“We are going to have to be sure [Colorado] protects #RioGrande compact apportioned water” — David Robbins

July 27, 2014
Rio Grande and Pecos River basins

Rio Grande and Pecos River basins

From the Valley Courier (Ruth Heide):

WildEarth Guardians have not backed off from seeking more water from Colorado to keep fish afloat in New Mexico. This week the environmental group wrote to U.S. Department of the Interior Deputy Secretary Mike Connor asking the department to become more actively involved in management of the Rio Grande to protect endangered species like the silvery minnow and provide water for wild and scenic river and recreational uses as well as bolstering bosque and wildlife refuge areas in New Mexico. The group specifically asked, for example, that the department “engage” the states of Colorado and New Mexico “in order to find a way to ensure the Rio Grande receives its fair share of water.”

The Rio Grande Water Conservation District (RGWCD) is watching the WildEarth actions closely since they could ultimately affect water use in Colorado. The group maintains that downstream states are already receiving their “fair share of water” through Rio Grande Compact requirements that have been in place for decades.

RGWCD Attorney David Robbins told the water district’s board of WildEarth’s latest move this week and said although the environmental group acknowledges the compact, it does not agree with it.

“There is no panacea that will right the wrongs of the past century on behalf of the Rio Grande,” said Jen Pelz, Wild Rivers program director at WildEarth Guardians . “The fate of the river, however, depends on the willingness and leadership of state and federal agencies to create a water right that belongs to the Rio Grande ” The wild west approach to managing water in the Rio Grande Basin cannot continue without further serious consequences for flows in the river. Interior is in a unique position to implement and navigate new strategies and to reform the archaic system of water management under which it currently operates.”

WildEarth in its letter to the Department of Interior recommended: 1) expanding “the scope of the solutions” by engaging the states of Colorado and New Mexico in order to find a way to ensure the Rio Grande receives its fair share of water, 2) providing funding so the Bureau of Land Management can determine the flows necessary in the Rio Grande Wild and Scenic River to preserve recreational , scenic and other values of the designated reach in central New Mexico, and 3) investigating and planning to remove or modify the dams and reservoirs that segment the Rio Grande to reconnect isolated habitat.

Robbins said the water district needs to keep track of this situation.

“We are going to have to pay more attention. We are going to have to be more involved. We are going to have to be sure the state of Colorado protects compact apportioned waters for beneficial use within Colorado.”

Robbins said it was ironic that within a few days of Gary Boyce’s video presentation on the internet proposing to take San Luis Valley Water north WildEarth Guardians sent a letter to the Department of Interior proposing to send more water south.

“We are going to end up having to deal with a proposal to take water north for the metro area, Front Range and demands that federal agencies take an active role trying to force more water out of the Valley going south,” Robbins said.

He said there have been efforts by people in New Mexico to buy senior water rights in Colorado to try to send more water downstream, but the compact that governs how much water goes downstream is between states, not individuals. If someone were to buy water rights in Colorado and retire them in hopes of sending more water downstream, it would just mean that the next water right in line would get to use the water, and it would not affect the total volume sent to downstream states.

RGWCD Board Member Cory Off said it is interesting the WildEarth group wants to improve the bosque in New Mexico but does not seem to care about Colorado’s scenic areas. Robbins said the cooperation the Valley and Colorado have experienced in protecting riparian areas in this state does not exist in the same manner in New Mexico, but Colorado should not have to “disassemble what’s good in Colorado because they would like to see that happen in New Mexico.”

From The Pueblo Chieftain (Matt Hildner):

For more than four decades, Colorado has followed the letter of the law that dictates how flows on the Rio Grande are divvied up with downstream neighbors New Mexico and Texas.

But a New Mexico environmental group concerned with the survival of an endangered fish says that is not enough. WildEarth Guardians told Colorado officials in January it intended to sue the state over its management of the Rio Grande, claiming that the miserly flows that cross the state line in May and June of dry years were not enough to preserve the Rio Grande silvery minnow. Last week, the group wrote to the U.S. Department of the Interior, which has the responsibility of preserving the fish and also plays a large role in managing the river in New Mexico, asking that it exert more influence over Colorado.

“We just see the federal government playing some role in making the conversation more broad,” said Jen Pelz, an attorney for the guardians who specializes in water issues.

Pelz said she has not gotten a formal response from the state regarding the January notice.

But David Robbins, an attorney for the Alamosa-based Rio Grande Water Conservation District, was clear in his review of the letter to the Interior with the district’s board.

“It’s wrong and it deserves to be resisted strenuously,” he said.

Water users in the valley have lived up to the compact’s obligations and aren’t required to go beyond it, he said.

“We don’t have to let the water go downstream,” Robbins said. “We’re entitled to use it in our state and we always want to remember that.”

Colorado has complied with the 1939 Rio Grande Compact for more than four decades after settling a lawsuit brought by New Mexico and Texas. Following the 1968 settlement, Colorado’s state engineer initiated the practice of curtailing surface water rights — even those that predate the compact — to ensure that enough water made it downstream to satisfy compact requirements.

The delivery requirements vary from year to year, depending on the size of Colorado’s water supply. When the Rio Grande has a wet year, more water must be sent downstream. In dry years, water users in the San Luis Valley keep a bigger share.

But there are no requirements that dictate what time of year the water has to be delivered. When the irrigation season begins April 1 in the valley, irrigators divert water for nearly 600,000 acres of potatoes, barley, alfalfa and pasture. Moreover, what the plants don’t soak up in late spring and early summer, often percolates down to the unconfined aquifer, which many water users then tap to finish their crops after the stream flows have dwindled.

But for Pelz, the compact, with its emphasis on the role of the states, is not enough to solve the river’s problems.

“No one really looks at it as a whole river,” she said.

The timing of Colorado’s diversions are a problem, WildEarth Guardians argued, because in dry years the compact allows Colorado water users to take nearly all of the river’s flows. The group’s letter to interior officials noted that on May 18 of last year, the Rio Grande reached its peak flow and Colorado was diverting 98 percent of the river before it crossed the state line. That leaves an insufficient amount of water left over when the minnow enters breeding season in May and reduces the chances of the fish’s survival, the group said.

And the dry years in which this scenario occurs are likely to become the norm as climate change advances, the group said in the letter.

Pelz estimated that shutting down irrigators for three days would produce the flows needed to clean out sediment and produce the habitat needed for the minnow.

“It doesn’t take shutting down the San Luis Valley for two weeks,” she said.

But Robbins pointed to a host of problems in New Mexico that could be solved before asking Colorado to send additional water downstream.

For example, New Mexico has five dams that hinder the minnow and Colorado has nothing to do with their operations.

Moreover, Robbins said that as early as 1916, the minnow was effectively healthy despite the fact that Colorado already had reached its peak use along the Rio Grande.

And the conservation district has undertaken its own plan to preserve habitat for the southwestern willow flycatcher, a federally endangered species that also is of concern to WildEarth Guardians.

The demands from the south for more water out of the valley also come just as valley rancher Gary Boyce has developed a new proposal to export water to the Front Range.

The timing of the two developments was not lost on Robbins.

“If everybody in the room and all of your neighbors are starting to feel a little bit pulled asunder or under threat of being drawn and quartered, you’re probably awake and your senses are working,” he said.

More Rio Grande River Basin coverage here.


In Colorado rainwater harvesting is complicated

July 26, 2014

stormoverthelagaritahills

From The Pueblo Chieftain (Chris Woodka):

Don’t run out and buy a rain barrel. Even if you’re lucky enough to catch a downpour, it is illegal to collect rainwater from rooftops in Colorado in most cases.

The Pueblo Chieftain ran an article in its Real Estate section Friday that suggested rain barrels could be used to meet water needs. That may be true in other parts of the United States, but collecting water in rain barrels in Colorado is allowed only under certain circumstances.

Two bills passed by the Legislature and signed by the governor in 2009 allow for rainwater collection:

SB80 allows residential well owners to collect water from the roof of primary homes only, if no other water supply is available from a city or water district. The collection has to be part of the well permit for the property.

HB1129 provided for developers to build in rainwater collection if the development is approved as one of 10 statewide pilot projects.

Otherwise, rainwater collection is illegal.

The Colorado Division of Water Resources considers rainwater to be part of the property of the people of the state as defined by the Colorado Constitution.

“As a result, in much of the state, it is illegal to divert rainwater falling on your property expressly for a certain use unless you have a very old water right or during occasional periods when there is a surplus of water in the river system,” the division states on its website.

“This is especially true in the urban, suburban and rural areas along the Front Range.

“This system of water allocation plays an important role in protecting the owners of senior water rights that are entitled to appropriate the full amount of their decreed water right, particularly when there is not enough to satisfy them and parties whose water right is junior to them.”

More water law coverage here.


Fountain Creek: “It seems to me at some point there will be a balance between water rights and property rights” — Steve Witte

July 23, 2014
Fountain Creek flood debris May 2014 via The Pueblo Chieftain

Fountain Creek flood debris May 2014 via The Pueblo Chieftain

From The Pueblo Chieftain (Chris Woodka):

Would a dam on Fountain Creek make a difference in a situation such as last week’s drainage along the Arkansas River?

“It is something we need to talk about,” Water Division 2 Engineer Steve Witte said Monday, looking back at a wild ride of a week on the river. “It’s a discussion that needs to take place. It seems to me at some point there will be a balance between water rights and property rights.”

The Arkansas Basin Roundtable earlier this month turned away a grant request from the Fountain Creek Flood Control and Greenway District to study the practical effects of building a dam or system of detention ponds on Fountain Creek.

Chief among objections: the damage to junior water rights. By changing the peak flow on Fountain Creek floods — delaying the time it takes water to reach points downstream — junior water rights might not come into priority.

On the other hand, the peak flows that came crashing off the prairie into already full canals caused three of them to blow out after storms early last week.

“We already have an example, Pueblo Dam, of how we can reduce flood damage,” Witte said. “On the South Platte, they already are using upstream, out-of-priority storage. They use the water where it exists and determines who gets it later.”

Answering the basic question of whether those types of programs might work on Fountain Creek — the largest single tributary to the Arkansas River in Colorado — needs to be explored. Otherwise the only option to catch floodwater below Lake Pueblo is John Martin Reservoir, Witte said.

“I hope they’ll come back with a revised request,” he said.

One of the problems with last week’s storms is that much of the water was flowing in from unmeasured creeks and gullies. There are no gauges on Chico Creek or Kramer Creek, both a few miles east of Pueblo. Chico Creek boosts flows past the Avondale gauge, but no one can be sure just how much is being contributed to the river. The break in the Colorado Canal was caused by heavy flows on Kramer Creek near Nepesta.

“We were just flying blind,” said Witte, who witnessed the flooding at Nepesta.

The water from several tributaries hit the Arkansas River at the same time, creating “waves” that peaked quickly and then subsided. Some falsely high readings caused unnecessary worries downstream, where no major flooding occurred.

While the system of satellite river gauges has grown in the past 25 years, and provide easy access to information on the Internet, some malfunctioned during last week’s storms. Division of Water Resources staff scrambled to find out what was happening.

“I think we’ve improved, but there is still an element of human judgment,” Witte said. “We need to have people on the ground to verify if our gauges are accurate.”

More Fountain Creek coverage here and here.


The Arkansas Valley Super Ditch files pilot rotational fallowing application with the CWCB

July 23, 2014
Arkansas River Basin -- Graphic via the Colorado Geological Survey

Arkansas River Basin — Graphic via the Colorado Geological Survey

From The Pueblo Chieftain (Chris Woodka):

The Arkansas Valley Super Ditch is planning a pilot program next year under a 2013 state law encouraging water sharing programs as an alternative to permanent dry-up of farm ground. The plan, filed with the Colorado Water Conservation Board last week, would lease up to 500 acre-feet (163 million gallons) annually from the Catlin Canal to Fowler, Fountain and Security. About 1,128 acres would be dried up on a rotational basis to deliver the water.

“What we’re trying to do is see if a lease-fallowing program is viable,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District. “We’re trying to keep the water in the Arkansas basin. That’s what it’s all about.”

