CWC Summer Conference recap, day 3: Exempt Colorado water storage projects from NEPA? #COWaterRally #ColoradoRiver

August 23, 2014

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

Colorado gubernatorial candidate Bob Beauprez told the Colorado Water Congress Friday that as governor he would be the “lead cheerleader” for new water storage projects in the state. He also drew a distinction between himself and Gov. Hickenlooper on the potential of a major new dam and reservoir project being built in the state.

The governor answered a question on Thursday at the Water Congress meeting in Snowmass Village by saying it was “unlikely” that public opinion in the state had shifted in favor of building a major new water storage project.

“I submit to you that’s not leadership,” said Beauprez. “I think we need a governor that stands up and says we’ve got to build new storage and I’m going to lead the way to make sure it happens. I’ll promote worthy projects. I’ll be your lead cheerleader on that.”

The Water Congress is an advocacy organization whose mission includes the “protection of water rights” and “infrastructure investment.”

Beauprez said he would seek to streamline the approval process for new water projects by asking Congress to pass a resolution exempting Colorado projects from NEPA, which often requires producing an extensive environmental impact statement.

“I’ll seek NEPA waivers for any project that meets the stringent Colorado standards, with the help of our Congressional delegation,” said Beauprez [ed. emphasis mine], a Republican who represented Colorado’s 7th District on the Front Range from 2003 to 2007.

Beauprez also told the Water Congress crowd that he supported approval of the Northern Integrated Supply Project, or NISP. The project’s proponent, the Northern Colorado Water Conservancy District, is seeking federal approval for two new reservoirs near Fort Collins.

The water for NISP will come from the Poudre and South Platte rivers on Colorado’s East Slope, but Northern Water’s existing system also uses water diverted from the Colorado River basin on the West Slope, and some of that water could be used in a system expanded by NISP. The Army Corps of Engineers has been leading the review of the project since 2004 and expects to release a decision document in 2016.

“Frankly, you’ve got a governor who can’t seem to decide if he’s for it [or] against it,” Beauprez said about NISP. “I’m for it. And I’ll do everything to make sure it gets approved and built.”

Given his enthusiasm for new reservoirs, Beauprez was asked by an audience member if he was proposing new transmountain diversions to augment the Front Range’s water supply.

“No,” Beauprez said emphatically.

“Where are you going to get the water from?” the questioner asked, noting that 80 percent of water in Colorado is on the Western Slope.

“What I’m proposing is the same kind of thing that NISP is doing — taking advantage of the opportunity to store East Slope water on the East Slope. I think until we’ve demonstrated that we’ve stored all the water we possibly can on the East Slope, transbasin diversions shouldn’t even be on the table.

“We know we can move water,” Beauprez continued. “And sometimes we’ve moved it because it’s been convenient, or because there’s the money, or because there’s the votes, or because of whatever. But the West Slope of Colorado is Colorado, too. And I understand that. And I want to protect that. And I know that you’ve got a whole lot of people downstream from you on the West Slope that covet that water as well.”

Beauprez, who grew up on a dairy farm in Lafayette and now diverts water to grow alfalfa and raise buffalo in Jackson County, said he has a keen appreciation for Colorado water law and will defend the state’s priority system, which is based on “first in time, first in right.”

“I know what Colorado’s time-honored water laws are for,” he said “I know that our prior appropriations doctrine has worked, and worked very, very well. And I know that there’s a lot of people that would like to gnaw away, erode, and destroy that. I’m not one of them. Our prior appropriations doctrine, our water law, and our right to own and utilize our water needs to be protected every day at all costs.”

From The Pueblo Chieftain (Chris Woodka):

Like a bolt of lightning, climate change clearly divides candidates in the Third Congressional District.U.S. Rep. Scott Tipton, a Republican, and his Democratic challenger from Pueblo, Abel Tapia were asked about it at the Colorado Water Congress summer convention.

“We all agree that climate will change,” Tipton said, quickly launching into campaign talking points on all-of-the-above energy policy.

But Tipton criticized the way some have politicized the issue and complained of governmental overreach by the Environmental Protection Agency and other federal departments.

“Anyone who doesn’t believe in climate change is fooling themselves,” Tapia said later in the day. “When you look at the forest fires and floods we have experienced, something has added to that.”

Tapia said the country has the ability and obligation to discover ways to overcome the effects of climate change to keep the county and world secure.

