2013 Colorado legislation: Governor Hickenlooper signs HB13-1044 (Authorize Graywater Use) #COleg

From email from Governor Hickenlooper’s office:

Gov. John Hickenlooper signed 12 bills into law today and yesterday…

HB13-1044, Authorize Graywater Use, Fischer/Schwartz, Concerning the authorization of the use of graywater.

More HB13-1044 coverage here. More 2013 Colorado legislation coverage here.

‘A stunning landscape is saved after a decade-long war over its water’ — Nature Conservancy Magazine

Here’s an in-depth look at how water served as the catalyst to unite San Luis Valley residents in opposition to plans to ship water to the Denver Metro area back in the 1980s and 1990s, from Nature Conservancy Magazine (Frederick Reimers). Click through and read the whole article. Here’s an excerpt:

In the early light of a spring morning in 1989 a fellow barged into the Crestone, Colorado, bakery where Christine Canaly worked, hungry for breakfast. The man, it turned out, was vice president of a company that planned to spend $150 million to drill 100 wells and pipe water from the rural San Luis Valley to the Denver suburbs, more than 100 miles away. Those suburbs, he said, would pay top dollar for the water, and the project would be a financial bonanza for everyone in the San Luis Valley…

…[Rancher Greg Gosar] had been chewing over a conversation that he’d had a year earlier. The principal owner of the sprawling, 97,000-acre Baca Ranch, a Canadian oilman named Maurice Strong, had been applying for extensive water rights in the valley. Gosar had asked Strong what he planned to do with the water. “Maurice told me, ‘We’re going to put in some potatoes, and we’re gonna plant quinoa,’” he recalls.

But Gosar didn’t quite believe it. And now, talking with [Christine Canaly], all the pieces began to fit together. Strong was the head of the same company that Canaly’s hungry visitor worked for. And if the massive water-export plan went through, there was a very good chance that the project would suck the valley’s farms and streams dry. Gosar was angry.

“Let’s go get these guys,” he told Canaly.

That was all she needed to hear. Within a few weeks, she and Gosar had formed a group called Citizens for San Luis Valley Water. Then, by happenstance, she met David Robbins, an attorney for the district that supplies water to local farmers.

“He’s this imposing, brilliant guy with a huge handlebar mustache,” says Canaly. “He told me they were already planning a lawsuit to stop the project. I asked him how he felt about citizens’ groups. He looked at me and said, ‘I love citizens’ groups.’”

More Rio Grande River Basin coverage here.

Las Vegas: ABA 31st Annual Water Law Conference June 5-7

31st Annual Water Law Conference from @abaenvlaw June 5-7 in Las Vegas americanbar.org/calendar/2013/…

— Water Law (@waterlaws) May 7, 2013

Upper Ark District board meeting recap: All district reservoirs are full, except DeWeese (89%) — Jord Gertson #COdrought

From The Mountain Mail (Joe Stone):

Recent weather patterns in the Upper Arkansas River Valley precipitated discussion of snowpack and water supplies during the Thursday meeting of the Upper Arkansas Water Conservancy District. District hydrologist Jord Gertson reported that all district reservoirs are full, except for DeWeese Reservoir in Custer County, which is at 89 percent of capacity.

Gertson presented Natural Resources Conservation Service data compiled May 1 that show Upper Arkansas River Basin snowpack at 93 percent of average and 287 percent of 2012 snowpack levels. Gertson said Snowpack Telemetry sites at Fremont Pass and Brumley show the snow water equivalent at 101 percent and 109 percent of median, respectively. The Fremont Pass SNOTEL site also reports precipitation at 106 percent of average for the current water year, which began Oct. 1. Gertson also showed snowpack charts indicating measurements at upper basin SNOTEL sites are “way better than last year,” including sites at Porphyry Creek, Independence Pass and St. Elmo.

District directors also reported good news about the Frying Pan-Arkansas Project, which is expected to import 47,000 acre-feet of water from the Western Slope this year, compared to 14,000 acre-feet in 2012. Diversions of Fry-Ark Project water into the Arkansas Basin average approximately 52,000 acre-feet of water per year. In 2011, the project imported 98,000 acre-feet of Western Slope water, the second highest amount in the project’s 50-year history of operations.

In other business, directors heard a legislative report from consultant Ken Baker. Baker’s report mainly focused on House Bill 1130, which, he said, targets Arkansas Basin water and is expected to be signed by the governor.

Baker said HB 1130 would create a “selective application” of a 130-year-old Colorado water law. The bill would create the potential for 30 years of interruptible-supply agreements that are currently limited to a maximum of 10 years. The state engineer would have authority to approve these agreements, changing the use of the water and bypassing Water Court proceedings that are currently required to change the use of a water right. Baker said the bill mainly benefits Aurora, allowing the city to take Arkansas Basin water without having to pursue a change-of-use case in Water Court.

To gain the votes needed to pass the bill, Baker said a special exclusion was added that exempts Western Slope water.

In other business, Upper Ark directors:

Approved a modification to a Nestlé Waters North America augmentation agreement for 200 acre-feet of Fry-Ark Project water per year for 35 years.

Agreed to stipulate out of Poncha Springs case 09CW138, subject to favorable review of the stipulations by district engineer Ivan Walter.

Approved an agreement with law firm Wilderson, Lock and Hill to provide legal counsel for a flat fee of $2,000 per month.

Received an update on an integrated water agreement with Buena Vista.

Approved a cooperative water agreement with Colorado Parks and Wildlife.

Learned that the gate wheel at O’Haver Lake has been replaced after the old one was damaged by a vehicle.

Received an update on the Trout Creek Ditch exchange case, 08CW106, which is scheduled to go to trial June 11 if the Department of Corrections, division engineer and Colorado Water Conservation Board do not agree to proposed stipulations.

From The Mountain Mail (Joe Stone):

Upper Arkansas Water Conservancy District directors heard a report about the potential for underground water storage in Chaffee County during their Thursday meeting. Tammy Ivahnenko and Ken Watts with the U.S. Geological Survey said areas identified for further study include aquifers near Salida, Nathrop, Johnson Village, Buena Vista and north of Buena Vista.

Watts said the locations were identified based on slope (less than 3 percent), soil texture at a depth of 5 feet (loam, sandy loam or gravel preferred) and surface geology (alluvial or gravel deposits).

Another important factor, Watts said, is the “stream-accretion response time factor,” which provides an indication of how long water will stay in an aquifer before draining into a stream.

Ivahnenko described “water budgets” she developed for Cottonwood, Chalk and Browns creeks and the South Arkansas River.
The water budgets include irrigated acres, consumptive use by crops and amount of water diverted for irrigation, and help determine how much water may be available for storage at a given time.

Watts said he conducted “slug tests” at 29 wells to determine hydraulic properties in the aquifers, including conductivity and permeability. He also reported on findings from Colorado State University monitoring wells. Hourly readings from the monitoring wells documented seasonal changes in water level and temperature, showing seasonal changes in groundwater levels and surface-water infiltration.

Some wells showed significant influence from surface irrigation while others indicated a more stable, natural water level.
Upper Arkansas Water Conservancy District officials are developing plans to increase water storage capacity in the Upper Arkansas River basin. An important component of those plans is underground storage in alluvial aquifers, which would eliminate evaporative water losses and provide augmentation water through natural recharge to surface waters.

Conservancy district officials said they will rely on USGS findings to help determine possible locations for underground water storage projects.

More Upper Arkansas Water Conservancy District coverage here.

CWCB instream flow program scores water rights for the Upper Colorado River #ColoradoRiver

Here’s the release the Upper Colorado River Wild and Scenic Stakeholder Group and the Colorado Water Conservation Board (Rob Buirgy/Linda Bassi):

A broad-based stakeholder effort to protect the Colorado River received a boost last month when a state court granted water rights designed to keep flows in the river, creating three important instream flow water rights.

“The CWCB is very pleased that the stakeholder group worked through the state’s Instream Flow Program to protect this important reach of the Colorado River,” said Linda Bassi, Stream and Lake Protection Section Chief, Colorado Water Conservation Board. “This is a great example of how our Program can provide regulatory certainty to water users along with preservation of the natural environment.”

The year-round water rights range in flows from 500 to 900 cubic feet per second and will include about 70 miles of the Colorado River from the Blue River near Kremmling to the Eagle River. These rights were decreed to the Colorado Water Conservation Board, the only entity allowed to appropriate instream flow water rights for habitat benefits in Colorado. The decreed amounts reflect minimum flows necessary to “preserve the natural environment to a reasonable degree” – as provided by state law. In this case, the flows are designed to protect fish species, particularly trout.