The application is the first to be filed under HB1248, passed last year by the state Legislature, which allows the CWCB to look at 10 test projects throughout the state. The projects are supervised by the state water board, with input from the state engineer. It may finally launch Super Ditch pilot projects that have stalled because of drought and second thoughts by farmers.

The Super Ditch submitted a substitute water supply plan with the state Division of Water Resources in 2012 for a lease-fallowing pilot project with Fountain and Security that failed because there was not enough water to move. The state restrictions that were placed on the project, fueled by objections from other water users, made moving any water in that dry year futile, Winner explained.

Last year, the Super Ditch was prepared to move some High Line Canal water to Fowler, but the deal was stopped when farmers pulled out. Fowler leased 125 acre-feet of water for $25,000 from the Pueblo Board of Water Works instead.

Under the plan outlined in the application, Fowler would lease up to 250 acre-feet, while Fountain and Security would lease up to 125 acre-feet each annually.

State law provides that the plan can be operated for 10 years.

“I think we’ll try it for a year or two, just to see if lease-fallowing is feasible,” Winner said. “We have to see if we can move water to Lake Pueblo. One of the drawbacks of HB1248 is that it only allows for municipal leasing, but if this works, there’s the possibility for industrial or agricultural leases as well.”

More Arkansas Valley Super Ditch coverage here and here.


Grand Junction: Some history of the Kannah Creek diversion #COWaterPlan

July 22, 2014
Grand Junction back in the day with the Grand Mesa in background

Grand Junction back in the day with the Grand Mesa in background

From the Glenwood Springs Post Independent (Greg Trainor):

From the incorporation of the town of Grand Junction in 1882 until 1911, the prospect of a firm water supply for Grand Junction citizens was in doubt. For almost 30 years, numerous recall elections, battles between the town and private water purveyors, and municipal expeditions to find mountain “water at any price” took up most of the official business of Grand Junction aldermen.

See-sawing back and forth between municipal ownership of the town water system and franchises to private companies to operate the system, the source of the town water supply also see-sawed between locations on the Colorado River at Fifth Street and the Gunnison River near the Redlands Water and Power Company Diversion. In Spring, supply was up, but so was sediment and mud. In late summer and fall, flow was down and ability to keep pipes full of water for fire protection suffered.

In 1894 the citizens voted 88 percent to build and operate a municipal water system but it took 13 years for the town to finally file for a water right in Kannah Creek, 20 miles to the southeast. The town was desperate: Could they afford a municipal system, who would buy bonds to pay for a system, where were there year-round supplies of water?

After having looked at mountain water supplies on Pinon Mesa near Glade Park, Kruzen Springs above Palisade, Whitewater Creek (later acquired by the City in 1989), the city settled on Kannah Creek. Ironically with the help of engineers from the Denver Union Water Company (later to become the Denver Water Department), the city filed a petition in eminent domain in Mesa County District Court for the first 7.81 cubic feet per second of flow from Kannah Creek.

As owners of all of the direct flow water rights on Kannah Creek, ranchers and farmers in Kannah Creek were not long in joining together in their opposition to the city’s actions. Their water was in the cross hairs of the city. An action in eminent domain is not the same as a filing for a water right in Water Court. In the latter case, a filing is made for water and proof is presented to the court that shows the water being put to beneficial use. The Water Court then establishes a priority date for use of the water, insuring that no other water user with a more senior water right is damaged. On the contrary, the city’s action in condemnation allowed the city to act under its powers of eminent domain and secure (“take”) water for the use of its citizens, provided, however, that the city make full compensation or satisfaction for all damages incurred by the taking.

In 1911, four years later, a jury awarded $182,940 to all parties from whom the city had acquired the water. The District Court also decreed that the city to be the owner of “a first, superior and paramount right to a continuous flow of 7.81 cfs over and above all other water rights claimed in Kannah Creek.” The city had the water, now it needed a way to get the water from Kannah Creek to Reservoir Hill above the city cemeteries, near Fifth Street. After years of offerings, Colorado Fuel and Iron Company (Pueblo steel mills), purchased the water bonds which allowed Grand Junction to build a state-of-the-art wood stave water line from Kannah Creek to the water plant.

To this day, the city’s pre-1922, “paramount” water right is the backbone of the city’s water supply system. Since 1911, the city has continued to acquire additional water rights and ranch properties to insure that mountain water is available to its citizens.

These actions between 1907 and 1911 colored all relationships between the City of Grand Junction and the landowners in Kannah Creek. Storage of Kannah Creek water, easements and rights of way, water for livestock, treated water for safe drinking, reservoir ownership and maintenance, and administration of the Grand Mesa “Pool” were continuous issues that festered during the entire 20th century. Yes, the landowners in Kannah Creek have long memories.

Today, the efforts to affect a State Water Plan include ideas to share water between agriculture and municipal users. It is unlikely that municipal condemnation would be the first idea implemented, but rather a series of purchase options, water banking, water rentals, or payments for fallowing would be considered. However, when circumstances cause a municipal water provider to feel it has exhausted all methods to secure a safe and reliable water supply, condemnation remains as a tool that, at the direction of a water policy board, could be employed to acquire water “at any price.”

Note: Material for this article comes from “City of Grand Junction v. Kannah Creek Water Users Association, No. 27047, Supreme Court of Colorado, En Banc. December 20, 1976.

Greg Trainor is the recently retired Public Works and Utility Director for the City of Grand Junction. He is currently the Chair of the Advisory Committee for the Water Center at Colorado Mesa University and acting President of the Southwest Chapter of the River Management Society.

More Colorado Water Plan coverage here.


Can we conserve our way out of our supply gap in the #ColoradoRiver Basin? #COWaterPlan

July 19, 2014

thehardestworkingriverinthewestcolooradoriver

Update: I heard from the Western Resource Advocates and American Rivers media guy, Gil Rudawsky. Scroll down to read the update.

Western Resource Advocates and American Rivers attempt to answer that question with a new report. Here’s their release:

On July 17 2014, Western Resource Advocates joined with American Rivers to release a new report that identifies conservation, reuse and other innovative solutions that could eliminate Western water shortages stemming from the over-taxed and stressed Colorado River. The report defines five cost-effective and clearly defined solutions that – if implemented at a larger scale across the basin – could meet the water needs of the West’s business, agricultural and growing population through 2060.

The Hardest Working River in the West: Common-Sense Solutions for a Reliable Water Future for the Colorado River Basin provides a comprehensive package of proven methods to conserve water.

  • Download the Executive Summary
  • Download the Full Report
  • See the full press release
  • The new report estimates that 4.4 million acre-feet of water could be saved and made available for other uses if these proven methods are implemented throughout the basin – more than enough water to meet projected growth in water needs in Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming, for the next half-century.

    This report comes at a critical time for Western States with record droughts, depleted reservoirs hitting all-time lows, and a growing population increasing water demands.

    “Our report showcases the ‘All-Star’ water solutions – actions that are proven, cost-effective and ready to meet our current and future water needs,” said Bart Miller, Water Program Director at Western Resource Advocates. “The fact is, there is a lot of concern about the Colorado River right now but these solutions will work and help everyone – from agriculture to growing cities –

    “There is a widening water gap creating 3.8 million acre-feet of additional water needed to meet the needs of the growing population of the West. This is an enormous amount which, if not carefully managed, could deplete the river and dramatically alter the landscape of the seven basin states,” said Matt Rice, Director of Colorado Basin Programs for American Rivers. “These solutions will ensure the river’s resources meet all future water needs for urban, rural, business and agricultural communities across all seven basin states, while still protecting the natural environment of the West.”

    The five critical steps for solving our current and future water shortages are:

  • Municipal conservation, saving 1.0 million acre-feet through such efforts as improved landscaping techniques, rebate programs that incentivize water-saving devices and standardized water audits
  • Municipal reuse, saving 1.2 million acre-feet through gray water treatment and re-use for irrigation, industrial uses and other purposes
  • Agricultural efficiency and water banking, saving 1.0 million acre-feet via voluntary, compensated improvements in irrigation efficiency and technology, crop shifting and other measures (while avoiding permanently taking agricultural lands out of production)
  • Renewable energy and energy efficiency, saving 160 thousand acre-feet using wind, solar PV, and geothermal energy solutions, and new water-efficient thermoelectric power plants
  • Innovative water opportunities, generating up to 1.1 million acre-feet through creative measures such as invasive plant removal, dust-on-snow mitigation and targeted inland desalinization.
  • I’ve got email into their media guy about the dust-on-snow savings in their plan. 400,000 acre-feet is a lot and I haven’t run across an estimate like that. I thought the only historical adjunct for dust mitigation was the Taylor Grazing Act of 1934 and we certainly didn’t have accurate measurement of snowpack back then. We do know that the act lowered dust levels.

    Update: Gil Rudawsky got back to me with a paragraph from their report, I believe, it’s unclear from his email. At any rate the text reads, “By implementing measures to reduce the accumulation of dust on snow, lower evaporative losses are anticipated.”

    I told him that it’s a long way from “anticipated” to wet water. No one even knows if we can successfully implement dust-on-snow mitigation to the extent needed to back up their number. It’s just a little careless on their part.

    As an aside they also have a weather modification number in their totals. I have not been apprised of solid data from cloud-seeding efforts. That being said many large water providers set aside substantial funds each year for projects.

    I think everyone nowadays agrees that river health should be right up there when setting policy so I think that is one good takeaway from the report.

    From The Grand Junction Daily Sentinel (Gary Harmon):

    Colorado transmountain diversions via the State Engineer's office

    Colorado transmountain diversions via the State Engineer’s office

    The undefined transmountain diversion to be addressed by the Colorado Water plan would be unnecessary under conservation proposals that would keep more water in the Colorado River, two environmental organizations said.

    Five proposals listed by the organizations in “The Hardest Working River” could be of immediate and long-term benefit to the river, said Bart Miller of Boulder-based Western Resource Advocates, which issued the report along with American Rivers, which releases an annual report listing endangered rivers.

    Conservation measures “absolutely” could offset the need for new storage in the river, said Matt Rice, director of Colorado conservation for American Rivers, in a conference call with reporters.

    “We’re having a hard enough time keeping waters in the reservoirs as it is” without a new one, Rice said.

    Augmenting Colorado’s water supply from outside sources also wouldn’t help, Rice said, dismissing the idea of new pipes and water projects to deliver water into the state.

    The Colorado Water Conservation Board is moving ahead on the task of drafting a statewide water plan.

    Front Range water providers have floated the idea of a new transmountain diversion, but have offered no information as to where it might be located. One proposal calls for water to be diverted only during years with heavy runoff.

    Two dozen transmountain diversions now send as many as 600,000 acre feet of water to the east side of the Continental Divide.

    Colorado and the other upper Colorado River basin states are required to send at least 7.4 million acre feet of water per year to Arizona, Nevada and California. Five solutions that American Rivers and Western Resource Advocates are suggesting “would go a long ways toward meeting the needs in the future,” Miller said.

    Taken together, the proposals could keep 4.4 million acre feet in the river, Miller said.

    The proposals call for conservation and reuse of municipal water, with both more efficient fixtures and reduced irrigation of lawns and other outside uses; greater agricultural efficiency and water banking.

    Further, the proposal calls for more efficient water use by the energy industry and the use of rooftop solar and wind sources; and the removal of water-guzzling invasive plants such as tamarisk.

    Xeriscape landscape

    Xeriscape landscape

    From Colorado Public Radio (Ana Hanel):

    The goal is not to divert water from one area to another, said American Rivers’ Matt Rice.

    “We deliberately don’t address and don’t believe that the right approach is with new pipelines and new large-scale water projects, because they’re significantly more expensive,” Rice says.

    The report says millions of people’s drinking water is at risk over the next few decades if demand continues to outpace the Colorado River’s water supply.

    It’ll be important over the next few years for communities to continue to encourage water conservation, said Bart Miller of Boulder-based Western Resource Advocates.

    “We can look to having landscapes that use more native vegetation, that are smaller in size,” Miller says. “We can greatly decrease the amount of water that’s used outside, which is about half of the water use for most metropolitan areas.”

    Miller said it’ll be important to replicate successful conservation and water-reuse programs in cities throughout the southwest.

    More Colorado River Basin coverage here and here.