Tipton also stressed his record in Congress on water issues, citing his efforts to stop the National Forest Service from tying up water rights in federal contracts for ski areas and ranch land.

He said the EPA’s Waters of the [U.S.] policies are dangerous to agriculture.

“If the EPA can come in and tell us how to use water, we’re going to be stripping our farmers of their ability to make a living,” he said. “We need common sense in federal regulations.”

Tapia said his own life experiences as an engineer, school board member and state lawmaker give him a unique perspective that would serve the state in Congress.

“I’m a problem solver,” he told the Water Congress. “I know that when you need to know something you go to the experts. You are the experts on water.”

More 2014 Colorado November election coverage here.

Tweets from the conference were tagged with the hash tag #COWaterRally.


“We don’t want to demonize the Front Range” — Jim Pokrandt #ColoradoRiver #COWaterPlan

August 19, 2014


From the Vail Daily (Lauren Glendenning):

The soothing sound of the Colorado River as it meanders its way across Colorado’s Western Slope is the sound of a thriving economy, a fragile environment and also an impending crisis.

The state of water supplies in the arid West is volatile and forecasts are grim. Lake Powell and Lake Mead are at alarmingly low levels, while populations across the West are swelling past the capacities of current water supplies.

The Colorado River Basin is facing a battle of sorts as Colorado creates a statewide water plan. It’s a battle against time and against competing water needs, both here in Colorado and in lower basin states like Nevada and California.

Regionally, some view it as an Eastern Slope vs. Western Slope battle, although water officials are carefully shaping the public relations message as one of unity and collaboration. There’s a very real fear that exists west of the Continental Divide, though, that Colorado’s growing Front Range population is going to suck the Colorado River Basin dry. Some even say that has already happened…

“Population is still growing and there’s a need to find more water for municipal uses,” said Jim Pokrandt, chair of the Colorado Basin Roundtable and spokesman for the Colorado River Water Conservation District. “We don’t want to demonize the Front Range.”[...]

…the state’s water planning has really been going on for over a decade, said Brad Udall, a research faculty member at the University of Colorado’s Getches-Wilkinson Center for Natural Resources, Energy and Environment and former director of the Western Water Assessment.

Udall has written extensively about climate change issues as they relate to water resources but his passion for Western water began outside of books and classrooms. His mother took him down the Colorado River through the Grand Canyon in the early 1970s, paving the way for Udall’s future in guiding Grand Canyon river trips. After getting into environmental engineering at Stanford University and developing a passion for water issues, he also began working on climate change issues. That’s when he realized that climate change means water change. They’re one in the same, he said…

…none of the states want to go back and draft new laws based on the realistic flows, except for maybe California, [Glenn Porzak] said.

“If you go back and say, ‘We made a mistake when we negotiated, we thought there was 17 million acre feet.’ If you renegotiate, (Colorado’s) going to lose,” he said. “All water is political.”[...]

The major concern at Lake Powell is that it’s getting down to such a level that it will no longer be able to generate power, said Glenn Porzak, a water attorney based in Boulder who represents water entities and municipalities in both Summit and Eagle counties, as well as Vail Resorts.

“The cost of power is going to quadruple,” Porzak said of Lake Powell, should it drop below power generating levels. “Almost all of the Western Slope’s power comes from the power grid that’s generated off Colorado River storage projects. That hits the ski industry and every other industry if the cost of power goes up four times.”

It also hits the average citizen, who has been enjoying relatively cheap water at home, Udall said.

“You hear we’re running out of water and we gotta get more, but we’re running out of cheap water,” he said. “Water that people are putting on lawns, that shouldn’t just be free, it should come with significant costs. … One of the lessons here is that water is going to get more expensive in the municipal sector, and a little bit more in the (agriculture) sector.”

When prices are low, people over-use water, but when they’re high, conservation becomes a lot easier and more attractive. And conservation is a big theme in the first draft of the Colorado Basin Implementation Plan, which came out last month and will undergo several more revisions before it’s sent to the state later this year for incorporation into the state water plan.

From the Glenwood Springs Post Independent (Lauren Glendenning):

Nathan Fey’s passion for kayaking led him to a career in river conservation and water quality issues. As the Colorado stewardship director for the nonprofit American Whitewater, he’s watching carefully as the state progresses through its water planning process.

The state must address some major conflicts as it creates the Colorado Water Plan, he said.