“This is good news for a stretch of the river that is beloved by generations of anglers,” said Mely Whiting, counsel for Trout Unlimited. “It’s an example of what can be accomplished when working together.”

The 2011 priority date means these instream flow rights will have to be satisfied before water rights filed in later years can take their water.

The Colorado Water Conservation Board filed for the water rights in state water court at the request of the Upper Colorado River Wild and Scenic Stakeholder Group, a diverse group representing key interests, including Front Range water providers, Western Slope governments, affected landowners, conservation groups and recreation interests. The stakeholders have developed a local management plan designed to balance protection of the outstanding values within this segment of the Colorado River with water supply needs. The plan is awaiting approval by the Bureau of Land Management and the U.S. Forest Service.

Issuance of the water rights to protect river flows is a key component of the plan. “We are grateful for the support we receive from all our agency participants, especially the Colorado Water Conservation

Board, and for the concerted efforts of all our stakeholders who worked to bring this vision into reality,” said Rob Buirgy, Project Manager for the Upper CO River Wild & Scenic Alternative Stakeholder Group. “These decrees are an important new tool for us in maintaining the fishing and boating values on this stretch of the river.”

The Upper Colorado River Wild and Scenic Stakeholder Group is composed of American Whitewater, Aurora Water, Blue Valley Ranch, Colorado River Outfitters Association, Colorado River Water Conservation District, Colorado Springs Utilities, Denver Water, Eagle County, Eagle Park Reservoir Company, Eagle River Water and Sanitation District, Grand County, Middle Park Water Conservancy District, Municipal Subdistrict, Northern Colorado Water Conservancy District, Northwest Colorado Council of Governments, Summit County, The Wilderness Society, Trout Unlimited, Upper Eagle Regional Water Authority, Vail Associates, Inc.

More Colorado River Basin coverage here.

2013 Colorado legislation: Graywater bill may make it to Governor Hickenlooper’s desk this session

From the Northern Colorado Business Report (Dallas Heltzell):

Co-sponsored by Rep. Randy Fischer, D-Fort Collins, and Sen. Gail Schwartz, D-Snowmass Village, it now heads to the Senate Appropriations Committee. Lawmakers there will consider a $110,000 appropriation to fund development of gray-water standards by the state Department of Public Health and Environment…

The bill directs the Colorado Water Quality Control Commission to develop minimum statewide standards for gray-water systems and lets cities and towns decide whether to approve them.

Fischer talked with the Business Report about why the bill is needed — and why it failed last year.

Q: What first made you aware that this was an issue in Colorado? Why did you decide to introduce this bill now?

Answer: Dr. Larry Roesner at Colorado State University’s Urban Water Center first contacted me about the need for legislation to authorize use of gray water in late autumn 2010. I was somewhat familiar with gray water systems and their potential to significantly reduce municipal and industrial water consumption. However, I was unaware that Colorado was the only arid western state whose statutes did not recognize or explicitly authorize the installation and operation of gray-water systems. Roesner and his colleague Sybil Sharvelle and I worked to draft legislation and meet with a broad stakeholder group to develop support for legislation. I introduced our bill in December 2011 for consideration during the 2012 legislative session. Regrettably, HB 1003 fell victim to political considerations early in the session. I committed to continuing to work on the bill and reintroduce it in 2013. HB 1044 is the result of literally 2 1/2 years of work on the part of Roesner, Sharvelle and me.

Q: If gray water is safe and beneficial to use, why are gray-water systems illegal in Colorado?

A: Gray water derived from a properly designed and functioning system is safe for indoor use to flush toilets and for outdoor drip irrigation systems. However, current Colorado statutes do not recognize or explicitly authorize its use. The Legislature has likewise never directed the applicable regulatory agency, the Colorado Department of Public Health and Environment (CDPHE), to promulgate rules or to set minimum statewide standards for its use. The absence of authorizing legislation, CDPHE rules and statewide standards has created regulatory uncertainty. This uncertainty prevents people from choosing to install gray-water systems because of the risk that their systems could be ruled illegal. When adopted, HB 1044 will direct CDPHE to promulgate rules and standards that will resolve the current regulatory uncertainty.

Q: What do Northern Colorado and the state have to gain by passing your bill, both environmentally and economically?

A: Gray water systems are capable of conserving 25 percent to 30 percent of the indoor water consumed in a typical residence. The water savings from new residential developments using gray water could be substantial and could be a cost-effective tool for helping to meet Colorado’s water needs for the 21st century. In addition, municipal water and wastewater service providers will realize energy and treatment cost savings in the operation of drinking water and wastewater treatment plants.

Q: This is the second time you’ve introduced a bill of this nature. Why did the first one get shot down, and what is different about this bill?

A: Bills dealing with water issues almost always are assigned to the House Agriculture and Natural Resources Committee. However, last year’s gray-water bill was assigned by then-Speaker Frank McNulty to the House State Affairs Committee for its first hearing. Regrettably, the speaker’s choice of the State Affairs Committee to hear the 2012 bill indicated that he was not going to let it advance for purely political reasons. This year, the political environment for water conservations bills such as HB-1044 is greatly improved, and Roesner and I have had an additional year to continue working with stakeholders to build support for the bill.

Q: If passed, what are the next steps to implementing gray-water systems? Do you foresee any other major hurdles?

A: Upon passage of HB 1044, the CDPHE will be required to promulgate rules and minimum statewide standards for installation of systems and use of gray water. The State Plumbing Board also needs to adopt a version of the International Plumbing Code that recognizes gray-water systems and provides guidance for installers. Finally, local governments will have the choice of authorizing the use of gray water within their jurisdictional boundaries. Local jurisdictions will have to adopt ordinances or resolutions authoring the use of gray water in consultation with local health departments and water and wastewater service providers. After passage of the bill, I hope that education, outreach and public acceptance will grow with time such that gray-water systems become a routine part of new residential development and that the potential for water conservation is realized.

More graywater reclamation coverage here and here.

Durango: Ambitious restoration/construction project for the city’s whitewater park to kick off in November

From The Durango Herald (Jim Haug):

By using berms or coffer dams, sections of the river will be split into dry and wet sides to allow workers to get to the river bottom of the whitewater park, also known as Smelter Rapid, by Santa Rita Park and Durango’s wastewater-treatment plant.

Contractors then will do restoration and maintenance work, such as grouting boulders into place, as well as creating a new underwater structure to allow for gentler rapids and to accommodate beginner and intermediate ability levels.

The work is scheduled to begin in November and wrap up by next March, which also will result in a temporary diversion of the Animas River Trail to the other side of the wastewater-treatment plant and away from the river construction. This section of river trail is scheduled to get an upgrade, too, widening from 10 to 14 feet to accommodate an anticipated increase in traffic to the river.

Plans also call for a partial relocation of the equipment yard for the wastewater-treatment plant to create a more park-like setting by the river entrance. Erosion of the shoreline would be mitigated with boulders. Officials hope to create a more graded or level access to the river that would be in compliance with the Americans With Disabilities Act.

The city’s hired mastermind is Scott Shipley, a World Cup champion kayaker who also competed in three Summer Olympics and whose firm, S2O Design, also developed the hydraulic features in the whitewater course for the London Olympics. The firm currently is a consultant for the whitewater course for the 2016 Olympics in Rio de Janeiro…

Trying to place rocks strategically without knowledge of the river bottom was “always a roll of the dice,” Brennan said. “You’re not sure what the (rock) is hitting,” Brennan said. “You’re hoping it stays.” With this construction plan, “we’ll see how the rocks are touching each other. We’ll be able to put it together like a jigsaw puzzle.”[...]

The $1.3 million project is funded by a half-cent sales tax that voters approved in 2005 for parks and recreation purposes, but the project has ramifications bigger than minimizing maintenance and hopefully getting Durango “back on the map” as a destination for whitewater competitions. It fulfills a mandate of the city’s Recreational In-Channel Diversion right, which was granted by the Colorado Water Conservation Board about six years ago. “By completing the whitewater park, it gives us the right to protect the (river) forever,” said Cathy Metz, director of Parks and Recreation. “So we could never have a diversion of the Animas upstream or a dam on the Animas. It’s a big deal for our community, not only for paddling but for environmental reasons, as well.”[...]

“This is the flagship of the whitewater parks, or it was,” [Shipley] said. “It will be the flagship of whitewater parks again. So I hear from you. This is not a project we’re going to fall asleep on.”

More whitewater coverage here and here.