    Water Lines: Colorado needs a better water plan — Jim Pokrandt #ColoradoRiver #COWaterPlan

    July 16, 2014


    From the Glenwood Springs Post Independent (Jim Pokrandt):

    It’s almost time for football training camps, so here’s a gridiron analogy for Colorado River water policy watchers: Western Colorado is defending two end zones. One is the Colorado River. The other is agriculture. The West Slope team has to make a big defensive play. If water planning errs on the side of overdeveloping the Colorado River, the river loses, the West Slope economy loses and West Slope agriculture could be on the way out.

    This is how the Colorado River Basin Roundtable is viewing its contribution to the Colorado Water Plan ordered up by Gov. John Hickenlooper. A draft plan will be submitted this December and a final plan in December 2015. The Roundtable is assessing local water supply needs and environmental concerns for inclusion into the plan and there is plenty of work to consider in the region. But the big play may very well be the keeping of powerful forces from scoring on our two goal lines.

    Here’s why: Colorado’s population is slated to double by 2050. Most of it will be on the Front Range, but our region is growing too. Mother Nature is not making any new water. We still depend on the same hydrological cycle that goes back to Day 1. So where is the “new” water going to come from? Right now, there seems to be two top targets, the Colorado River and agriculture (where 85 percent of state water use lies in irrigated fields). Colorado needs a better plan.

    The Colorado Basin Roundtable represents Mesa, Garfield, Summit, Eagle, Grand and Pitkin counties. This region already sends between 450,000 and 600,000 acre feet of water annually across the Continental Divide through transmountain diversions (TMDs) to support the Front Range and the Arkansas River Basin.

    That water is 100 percent gone. There are no return flows, such as there are with West Slope water users. On top of that, this region could see another 140,000 acre feet go east. A number of Roundtable constituents have long-standing or prospective agreements with Front Range interests wrapped around smaller TMDs. Existing infrastructure can still take some more water. That’s the scorecard right now. We assert another big TMD threatens streamflows and thus the recreational and agricultural economies that define Western Colorado, not to mention the environment.

    In the bigger picture, the Colorado River Compact of 1922 requires Colorado to bypass about 70 percent of the river system to the state line to comply with legal limits on depletions so six other states can have their legal share of the water. Failure to do so, by overdeveloping the river, threatens compact curtailments and chaos nobody wants to see. For one thing, that kind of bad water planning could result in a rush to buy or condemn West Slope agricultural water rights.

    The Roundtable has heard these concerns loudly and clearly from its own members across the six counties as well as from citizens who have given voice to our section of the water plan, known as the Basin Implementation Plan (BIP). A draft of the BIP can be viewed and comments offered by going online to http://coloradobip.sgm‐inc.com/. It is under the “Resources” tab.

    Jim Pokrandt is Colorado Basin Roundtable Chair.

    More Colorado Water Plan coverage here.


    Fountain Creek: “Is there a way to balance the needs of flood control and water rights?” — Larry Small

    July 11, 2014
    Fountain Creek Watershed

    Fountain Creek Watershed

    From The Pueblo Chieftain (Chris Woodka):

    Overshadowing the need to look at the technical details of a study for a dam or detention ponds on Fountain Creek is how it would be funded. As of this week, the study has been battered about with all the care of an uprooted tree bobbing in the water. Other water issues may be getting snagged on it.

    In May, Colorado Springs City Council stonewalled funding the study.

    This week, the Arkansas Basin Roundtable couldn’t get past the issue of water rights and shrugged off consideration of a state grant for $135,000 that would have been part of a $220,000, 2-year study to look at the consequences of a dam and the feasibility of building it.

    Larry Small, executive director of the Fountain Creek Watershed Flood Control and Greenway District, was frustrated after the meeting. Small walked the roundtable through the years of studies that led up to the conclusion that the best way to protect Pueblo from stormwater runoff in Colorado Springs — much of it made worse by development in the last 40 years — is to stop the water upstream of Pueblo.

    “Is there a way to balance the needs of flood control and water rights or do we just throw up our hands?” Small said at one point during the meeting. “It may not be possible, but we need to find out.”

    After the meeting, he was clearly frustrated.

    “This is such a small part of the overall costs,” he said, slapping his hand against a folder of supporting information for the study.

    During the meeting, several roundtable members made the point that junior agricultural water rights could be harmed during a flood.

    The Fountain Creek district has attempted to deal with that in the past, including a comprehensive workshop on the topic, attended by some farmers, in December 2011.

    Some saw value in looking at the water rights question just to determine if the rest of the study could proceed.

    “This at least gets the conversation on the table,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District.

    In the end, the water rights question became a deal stopper.

    There also are side issues that play into the question, such as a simmering feud between the Fountain Creek and Lower Ark districts about how matching money for grants has been applied under an intergovernmental agreement among the districts and Colorado Springs.

    “I would encourage the IGA partners to come together soon and resolve their differences,” said Alan Hamel, the basin’s representative on the Colorado Water Conservation Board.

    Hamel was one of the few roundtable members who spoke in favor of the grant.

    “I think this is a wakeup call for the Fountain Creek district,” Winner said. “You don’t just sit up in Fountain and pretend to rule the world. The district needs to realize it’s in the water business.”

    More Fountain Creek watershed coverage here and here.


    “I cannot imagine storage on Fountain Creek unless John Martin Reservoir were full” — said Jeris Danielson

    July 10, 2014
    Fountain Creek swollen by stormwater November 2011 via The Pueblo Chieftain

    Fountain Creek swollen by stormwater November 2011 via The Pueblo Chieftain

    From The Pueblo Chieftain (Chris Woodka):

    A study that could lead to building a flood-control dam on Fountain Creek stalled Wednesday over the question of how it might affect water rights. Determining if water rights could be protected would be the first task in the study, Fountain Creek Watershed Flood Control and Greenway District Director Larry Small explained to the Arkansas Basin Roundtable.

    “The prime objective is to evaluate whether water rights could be protected if a dam is built,” Small said. “There would be regular meetings with water rights holders to resolve the conflicts.”

    That didn’t sit well with several members of the roundtable, who argued that junior water rights could be harmed if floodwater were held.

    “I cannot imagine storage on Fountain Creek unless John Martin Reservoir were full,” said Jeris Danielson, a former state engineer who now heads the Purgatoire River Water Conservancy District. “It could mean a great deal of water lost to junior water rights holders, and I have a problem with the roundtable providing something that could damage the Arkansas River Compact.”

    Otero County farmers John Schweizer and Vernon John Proctor both made the point that the Fountain Creek district does not have water rights to hold back any water.

    Several other members of the board suggested that no part of the Fountain Creek study should go forward until the water rights question is answered.

    Alan Hamel, who represents the Arkansas River basin on the Colorado Water Conservation Board, said the farmers were ignoring the potential danger to agriculture from a flood on Fountain Creek.

    “I support this grant application,” Hamel said. “You just have to look at all the ditch headgates that were lost in Northern Colorado last fall.”

    The roundtable moves projects ahead only if there is consensus, so the application was denied. A revised application still could be considered.

    The study would build on a U.S. Geological Survey study that determined either a large dam on Fountain Creek or a series of detention ponds south of Colorado Springs would be the best protection for Pueblo of a 100-year flood on Fountain Creek. The USGS study, however, did not identify where a dam would be built or determine other factors such as engineering obstacles or water rights. The Fountain Creek district is trying to answer those questions prior to the arrival of $50 million in funding from Colorado Springs. That money, dedicated to flood control projects that benefit Pueblo, is a condition of the Pueblo County 1041 permit for the Southern Delivery System.

    The $220,000 study promoted at the roundtable included financial backing from Colorado Springs Utilities, the Pueblo Board of Water Works, Fountain, the Southeastern Colorado Water Conservancy District, Pueblo West and Security. It also had letters of support from city councils and county commissioners in El Paso and Pueblo counties.

    More Fountain Creek coverage here and here.


    Saguache rancher hopes to export water from the San Luis Valley to the Front Range

    July 8, 2014

    San Luis Valley Groundwater

    San Luis Valley Groundwater


    From the Valley Courier (Ruth Heide):

    Saguache County rancher Gary Boyce may be planning another water export project. Although Boyce has not yet filed any documents with the water court, he has met with representatives of the Rio Grande Water Conservation District (RGWCD), and that board held a special meeting to discuss Boyce’s proposal. The board unanimously voted not to support Boyce in any potential water export project.

    During Wednesday’s Alamosa city council meeting, Alamosa Mayor Josef Lucero read a letter from RGWCD Board Member Lewis Entz who shared initial information about the project.

    Entz related in the letter that in mid-June RGWCD Attorney David Robbins and RGWCD General Manager Steve Vandiver met with Boyce and Boyce’s attorney. At that June 14 meeting Boyce informed Robbins and Vandiver that he planned to file an application to withdraw 35,000 acre feet per year from the confined aquifer on his Saguache area property and export it to the Front Range where it would be sold as a permanent renewable water supply. According to Entz’s letter read at the city meeting, Boyce told RGWCD representatives his application was imminent. With the RGWCD’s blessing, he would create a SLV assistance fund of $150 million that would be distributed to local governments and schools as well as the water conservation district.

    On June 18 the RGWCD board held a special meeting to discuss Boyce’s proposal , and the board voted unanimously to reject Boyce’s proposal.

    Entz’s letter that Lucero shared with the council stated that so far Boyce has not filed anything in water court, so the RGWCD board does not know what the application would look like, who would be providing financing and what Front Range water users would be receiving the water.

    “It seems like the water wars are going to start again,” Mayor Lucero said.

    On Thursday, Vandiver confirmed that Boyce had met with Robbins and him, and the board had held a special meeting during which it voted unanimously not to accept Boyce’s offer of money from his potential project and not to support his project.

    “We haven’t heard another word from him,” Vandiver said.

    Vandiver added that two years ago Boyce also talked about another export project , but nothing was filed then or followed through, so he did not know if Boyce would actually move forward on this proposal or not.

    “We have not seen any filings and so we don’t know if Gary was trying to see if we could get bought.”

    Vandiver said he did not want “to get in front of the train” at this point, since Boyce has not filed anything .

    “There has been nothing concrete or in writing that it’s going to happen,” Vandiver said. “We are hoping it’s just some pipe dream.”

    More Rio Grande River Basin coverage here.


    “The more water you develop, the more risk you take on” — James Eklund #ColoradoRiver

    July 7, 2014
    Drought affected Lake Mead via the Mountain Town News

    Drought affected Lake Mead via the Mountain Town News

    From Circle of Blue (Brett Walton):

    America’s largest reservoir, Las Vegas’ main water source, and an important indicator for water supplies in the Southwest — will fall this week to its lowest level since 1937 when the manmade lake was first being filled, according to forecasts from the federal Bureau of Reclamation.

    The record-setting low water mark — a surface elevation of 1,081.8 feet above sea level — will not trigger any restrictions for the seven states in the Colorado River Basin. Restrictions will most likely come in 2016 when the lake is projected to drop below 1,075 feet, a threshold that forces cuts in water deliveries to Arizona and Nevada, states at the head of the line for rationing.

    But the steadily draining lake does signal an era of new risks and urgency for an iconic and ebbing watershed that provides up to 40 million people in the U.S. and Mexico with a portion of their drinking water. The rules governing the river are complex, but the risk equation is straightforward: less supply due to a changing climate, plus increasing demands from new development, leads to greater odds of shortages…

    Yet despite a shrinking lake, diminishing supplies, and ardent pleas from tour guides and environmental groups to preserve a canyon-cutting marvel, the four states in the basin upriver from Lake Mead intend to increase the amount of water they take out of the Colorado River. All of the states are updating or developing new state water strategies, most of which involve using more Colorado River water, not less.

    “We have mapped out how the remainder of our allocation can be used,” Eric Millis, director of the Utah Division of Water Resources, told Circle of Blue. “It’s going to happen sooner rather than later. We have a place for every drop.”

    Utah — like fellow upper basin states Colorado, New Mexico, and Wyoming — is not using all the Colorado River water it was granted by a 1922 interstate compact. The four states have the legal authority to increase their Colorado River diversions.

    However, the water they seek may not be available. The calculations of availability stem from wetter hydrological conditions and supply forecasts made nearly a century ago. Under the 1922 compact, the upper basin is entitled to 7.5 million acre-feet. A later agreement apportioned each state a percentage of the available supply. The upper basin’s average annual use between 2007 and 2011, the most recent figures, was 4.6 million acre-feet.