“Sure, our population is focused on the Front Range, but the reason we all live here is because recreation is a way of life for us,” Fey said. “I think there’s a big disconnect for people in our urban areas about where their water comes from. They don’t understand that if they grow green grass, there’s less water in the river when they’re fishing.”[...]

Recreation along the Colorado River and its tributaries is a $9.6 billion industry, and that’s just within the state of Colorado. According to a 2012 study for Protect The Flows, done by the consulting firm Southwick Associates, which specializes in recreation economics, the Colorado River would rank as the 19th-largest employer on the 2011 Fortune 500 list based on the jobs it generates.

“People moved here for the environment — it underpins the economy,” said Jim Pokrandt, chair of the Colorado Basin Roundtable and the communications and education director for the Colorado River Water Conservation District. “Water in the streams is an economic driver in and of itself.”

The recreation-based economies in mountain resort towns depend on healthy streams for more than just the water-based activities. Indirectly, hikers, campers and mountain bikers, to name a few, also depend on healthy streams.

“That’s the value we’re hoping Colorado embraces, so the desire to push for another transmountain diversion is deferred for a long time, if not forever, in favor of using the water we already have to its highest and most efficient use,” Pokrandt said…

Pokrandt likens the process to economizing, just like any business would do during tough times. You look at internal expenses, in this case water uses, and you cut back…

With the Colorado Water Plan’s deadline more than a year away, the Colorado Basin Roundtable is polishing its plan to make sure it gets the point across that more transmountain diversions would be detrimental to tourism economies, the environment and agriculture…

In the mountains, many of the major water providers such as the town of Breckenridge, the Upper Eagle Regional Water Authority and the Eagle River Water and Sanitation District, have senior, or pre-compact, water rights. The same goes for the Grand Valley and Grand Junction areas, said water attorney Glenn Porzak, who represents those entities as well as Vail Resorts and other local municipalities.

“The water rights really affected the most (under a compact curtailment) are all of the transmountain diversions,” Porzak said. “Fifty percent of Denver’s supply comes from the Dillon and Moffat systems and are post-compact. All of the Northern Colorado Conservancy District comes from the Thompson project, also junior. All of Colorado Springs and Aurora diversions are junior to the compact.”

When 75 percent of the Front Range supply comes from junior diversions, Porzak said it’s clear what municipalities will do: They’ll buy up more senior agriculture rights for the Western Slope.

More Front Range municipalities buying Western Slope agriculture water rights depletes rivers. When the water is diverted over the Continental Divide, it never returns to the basin. That affects flows, which affect water quality, stream health and the economic powerhouse that is recreation-based tourism…

The ski industry is the pulse of Summit, Eagle and Pitkin counties during winter months. Water is the source of winter-based recreation, but the fact that it doesn’t always fall from the sky at the right times or in the right quantities means water must be taken from elsewhere.

Aspen Skiing Co. and Vail Resorts have bought and maintained important water rights since the beginning of each company’s existence…

Predictability like a start date for the season — something the company typically announces during the previous ski season — is crucial to lock in season pass sales. Without important water rights and water supplies, Hensler said opening for Thanksgiving might be impossible, and Christmas would even be a challenge…

Hensler points out that snowmaking is only about 20 percent consumptive.

“About 80 percent of the water we put on the mountain as snow melts and flows back into the streams — it’s a very sustainable use,” Hensler said.

More Colorado Water Plan coverage here.


Anyone up to applying a mathematical model to the butterfly effect? — Chris Woodka

August 17, 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):

Anyone up to applying a mathematical model to the butterfly effect?

The Arkansas Basin Roundtable is trying to develop a model that shows how changes in water use in one area affect flows elsewhere.

Called SWAM (simplified water allocation model), the latest addition to a growing base of knowledge is a $100,000 grant request from the Colorado Water Conservation Board to refine hydrologic models of the Arkansas River basin and analyze shortages that could occur — for both farms and cities — by the year 2050.

“This would be a scaled-down model that would give you an idea of the impact,” said Terry Scanga, general manager of the Upper Arkansas Water Conservancy District.

“Other basins have decision support systems,” said Alan Hamel, who represents the basin on the Colorado Water Conservation Board. “We’re years out from the development of a full basin model.”