‘Sprawl will destroy what makes Colorado Colorado’ — Jim Lochhead

The Denver University Sturm College of Law was the location for a forum on water issues recently. Here’s a report from Ernest Luning writing for The Colorado Statesman. Click through and read the whole article. Here’s an excerpt:

Despite increasing pressures on Colorado’s fragile water supply in the coming decades, competing interests — cities, industries, agriculture, recreation and environmental groups — could all be satisfied if the state takes a smart approach to growth combined with revamping antiquated policies governing how the precious resource gets used.

That’s the conclusion shared by a panel of water experts who discussed the topic at forum on Tuesday at the University of Denver’s Sturm College of Law. The panel featured Colorado Department of Agriculture Commissioner John Salazar, Denver Water CEO Jim Lochhead and Bart Miller, who directs the water program at Western Resource Advocates. It was organized by the Denver-based law firm Brownstein Hyatt Farber Schreck and moderated by the firm’s Michelle Kales…

“Water should not be a limiting factor for growth. It’s how you use that water,” [John Salazar] said. “As long as that water’s not used consumptively, it can be used over and over and over again to infinity,” he said, pointing to the reuse of “every single molecule” of water on the space station.

Although farms and ranches use most of the state’s water, Salazar said, the equation could change in coming years as the state loses as much as 3 million acres of agricultural land over the next decade. And as urban and industrial users gobble up water rights, that could dry up an additional half million acres of agricultural land by mid-century.

“We have to make every single effort we can possibly can to make sure that we keep water on the land, farming and raising crops,” he said, noting that agriculture makes up the second-largest slice of the state’s economy.

Coloradans have to stop encouraging urban sprawl, Salazar said. “Instead of growing out, we should talk about planning our cities and growing upwards,” he said, noting that condominium dwellers, for instance, use as much as 70 percent less water than their neighbors in single-family homes surrounded by thirsty lawns…

Lochhead made a similar point later.

“If we continue the western ethic of sprawl, if we are developing quarter-acre, third-acre, half-acre lots half way out to Kansas, we will not have a sustainable environment, both environmentally, and particularly from a water-use standpoint,” Lochhead said. He added, “Sprawl will destroy what makes Colorado Colorado.”[...]

Scientists are projecting significant increases in temperature, particularly in the spring months, which could have a devastating effect on snowmelt, Miller said. Add in a future where “decreasing snowpack is the norm” and the West’s water landscape could change dramatically. “We are facing a future where Lake Powell and Lake Mead may not function the way they have,” he said.

“What climate change does is forces us to think longer-term,” Miller said after the discussion. “On top of the fact it’s more people, we have to deal with this long-term drought issue. I think it heightens the need for us to have smaller water footprints, have new developments that don’t use as much water so they won’t be impacted by drought or climate change as much. If your dependency on water is lower, you won’t be as affected by climate change.”

“Water is not only a scarce resource but it is potentially a diminishing resource if you look at the effects of a warming climate,” said Lochhead, noting that Denver Water recently hired a climate scientist to help grapple with the looming challenges…

The panelists agreed that water law needs reforming, with Lochhead — himself a former water lawyer — calling it “way more complicated than it needs to be.”

As the only panelist who isn’t a water lawyer — although his brother, former Interior Secretary Ken Salazar more than makes up for it — Salazar said that complex and expensive water law too often stymies practical solutions to water problems.

“If there was less water attorneys in the state, I think we’d get along a little better,” he said. “You can get two people in the room, and you can discuss and figure out a solution, and then one water attorney walks in the room and everything goes to hell in a hand basket.”

More infrastructure coverage here.

NSAA v. USFS: ‘In the West, state water law and the rights it protects are sacred to westerners’ — Scott Tipton

Here’s the release from US Representative Scott Tipton’s office:

Rep. Scott Tipton (CO-3) spearheaded a hearing in the House Natural Resources Subcommittee on Water and Power, [April 25, 2013], to draw attention to recent federal attempts to circumvent long-established state water law in the Western United States in order to hijack privately held water rights. With Colorado jobs and the economic health of rural communities at stake, Tipton has led the charge in Congress to protect privately held water rights in Colorado and other Western states.

Read Tipton’s opening statement.

In her testimony, Geraldine Link of the National Ski Areas Association, laid out what is at stake for Colorado’s economy should the federal government succeed in taking away privately held water rights that ski areas, communities and other businesses rely on for their livelihoods.

“Collectively, ski areas have invested hundreds of millions of dollars on water rights to support and enhance their operations…Water is crucial to future growth of ski areas and that future growth directly impacts the rural economies associated with ski areas. Ski areas are major employers in rural economies, employing 160,000 people, and help drive job creation in rural and mountain economies,” Link said. “US Forest Service (USFS) water clauses that demand transfer of ownership of ski area water rights to the United States substantially impair the value of these ski area assets…These types of water clauses provide a disincentive for ski areas to acquire more water rights in the future… If ski areas stop investing in water rights for the future, the outlook for the rural economies dependent on them would be bleak.”

Read Link’s full testimony.

The USFS is moving forward to implement a permit condition to require the transfer of privately held water rights to the federal government, without any compensation, as a permit condition on National Forest System lands. Last year, the National Ski Areas Association filed suit against the Forest Service to block implementation of the permit directive. In December 2012, the United States District Court for the District of Colorado vacated the 2012 USFS directive, and ordered the agency to pay $125,000 to cover the Ski Area Association’s legal fees.

In January 2013, the USFS announced that it intended to initiate a public comment process as it once again ramps up efforts to implement a directive that would require the transfer of privately held water rights to the federal government as a permit condition on National Forest System lands. The USFS justifies this policy as necessary in order to ensure that these water rights are not improperly sold off and used for other purposes, and to ensure that water is available for snow making and grazing.

Tipton asked Link if there has been a case of these water rights being sold or used improperly by the ski industry.

Link replied that this is a “made up issue,” and that there has been no such case. As such, she said that it’s believed that the USFS intends to use the water for other purposes, including endangered species protection, rather than for continued snowmaking and grazing as the agency has stated.

“The Agency’s most recent explanation for its policy which is, ‘saving the ski areas and the ski communities,’ is really just a cover for a longstanding objective of getting more water for the woods, for these other purposes,” Link said. “If the Agency were truly aiming to keep the water with the ski areas, why under its 2012 policy for example, which was struck down in federal court, was the Forest Service not willing to guarantee that the water would actually stay with the ski areas?”

VIDEO: Watch Tipton question the witnesses.

The implications of the USFS water grab extend past the ski area association and into the heart of rural America where farmers and ranchers rely on privately held and developed water rights to secure loans, as well as irrigate crops and livestock.

“This policy isn’t limited to ski areas. The Forest Service has also been implementing a similar requirement for grazing permits in several western states,” Tipton said. “Many of the ranchers I represent can’t afford drawn-out and costly legal battles with the Forest Service to protect what is rightfully theirs under state law.”

In addition to seeking the relinquishment of water rights through ski area permits, the USFS has begun implementing back door ways to control private water rights.

In his written testimony, Gary Derck, CEO of Durango Mountain Resort, told the committee that although the resort has been a good steward of the environment and its water rights, the Forest Service has repeatedly denied access to develop those water rights, jeopardizing those privately held rights under state law.

“A few years ago, the policies of the USFS took a distinct and concerning change of course. Local USFS officials began telling us that they were no longer in charge of making decisions relative to water rights and water access … and that direction/decisions on these matters was now coming from ‘higher up in the Forest Service,’” wrote Derck. “Apart from the obvious “taking” issue of our private water rights, we are concerned that it appears that our local USFS representatives have been directed to “stand down” and stop working collaboratively with us to help us with what we need to continue to make snow, operate/improve our business, maintain/grow our employment, and provide the recreational activities and services we currently provide for the Four Corners region and the town of Durango.”

Read Derck’s full testimony.

In response to Derck’s testimony, Tipton told the Committee, “This is nefarious and coercive, and it has to stop.”

To add to the list of federal threats to state water law, the Department of Interior recently issued Secretarial Order 3321 establishing the National Blueways System. This is a “source to mouth, watershed-wide” federal program about which little is known, and which has raised the fears of many local water conservation districts who are already doing an outstanding job of managing precious water supplies.

In February, Tipton joined 22 of his colleagues in urging Secretary Salazar to withdraw the Blueways Order, writing, “Water is the lifeblood of our communities, and it should be managed for the benefit of the community in a transparent fashion…Any designation by a federal agency that directly or indirectly attempts to manage the non-navigable headwaters of many of our nation’s rivers would be a usurpation of state authority.”

The Administration tuned-out this request and included funding in its FY2014 budget to expand the Blueways Program.