    The legal entitlement, granted at a time when the river’s hydrology was poorly understood, is surely too high. All the states acknowledge that fact. “We’re not pegging our hopes or analysis on the full 7.5,” said James Eklund, director of the Colorado Water Conservation Board, the state water planning agency…

    The upper basin put forward a plan this spring to keep more water in Powell. The states would do this by paying farmers not to farm and by changing how smaller mountain reservoirs are managed. Three urban water utilities in the lower basin, along with Denver and the federal government, put up $US 11 million to develop a similar basin-wide program…

    Though the lower basin is using its entire allocation, the four upper basin states are not. They desire more water from the Colorado, yet exactly how much water is available is uncertain.

    The only concrete number to emerge so far is 5.8 million acre-feet of water available for the upper basin, or three-quarters of what was granted. That figure, called the hydrological determination, was developed by New Mexico and the Department of the Interior in 2007 as part of a water supply study.

    New Mexico is the only state using 5.8 million acre-feet as a firm number. Millis said Utah is using 6.5 million acre-feet of upper basin supply for its planning, and Colorado and Wyoming are looking at a range of values.

    Eklund told Circle of Blue there is “vigorous debate” both within and between states over what number should be used to assess water availability and what the acceptable levels of risk are as water use increases.

    “There’s a sliding scale of risk,” Eklund said. “The more water you develop, the more risk you take on. But that doesn’t necessarily counsel against a project.”

    More Colorado River Basin coverage here and here.


    Water Lines: Water, democracy and private property rights

    July 3, 2014

    Flood irrigation in the Arkansas Valley via Greg Hobbs

    Flood irrigation in the Arkansas Valley via Greg Hobbs


    From the Glenwood Springs Post Independent (Hannah Holm):

    Which is more important: The public’s enjoyment of healthy streams, or preserving private property rights and agriculture? Do we really have to choose?

    Questions swirling around proposed ballot initiatives that assert public rights to Colorado’s water and environment reflect broader tensions between public and private rights that are inherent in our democracy, as well as changing public values regarding natural resources.

    The U.S. Constitution barely mentions water, but the Colorado Constitution has an entire article (16) on “Mining and Irrigation,” which provides the underpinnings of Colorado water law. In summary:

    • Water in streams is owned by the public: “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state …”

    • At the same time, individuals’ rights to take water out of a stream to use it are assured: “The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.” Further details explain that “priority of appropriation shall give the better right…” In other words, first in time, first in right.

    • Rights of way have to be provided to move water from a stream to where it’s needed: “All persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water … upon payment of just compensation.”

    These provisions reflect the necessity of access to water from streams for life and livelihoods in semi-arid Colorado and, according to legal scholar David Schorr, a desire to prevent that access from being controlled by a privileged few. This is a very democratic kind of desire.

    Over the last 100-plus years, public values related to water have become more complicated. We all still want to drink water and eat food, but water in streams for recreation and a healthy environment have also become high priorities. And sometimes water taken out of streams to serve those long-established values of domestic use, agriculture and industry, and the livelihoods related to them, ends up leaving streams depleted and unhealthy.

    The constitution clearly provides for taking water out of streams, but gives no direction about when water should be left in. The General Assembly passed laws allowing water rights to be filed for environmental and recreational purposes, but most of these rights are very junior to others and vulnerable to going unmet.

    Proposed ballot initiatives to establish public rights in water and the environment seek to reverse the priority of these values. Initiative 103, “Public Trust Resources,” which focused on water, was derailed from its track to the ballot by the Supreme Court, but Initiative 89, “Local Government Regulation of Environment,” was cleared for signature collection.

    Initiative 89 would amend Colorado’s constitution by asserting that Colorado citizens “have a right to Colorado’s environment, including its clean air, pure water and natural and scenic values.” It directs the state and local governments to protect these resources, and says that when local and state laws conflict, the more restrictive or protective would govern.

    In his dissenting opinion, Justice Gregory Hobbs argued that the new public right to the environment “would override existing private and publicly held property rights,” and would require state and local officials “to act adversely to the interests of private parties …”

    In addition to reflecting the ever-present tension between public and private rights, the dispute also reflects polarization between parties primarily interested in preserving the status quo and those seeking enhanced environmental protections.

    Longtime environmental advocate and vice president of the Upper Gunnison River Water Conservancy District Steve Glazer, speaking at the Colorado Water Workshop in Gunnison in June, urged both sides in the conflict to “listen to each other more, and move together instead of apart” in order to find solutions that don’t sacrifice one set of values to serve the other.

    From The Durango Herald (Sarah Mueller):

    Douglas Kemper, executive director of Colorado Water Congress, joined Bruce Whitehead of the Southwestern Water Conservation District, and elected leaders to educate the council on two initiatives that could change the state’s prior appropriation system for managing water claims. Prior appropriation is a way of water allocation that controls who uses how much water, the types of uses allowed and when those waters can be used.

    The secretary of state’s website said any person can draft a statewide initiative to amend the state constitution. If proponents of the ballot measure gets enough signatures, about 86,105, all voters in the state would decide the issue. The Colorado Supreme Court affirmed initiatives 89 and 75.

    The Water Congress, a nonprofit group providing leadership on water issues, created a stewardship project that tracks, what it believes are, “public trust doctrine” initiatives that would change how Colorado allocates water. The group opposes public-trust initiatives. Switching to a public-trust system would mean the government would decide how to allocate water rights instead of who came first, according to Kemper.

    Initiative 75 would give local governments the power to approve laws that would establish the fundamental rights of residents, communities and nature. It would give local governments expanded power over businesses, such as allowing local laws to establish or eliminate the rights of corporations and other businesses operating in the community to protect the rights of people, communities and nature.

    “Those are some pretty far-reaching powers,” Kemper said. “Basically, it says those local laws would be superior to international, federal or state law.”

    Initiative 89 declares that Colorado’s environment is the common property of all Coloradoans, including the clean air, pure water, and natural and scenic values. It makes state and local governments trustees of the environment and requires them to protect the environment.

    Colorado Supreme Court Justice Gregory Hobbs Jr. wrote in a dissenting opinion on Initiative 89 that the initiative would create a new common property right that would override existing private and publicly held property rights.

    “Initiative 89 would upend the existing regulatory balance and thrust private-property owners and governments into an uncertain future,” Hobbs wrote…

    State Rep. Mike McLachlan, D-Durango, urged city councilors to draft a resolution opposing these initiatives. The Southwestern Water Conservancy District has issued a resolution in opposition to public trust initiatives.

    More 2014 Colorado November election coverage here.


    Initiative 103, Public Trust Resources, Denied by the Supreme Court Colorado Water Congress shifts focus to Initiatives 75 & 89

    July 1, 2014

    sloanslakebeforesunrise

    From email from the Colorado Water Congress (Fiona Smith):

    The Colorado Supreme Court published an opinion today declaring that Initiative 103 (Public Trust Resources) may not proceed towards the 2014 Ballot. A 4-3 majority holds that the Title Board lacked authority to proceed with a substituted designated representative when one of the proponents could not attend the rehearing. This decision validates a May 1 appeal by the Colorado Water Congress (CWC) and Coloradoans for Responsible Reform.

    Initiative 103, by Phil Doe and Barbara Mills-Bria, proposed to 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. It would require the state, as trustee of Public Trust Resources, to conserve and maintain them for the benefit of all the people. CWC and over 70 supporting entities from around the state opposed this Initiative on the grounds that it was unwise, unnecessary, expensive and disruptive to the responsible allocation and stewardship of Colorado’s water resources.

    CWC will now shift its energy towards Initiatives 75 and 89, both of which are of concern to Colorado’s water community. A 5-2 Supreme Court majority decided today that Initiative 89 may proceed towards the 2014 Ballot. The Court similarly confirmed Initiative 75 last month. Each will require 86,105 valid signatures to be placed on the ballot in November.

    Initiative 75 would strengthen “local control,” allowing local governments to adopt environmental regulations that override state laws, including the laws that limit and balance local governments’ regulation of water facilities. Initiative 89 would combine this local control theme with a Public Trust Doctrine, declaring “common property” in Colorado’s water and environment and obligating state and local government to conserve these resources as trustees. In his dissenting opinion today, Justice Gregory Hobbs cautioned that “Initiative #89 proposes to create an entirely unprecedented form of public trust duty requiring state and local governments to ‘conserve’ what are predominately privately held resources… [It] would upend the existing regulatory balance and thrust private property owners and governments into an uncertain future.”

    The Colorado Water Stewardship Project, a special project of CWC, will continue to monitor Initiatives 75 and 89 and inform water stakeholders of the serious implications of amending the constitution to create a Public Trust Doctrine in Colorado.

    From the Denver Business Journal (Cathy Proctor):

    The so-called “public trust doctrine” measure, No. 103, had drawn opposition from the Colorado Water Congress, representing water users across the state, and the business-backed group Coloradans for Responsible Reform.

    The high court ruled Monday that the Title Board, which reviews ballot proposals, made a mistake when it allowed the backers of No. 103 to have a substitute fill in during a hearing on the measure.

    The court said that state law “does not allow designated representatives who are unable to attend a Title Board meeting to substitute alternates to serve in their place. Instead, the Title Board must delay its considerations until the next meeting at which both of the designated representatives who were so designated at the initial stages of the initiative process are able to attend the Title Board meeting.”

    The ruling means that the proposal can’t be considered for the 2014 ballot because the Title Board is no longer meeting for the 2014 election cycle, said a spokesman for the Colorado Secretary of State’s office.

    The backers of the proposal were Phil Doe and Barbara Mills-Bria. But Mills-Bria couldn’t attend a meeting of the Title Board because she as traveling to an out-of-state funeral, according to the court ruling.

    The court said the Title Board should have postponed its hearing on No. 103 until Mills-Bria could attend rather than allowing a designee to fill in.

    The proposal sought to establish a common property right to “clean air, clean water, including ground and surface water, and the preservation of the environment and natural resources.” It also would have required the state to conserve and maintain those elements for the benefit of all people.

    The Colorado Water Congress said it opposed the initiative on the grounds that it was “unwise, unnecessary, expensive and disruptive to the responsible allocation and stewardship of Colorado’s water resources.”

    The Colorado Water Congress said it would shift its resources to oppose Initiatives No. 75 and 89.

    No. 75 is a proposal by the Colorado Community Rights Network that would allow cities to ban any for-profit business that community leaders don’t want to see in their towns.

    No. 89, which says that Coloradans have a right to clean air, water and scenic values, is one of nine proposals that are backed by U.S. Rep. Jared Polis, D-Boulder.

    The Colorado Supreme Court has rejected challenges to proposals No. 75 and No. 89, meaning supporters have until Aug. 4 to collect more than 86,105 valid signatures in order to have the initiatives placed on the fall ballot.

    More 2014 Colorado November election coverage here.


    SDS: There is no Plan B — Colorado Springs Business Journal

    June 29, 2014
    The new north outlet works at Pueblo Dam -- Photo/MWH Global

    The new north outlet works at Pueblo Dam — Photo/MWH Global

    From The Colorado Springs Business Journal (John Hazlehurst):

    CSU’s ongoing billion-dollar bet is the Southern Delivery System. Scheduled to go online in 2016, SDS will convey water from Pueblo Reservoir via a 66-inch-diameter underground pipeline to Colorado Springs. It will expand the city’s raw water delivery capacity by an eventual 55 million gallons per day (MGD), a nearly 50-percent increase in system capacity…

    “What we’re hoping for is a record snowpack,” CSU Chief Financial Officer Bill Cherrier said in late March, “followed by a hot, dry summer.”

    Cherrier said it with a smile, but he had neatly summarized CSU’s dilemma. Water in the reservoirs must both be replenished and sold. The sell side of the equation is driven by fixed costs, including system maintenance and replacement, energy costs and continuing capital investment. But buyers don’t care about CSU’s problems; they prefer to water their lawns with free water from the skies.

    Per-capita water use has dropped sharply in the past 20 years, leading to corresponding reductions in the city’s long-term consumption estimates.

