had a valve and could put water back into the river when you need it, it would be great.”

More Colorado Water Plan coverage here.


‘Denver-West Slope water agreement finally final’ — Glenwood Springs Post Independent #ColoradoRiver

December 4, 2013
Moffat Collection System Project/Windy Gap Firming Project via the Boulder Daily Camera

Moffat Collection System Project/Windy Gap Firming Project via the Boulder Daily Camera

From the Glenwood Springs Post Independent (Hannah Holm):

Denver can take a little more water from the Colorado River’s headwaters to increase the reliability of its system, but won’t develop any new transmountain diversions without West Slope agreement and will help repair damage from past diversions.

Those are some of the key provisions in the Colorado Cooperative Agreement between Denver Water and 42 West Slope water providers and local governments from the Grand Valley to Grand County.

The Colorado Cooperative Agreement covers a whole suite of issues related to Denver’s diversion of water from the Fraser and Blue River drainages, tributaries to the Colorado River. In October, with little fanfare, this historic agreement received its final signatures and was fully executed. It took five years of mediation and nearly two years of ironing out the details with state and federal agencies, against a backdrop of decades of litigation, to get to this point.

According to material from the Colorado River District’s latest quarterly meeting, the agreement, “is the direct result of Denver Water’s desire to expand its Moffat Tunnel transmountain water supply from the Fraser River in Grand County and to enlarge Gross Reservoir in Boulder County.” This project is expected to divert, on average, approximately 18,000 acre feet/year of water beyond the average of 58,000 acre feet/year it already diverts, which amounts to about 60% of the natural flow in the Fraser River at Winter Park.

Under the agreement, the West Slope parties agreed not to oppose the increased Moffat Collection System diversions, and Denver Water agreed not to expand its service area and not to develop new water projects on the West Slope without the agreement of the resident counties and the Colorado River District. The agreement also includes dozens of other provisions designed to limit water demands in Denver and address water quality and flow conditions in the Colorado River and its tributaries. Here’s a sampling:

Denver will contribute both water releases and several million dollars for a “learning by doing” project to improve aquatic habitat in Grand County. The project will be managed by representatives from Denver Water, Grand County, Colorado Parks and Wildlife, Trout Unlimited and other water users.

Denver will not exercise its rights to reduce bypass flows from Dillon Reservoir and its collection system in Grand County during droughts unless it has banned residential lawn watering in its service area.

Diversions and reservoirs operated by both Denver Water and West Slope parties will be operated as if the Shoshone hydroelectric power plant in Glenwood Canyon were calling for its (very senior) water right, even at times when the plant is down. This is important for recreational and environmental flows in the river, as well as for junior water users downstream from plant.

Denver Water will pay $1.5 million for water supply, water quality or water infrastructure projects benefiting the Grand Valley, and $500,000 to offset additional costs for water treatment in Garfield County when the Shoshone call is relaxed due to drought conditions.

A similar agreement is under development between West Slope entities and Northern Water, which currently diverts about 220,000 acre feet/year of water from the Upper Colorado River to the Front Range through the Colorado Big Thompson Project. Like the Colorado Cooperative Agreement, the Windy Gap Firming Project Intergovernmental Agreement trades West Slope non-opposition to increased transmountain diversions for mitigations to address the impacts of both past and future stream depletions.

Both the Colorado Cooperative Agreement and the Windy Gap Firming Project Intergovernmental Agreement have been hailed as models of cooperation. Meanwhile, East Slope – West Slope tensions continue to mount over how the Colorado Water Plan, currently under development, should address the possibility of additional diversions of water from the West Slope to meet growing urban demands on the Front Range. These agreements demonstrate that such tensions can be overcome, but also that it could take more time than allowed by the 2015 deadline Gov. Hickenlooper has set for completion of the Colorado Water Plan.

Full details on the Colorado Cooperative Agreement can be found on the River District’s website, under “features” at http://www.crwcd.org/. More information on the Colorado Water Plan can be found at http://coloradowaterplan.com/.

More Colorado River Cooperative Agreement coverage here.


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