Russell Boardman, Supervisor of the Shoshone Conservation District in Frannie, Wyoming testified on the Blueways Program during the hearing.

“I would ask how a designation that requires no public notice, no comment opportunity and was created without coordination or consultation with affected landowners, local governments or states, could result in increased coordination…our district and all others in Wyoming are already coordinating with private, state and local entities and we are already promoting best practices and we are already sharing information and resources,” Boardman said. “We fail to see how a Blueways designation will enhance this. In fact, we are concerned in Wyoming that this designation will hamper these efforts by creating fear, confusion and controversy. Real conservation occurs at the grassroots level. If there is a commitment to grassroots conservation then local efforts like the ones implemented by our conservation district should be supported, rather than trumped by a Secretarial edict.”

Read Boardman’s full testimony.

“The bottom line is this: we continue to see a trend of federal intrusion into state water law which protects all of the uses we hold dear, from recreation to irrigation, domestic use and environmental protection. To undermine this system is to create risk and uncertainty for all Western water users,” Tipton said. “This isn’t a political battle, it’s a regional one. Water is the lifeblood of the West.”

From the Cortez Journal (Stephanie Dazio/Joe Hanel):

The hearing, entitled “Federal Impediments to Water Rights, Job Creation and Recreation: A Local Perspective,” did not include any witnesses from the U.S. Forest Service…

In Colorado, state law says water rights are a property right. Owners can use or sell the rights as they please, provided a water court approves of the water’s uses, the Herald previously reported.

Tipton, R-Cortez, grilled Agriculture Secretary Tom Vilsack in a March hearing about the topic, saying the struck-down directive was an attempt to circumvent state law. “The focus here is making sure that we use our forests … in the most appropriate way,” Vilsack said then. “We need to balance that with the interests of those who need the water for economic purposes,” he added, citing the ski industry.

State legislators rebelled against the practice this year and passed a resolution condemning the Forest Service for its policy.

But the Forest Service managed to scuttle a much more substantive bill, which would have changed Colorado water law to prohibit the federal government from demanding water rights in return for issuing land-use permits.

Undersecretary of Agriculture Harris Sherman, who oversees the Forest Service, personally called several state lawmakers and asked them to kill the bill. It has been sitting idle on the House calendar for two weeks, and its sponsor, Rep. Jerry Sonnenberg, R-Sterling, said he expects it to die when the yearly session ends in two weeks.

Sonnenberg has argued that the Forest Service policy takes direct aim at Colorado’s long-standing principle that water rights allow the owner to use or sell the water for any purpose anywhere in the state, as long as a court approves.

More NSAA coverage here.

2013 Colorado legislation: ‘Water law doctrine in Colorado was developed in a much simpler time’ — Jim Lochhead

From TheDenverChannel.com (Ryan Budnick):

Slowly, the state legislature has been making minor changes in water accords and laws to reflect the current needs of the state. Senate Bill 41, which was signed into law earlier in April, is an example of those minor changes that can have major ramifications.

“Water law doctrine in Colorado was developed in a much simpler time,” said Denver Water CEO Jim Lochhead. “So this law is a very small step toward simplifying what has become an overly-complex and burdensome water law system.”

As the bill’s sponsor, State Sen. Mary Hodge sees it, it was correcting an oversight. The new law designates that storing water for fighting wildfires and for drought are beneficial uses. How it is currently set up, water can not be stored unless it is for one of three purposes: irrigation, residential use and mining.

“People are concerned when you start storing water that you’re either hoarding water or you’re using it as a speculative purpose,” Hodge said.

Meaning that the resource could be monopolized and cause price gouging. That was how the state’s anti-speculation doctrine was created, said water attorney Joe Dischinger.

More 2013 Colorado legislation coverage here.

2013 Colorado legislation: HB13-1248 (Irrigation Water Leasing Municipal Pilot Projects) is backed by the CWCB

From The Pueblo Chieftain (Chris Woodka):

The Colorado Water Conservation Board wants to develop strategies that would allow temporary transfers of water from farms to cities that allow farmers to maintain ownership of water rights, staffer Todd Doherty told the Arkansas River Basin Water Forum this week.

“Programs are being set up to reduce the costs of transactions to lease water,” he said. Much of that cost is legal fees by taking cases to water court, but some want to determine how to avoid injury to water rights without going to court.

The CWCB is backing legislation, [HB13-1248], to set up 10 pilot programs in Colorado to explore alternative transfer options under the supervision of the CWCB. The bill passed the House and is now moving in the Senate. The bill allows water to be leased by farmers to cities three years in 10 through rotational fallowing through programs such as the Arkansas Valley Super Ditch. The goal of the programs, along with other efforts already undertaken by the CWCB, is to streamline engineering questions to make sure engineering is correct while other water rights are not injured, Doherty said.

Among the current efforts is a cooperative project among the CWCB, the Lower Arkansas Valley Water Conservancy District and farmers Wes and Brenda Herman on the High Line Canal. The idea is to use a conservation easement to ensure water stays in farming, but allows temporary leases to cities.

More 2013 Colorado legislation coverage here.

Will Tarrant Regional Water District v. Herrmann be the beginning of the end for river compacts? (probably not)

From the Associated Press (Mark Sherman) via the Washintgon Post:

The Supreme Court appeared skeptical Tuesday of a claim by Texas that it has a right under a 30-year-old agreement to cross the border with Oklahoma for water to serve the fast-growing Fort Worth area. The justices heard arguments in a dispute over access to southeastern Oklahoma tributaries of the Red River that separates Oklahoma and Texas. The Tarrant Regional Water District serving an 11-county area in north-central Texas including Fort Worth and Arlington wants to buy 150 billion gallons of water and says the four-state Red River Compact gives it the right to do so. Arkansas and Louisiana are the other participating states and they are siding with Oklahoma.

Several justices pointed to the absence of an explicit approval for cross-border water sales in the agreement. “This clause, the one that you rely on, is kind of sketchy, isn’t it? Doesn’t say how they’re going to get it, if they’re going to pay for it. There’s a lot to be filled in,” Justice Ruth Bader Ginsburg said to Charles Rothfeld, the lawyer representing the Texas district.

To the contrary, Rothfeld said, “it is quite clear” that the four states have equal rights to the water in the stretch of the Red River at issue before the Supreme Court.

Justice Samuel Alito called Texas’ aggressive language “very striking. I mean, it sounds like they are going to send in the National Guard or the Texas Rangers.”

Rothfeld sought to assure Alito on that point. “Oklahoma’s brief suggests that the Texas Rangers are going to descend on Tulsa and seize the water. That is not what is contemplated,” Rothfeld said…

…the water district’s plans have been blocked by Oklahoma laws that govern the use of water within its borders, including a moratorium on out-of-state water sales. Lisa Blatt, Oklahoma’s lawyer, took issue with virtually every aspect of the district’s argument, including the claim that water drawn directly from the river is too salty…

Lower courts have ruled for Oklahoma, including the Denver-based 10th U.S. Circuit Court of Appeals. It found that the Red River Compact protects Oklahoma’s water statutes from the legal challenge.

Legislation adopted by the Oklahoma Legislature in 2009 said no out-of-state water permit can prevent Oklahoma from meeting its obligations under compacts with other states. It also requires the Water Resources Board to consider in-state water shortages or needs when considering applications for out-of-state water sales.

The Obama administration is backing the Texas district at the Supreme Court, saying Oklahoma may not categorically prohibit Texas water users from obtaining water in Oklahoma. But the administration takes no position on whether the Texans ultimately should get the water they are seeking in this case.

A decision is expected by late June.

From the Deseret News (Amy Joi O’Donoghue):

Utah joined six other states that weighed in together on the Tarrant Regional Water District vs Hermann case that pits the water supplier for much of the Fort Worth-Dallas area against the state of Oklahoma. At issue is an interstate compact governing the division of excess runoff water that is to be shared equally by four states: Oklahoma, Arkansas, Texas and Louisiana…

The Texas district wants to dip into its share of Red River water by taking its fourth of the flow in Oklahoma. Oklahoma has responded that the district has no authority or right to cross the border to meet Texas water needs.

Oklahoma lawmakers, acting to protect their water resources, passed a moratorium on any water exports from the state, unless those exports have their express approval.

[Tim Bishop, an attorney representing the water district] said the state’s actions fly in the face of the compact’s provisions, shunning a congressionally mandated binding agreement…

The legal team points to areas like Denver and the Salt Lake City metro area as regions that depend on water supplies governed by interstate compacts — such as the Colorado River compact of 1922 that allocates that water among seven recipient basin states, including Utah. But Utah actually joined with Colorado, Idaho, Nevada, New Mexico, Indiana and Michigan in urging the high court to refrain from unraveling the 10th Circuit decision. “We have a very strong interest” that Oklahoma’s position be upheld, said Norm Johnson, the natural resources attorney for the Utah Attorney General’s Office. “A compact does not equal permission to disregard the water laws of equal sovereign (states).”