The decision support system for the Arkansas River was delayed by the CWCB because of the federal Kansas Colorado lawsuit over the Arkansas River Compact. But major changes in hydrology occurred during the course of the 24-year lawsuit, including farm dry-ups, increased storage and pipeline construction.

Questions of harm to water rights were decided by lawyers and engineers, rather than a common scientific model. As it stands, the use of a model raises as many questions as it answers.

Roundtable members asked whether this particular model could solve the questions of water rights vs. flood control on Fountain Creek, change the amount of water owed to Kansas or reveal which water rights are harmed by a decision.

“This is a broader scope,” Scanga said.

The study would probably build on existing water balance studies for portions of the river. Some of the existing models were developed for a specific purpose, and don’t reflect overall impacts.

The new project will attempt to look at how municipal, industrial, agricultural, environmental and recreation uses of water would be affected by projects in wet, normal or dry years. It will also evaluate likely future conditions under various rates of growth.

The study won’t change water laws within the state, alter the allocation of water under the compact or prevent a drought, but it might help parts of the basin prepare for changes.

“We’re hoping that we get this right,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District.

More Arkansas River Basin coverage here.


Water court case for Glenwood whitewater parks gets two new players — Aspen Journalism #ColoradoRiver

August 14, 2014
City of Glenwood Springs proposed whitewater parks via Aspen Journalism

City of Glenwood Springs proposed whitewater parks via Aspen Journalism

Click through for the graphics. From Aspen Journalism (Brent Gardner-Smith):

American Whitewater and Western Resource Advocates have joined a long list of other parties in state water court now scrutinizing an application from Glenwood Springs to create water rights for three new whitewater parks on the Colorado River.

The two conservation groups were allowed on June 6 by water court judge James Boyd to intervene in the case, even though they had missed the original deadline to do so.

Glenwood Springs applied for a new water right on Dec. 31, 2013. The 60-day deadline to file a “statement of opposition” in the case was Feb. 28.

The court received 13 such statements, which despite their name, also can be a way for other parties to conveniently monitor a case or actually be in support of an application.

Both American Whitewater and Western Resource Advocates support Glenwood’s application, which would secure a right to a “recreational in-channel diversion,” or RICD, in which river water is diverted through concrete structures embedded in a river channel, but otherwise not diverted or consumed.

The conservation groups said they should be allowed to join the case because they were concerned, in part, about Glenwood’s resolve in water court “to pursue a full suite of flows” after seeing statements of opposition come in from Aurora, Colorado Springs and other powerful water interests.

“We were a little surprised by how much opposition there was, especially from some of the heavy hitters on the Front Range,” said Rob Harris, a staff attorney with Colorado Resource Advocates who was the lead attorney for both his organization and American Whitewater. “We just wanted to make sure that the city had some allies and that voices in support of recreation were heard.”

Three parks, six waves

Each of the three whitewater parks Glenwood Springs is proposing to build on the Colorado River would have two concrete control structures embedded into the river to create ridable waves — as well as clear passage — for everything from commercial rafts to pool toys.

The uppermost park on the river would be at the No Name rest stop on I-70, at exit 121. The rest stop area includes both CDOT property and private land along the river.

The next spot downstream is at Horseshoe Bend, where I-70 goes into a short tunnel. The location can be accessed off of exit 118 at No Name, or from the bike path that runs along the river.

“The city of Glenwood Springs owns the land along both banks of, and under, the river where the RICD control structures would be constructed,” says a report by S2o Design & Engineering about the Horseshoe Bend site. “Immediately upstream, the Bureau of Land Management manages the property and has developed a covered picnic area and boulder weir to produce a large river eddy.”

Expressions of concern

The concerns of the parties in the case that had filed statements of opposition were shared in a case management conference in late April. The water court referee, Holly Kirsner Strablizky, filed minutes from the conference call with the court on April 24.

The attorney for the Homestake Steering Committee, which is an entity jointly controlled by the Front Range cities of Aurora and Colorado Springs, “stated that it is an upstream water rights owner,” according to Strablizky’s minutes. “It is [involved in case] to ensure that there are appropriate terms and conditions to address impacts on compact and compact carve-outs.”

Such “carve-outs” allow for flexibility in the face of a “compact call” or a demand from downriver states for more water, while another type of “carve-out” allows for some future level of new water development by upstream parties outside of any new restrictions created by a proposed RICD. Such carve-outs were agreed to in the decrees for recently completed RICDs in Basalt, Carbondale and Grand County.