    “The Base (i.e. revenue) forecast is for an estimated service area population (city, suburban, Green Mountain Falls, military) of about 608,552 and about 106,000 AF/yr for demand,” wrote CSU spokesperson Janet Rummel in an email. “The ‘hot and dry’ scenario uses the same service area population and estimates about 120,000 AF/yr demand. This particular ‘hot and dry’ scenario equates to an 80 percent confidence interval and adds about 13 percent to annual demands.”

    That’s a precipitous drop from the high-side estimate of the 1996 water resources plan, which forecast a population in 2040 as high as 900,000 and water demand of 168,150 acre-feet. The base forecast, at 106,000 acre-feet annually, is only 1,800 acre-feet more than the community used in 2000, 40 years previously.

    Does that mean CSU’s water managers dropped $841 million into a new water delivery system that we may not need until 2016? Does this prove that the project, originally conceived to furnish water for the Banning-Lewis Ranch development, is now entirely unnecessary?

    Perhaps not…

    “SDS is not a short-term solution,” Rummel said in a 2010 email. “The time to build a major water project is not when you have run short of water … [we need] to better prepare our community for drought, climate change and water supply uncertainty on the Colorado River.”

    Many factors entered into the decision to build SDS. In 1996, there was no discussion of system redundancy, of having an additional water pipeline that could serve the city in case one of the existing conduits needed emergency repair. But 18 years later, the pipelines are that much more vulnerable to accident or malfunction.

    In 1996, population growth and per capita water use were expected to continue indefinitely at historic levels. But they didn’t. Commercial and industrial use declined, and price-sensitive residents used less water. Indoor use declined as well as outdoor, thanks to restricted-flow shower heads and low-flush toilets.

    SDS stayed on track. In the eyes of the water survivalists who conceived and created the project, the city’s rights on the Arkansas River had to be developed. They saw long, hot summers in the city and dry winters in the mountains. Opponents could make any arguments they liked, but these five words trumped them all.

    Use it or lose it.

    Undeveloped water rights are like $100 bills blowing down the street — someone will grab them and use them for their own benefit…

    “This will be our last pipeline,” said CSU water resources manager Gary Bostrom. “We will never be able to develop a new water delivery system. When SDS is finished, that’s it.”

    Bostrom’s peers in Las Vegas, Phoenix, San Diego and Los Angeles have reason to envy him. Colorado Springs has won the water wars. We’ve bought ourselves decades of time. Whether we save or squander this liquid bounty is up to us.

    In 2040, the city may have 30,000 to 50,000 acre-feet a year of unneeded delivery capacity. That cushion will allow for decades of population growth and for the introduction of sophisticated irrigation techniques that will preserve our green city and minimize water use.

    In years to come, members of the Colorado Springs City Council will decide how to preserve the city’s future. Will they heed Bostrom’s warning and encourage radical conservation? Will new developments be required to xeriscape, and preserve trees with drip irrigation devices?

    More Southern Delivery System coverage here and here.


    Southern Delivery System update: $359 million spent so far, >44 miles of pipe in the ground

    June 23, 2014
    Southern Delivery System route map -- Graphic / Reclamation

    Southern Delivery System route map — Graphic / Reclamation

    From The Pueblo Chieftain (Chris Woodka):

    Tunneling under Fountain Creek is proving more difficult than expected for the Southern Delivery System. Some pipeline near Pueblo Dam has been laid in solid rock. And the temporary irrigation system to provide water for native vegetation over the pipeline scar through Pueblo County contains 50 miles of pipe (main line and laterals) and 15,000 sprinkler heads. Those were some of the highlights of a progress report by Mark Pifher, SDS permit manager, to the Lower Arkansas Valley Water Conservancy District Wednesday.

    “The tunneling project was more difficult than we thought,” Pifher said. The work was being done just over the El Paso County line from the west side of Interstate 25, with a tunnel-boring machine 85 feet below ground.

    Because of the difficulty, a second borer from the east side one mile away is being used.

    “They had better meet in the middle,” Pifher joked.

    More than 44 miles of the 50 miles of 66-inchdiameter pipeline from Pueblo Dam to Colorado Springs has been installed; a treatment plant and three pump stations are under construction; and a Fountain Creek improvement project has nearly been completed, he said. All of the pipeline in Pueblo County has been installed, and revegetation has begun on 323 acres that were disturbed in Pueblo West and on Walker Ranches. The irrigation system is so large that it has to run in round-the-clock cycles seven days a week, Pifher noted.

    “It’s apparently the largest sprinkler system in the state,” he said.

    Another 484 acres has been planted with native seed in El Paso County.

    As of March, $359 million has been spent on SDS, with $209 million going to El Paso County firms, $65 million to Pueblo County companies, $900,000 to Fremont County contractors and $84 million to businesses in other parts of Colorado.

    More Southern Delivery System coverage here.


    Colorado: Forest Service comment letter shows breadth and depth of impacts from Denver Water’s diversion plan

    June 23, 2014

    Originally posted on Summit County Citizens Voice:

    ghj

    More water from the West Slope? Not the best idea, says the U.S. Forest Service . bberwyn photo.

    Current plan underestimates impacts to water and wildlife

    By Bob Berwyn

    FRISCO — As currently spelled out, Denver Water’s plan to divert more water from the headwaters of the Colorado River will result in unacceptable impacts to wildlife and other resources on publicly owned national forest lands, the U.S. Forest Service wrote in a June 9 comment letter to the U.S. Army Corps of Engineers.

    The Forest Service also wrote that the creation of a pool of environmental water in an expanded Gross Reservoir doesn’t compensate for the loss of two acres of wetlands and 1.5 miles of stream habitat that will be lost as a result of the expansion.

    View original 297 more words


    Montezuma County stipulates out of BLM Yellow Jacket Creek diligence case

    June 22, 2014
    Yellow Jacket Canyon via Four Corners Hikes

    Yellow Jacket Canyon via Four Corners Hikes

    From the Cortez Journal (Jim Mimiaga):

    Montezuma County has bowed out of a complex water dispute on Canyons of the Ancients National Monument, but negotiated stipulations on water use for Yellow Jacket Creek.

    In 2009, the monument purchased an inholding – the 4,500-acre Wallace Ranch – for $3.3 million. The property came with a conditional water right of 5.25 cubic feet per second from the intermittent desert stream.

    The county, along with Southwest Colorado Landowners Association and Water Rights Montezuma, opposed a routine water-court procedure by the BLM regarding the due diligence on eventual use of the water rights…

    The county has been critical of the monument buying private inholdings, fearing it will diminish historic ranching opportunities in that area.

    Commissioner Keenan Ertel argued that Article 1, Section 8, of the U.S. Constitution requires the state legislature to approve federal purchase of private property. Permission was not granted by the state, and BLM officials do not believe it is necessary.

    The BLM filed a request for summary judgment on the case May 30, which asks the Durango water court judge Greg Lyman to rule in favor of the BLM because the objectors’ legal dispute is presented in the wrong court venue. The decision is pending, and if denied would trigger a trial.

    The BLM argues due-diligence procedures have narrow parameters in water court and that those specific facts are not disputed in the case. Special Assistant U.S. Attorney Kristen Guerriero states claims of objectors are irrelevant in water court.

    “Specifically, opposers assert Constitutional claims alleging that the United States does not have authority to purchase property own water rights in any state,” writes Kristen Guerrieo, Special Assistant U.S. Attorney. “These are not claims that challenge the validity of BLM’s diligence activities, but rather reflect Opposers’ desire to utilize the Water Court proceeding to advance other objectives.”[...]

    Montezuma County attorney John Baxter told the commissioners the stipulation agreement drops them as official objectors in the BLM request for the six year diligence period on the Yellow Jacket water rights. But they will still have a say on how the water should be used when the BLM seeks absolute status of those water rights.

    “Whether we win or not, they still have to go through us when they perfect the rights,” he said. “The BLM wants to kick the can down the road,” on deciding how to use the water.

    The stipulation agreement states that when Yellow Jacket water rights are converted from conditional to absolute they can only be used for public recreation, BLM housing facilities, fire suppression, irrigation use, and livestock use. It further stipulates the water cannot be used to grow crops, that what is not used be available for downstream users, and that the BLM does not file applications to convert the water to instream flow uses or for uses on other properties.

    Remaining objectors in the case, Southwest Colorado Landowners Association and Water Rights Montezuma, have until June 24 to respond to the request for summary judgement filed by the BLM.

    More water law coverage here.


    Latest USFS permit does not compel ski areas to convey water rights to the US government

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

    Trail map for Powderhorn Ski Area via liftopia

    From The Grand Junction Daily Sentinel (Gary Harmon):

    A U.S. Forest Service rule aimed at assuring that ski areas don’t sell off their water rights was welcomed by Colorado’s two senators and panned by the office for the representative whose district includes several resorts.

    The Forest Service on Friday is to unveil a rule to replace one that was rejected by a federal judge who ordered the agency to start the proposal anew.

    Under the proposed new rule, ski areas operating on Forest Service land would have to assure the Forest Service that the ski area would have sufficient water rights to provide for snowmaking and other essential operations even if the ski resort is sold.

    The rule would not require ski areas to transfer water rights to the Forest Service. That provision in the previous rule caused the National Ski Areas Association to take the Forest Service to court, where it won a ruling that sent the agency back to the drawing board.

    “This proposal balances the interests of the public, the ski areas and our natural resources by ensuring the necessary water is provided for winter recreation through our special-use permit process,” U.S. Forest Service Chief Tom Tidwell said in a statement about the rule, which is to be published in the Federal Register on Friday. “This proposed change will provide assurances to the public that they will continue to enjoy winter recreation at ski areas on national forests.”

    The Friday notice will start a 60-day public-comment period on the proposed rule.

    U.S. Sens. Michael Bennet and Mark Udall, both Colorado Democrats, said in separate state
ments that they welcomed the proposed new rule and looked forward to reviewing it.

    Udall called it “another step toward protecting our national forests and recreational opportunities on public lands.” while Bennet called for a consensus bill “based on today’s proposal that provides certainty and clarity on this issue for Colorado’s water community.”

    The House already has passed a bill by U.S. Rep. Scott Tipton, R-Colo., aimed at preventing the Forest Service and other federal agencies from demanding water rights in exchange for permits on federal lands.

    Tipton’s office had yet to see the proposed new rule, a spokesman said, noting that if it affects only the Forest Service, it falls short of protecting all users, including ranchers and municipalities that use federal lands and watersheds.

    The previous rule was first used in 2012 when the new owners of Powderhorn Ski Resort, now Powderhorn Mountain Resort, were required to turn over water rights in order to obtain a permit to operate on the Grand Mesa National Forest, prompting the suit by the National Ski Areas Association.

    From the Examiner (Charles Pekow):

    The 1982 Forest Manuel requires that USFS obtain water rights for making snow and operating facilities. Concessionaires can request rights on behalf of USFS. In 2004, the policy was amended to allow concessionaires and USFS to obtain the rights jointly. But the 2004 policy has let to considerable confusion, as water was obtained from different sources from in and out of federal property and transported in different ways, USFS found. So it amended the clause in 2011 to address different types of water rights.

    The 2011 directive distinguished between rights for water diverted from and used on local forest service land in the ski permit area, rights for water coming from USFS property outside the permit area, and water from outside sources. USFS amended the clause further in 2012. But the National Ski Areas Association (NSAA) sued in federal court. NSAA charged that USFS did not allow for public comment before changing the procedures, in violation of several federal statutes. U.S. District Court in Colorado agreed and vacated the 2011 and 2012 changes.

    So USFS is proposing new procedures and taking public comments. It conducted four open houses and sought comments last year too. It is reproposing the ideas based on what it learned.

    More water law coverage here.


    Montezuma County settles on BLM Canyons of the Ancients water court case

    June 16, 2014

    laplatasfromroadt

    From the Cortez Journal (Jim Mimiaga):

    Montezuma County has bowed out of a complex water dispute on Canyons of the Ancients National Monument, but negotiated stipulations on water use for Yellow Jacket Creek.

    In 2009, the monument purchased an inholding – the 4,500-acre Wallace Ranch – for $3.3 million. The property came with a conditional water right of 5.25 cubic feet per second from the intermittent desert stream.