Johnson said it should be telling that both lower courts have sided with Oklahoma and respected the right of states to govern what happens to the water within their boundaries.

From Circle of Blue (Brett Walton):

At the heart of the lawsuit is whether the language of the Red River Compact — signed in 1978 by the basin states of Arkansas, Louisiana, Oklahoma, and Texas, and ratified two years later by Congress — gives entities in Texas the right to water that originates in a particular river basin in Oklahoma…

Tarrant’s legal team argues that if the Supreme Court upholds the federal appeals court ruling, which supported Oklahoma’s restrictions on out-of-state water sales, the justices would throw existing water compacts into chaos and would encourage protectionist policies from states wanting to guard water resources on their soil. The problem is that almost no one outside of Texas shares that view…

Tarrant has not found much sympathy in this case. Nearly all of the amicus briefs — filings from parties interested in the outcome but not directly involved — have sided with Oklahoma. Arkansas and Louisiana, the two other states bound by the Red River Compact, filed on behalf of Oklahoma, as did a group of water law professors and a pair of water districts in Colorado that draw from interstate rivers. Even states that are part of other interstate compacts — a diverse group including Colorado, Idaho, Indiana, Michigan, Nevada, New Mexico, and Utah — share Oklahoma’s position.

Seemingly the only groups supporting Tarrant are Texas-based organizations and the city of Hugo, Oklahoma, which would like to sell water to Texas. The U.S. Solicitor General also backs Texas.

Mark Davis, director of the Tulane Institute on Water Resources Law and Policy in New Orleans, told Circle of Blue that this case is mostly a compact issue and is not about the Commerce Clause.

“If you have water, you read the compact one way. If you don’t, you read it another,” said Davis, who co-signed an amicus brief supporting the Tenth Circuit’s ruling in favor of Oklahoma. “The fact that Texas has a growing need for water means it’s going to read as many rights into the compact as it can.”

Arkansas and Louisiana, in their amicus brief, wrote that the provision about the equal rights in sub-basin 5 “simply does not constitute a clear expression by the signatory states or Congress that this one phrase was added for the purpose of overriding the regulatory authority of the States over intrastate waters that was otherwise maintained throughout the Compact.”

The compact also makes clear that the states have the power to regulate water within their boundaries. And Arkansas and Louisiana — two wet states that use riparian law that differs from the rights-based system in the American West — have different legal traditions for water than their fellow Red River states.

“States have a paramount sovereign interest in their own water.” academics’ amicus brief in Tarrant case: j.mp/14O5DXa (pdf)

— jfleck (@jfleck) April 24, 2013

More water law coverage here.

‘We should be encouraging density’ — Jim Lochhead

From The Greeley Tribune (Eric Brown):

Reforming laws to provide more flexibility in how water is used and shared in Colorado will be critical in meeting demands as the state’s population rapidly grows, according to agriculture, environmental and municipal water experts who spoke Tuesday in Denver. Colorado Agriculture Commissioner John Salazar, Western Resources Advocates Director Bart Miller and Denver Water CEO and Manager Jim Lochhead said the complexity of Colorado water law and the immense court costs associated with it have deterred some users from sharing the resource and taking other measures that would improve efficiencies. That needs to change, they told an audience at the University of Denver’s Sturm School of Law.

Other aspects of the state’s water law — like its “use it or lose it” language, which discourages conservation, Miller said — must be altered if Colorado is going to maximize its beneficial use of the resource and meet its rapidly growing demands.

According to the Colorado Water Conservation Board’s Statewide Water Supply Initiative Study in 2010, the state could need as much as 630,000 acre feet of water annually (or 205.4 gallons) to meet the demands it will have by 2050.

Along with more flexibility in water laws, the trio of experts said urban areas need to grow within their existing boundaries, instead of sprawling outward, which takes up more arable land and forces municipal water providers to expand water infrastructure. Salazar said group housing can save anywhere from 40-70 percent in water consumption compared to individual homes. “We should be encouraging density,” said Lochhead, explaining that Denver’s current population density is about 4,000 people per square mile — much less than other major U.S. cities, particularly New York City, which has a population density of 27,000 people per square mile.

Across the board, the trio of experts said, Colorado residents, who consume 121 gallons of water per day, need to more closely resemble residents in countries such as Australia, who only consume 36 gallons of water per day.

Cities using less water will be critical in keeping water on the state’s farms and ranches, Salazar said, and also in protecting Colorado’s wildlife and recreation industries, which generate 80,000 jobs in the state and $6.4 billion in spending annually, Miller added.

Of the state’s eight major river basins, the Colorado River is most at risk, they said. According to stats shared by Miller, the Colorado River’s water demands began exceeding its supply in the mid 1990s. Weld County and much of the northern Front Range divert much of their water from the Colorado River basin.

More water law coverage here

South Platte Basin: The lack of augmentation water sources will keep some farmland out of production this year

From The Greeley Tribune (Eric Brown):

Weld County is still home to potato festivals and dotted with spuds-growing artifacts, but the local tater industry has little to contribute anymore to the area’s vast legacy. A shell of what it once was, Weld’s potato acreage took another hit this year as the last large-scale grower of the crop — Strohauer Farms in LaSalle — plans to raise half of its potatoes outside of the state, citing water issues as the reason for doing so. The Potato Day Festival for about 25 years has been a staple of autumn activities in Greeley — a community where the potato is credited as being the first commercially viable crop locally grown. But since 1987, Weld County has gone from growing 3,855 acres of potatoes on 66 farms to what’s expected to be about 550 acres this year, grown by just two farmers.

Harry Strohauer — owner of Strohauer Farms, which grows nearly all of the remaining potatoes in Weld County — and others point the finger at water issues to explain why spuds production has decreased so sharply. Strohauer said he’d rather keep his crops growing near LaSalle — the only place his family has farmed since coming here in the 1940s — than in New Mexico, where he’ll plant 500 of his 1,000 total potato acres this year. The climate along the northern Front Range and his soil close to home are ideal for growing the crop, and Weld’s proximity to large markets (the Denver metro area) and the infrastructure (Interstate 25, U.S. 34 and U.S. 85) add to the local benefits. “But the truth is, with how we manage things in this state, we just don’t have a reliable source of water anymore,” said Strohauer, who’s an executive committee member for the National Potato Council and has spearheaded Strohauer Farms since he was 16 years old, following his father’s death.

As the region’s population has grown, so have the overall demands for water.

The tightening of water supplies and the uncertainty of the resource in dry years has become too much for some farmers, including potato growers, who stress that potatoes are an “unforgiving” crop if not fully irrigated — especially if you’re trying to meet the standards of King Soopers, Whole Foods and others, as Strohauer is.

But making life particularly difficult now, Strohauer says, is the inability to pump groundwater wells. In the mid-2000s, augmentation requirements were made more stringent in Colorado. Augmentation water is required to make up for depletions to the aquifer. Over time, pumping water out of the aquifer depletes surface flows in the basin needed by senior, surface water users.

Prior to the state’s rule changes in the mid-2000s, farmers were only augmenting for about 10 percent of the water they pumped out of the ground, according to some estimations. During the severe drought of 2002, surface flows were meager and some senior surface water users said well-pumpers were taking too much out of the aquifer and not putting enough back in. In the end, the state’s augmentation requirements were changed, and owners of certain groundwater wells — wells considered “tributary” to stream flows — now have to augment as much as 100 percent for the water they pump out of the ground. Strohauer said now, with those changes in place, it would cost tens of millions of dollars to own enough augmentation water and take other measures needed to get all of his wells pumping again at full capacity. Like Strohauer, many other area farmers haven’t been able to get their wells fully pumping again, or at all in some cases.

Strohauer said he isn’t exaggerating when he claims it’s easier to haul his farm equipment and fly to and from his new farmground in New Mexico than it is to grow potatoes near his Weld County home and deal with some of the water rules in Colorado. In New Mexico, Strohauer has no augmentation requirements. He can pump as much water out of the ground as needed without having to make up for his depletions. But he doesn’t at all believe that’s the best way to manage groundwater either, he added. “I’m not against augmentation, by any means,” stresses Strohauer, who, in addition to his groundwater wells, owns senior surface water rights. In many years, though, that surface water isn’t enough to fully irrigate his potato acres, and the groundwater wells are needed to provide immediate, supplemental relief in dry times. “I agree that we need to be augmenting more than we once were. But I think things have swung way too far the other way.”