“It was an approach to settle those cases short of litigation,” said Chris Thorne, an attorney with Holland and Hart, which is representing Glenwood Springs in the water court application and also represented Carbondale in its RICD case. “The carve-outs preserve the ability for some reasonable additional water development upstream of the proposed boating parks. And to address concerns of upstream municipal water suppliers about protection of future water supply.”

Thorne added that he wasn’t suggesting that such a carve-out would be necessary or appropriate in the case of the Glenwood RICD.

On April 30, American Whitewater and Western Resource advocates filed a joint statement of opposition and a motion to intervene.

The two nonprofits, referring to themselves as “the conservation groups,” told the court they “should be afforded the opportunity to defend this important proposed RICD.”

Under state law, only certain governmental entities, such as cities and counties, can apply for a RICD, which means that conservation groups cannot do so on their own.

The two groups told the court they “cannot rely on the city of Glenwood Springs to adequately represent their interests in this litigation” and that it “is feasible that changes in policy or administration may cause the city of Glenwood Springs to shift away from a zealous defense of the full suite of flows.”

Harris, the attorney for the conservation groups, said it was important in the motion to draw a distinction between the interests of the city and the conservation groups, but that he currently doesn’t doubt Glenwood’s resolve in the case.

All the other parties in the case consented to the effort by American Whitewater and Western Resource Advocates to join the case. However, in consenting, Aurora and Colorado Springs also went on record stating legal reasons why the motion to intervene should be denied.

The two Front Range cities said the conservation groups role in the case should be “limited accordingly” and that they would “monitor the participation” of the conservation groups to make sure they didn’t “take over” the case.

Over 1,250 cfs

Denver Water, another powerful Front Range water entity, also consented to the groups joining the case, but it did so without formal comment.

At the April 24 case management conference, an attorney for Denver Water “stated that it is OK with 1,250 cubic feet per second (cfs) and it is not sure about the larger flow claims,” the referee wrote in her minutes.

The reference to 1,250 cfs is a reference to the proposed base flow of the three whitewater parks, and, not coincidentally, also to the 1,250 cfs water right that has been exercised by the Shoshone hydropower plant, six miles up river of the proposed parks, since 1907.

A base-level instream flow right of 1,250 cfs is proposed for all three of the whitewater parks, and that flow would be in effect from April 1 to Sept. 30.

A secondary flow right of 2,500 cfs would be in place for 46 days, between April 30 and July 23. And a flow of 4,000 cfs would be in place for five days between May 11 and July 6.

“Based upon interviews with the boating community, the response was a desire to maintain a flow of 2,500 cfs as long as possible and to have a late season event around the Fourth of July when other whitewater parks do not have reliable flows,” says a report from Wright Water Engineers.

The proposed 183-day water-right season includes 46 days at levels above the base flow of 1,250 cfs, and it’s not clear if that will be acceptable to Denver Water, which agreed to the 1,250 cfs level for a new Glenwood RICD in the recently signed Colorado River Cooperative Agreement, but not to new water rights above that level.

No threat to water developers

The report also concluded that “there are numerous existing transmountain diversion projects upstream of the Glenwood Spring’s RICD that are senior to 2013. Ongoing efforts to firm up the yield of these projects would not be adversely affected by the city’s RCID claims.”

And it concluded that the RICD “has no effect on the ability to develop additional water supplies on the lower Colorado River, including the Roaring Fork River, the White River, the Yampa River, or the Gunnison River.”

In the April 24 case management conference, an attorney for CDOT said “it needs to ensure that proper channels are pursued in obtaining right to access,” according to the water referee.

An updated report on the design and engineering of the parks, submitted to the court by S2o Design & Engineering on May 30, noted that “a collaborative process with CDOT has been initiated to identify cooperative management opportunities at the rest area to provide for parking, access and site facilities use.”

There is another agency that is concerned about the Horseshoe Bend proposal.

An attorney representing the Bureau of Land Management said “it is [involved in] the case to ensure that the applicant obtains access properly,” according to the water referee.

The location of the third whitewater park is at the upper end of Two Rivers Park, just above the confluence with the Roaring Fork River, which flows into the Colorado a few blocks west of downtown Glenwood.

In all, the three parks are located across 3.25 miles of the Colorado River. The “Glenwood wave,” an existing whitewater park in West Glenwood, is downstream of the three proposed parks.