    The county, along with Southwest Colorado Landowners Association and Water Rights Montezuma, opposed a routine water-court procedure by the BLM regarding the due diligence on eventual use of the water rights.

    “When the BLM acquires conditional water rights, they file for a six-year diligence period, an internal process that gives us time to determine how the water will potentially be used,” said Roy Smith, a BLM water specialist…

    The county has been critical of the monument buying private inholdings, fearing it will diminish historic ranching opportunities in that area.

    Commissioner Keenan Ertel argued that Article 1, Section 8, of the U.S. Constitution requires the state legislature to approve federal purchase of private property. Permission was not granted by the state, and BLM officials do not believe it is necessary.

    The BLM filed a request for summary judgment on the case May 30, which asks the Durango water court judge Greg Lyman to rule in favor of the BLM because the objectors’ legal dispute is presented in the wrong court venue. The decision is pending, and if denied would trigger a trial.

    The BLM argues due-diligence procedures have narrow parameters in water court and that those specific facts are not disputed in the case. Special Assistant U.S. Attorney Kristen Guerriero states claims of objectors are irrelevant in water court.

    “Specifically, opposers assert Constitutional claims alleging that the United States does not have authority to purchase property own water rights in any state,” writes Kristen Guerrieo, Special Assistant U.S. Attorney. “These are not claims that challenge the validity of BLM’s diligence activities, but rather reflect Opposers’ desire to utilize the Water Court proceeding to advance other objectives.”

    Montezuma County officials want water use out of Yellow Jacket creek to be decided on sooner than within the 6-year period requested by the BLM.

    “They need to have a plan on what they will do with that water,” said commissioner Ertel.

    Montezuma County attorney John Baxter told the commissioners the stipulation agreement drops them as official objectors in the BLM request for the six year diligence period on the Yellow Jacket water rights. But they will still have a say on how the water should be used when the BLM seeks absolute status of those water rights.

    “Whether we win or not, they still have to go through us when they perfect the rights,” he said. “The BLM wants to kick the can down the road,” on deciding how to use the water.

    The stipulation agreement states that when Yellow Jacket water rights are converted from conditional to absolute they can only be used for public recreation, BLM housing facilities, fire suppression, irrigation use, and livestock use. It further stipulates the water cannot be used to grow crops, that what is not used be available for downstream users, and that the BLM does not file applications to convert the water to instream flow uses or for uses on other properties.

    Remaining objectors in the case, Southwest Colorado Landowners Association and Water Rights Montezuma, have until June 24 to respond to the request for summary judgement filed by the BLM.

    More water law coverage here.


    Twin Lakes Reservoir and Canal Co., et. al., settle out of Basalt whitewater park water court case

    June 16, 2014
    Twin Lakes collection system

    Twin Lakes collection system

    From The Aspen Times (Scott Condon):

    A trial was scheduled to begin Thursday in state water court in Glenwood Springs. “That trial now will not happen,” Ely said.

    Pitkin County has worked for about 10 years to establish the ability to use water rights for recreational purposes connected to the special project. The county wants to establish a kayak park on the Roaring Fork River just downstream from Fishermen’s Park, which is a stone’s throw from the Upper Basalt Bypass Bridge on Highway 82.

    The county faced opposition from what Ely said he considers “the usual suspects” on water-rights issues. One of the parties opposing the county’s plan was the Twin Lakes Reservoir and Canal Co., which diverts from the headwaters of the Roaring Fork River.

    Ely said various parties involved on both sides of the court battle stipulated a settlement rather than proceed with the trial and an uncertain outcome. It was a model of give-and-take, he said.

    “Everybody left the table being hungry,” Ely said.

    The agreement allows Pitkin County to call for water for the kayak park between April 15 and Labor Day. Differing water levels would be called at different times. The most water would be tapped for the park during spring runoff. The amount would be lower before and after prime runoff…

    “It’s been about 10 years since this dialog first started,” Ely said during a ceremony Thursday at Fishermen’s Park attended by about 25 people, including Colorado Gov. John Hickenlooper…

    Hickenlooper congratulated Pitkin County and Basalt for their river work. He noted that investments made in river features by towns such as Buena Vista and Salida have paid big dividends.

    More water law coverage here.


    Arkansas Basin Roundtable: “…we’re still beating our heads over rotational fallowing” — Gary Barber #COWaterPlan #COleg

    June 13, 2014
    Basin roundtable boundaries

    Basin roundtable boundaries

    From The Pueblo Chieftain (Chris Woodka):

    The Arkansas Basin Roundtable is compiling a reservoir of ideas that could go into making the Colorado Water Plan. The main difficulty will be putting them all to beneficial use: First in the Arkansas River basin’s implementation plan, then translating those into the state plan — all under conditions that still appear to be changing.

    “It does appear to be a flood,” quipped Alan Hamel, who represents the basin on the Colorado Water Conservation Board.

    Last month, Gov. John Hickenlooper signed legislation (SB115) that instructs the CWCB to have hearings in each basin and for the draft plan to be presented to the Legislature’s interim committee on water resources.

    Meanwhile, the roundtable has received 60 written comments, some with multiple suggestions, on what needs to be in its basin implementation plan. The group has no organized way of incorporating comments into the volumes of information already compiled. There has been little time for point-by-point discussions.

    The CWCB will review basin plans in July.

    And the state plan being developed is in a different format than the basin plan.

    “How do we integrate all this?” asked Reed Dils, a retired Buena Vista outfitter and former CWCB member.

    “The timeline was a tough, tight timeline even before the legislation,” Hamel added.

    Hickenlooper ordered the CWCB to produce a draft plan by December. For the past few months, the roundtable has expanded its meeting time and talked extensively about its own basin plan, the product of nine years of meetings. Some of that time has been devoted to providing new members background on past actions of the roundtable.

    “Dozens of people have presented information to us,” said Bud Elliott of Leadville, one of the original roundtable members. “The public has been well represented.”

    Gary Barber, who chaired the roundtable for several years and is now under contract to help write the basin plan, said some findings of the roundtable have stalled.

    “I tell you, five years later, we’re still beating our heads over rotational fallowing, based on the experience of Fowler,” he said at one point.

    A deal by Super Ditch to supply water to Fowler under a state pilot program this year fell through when farmers pulled out. It’s the third year the group has tried, but failed, to demonstrate a new method for agricultural transfers that leaves ownership in the hands of farmers.

    More Colorado Water Plan coverage here.


    Colorado River District Applauds Governor’s Veto #COleg #ColoradoRiver

    June 8, 2014
    Colorado instream flow program map via the Colorado Water Conservation Board

    Colorado instream flow program map via the Colorado Water Conservation Board

    Here’s the release from the Colorado River District (Chris Treese):

    The Colorado River District applauds Governor Hickenlooper’s decision on June 5 to veto Senate Bill 14-023. As noted in the Governor’s veto message, we are certain it was a close and difficult decision. The River District, along with many other parties, requested a veto.

    But the issue is not dead. With the veto, the challenge remains for supporters and opponents alike to reconvene to develop new alternatives that provide genuine incentives for irrigation efficiency while avoiding the unintended and adverse consequences of SB023. The River District is committed to this challenge.

    The River District worked with Senator Schwartz and others for two years developing legislation to create irrigation efficiency incentives. We succeeded in addressing an important part of the issue in 2013 with the passage of Senate Bill 13-019, which addressed voluntary, consumptive water use savings. We continued our efforts over the summer last year and throughout the legislative session this winter to address the more complex issue of non-consumptive water savings. In the end, we opposed the final approach taken in SB023 as too costly and likely ineffective. The River District, however, is committed to addressing the challenge of providing meaningful incentives for efficient irrigation. The Governor’s proposal in his veto message to try one or more pilot projects may be one viable approach.

    More 2014 Colorado legislation coverage here.


    El Agua es Vida — Acequias in Northern New Mexico display at the University of New Mexico #RioGrande

    May 26, 2014

    From the Albuquerque Journal (Kathaleen Roberts):

    “El Agua es Vida: Acequias in Northern New Mexico” merges art, science and culture at the Maxwell Museum of Anthropology at the University of New Mexico. Based on a multidisciplinary study conducted by UNM, New Mexico State University, New Mexico Tech and Sandia National Laboratories, the exhibition will be up through May 31, 2015.

    Acequia irrigation and agriculture created the northern New Mexico landscape we see today.

    Unique to New Mexico – except for parts of southern Colorado and Texas – acequias originated in Spain. Spanish explorers brought them to the state in 1539, curator Devorah Romanek said.

    Every colonial settlement that took root between 1600 and 1847 required the construction of ditches to direct water for crops and livestock. These hand-dug, gravity-fed trenches lure mountain snowmelt through the state’s narrow furrows and valleys and into community fields, orchards and gardens.

    Before acequias veined the landscape, Pueblo, Apache and Navajo people developed their own irrigation systems as part of their farming methods. They also based their water management on community responsibility and participation.

    About 42 percent of acequia-carried water recycles back into the aquifer, feeding the state’s rivers, Romanek said. These handmade ditches play a vital environmental role in a state where water is an increasingly scarce and precious resource.

    “So it’s really the best way to manage the water here in New Mexico,” she explained. “And it also has these incredible cultural and traditional ties.”

    The show features artwork and 130 objects relating to the digging and maintaining of acequias, as well their end products in farming and cooking.

    If you go
    WHAT: “El Agua es Vida: Acequias in Northern New Mexico”
    WHEN: Through May 31, 2015
    WHERE: Maxwell Museum of Anthropology, University of New Mexico
    HOW MUCH: Free. Call 277-4405 or visit maxwellmuseum.unm/edu

    More Rio Grande River Basin coverage here and here.


    Water Information Program: Colorado water history, law and infrastructure

    May 25, 2014
    Smith Ditch Washington Park, Denver

    Smith Ditch Washington Park, Denver

    From the Glenwood Springs Post Independent (Denise Rue-Pastin):

    The history of the Colorado River mirrors the history of the American West. Competing water uses from the Colorado River system have defined Colorado history for more than 100 years. As people around the state discuss how to manage water resources into the future, it is instructive to look back at the formation of the practices that govern allocation of the state’s water. This overview is provided by the Durango-based Water Information Program, on the Web at http://www.waterinfo.org.

    FIRST IN TIME, FIRST IN RIGHT

    The legal right to divert and use water in Colorado has been deliberated and defined from before the time of statehood in 1876. As stated in the state Constitution, “Prior appropriation shall give the better right as between those using the water for the same purpose …” This is the basis for the first in use, first in right doctrine of water appropriation, which is one of the legal foundations upon which water is managed in Colorado.

    The Colorado Water Conservation Board (CWCB) oversees water issues in the State of Colorado, and the Colorado Division of Water Resources administers water allocation in accordance with court decrees and state legislation. The State Engineer’s office has maintained meticulous records on water usage, diversions and streamflows for many years. Two-hundred professional staff members work together to administer Colorado’s water according to the doctrine of prior appropriation, state law, water court decrees and interstate compacts.

    BIRTHPLACE OF RIVERS

    Colorado has the enviable position in the West as being a water-producing state, with numerous mountain ranges capturing the winter snows that feed our streams and rivers. The seasonal nature of streamflows is not consistent with the demand by Colorado citizens for domestic, agriculture and industry uses. Nearly two-thirds of the annual water flow occurs during the late spring/early summer runoff. During the winter months of December, January and February only 3 percent of annual flows occur.

    Colorado reservoirs store the spring runoff from mountain snowpack for use in the late summer and low-flow winter months. This “reserved” water is stored for use throughout the year by downstream users. In addition, water storage units along the Colorado River system provide flood control, recreational sports, excellent fishing and hydro-electric power.

    ‘LAW OF THE RIVER’

    Water leaving Colorado on an annual basis exceeds 10 million acre feet. The Colorado River west of Grand Junction provides nearly 5 million acre feet of that amount for downstream users. The Colorado River Compact is the ruling document that was established after long negotiations between the seven states along the Colorado River in 1922.

    After the U.S. Supreme Court ruled that the waters of the Colorado River would be governed according to the Doctrine of Prior Appropriation, the Upper Basin states (Utah, New Mexico, Wyoming and Colorado) became concerned that the Lower Basin states (California, Arizona and Nevada) would be at an unfair advantage if this doctrine was applied across state lines due to the Lower Basin’s more rapid development of water resources.