Like others in the LaSalle and Gilcrest area, Strohauer has seen his basement flood from high groundwater levels in recent years. High groundwater has also flooded fields, causing some crops — including some of Strohauer’s potatoes — to rot. Strohauer and others believe the high groundwater levels have been caused by “overaugmenting” the aquifer since Colorado changed its rules in the mid-2000s, while others believe it stems from the wet years of 2010 and 2011, among other issues.

Complaints of high groundwater levels and the inability to pump wells led to a legislative push last year for a comprehensive study of groundwater activity in the South Platte River basin — a study that’s under way now by the Colorado Water Institute and is expected to be complete by the end of the year.

“Maybe this study will show us something new,” said John Stulp, Gov. John Hickenlooper’s adviser on water, noting that other efforts — including similar groundwater studies and water-cooperative pilot projects — are under way in Colorado. “There’s no doubt ag across the state faces water challenges. We live in a semi-arid region.

“We need to get to a point where we’re making the most beneficial use of what limited water we have, and we’re going a lot of different routes to get there.” Until that happens, Strohauer is considering planting more acres elsewhere, he said.

Water issues have affected other farmers in Weld County.

Sakata Farms in Brighton, which grows crops across southern Weld County, has reduced its acreage from 4,000 to 2,500 in the past four years, and brought commercial broccoli growing to an end in Colorado when it stopped production of that crop a couple years ago. Bob Sakata, owner of Sakata Farms, has said water uncertainty is the main reason for cutting back on production.

“You just hate to see this happen, but we have to grow somewhere,” said Strohauer, explaining that it’s taken him years to develop his contracts to sell potatoes to large grocers, and those contracts could come to an end if he falls short on production just one year. “We want to stay to here. I don’t want to see potato acres keep disappearing in Weld County. But it’s getting harder to stay here.”

More from the Tribune:

Jim Ehrlich, executive director of the Colorado Potato Administrative Council in Monte Vista, said shortages have had a major impact on growers in the San Luis Valley in southern Colorado, where more than 90 percent of the state’s potatoes are grown. Since the Colorado drought of 2002, the southern part of the state has had little relief, and because of that, restrictions on groundwater-pumping have been put in place and potato acreage has decreased significantly.

In 2002, Colorado altogether was planting about 77,800 acres of potatoes, but is only expected to plant about 53,000 acres this year, largely due to tight water supplies in the San Luis Valley, Ehrlich said. The state’s potato production from 2002 to 2011 steadily dropped from about 3 billion pounds to 2.3 billion pounds — about a 25 percent decrease.

More South Platte River Basin coverage here and here.

The NSAA offers a fresh start in negotiations with the USFS over water rights ownership

From the Summit County Citizens Voice (Bob Berwyn):

“Our new approach assumes that all previous water clauses are no longer in effect, null and void, and unenforceable. It would result in a consistent water policy across the board going forward,” said NSAA policy director Geraldine Link. The ski industry comments came as the Forest Service held a series of hearings around the West in the early stages of developing a new water rights clause that eventually will become part of agency permits for businesses operating on public lands…

For the ski industry, its partially a financial issue. Resorts have spent millions of dollars developing and perfecting water rights under state law, and to the NSAA, any permit language requiring a transfer of those rights is unacceptable and illegal.
A required transfer would impair the value of the resorts’ investments and could hinder their ability to finance capital improvements, the NSAA wrote.

From The Grand Junction Daily Sentinel (Gary Harmon):

The U.S. Forest Service will pay $125,000 to the National Ski Area Association for its attorney fees in a case the association brought to stop the agency from demanding new water rights. U.S. District Judge William Martinez approved an agreement between the agency and association after the ski areas sought $163,000 in attorney fees for the case, according to court papers.

The agreement to pay attorney fees drew a scathing response from U.S. Rep. Scott Tipton, R-Colo., who said that $125,000 is “a lot of money, especially when it’s at taxpayer expense and at a time when the Forest Service should be dedicating as many resources as possible to addressing the hazardous conditions of our forests to prevent wildfire.”

The ski areas sought attorney’s fees under a federal law that requires the Forest Service to pay attorney’s fees if a judge “concludes the Forest Service’s position was not substantially justified,” Geraldine Link, the attorney for the National Ski Area Association, said in an email.

The association filed suit last year after the Forest Service required the new ownership at Powderhorn Mountain Resort to surrender new water rights to the agency in exchange for a permit to operate the ski area on national forest lands.

Although the agreement includes a provision in which the Forest Service admits no allegations, Link said the deal makes it clear “that taxpayer dollars are being used in defense of an unlawful federal water grab.”

Martinez rejected the ski-area water rights directive after finding that the Forest Service had failed to meet public-participation requirements in drafting it.

If the Forest Service moves forward on the directive, “the costs will be even greater to the businesses, farmers, ranchers and communities that rely on these water rights for their livelihoods,” Tipton said.

The Forest Service conducted the first of several focus-group open houses nationwide on Tuesday in Denver. Officials anticipate publishing a draft directive later this year in the Federal Register, then conducting a public-comment process before adopting a new directive.

Concern about the consequences of such a policy extends beyond the ski industry. “We’re very concerned about the implications of such a clause targeted to one industry because if it’s successful and because it’s outside Colorado water law, could the U.S. government demand similar rights of agriculture, municipal water users, anyone who develops a water right that originates on public land?” said Bonnie Petersen, executive director of Club 20, a Western Slope advocacy organization.

More water law coverage here.

Lawsuit over Red River Compact and Oklahoma water law could impact river compacts across the U.S.

From NPR (Joe Wertz):

The [U.S. Supreme Court] will hear oral arguments [Tuesday] in the case of Tarrant Regional Water District v. Herrmann, et al. The case pits Oklahoma against Texas over rights to water from the river that forms part of the border between them. Depending on how the court decides, it could impact interstate water-sharing agreements across the country…

The future looks bright for this part of Texas, but it also looks dry. Drought has hit Texas particularly hard over the past couple of years. Water officials say the north Texas region’s growth is outpacing the water supply nearby.

“All of the locations — watershed locations — close by have been tapped for us,” says Linda Christie, government relations director for the Tarrant Regional Water District. The district is the water authority for an 11-county stretch of north Texas that includes Ft.Worth. “So now we’re going to have to go 200, 300 miles. And most of it would be water that is being pumped uphill.”

The Red River, less than 75 miles from Fort Worth, seems like an ideal solution to the Tarrant Water District’s problem. Fed by the Rocky Mountain snow pack, the river runs southeast on its way to the Gulf of Mexico.

Texas and Oklahoma already have a formal agreement on how to share water from the Red River. In 1980, Congress ratified the Red River Compact, giving the two states — along with Arkansas and Louisiana — an equitable apportionment of water from the river and its tributaries.

But what’s “equitable” is arguable. And that’s what the Supreme Court case is all about.

The Red River lies entirely within the state of Oklahoma. Texas argues that it can’t get its share of the Red River watershed from the Texas side of the river, so it needs to reach across the river into southeastern Oklahoma to get it…

Texas has tried to buy Oklahoma water from the state, its cities and towns, and its Native American tribes. But Oklahoma lawmakers have blocked those efforts with a string of laws restricting out-of-state water exports.

The view in Texas is that Oklahoma isn’t even using its full allocation of Red River water. Oklahomans respond that Texas hasn’t gotten serious enough about conservation.

In 2007 — citing the compact — the Tarrant District sought permission from Oklahoma regulators to tap the Kiamichi River, a Red River tributary located entirely within Oklahoma. Oklahoma said no, arguing that the compact does not supersede the state’s own authority over a water resource within its borders. The dispute has been in court ever since.

The lower courts have agreed with Oklahoma so far. But Christie says the Tarrant Water District is encouraged by the Supreme Court’s decision to hear the case. And the Obama administration has sided with Texas, too. In a friend-of-the-court brief, the U.S. solicitor general worried about the impact to North Texas’ population growth, and argued that the 10th Circuit Court of Appeals improperly assumed Oklahoma’s laws preempt the Red River Compact’s authority.

State and local policymakers and water authorities throughout the country are closely watching the outcome of the case, says Stephen Draper, a water expert who helped write guidelines for interstate water sharing for the American Society of Civil Engineers. Here’s why: The Red River Compact contains a lot of the same boilerplate language used in other state-to-state water sharing agreements.

If Oklahoma’s protectionist water laws are upheld, Draper says other states could be inspired to pass similar laws of their own.

More water law coverage here.