The parties in the water court case now have until Sept. 12 to provide comments to Glenwood Springs on the new reports about the proposed parks. The Colorado Water Conservation Board has been granted until Feb. 2015 to submit its required findings on the city’s application.

And, perhaps optimistically, the water referee’s April 24 minutes state that “all parties believe the case can remain in front of the referee” and not require the involvement of James Boyd, the water court judge in Division 5.

“We’re optimistic that when folks sit down at the table, they can see that they can protect their own interests with little impact on the application,” said Harris of Western Resource Advocates. “And we’re certainly open to hearing any good faith concerns the opposers might have.”

More whitewater coverage here.


Water Lines: Dire water predicament spurs cooperation, compromise — Grand Junction Free Press #ColoradoRiver

August 12, 2014
Colorado River Basin including out of basin demands -- Graphic/USBR

Colorado River Basin including out of basin demands — Graphic/USBR

After a winter of happy news about the generous snowpack in Colorado’s mountains, summer brought reminders that our regional water situation is dire – or, at least, poised on the edge of direness.

Just as the ink was drying on mid-July headlines announcing that Lake Mead had dropped to its lowest level since filling 80 years ago, a new study found that groundwater loss in the Colorado River Basin has been even more dramatic. The study used satellite data to track changes in the amount of water in the basin from 2004 to 2013, and found that 75 percent of the nearly 53 million acre feet lost during that period was from groundwater depletions.

While it is easy to measure how much water is in reservoirs, it is much less clear how much groundwater remains in the region’s aquifers. Western Colorado doesn’t rely much on groundwater, but other states in the basin do.

Then, in early August, researchers at CU-Boulder released an updated report on Climate Change in Colorado. The report notes that higher temperatures are likely to put further pressure on the state’s water supplies, even if we get a bit more rain and snow, because plants will need more and more will evaporate.

An historic 14-year drought plus increasing demands are pushing the Colorado River system ever closer to the point where it could no longer be able to provide the services people rely on. And groundwater appears to be disappearing too fast to be much of a safety net.

The City of Las Vegas, Central Arizona farmers and power generation at Glen Canyon Dam are among the first in line to take a hit if water levels in Lakes Powell and Mead continue to drop.

However, disaster is not inevitable. The multi-state, bi-national agreement to send water back to the Colorado River Delta last spring, for the first time in 30 years, demonstrates that those who manage the river are capable of improbable feats.

Many of the same minds that negotiated the deal that provided water for the delta are working intensely to find ways to keep Mead and Powell functioning and to keep the region’s cities, farms and environment intact. There seems to be both a growing sense of urgency and an increasingly cooperative spirit to these efforts.

Not long ago, when I heard Colorado officials and water managers discuss the overuse of water in the Colorado River Basin, they made it clear that this was mostly a problem for California, Arizona and Nevada — and that Colorado was still intent on developing its full legal share. That tune hasn’t exactly changed, but more cooperative efforts have moved into the foreground.

Most recently, the Central Arizona Project, Denver Water, The Metropolitan Water District of Southern California and Southern Nevada Water Authority announced that they will team up with the U.S. Bureau of Reclamation to provide $11 million for pilot conservation projects to boost levels in Powell and Mead.

Cooperation is crossing constituencies as well as Upper – Lower basin divisions. The Grand Junction Daily Sentinel recently reported that Denver Water, the Colorado River District, the Colorado Cattlemen’s Association, the Colorado Farm Bureau, the Southwestern Water Conservation District, the Nature Conservancy and Trout Unlimited are working together to explore ways to use some of that $11 million to test “temporary, voluntary and fully compensated” conservation strategies.

Even within Colorado, some of the conflict between West Slopers and Front Rangers over additional transmountain diversions could be softening. A recent “conceptual agreement” released by Colorado’s Inter-basin Compact Committee, which includes representatives from all the state’s river basins, outlines how additional Colorado River water could be sent East “under the right circumstances.” Central to the draft agreement is the recognition by East Slope entities that a new transmountain diversion may not be able to deliver water every year and must be used along with non-West Slope sources of water.

These shifts in tone seem to indicate a coming-to-terms with the fact that Colorado River Basin water supplies are limited, and that everyone who relies on them has a stake in finding ways for all to live within those limits. What remains to be seen is whether we can adapt quickly enough to keep ahead of crisis. Don’t stop praying for snow just yet.