    As a result of complex negotiations between the states in a forum called the Colorado River Commission, the elements of the famous Colorado River Compact were forged between the seven states along the Colorado River system. Under this compact, the Upper Basin states are required to allow an average of 7.5 million acre-feet per year flow downstream from Lake Powell to the Lower Basin States — theoretically splitting the rights to the river’s total flow in half, although in recent decades the total yield of the river has typically been considerably lower than the amount assumed by compact.

    Although the Colorado River Compact formed the basis for the “Law of the River,” much debate and deliberation was to follow the historic 1922 treaty. For example, Wyoming challenged Colorado’s right to divert headwaters streamflow from the west to east slope of Colorado.

    In 1944, a treaty was signed with Mexico providing our neighbor to the south with 1.5 million acre feet annually from the Colorado River system. In 1948, the Upper Basin States agreed to a percentage appropriation of their share of the waters of the Colorado River System. Colorado’s share was set at 51.75 percent.

    DAMS & CANALS

    In 1902, the U.S. Bureau of Reclamation (USBR) was created. Ever since, the USBR has been coordinating the planning, construction and implementation of numerous water diversion and storage projects in the western United States. Irrigation projects throughout the West are based on contracts between the water users and the USBR. Hydro-electric power revenues are used to offset some of the costs of irrigation projects and repayment contracts. The USBR manages existing water reservoirs in the Colorado River System that were constructed with federal financing.

    Present and future generations will continue to wrestle with the issues of how to allocate the Colorado River between competing demands. Indian water rights, endangered species, water quality, interstate conflicts and environmental legislation are among the factors that must be considered. Over the past 100 years, the history of water in Colorado has helped shape the “Law of the River” throughout the Basin and our state. How we manage, conserve, store and distribute water will remain one of Colorado’s most pressing policy challenges, with implications beyond our borders.


    Rifle: The town’s water supply is secured by senior rights #ColoradoRiver

    May 18, 2014
    Rifle Falls back in the day via USGenWeb

    Rifle Falls back in the day via USGenWeb

    From the Rifle Citizen Telegram (Mike McKibbin):

    The City of Rifle has enough water for a population of more than 26,000, thanks to past work to secure some strong water rights, according to the city’s water attorney.

    The rights date back to shortly after the turn of the last century, continuing through Rifle’s more than 100-year history and, most recently, the 2011 acquisition of 550 acre-feet of water from Ruedi Reservoir. One acre-foot is roughly enough to cover a football field a foot deep in water.

    Attorney Michael Sawyer reviewed the long water rights history of the city and other issues at a May 7 City Council workshop.

    All but a small amount of the city’s municipal water comes from the Colorado River, with other sources including Beaver Creek and several area irrigation ditches, Sawyer said.

    The most senior water right is 1.6 cubic feet per second from the Excelsior Ditch, he noted, and dates back to 1883.

    “That’s a very old, historic, great senior water right,” Sawyer said…

    Some water rights – the Rifle Pipeline rights adjudicated in 1940 and 1952 – are protected by what is called the “historic users pool” from Green Mountain Reservoir, Sawyer added. The pool is a 100,000 acre-foot compensation for Front Range water diversions, he said.

    Among the larger water rights are 23.1 cfs for the Colorado River intake #1, acquired in 1981; and 26.3 acre-feet for the Rifle Pond in 2002, Sawyer said…

    The city has a diversion and treatment facility on Beaver Creek, but only for two cfs. Sawyer noted the creek often does not have enough water to meet those levels, and when the city’s new $25 million water treatment plant is completed in a few years, the Beaver Creek plant will be decommissioned and those rights transferred to the Colorado River…

    The city is also currently involved in a water court case filed by the Colorado Parks and Wildlife agency, which is seeking water rights for the Rifle Fish Hatchery that have their origin in Rifle Mountain Park, Sawyer said.

    Some of the city’s unused water rights have been leased to third parties, Sawyer added, including the Rifle Gap Goff Course, the Rifle Ranger District office of the White River National Forest, the co-generation plant south of the city and the Rimrock development, which was foreclosed upon.

    More Colorado River Basin coverage here and here.


    Well augmentation enforced by the Colorado Division of Water Resources

    May 12, 2014
    Typical water well

    Typical water well

    Domestic and irrigation well pumping both come with augmentation requirements under Colorado Water law. Here’s a story about augmentation education and enforcement in the Blue River watershed from Alli Langley writing for the Summit Daily News. Here’s an excerpt:

    As water commissioner for District 36 of the state Division of Water Resources, [Troy Wineland] manages water rights in the Blue River basin. This runoff season, he will focus on getting residents using “exempt wells” illegally to change their ways.

    “I’m just continually optimistic,” he said, that “if given the information people will make better choices, the right choices.”

    Of the county’s 2,500 wells, three-quarters are exempt, meaning the prior appropriation system that governs Colorado water rights doesn’t apply to them…

    Exempt wells aren’t shut off during shortages because they require special sewage systems that return used water to the ground. If done properly, the water loss is about 5 percent, which the law says isn’t enough to impact those with senior water rights.

    Permits for exempt wells say water must be used only inside the walls of a single-family housing unit and restrict the amount used per year. Owners can pay to use water in ways that violate their permit as long as they augment the water, or ensure that the used water won’t affect the surrounding watershed and senior water rights.

    Summit well owners can buy augmented water through the county or Vidler Water Co.

    In the next six weeks, Wineland will knock on hundreds of doors where people without the right permits are irrigating, filling hot tubs or using water in other illegal ways. If the well owners are home, he’ll talk with them about the rules and why they’re important.

    “You have to back out from the micro level. ‘Oh, this is my own little fiefdom, and what I do here is not going to affect anyone else,’” he said. Remember the long-term drought and projected shortages, he said. Think about the hundreds of nearby wells and cumulative impact on local streams and rivers. They feed the Colorado River, which supplies seven states.

    He’ll explain the options: Stop the illegal use or get an augmentation contract. Most people are responsive, he said. They just didn’t know or didn’t think it was important.

    In a couple of weeks, if well owners haven’t done anything, he’ll issue a courtesy warning and deadline. After that deadline, violators will receive an injunction and be fined for unpermitted uses: $500 a day.

    People who contact Wineland by July 1 with the necessary information will have until June 1, 2015, to get into compliance.

    “I’m going to put it in their hands and say, ‘Hey, you can do this on your own time line,’” he said, “‘or if I come and knock on your door, you can adhere to my time line,’ which is much tighter, more than likely 30 days.”

    Meanwhile groundwater sub-district 1 implementation rolls on, with state approval of their augmentation plan, in the San Luis Valley. Here’s a report from Ruth Heide writing for the Valley Courier:

    Colorado Division of Water Resources State Engineer Dick Wolfe approved the 2014 Annual Replacement Plan for Subdistrict No. 1 on Monday. The state decision will be submitted to the Division No. 3 Water Court today, April 29. Wolfe determined the plan adequately identified sources and amounts of replacement water and remedies the subdistrict would use to make up for injurious stream depletions this year.

    The sub-district plans to use up to 2,806 acre feet of transbasin water; up to 5,608 acre feet of Santa Maria Reservoir water; up to 2,500 acre feet of Closed Basin Project water; and up to 4,300 acre feet of forbearance water to meet its obligations this year.

    The forbearance agreements are with the Rio Grande Canal Water Users Association (up to 2,000 acre feet); San Luis Valley Irrigation District (up to 1,000 acre feet); San Luis Valley Canal Company (up to 400 acre feet); Prairie Ditch Company (up to 100 acre feet); Monte Vista Water Users Association (up to 300 acre feet); and Commonwealth Irrigation Company-Empire Canal (up to 500 acre feet.) Water currently in storage will be released from the Rio Grande, Santa Maria and Continental Reservoirs at the direction of the division engineer to replace injurious stream depletions in time, location and amounts that they occur, beginning May 1.

    Wolfe approved the annual replacement plan with about a dozen terms and conditions including daily replacement water accounting every month to the local division office and replacement water deliveries in a manner acceptable to the division engineer.

    The terms also excluded the use of “Big Ruby” water, water purchased from Navajo Development Company (John Parker II) in the last two years and held in Rio Grande Reservoir but previously stored in Big Ruby Reservoir. Wolfe stated his office had not yet received all of the information it required to approve a Substitute Water Supply Plan application so he was denying the use of Big Ruby water in the Annual Replace Plan.

    “The approval of this ARP is made with the understanding that if the ARP proves insufficient to remedy injurious stream depletions, the State Engineer has the authority to invoke the retained jurisdiction of the Division No. 3 Water Court,” Wolfe stated.

    Wolfe’s approval followed approval locally by the subdistrict board of managers and the board for the subdistrict’s sponsoring district, the Rio Grande Water Conservation District. The plan is required each year to show how the water management sub-district will replace injurious stream depletions caused by well pumping in the sub-district area. The sub-district encompasses more than 3,400 wells pumping about 230,000 acre feet annually on about 163,500 irrigated acres. The amount of pumping in the sub-district has decreased from nearly 308,000 acre feet in 2010 and nearly 325,000 acre feet in 2011 to about 259,000 acre feet in 2012 and approximately 228,500 acre feet last year.

    The Annual Replacement Plan anticipates well pumping this year to be about what it was last year.

    A groundwater model is used to calculate depletions the sub-district must remedy each year. The only river for which the groundwater model predicts depletions from Sub-district No. 1 is the Rio Grande. This year the estimated total depletions affecting the Rio Grande due to past and projected pumping is 3,971 acre feet. The total lag stream depletions from prior and projected pumping total more than 30,000 acre feet. The sub-district is required to make up those depletions over time in addition to the ongoing depletions.

    The state is holding the sponsoring water district financially responsible to make up those lag depletions if Sub-district No. 1 goes under. In previous years Subdistrict No. 1 has offered fallowing programs, with more than 8,200 irrigated acres fallowed to some extent last year. This year the sub-district is not offering that program but is relying on other measures such as the federal Conservation Reserve Enhancement Program (CREP) re-authorized in the new Farm Bill and administered through USDA Farm Service Agency offices. FSA offices have informed the sub-district that sign-up for the Rio Grande CREP would resume sometime in May.

    More groundwater coverage here.


    2014 Colorado November election: Initiative 103 — ranchers and water users oppose assault on the Doctrine of Prior Appropriation

    May 5, 2014
    Justian I first codifier of riparian rights

    Justian I first codifier of riparian rights

    From the Ouray County Plaindealer (Sheridan Block):

    In an attempt to protect Colorado’s natural resources, the Public Trust Initiative is again trying to make waves and earn its spot on ballots this year. While the initiative aims to secure protection for the state’s precious resources — particularly water — many local ranchers and water users are vehemently against the proposed measure.

    Initiative 103, also known as the public trust doctrine, is an effort to protect the state’s natural resources from pollution and irresponsible use. The initiative asserts that it is the state’s responsibility “to secure the rights of the people to protect natural resources” such as “clean air, clean water, including ground and surface water, and the preservation of the environment” which the public is entitled to.

    More Public Trust Doctrine coverage here. Here’s the link for the Colorado Water Congress Stewardship Project website for more information about the Public Trust Doctrine.


    Aspen: City Council approves instream flow for the Roaring Fork River through town

    April 30, 2014
    Map of the Roaring Fork River watershed via the Roaring Fork Conservancy

    Map of the Roaring Fork River watershed via the Roaring Fork Conservancy

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

    In an effort to improve the aquatic environment of the Roaring Fork River as it flows through central Aspen, the city of Aspen has agreed to leave 2 to 3 cubic feet per second (cfs) of water in the river during low-flow periods this summer instead of diverting it into the Wheeler Ditch.

    The Wheeler Ditch diverts water from the Fork a short distance downstream from the Aspen Club pedestrian bridge and just below Ute Park, east of Aspen. The headgate for the irrigation ditch is on the left side of the river, when looking downstream, and is visible from the upper end of the city’s Wheeler Ditch Trail.

    The water in the ditch is typically used to supply small channels in the downtown pedestrian malls, to irrigate some city property, and to keep a base flow running through the city’s stormwater system.