2013 Colorado legislation: HB13-1130, sans the thirty year term, passes the Senate Ag committee #COleg

From The Pueblo Chieftain (Chris Woodka):

A watered-down version of a controversial bill that would expand state authority to approve water leases is making its way through the Legislature. The legislation, HB1130, was approved this week by the Senate agriculture committee. It would alter the state’s interruptible water supply statute. The statute now allows temporary transfers of water from farms to cities with approval from the state engineer for three years in a 10-year period.

Aurora, supported by farmers on the High Line Canal, is backing the legislation. Aurora leased water from the High Line Canal in 2004-05. Numerous water interests, particularly in the South Platte basin, opposed the original legislation as an end-run around water court. Originally, the bill allowed the state Division of Water Resources to approve water transfers for up to 30 years without going to water court.

The legislation, as amended by the ag committee, now limits renewal to just one 10-year period, and only in the Lower Arkansas Valley (water districts 14, 17 and 67 in water division 2). Aurora argued for two renewal periods in order to give cities more certainty of supply.

The bill also strengthens water court appeals and state engineer notification procedures, while giving opponents 126 days, rather than 30, to respond to notifications.

The bill also prohibits transfer of water across the Continental Divide, at the request of Sen. Gail Schwartz, D-Snowmass Village, who chairs the Senate ag committee. It does not prohibit transfers from the Rio Grande or Arkansas River basins using interruptible supply.

The bill was sent to the Senate floor on Wednesday, and could be approved by the Senate as soon as Monday. The House would then have to reconsider the legislation, since substantial changes were made.

More 2013 Colorado legislation coverage here.

NSAA vs. USFS: ‘There is a fundamental difference of opinion that will be hard to overcome’ — Jim Pena

From The Denver Post (Jason Blevins):

The Forest Service on this week launched the first of several public meetings and forums as it outlines a contentious push to secure water rights used by ski areas on public land. “There is a fundamental difference of opinion that will be hard to overcome,” said Jim Pena, the Forest Service’s acting deputy chief, acknowledging ski area opposition to the agency plan to revamp permits with new regulations addressing the ownership of water rights.

The public meeting on Tuesday was sparsely attended at the Forest Service headquarters in Lakewood. Ski area officials huddled together while leading agency officials — the landlords of 122 U.S. ski areas, including 22 in Colorado — stood ready to answer questions that didn’t come.

It’s a complex issue, as is any that deals with Colorado’s byzantine water right laws. And probably not something that stirs the public. But for ski areas, the Forest Service push to secure water rights owned by resorts operating on public land is a critical issue.

The National Ski Areas Association, which successfully sued to overturn early versions of the water clause, met with the agency before the public hearing and offered two options that would deflect the Forest Service need to take ownership of water rights used on public land. (That invite-only forum is one of several the agency is holding with resort communities, ranchers, conservation groups and other stakeholders as it scripts the new ski area permit water clause.)

The association’s options would require ski areas to prove sufficient water is available for every new project and any ski area sale would include options to sell ski-operation water rights to the buyer, the local community or the Forest Service. “We are excited about having ideas and offering something new,” said the association’s public policy director Geraldine Link, who led the industry’s lawsuit to overturn the water clause. “We are staying let’s start over. We think there is a way to address Forest Service concerns without the seizure of assets.”[...]

Pena said federal ownership may not be the only answer, hence the public meetings. The agency owns roughly 21 percent of the country’s ski area water rights, shares ownership of 4 percent and the remaining 75 percent is owned by ski area operators. Regulations that require water rights remain connected to public lands would prevent ski area operators from selling water rights as a commodity that eventually may be worth more than skiing.
“Without long-term assurances for water, we feel we could be the public’s interest at risk,” he said. “The whole idea of sustainability is about preserving resources for future generations. We are seeing more of the ski industry being managed by corporate interests. They are no longer mom-and-pop operations. We have to be prepared for people making different business decisions than what is best for the public.”[...]

Davey Pitcher, the owner of southern Colorado’s Wolf Creek ski area, allowed the Forest Service to share ownership of his water rights when he renewed his permit in 2000.
“We don’t see a problem with,” Pitcher said, noting how the agency allows intensive ski infrastructure on public land, like trails and chairlifts, so it makes sense for the Forest Service to want to protect the water needed for skiing. “We see it as a reasonable request.”

More water law coverage here.

USFS to hold a series of public meetings after NSAA lawsuit victory last December

From The Grand Junction Daily Sentinel (Dennis Webb):

The U.S. Forest Service is turning to focus groups to help it deal with a water-rights directive that landed the agency a slapdown in federal court. Forest Service officials are to conduct focus-group discussions Tuesday about the clause, which they hope to publish in August and then begin the process of collecting public comment in preparation for adoption by February.

The process being undertaken is “bizarre beyond belief,” said Glenn Porzak, a Colorado water lawyer who represents the National Ski Area Association, which took the Forest Service to court last year to stop enforcement of the directive. “I’ve never seen anything like this.”

It’s not a new approach, Forest Service spokeswoman Tiffany Holloway said. “Listening group sessions are just one of the ways that we engage the public in our decision-making,” she said.

The Forest Service was rebuffed by federal court in Denver when it demanded that the new ownership of Powderhorn Mountain Resort turn over new water rights in order to obtain a lease to operate the ski area in the Grand Mesa National Forest.

Powderhorn was the first resort in the nation to be subject to the directive. The court later found that the Forest Service had fallen short of public-involvement requirements in implementing the directive. Ski resorts, environmental organizations, community organizations and representatives of natural-resource industries are invited, each to their own listening session, the Forest Service said.

Ski areas are to be represented at a meeting Tuesday in Denver. Other meetings are scheduled in Salt Lake City; Lake Tahoe, Nev.; and Washington, D.C. “The sessions will focus primarily on the principal rationale underlying the ski area water rights clause: ensuring that sufficient water remains available to support ski areas and dependent communities,” Leslie A. Weldon, deputy chief of the National Forest system, wrote to participants. Officials have said the policy is needed to prevent ski areas from selling water rights to other users should they have more value than for snowmaking.

Since the policy was invoked with Powderhorn, municipal water providers, grazers and other industries and organizations that use federal lands have been told they could be subject to the same requirements. “We’re disappointed we haven’t been invited to participate” in the listening session, said Mark Hermundstad, the Grand Junction water attorney who represents the Ute Water Conservancy District. Ute Water filed an amicus brief in the Powderhorn case that “raised serious issues about how the Forest Service rules could be applied,” but won’t be allowed to direct them to the Forest Service listening process, Hermundstad said.

The Forest Service has “kind of awakened a sleeping dog” by extending the policy beyond ski areas, Porzak said. Municipalities and other users “are now focused on this issue,” he said. While the sessions are open to the public, “The intent is to have people of like interests/expertise to be able to have conversations with people of similar interests,” Holloway said. “We will not turn people away from any meeting but will ask that they allow the invitees to have a free conversation.”

U.S. Rep. Scott Tipton, R-Colo., whose 3rd Congressional District includes several ski areas, grazers, municipal water suppliers and others, said he was disappointed the Forest Service was conducting meetings far from where the effects of the policy will be most heavily felt. “When are they going to talk to the people who stand to be affected by this effort to trample all over state water law?” Tipton said via a spokesman.

More NSAA coverage here.

Denver: USFS to hold a series of public meetings after NSAA lawsuit victory last December

Forest Service holds public meetings on ski area water rights wp.me/pJ91e-dYO

— Bob Berwyn (@bberwyn) April 14, 2013

From the Summit County Citizens Voice (Bob Berwyn):

Now, the agency will hold a series of public meetings, starting April 16 in Denver, to take input from the public and key stakeholders. Additional meetings are set for Salt Lake City on April 17, and Lake Tahoe, Calif., on April 18.

Forest Service leaders and technical experts from Washington, D.C., as well as from local and regional offices will be on-hand to take public comments and provide additional information on the water rights issue.

At issue is very specific language in ski area and other special-use permits that establishes the ownership and future uses of water that flows off public lands. The key for the Forest Service is to ensure that the water rights from water that comes from national forest system lands continue to stay with the permitted special use.

The ski industry and the agency have been at odds over the water rights directive for several years but say they are committed to a collaborative approach based on a long history of partnership. “Some resorts have water rights in their name, some are held in the name of the U.S. Going forward, we need a more cogent way of addressing this,” Rocky Mountain Regional Forester Daniel Jiron said in a January interview with Summit Voice.