    The Aspen city council on Monday approved an agreement with the nonprofit Colorado Water Trust to leave the water in the river when river flows drop below 32 cfs, the amount identified by the state as necessary to protect the river’s environment “to a reasonable degree.”[...]

    It’s the second year the city has entered into such an agreement with the Water Trust, which works to bolster flows in rivers across the state.

    Last year the city announced that it would leave between 6 and 8 cfs of water in the river, but experience showed that it was more practical to leave 2 to 3 cfs, according David Hornbacher, the director of utilities and environmental initiatives for the city.

    The city owns an 1889 senior water right to divert up to 10 cfs from the Fork into the Wheeler Ditch.

    The agreement with the Water Trust says the city will begin bypassing water from the Wheeler Ditch when the river drops below 32 cfs. If the river drops to 31 cfs, the city will bypass 1 cfs, and so on, until the point when there is at least one cfs left in the ditch…

    “The Water Trust brings structure to the effort,” Hornbacher said. “They bring resources. And they provide a framework to work toward other future agreements to benefit the river.”[...]

    This year, Twin Lakes expects to divert about 55,000 acre-feet of water from the headwaters of the Roaring Fork.

    Further downstream and just east of Aspen, the Salvation Ditch in mid-to-late summer often diverts more water than is left in the river below the ditch’s diversion structure…

    The Salvation Ditch, which has a water right from 1902 to divert 58 cfs, was diverting 17.4 cfs that day, leaving 7.6 cfs of water flowing in the Fork.

    Another 2.4 cfs was then diverted into the Wheeler Ditch that day, leaving just 5.2 cfs flowing in the river as it made its way past Rio Grande Park, the Aspen Art Museum, and under the Mill Street Bridge.

    That’s a far cry from the 32 cfs the state says is required to protect the river’s aquatic environment, and the city’s effort this summer is intended to help close such gaps.

    “I appreciate the city’s leadership, as it can help start the conversation,” said [Amy Beatie] of the Water Trust. “We would love everyone to really sit down and think about what they have and how they could use it strategically to put water back in the river.”

    More Roaring Fork River watershed coverage here and here.


    San Luis Valley: Pumpers worry about augmentation water debt

    April 28, 2014
    San Luis Valley Groundwater

    San Luis Valley Groundwater

    From The Valley Courier (Ruth Heide):

    Paying past water debts while trying to keep up with current ones could be a make-or-break proposition for new water management sub-districts throughout the San Luis Valley. the Valley, members of the Rio Grande Water Conservation District (RGWCD) began developing an alternative several years ago that it hoped would allow Valley farmers to stay in business while complying with state regulations. The larger water district sponsored sub-districts for various geographical areas of the Valley, with the first lying in the closed basin area in the central part of the Valley. The sub-districts’ goals are to make up for depletions well users have caused in the past and are causing in the present , plus rebuild the Valley’s aquifers. One of their objectives is to take irrigated land out of production to reduce the draw on the aquifers.

    The first sub-district is operational now with fees collected from farmers within the sub-district paying for water to offset the depletions and injuries to surface Background Knowing the state would soon be regulating the hundreds of irrigation wells in users caused by their well pumping. As the late RGWCD President Ray Wright described the effort, it was a “pay to play” proposition. For example, those who did not have surface water rights would pay more to continue operating their wells than those who had both surface and groundwater.

    The first sub-district is also putting water in the river to replace injurious depletions its well users have caused to surface rights. One of the methods the sub-district has used to meet its goals is to purchase property. Another has been to support the Conservation Reserve Enhancement Program, which is included in the farm bill. That program pays folks to fallow land either permanently or for a specific time period, with cover crops planted for ground cover and erosion Sub-district #1 submitted its annual replacement plan to its board, its sponsoring district and the state engineer and court this week. The subdistrict board of managers and RGWCD board approved the plan, and RGWCD General Manager Steve Vandiver personally presented it to Colorado Division of Water Resources Division 3 Engineer Craig Cotten on Tuesday.

    The 2012 annual replacement plan was challenged, with some of those legal challenges still pending in court. (The 2013 plan was not contested.) RGWCD Attorney David Robbins told the board on Tuesday the Colorado Supreme Court has not yet set the matter for arguments, and if it does not do so in the next week or two, it will probably not schedule the arguments until September or October. The local water court upheld the plan, but objectors appealed to the Supreme Court, which has received briefs from the parties in the case but has not yet set a time to hear arguments.

    Robbins said there are three issues involved in the court case regarding the 2012 annual replacement plan: 1) use of Closed Basin Project water as replacement water, “that’s a good legal argument ;” 2) the way augmentation plans were accounted for in the 2012 replacement plan, “that’s a slap my hand argument;” and 3) when the annual replacement plan becomes effective, a procedural argument. Current activity

    Now that the first subdistrict is operational and the state’s groundwater rules likely to be filed in the next month or two, the sponsoring water district is fervently assisting sub-district working groups from Saguache to Conejos and everywhere in between. One of the proposed sub-districts , for example, lies along the alluvium of the Rio Grande.

    RGWCD Program Managers Rob Phillips and Cleave Simpson are working to get the new sub-districts formed.

    Vandiver told the RGWCD board on Tuesday that Simpson is working hard with working groups for Subdistricts #2, 3, and 4 to get petitions ready to be signed by landowners in those subdistricts and to draft a plan of management and budget for each sub-district . Those will be presented to the water court when they are completed. Simpson told the RGWCD board on Tuesday all three of those sub-district working groups plan to present their completed petitions to the sponsoring water district board before the end of this calendar year.

    Vandiver added that Subdistricts #5 and 6, Saguache Creek and San Luis Creek, are not as far along. The Saguache Creek group has held numerous meetings but is waiting on final numbers from the state’s groundwater model to know how much it will owe in depletions before it can proceed much further. The working group for the San Luis Creek sub-district fell apart, Vandiver said, but a few well owners in that area are getting back together and will meet next week for the first time in a long time.

    Vandiver also told the RGWCD board on Tuesday that a group of federal and state agencies that own wells in the Valley are meeting to discuss their options. They will also have to comply with the groundwater regulations, as will municipalities with wells. Vandiver said state, federal and local agencies/ municipalities will have to join/form a sub-district or create augmentation plans to comply with the pending state rules. Many of the agencies are interested in joining subdistricts , he added. In doing so, they would either have to pay with cash or water, and many of them have water they could contribute, which would be helpful for the subdistricts . Water debt challenges RGWCD Director Cory Off brought up the issue of the district having to provide a guaranty to the state for lag depletions from past pumping , which was determined in the case of Sub-district #1 to be 19 years. Off said District Judge O. John Kuenhold in 2008 ruled the sub-district had to pay lag depletions to the river but did not say the sub-district had to provide a guaranty. The first plan of water management, which the state engineer approved, required the sub-district to have two years of wet water in storage, Off added.

    The state engineer did not say anything about a guaranty in 2011, but in 2012 the state required the district to sign a letter of guaranty, which it did, Off added. He said he believed the water district board needed to rethink this matter because he did not believe the district had an obligation to file a guaranty, particularly for Sub-district #1 since it had already been approved by the court, or any future sub-districts. By signing the letter of guaranty for Subdistrict #1 the district was putting future sub-districts in a precarious position, he said, because subsequent sub-districts do not have the economic ability to cover lag depletions like Sub-district #1 does. Off said the first sub-district is comprised of a large number of farmers, but some of the other sub-districts have a fraction of the populace but even greater depletions to make up.

    RGWCD Director Lawrence Gallegos said that was true of the two sub-districts in Conejos County, and if those sub-districts had to provide a guaranty for lag depletions, their fees would be astronomical.

    “I think it could be make-it or break-it especially for the two sub-districts that are in the county I represent,” he said. “I think we need to have the sub-districts working ” We don’t want to set anybody up to fail.”

    He said the RGWCD board needs to ask its legal counsel to talk to the state engineer about other arrangements that wouldn’t break the subdistricts .

    RGWCD Director Dwight Martin said Sub-district #4, with which he has been involved, has been trying to determine what its obligation will be. It does not have firm numbers yet. Martin said if the depletions are 22,000 acre feet, it is going to be extremely difficult if not impossible to meet that obligation. If the depletion repayment is 8,000 acre feet, the sub-district can put together a workable budget with the approximately 400 wells involved in that sub-district .

    Robbins said Sub-district #1 is close to having enough water or cash to pay its lag depletions if it went out of business today, and each area of the Valley where depletions have occurred must make up for its depletions either cooperatively through sub-districts or individually through augmentation plans. He said the district does not yet know what the lag depletions will be for the rest of the sub-districts because they are hydrologically different than Sub-district # 1. For example, Sub-district #2 is right along the river.

    “The state engineer cannot approve a plan of management unless he’s given assurance the depletions that are caused by the pumping will be replaced so that there is no injury to senior water rights,” Robbins said.

    Cotten agreed. He said it is like getting a 20-year loan. If someone told the bank he would pay the first year but provided no guaranty he would pay the next 19 years, he would probably not get the loan. He added that this is not the only basin where the state engineer has required this type of thing.

    Off said he was not saying the depletions should not be replaced.

    “Paying depletions to the river obviously has to happen ,” he said.

    His problem was with the guaranty for lag depletions, he said.

    Robbins said there might be several ways those lag depletions could be covered . It could be through a permanent forbearance, for example, he said.

    “There are a lots of ways to solve the problem other than simply putting money in escrow,” Robbins said.

    RGWCD President Greg Higel said as a senior water owner he wanted to see lag depletions paid back and wanted to see some sort of guaranty in place that they would be.

    Vandiver said the state engineer’s responsibility is to protect the surface water users that the sub-district plan was designed to protect. He said the senior/surface water users drove the point home to the court and the state that replacement of depletions was a critical issue that must be addressed. “The objectors from the very beginning have said it wasn’t enough, it just wasn’t enough.”

    Vandiver said he was not opposed to going back to the state engineer to talk about lag depletions, but he believed the district must present some options.

    Robbins said, “If the board wants me to talk to the state engineer, we can come up with the options.”

    He added he was not opposed to having a preliminary discussion with State Engineer Dick Wolfe to see how much flexibility he might be willing to provide.

    The RGWCD board unanimously voted to have Robbins speak with the state engineer about the lag depletion guaranties and alternatives.

    More Rio Grande River Basin coverage here.


    Hermosa Creek: Durango Mountain Resort is lawyering up to fight the USFS

    April 27, 2014

    Hermosa Park

    Hermosa Park


    From The Durango Herald (Joe Hanel):

    Durango Mountain Resort is getting ready to sue the U.S. Forest Service over access to its water rights – rights it needs for future development on the mountain.

    The dispute comes at the same time the Forest Service is under fire nationally for its attempts to force ski resorts to turn over their water rights as a condition for getting their permits renewed.

    Meanwhile at the state Legislature, a bill by Sen. Ellen Roberts, R-Durango, to curb the Forest Service’s water-rights policy appears to be dead as Democratic leaders defer to the federal agency for the second consecutive year.

    Roberts’ bill would not help Durango Mountain Resort, which has a slightly different dispute with the Forest Service. But the resort’s CEO, Gary Derck, sees a pattern of the Forest Service trying to get control of ski resorts’ water rights…

    The ski resort owns conditional water rights to six wells on the back side of the mountain, on land its previous owners traded to the Forest Service in the 1990s. The trade did not include water rights, but the agency now says it will not allow Durango Mountain Resort to access the wells.

    Lawyers for the Forest Service have asked a local water judge to deny Durango Mountain Resort’s rights to the wells. The resort’s rights are conditional, and it needs to prove to a water judge every six years that it is working toward making the rights absolute and putting the water to use.

    But starting in 2010, the Forest Service began opposing the ski area in water court.

    “Any additional proposals to divert and convey water from the upper East Hermosa Creek will not be accepted by the San Juan National Forest and authorization will not be granted,” former Forest Supervisor Mark Stiles wrote in a June 2012 legal filing.

    The ski area’s owners say they have legal rights to access their water rights, and after several years of wrangling with the Forest Service, they are getting ready to sue.

    “We’re trying to find a way not to go to court because it would be expensive, and we’re just a little old ski area down here in Southwest Colorado,” Derck said.


    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


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