“Our long-term policy objective is to make sure that ski areas and communities can depend on that water … The Forest Service must provide the resources to do that,” Jiron said. “We support the ski industry … I believe it’s an important part of our mission. We know that the current group of ski resort owners and operators are committed to their resorts and Colorado, but we have to plan ahead decades to protect public resources,” Jiron said.

More NSAA coverage here.

‘The reach of Colorado water goes all the way to the Mississippi’ — Justice Greg Hobbs

From the Cañon City Daily Record (Rachel Alexander):

The Fremont-Custer Bar Association on Friday welcomed Justice Gregory Hobbs, who spoke to a group of about 20 about water law and the history of water in Colorado.

The meeting, at DiRito’s, was part of the association’s effort to provide educational activities for its member attorneys. Friday’s event was open to the public and included several city council members and city employees…

Hobbs is vice president of the Colorado Foundation for Water Education, which is a non-advocacy and non-political organization created by the General Assembly to provide information about water to Colorado citizens.

“The reach of Colorado water goes all the way to the Mississippi,” Hobbs said.

Hobbs discussed the nine interstate compacts Colorado has regarding the four major rivers with headwaters in the state, including the Arkansas River. The compacts control how much water Colorado citizens may use and how much must be allowed to leave the state in its rivers. The compacts result in Colorado being able to only consume 1/3 of the state’s snow melt water.

The concept of water rights for irrigation, Hobbs said, arose out of the necessity to irrigate lands a distance from the river for agricultural purposes. In the 1866 Mining Act, Congress severed water from land in the public domain, which made up most of the territory at the time…

The doctrine of water right favors settled uses, he said, meaning those with old rights take preference over newer uses. “The public always owns the water resource,” Hobbs said.

More Colorado Foundation for Water Education coverage here and here.

Water court: Subdistrict No. 1 pumpers can claim water from Reclamation’s Closed Basin Project

From The Pueblo Chieftain (Matt Hildner):

A water court judge ruled Wednesday that groundwater irrigators in the north-central San Luis Valley can claim water from a federal reclamation project to offset their pumping. The 45-page order from Judge Pattie Swift allows Subdistrict No. 1 to claim water from the Closed Basin Project, which pumps groundwater from the east side of the valley and sends it to the Rio Grande.

Objectors, which included five parties, argued, among other points, that the use of water from the project injured surface rights owners who were dependent on the Rio Grande and its tributaries.

Swift’s order said the project developed and delivered water to the Rio Grande that would have otherwise never made it to the river. “Thus the court cannot presume that pumping the Closed Basin Project wells causes injury to senior surface water rights,” the ruling said.

The subdistrict, which takes in more than 3,000 irrigation wells in the north-central valley, was created primarily to replace depletions to the river caused by pumping. The subdistrict purchased and leased over 10,000 acre-feet in 2012, including the Closed Basin Project water, and was ordered by the state engineer to return 4,724 acre-feet to the river.

In this year’s annual replacement plan, the subdistrict has again proposed using up to 2,500 acre-feet from the project toward its replacement obligations, although the proposal still requires approval of the state engineer.

More San Luis Valley groundwater coverage here and here.

2013 Colorado legislation: ‘I think it’s important for the state to tell the feds to stay out of our business’ — Jerry Sonnenberg

From The Durango Herald (Joe Hanel) via Cortez Journal:

Rep. Jerry Sonnenberg, R-Sterling, said he expects his House Bill 1013 to die without a vote in May, when the Legislature adjourns for the year. His bill would have forbid the Forest Service from demanding that ski areas sign over their water rights in return for approval of their permits to operate on federal land. “I think it’s important for the state to tell the feds to stay out of our business,” Sonnenberg said.

Colorado law allows water right holders to sell the right to whomever they choose. But the Forest Service wants to make sure water used for snowmaking doesn’t get sold to condo developers or others who would use it for purposes other than skiing. “We’re committed to the long-term health of recreational opportunities and economic opportunities that the ski resorts provide for Colorado,” said Chris Strebig, spokesman for the Forest Service’s regional office in Golden.

But Sonnenberg’s bill would have amended Colorado water law to forbid the U.S. government from requiring anyone to surrender their water rights in order to get a land-use permit.

Legislators got calls urging them to kill the bill from Harris Sherman, who is the undersecretary of agriculture and the federal official who oversees the Forest Service. Many legislators know Sherman personally, because he directed the state Department of Natural Resources before he went to Washington…

Rep. Claire Levy, D-Boulder, opposes Sonnenberg’s bill, which she thinks oversteps the state’s authority. “It’s a state law on what the federal government can do on a special use permit or lease on federal land. I don’t think Colorado has the power to pass a law to that effect,” Levy said.

Legislators worked out a deal, which both Levy and Sonnenberg confirmed: The House will vote on a symbolic resolution that disapproves of the Forest Service’s practice on water rights, but Sonnenberg’s bill will “die on the calendar” – legislative slang for being killed without a vote on the last day of the year.

From The Denver Post:

The U.S. Forest Service has scheduled public meetings next week as it works to craft a rule addressing ski resorts and water.

Dozens of resorts with permits to operate on national forests have bought or acquired rights to use nearby bodies of water for snowmaking. The Forest Service had adopted a clause that said those resorts had to transfer their water rights to the federal government, so that the water rights would stay with the land. After the National Ski Areas Association sued, a judge ruled last year that the agency violated procedure in not seeking public comment before adopting the clause.

The agency now plans open houses April 16 in Lakewood, Colo., on April 17 in Salt Lake City, and April 18 in Lake Tahoe, Calif., to get input.

More 2013 Colorado legislation coverage here.

‘As long as there is water in the river, Florence would have water’ — Craig Lis

From the Cañon City Daily Record (Charlotte Burrous):

“We’ve got enormous issues,” said City Manager Mike Patterson. “We also have a lot issues that we’ll always have, capital and improving our system. Storage is another huge issue. The city’s water right is very substantial. We could put a call on just about anybody on the river. As long as there is water in the river, Florence would have water.”

During the meeting, Lis responded to criticisms made about annexation.

“He really addressed the city’s growth potential and assured everybody, we are actually in very good shape in terms of Florence’s water rights,” Patterson said. “(Lis also) addressed the shortages that are occurring already.”

Rockvale is already on water restrictions, but Patterson said he did not know what those were.

“It would take a significantly worse situation from where we’re at now (to affect Florence),” he said. “There would have to be no water in the river for Florence to be in that situation because Florence does have a very significant water right and a very senior water right (1861).”[...]

“(The meeting) was filled with caution, but it was really very optimistic about the city’s future,” Patterson said. “There were some strong cautions there. One of the things Florence has to be aware of is every year, there are potential amendments (that could go) to the people and there are some things that could go through the legislature. Although

Florence has done a great job in protecting its water and its senior water rights, there are things that are out of our control that could dramatically impact our water future. There’s an element of ‘use it or lose it’ so we have to be very careful with our water.”

More Arkansas River Basin coverage here and here.

2013 Colorado legislation: SB13-019 still alive #coleg

From The Pueblo Chieftain (Chris Woodka):

A controversial water bill that would give the state engineer authority over water transfers for up to 30 years was discussed Thursday in the Senate Agriculture Committee. Sen. Gail Schwartz, D-Snowmass Village, who chairs the committee, scheduled a vote for next Thursday after about three hours of testimony for and against the bill. She had concerns that the bill could be used to increase diversions from one basin to another. She added that the bill should be laid over to allow sponsors time to make amendments based on testimony, but did not call for a vote.

Sen. Nancy Todd, D-Aurora, and Sen. Randy Baumgardner, R-Hot Sulfur Springs, are sponsoring the bill after Sen. Angela Giron, D-Pueblo, removed her name as a sponsor.

The bill would expand current legislation on interruptible supply agreements. Currently, cities may lease water for three years out of 10 from farms without changing use of a water right. The bill extends the arrangement for two additional 10-year periods.

Opponents of the bill, mostly water interests in the South Platte basin, objected to the legislation because it could allow injury to senior water rights without due process in water courts.

The bill was supported by Aurora, farmers from the Rocky Ford area, the Colorado Farm Bureau and the Colorado Cattlemen’s Association. They argued the 30-year period would facilitate lease agreements between cities and farmers and prevent permanent dry-up of farmland. “I support it because it eliminates re-engineering and rediscussion,” said Alan Frantz, a Rocky Ford farmer who participated in a 2004-05 lease to Aurora. “We don’t pay any more to prove that it didn’t hurt anybody down the stream.”

Schwartz asked Kevin Rein, deputy state engineer, if farmers and cities could simply apply for an extension now. Rein said the current statute prohibits extending an application, but added that a completely new application would require less engineering work after going through the process the first time.

More water law coverage here and here.