More Colorado River Basin coverage here.


Huerfano County: Shell fails to convince the Division of Water Resources that produced water is non-tributary

August 9, 2014

coalbedmethanefieldslower48statesviaagiweborg

From The Pueblo Chieftain (Chris Woodka):

An oil company’s claim for underground water near Gardner in Huerfano County was rejected last month by the state.

Shell Oil argued produced water from planned drilling is non-tributary, meaning it could be claimed for other uses. Produced water refers to excess water that nearly always accompanies oil and gas drilling operations.

But the Colorado Division of Water Resources said Shell failed to prove its case, in an initial report. Shell has until Aug. 22 to appeal the finding.

Shell’s consultant, AMEC, failed to consider local geologic factors that connect as well as separate the deep Niobrara shale formation with the natural stream system, according to a decision written by Ralf Topper and Matthew Sares of the hydrogeological services section of the division.

Shell’s application was opposed by Citizens for Huerfano County, a group of about 450 local residents and 600 total members that advocates for clean water and air.

“We’re contending that the water is connected because of the vertical dikes in the particular geology of the area,” said Jeff Briggs, president of the citizens group.

Shell made the claims for water underlying three 25,000-acre tracts known as the Seibert, State and Fortune federal units. It plans to drill 7,000 feet deep with horizontal fracturing at a depth of 5,000 feet.

That plan troubles area residents because of past contamination from drilling, Briggs said.

“We feel the state Legislature and executive branch have tried to facilitate as much oil and gas exploration as possible,” Briggs said. “I think what we are saying is that the decision by all levels of government and the oil and gas industry to go all in on fracking was economic and political and not scientific or medical.”

However the Huerfano County decision might not have statewide implications because it applies to specific geologic conditions found in the Spanish Peaks area.

A nontributary designation has advantages for a driller, because containing produced water for either direct use, treatment or deep injection would not require finding other sources to augment stream depletions

More coalbed methane coverage here.


“It was a complete defeat for the Western Slope” — Pitkin County Attorney John Ely

August 3, 2014

Busk-Ivanhoe system diversions

Busk-Ivanhoe system diversions


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

Pitkin County and the Colorado River District are planning to appeal a judge’s ruling that gives the city of Aurora the right to use water from the upper Fryingpan River basin for municipal purposes, without a penalty for 23 years of “unlawful” water use.

“It was a complete defeat for the Western Slope,” Pitkin County Attorney John Ely said of the order issued on May 27 by Larry C. Schwartz, a state water court judge in Pueblo.

As it stands today, the court’s ruling means Aurora can retain the 1928 priority date on its full right to divert 2,400 acre-feet a year through the Busk-Ivanhoe tunnel for municipal instead of irrigation purposes. Over 60 years, Aurora can divert 144,960 acre-feet under the right.

Pitkin County and other Western Slope entities wanted the court to reduce the scope of Aurora’s water right, as the Front Range city has been using the water from the Busk-Ivanhoe system for municipal purposes, without a decree, since 1987.

The “West Slope Opposers,” as the court called them, also argued that the court should consider that Aurora was also storing water on the East Slope without an explicit right to do so, which they felt constituted an “expansion” of its water rights.

The board of the River District agreed on July 15 to appeal the judge’s ruling, while the Pitkin County commissioners agreed shortly after the May ruling. Ely said he understands the Colorado State Engineer’s Office also plans to appeal.

Pitkin County has spent $247,500 on the Busk-Ivanhoe water case so far, and using money from the county’s Healthy Rivers and Streams fund to pay for outside water attorneys.

Other parties from the Western Slope in the case are Eagle County, Basalt Water Conservancy District, Grand Valley Water Users Association, Orchard Mesa Irrigation District and the Ute Water Conservancy District. Trout Unlimited is also a party to the case, which is 09CW142 in Water Division 2.

Colorado transmountain diversions via the State Engineer's office

Colorado transmountain diversions via the State Engineer’s office

Transbasin water

Since 1928, about 5,000 acre-feet of water a year has been diverted from Ivanhoe, Lyle, Hidden Lake and Pan creeks, headwater streams of the Fryingpan River.

The water is sent from Ivanhoe Reservoir to Busk Creek through a pipe in the Busk-Ivanhoe tunnel, first built as a railroad tunnel in the late 1880s. From Busk Creek, the water flows to Turquoise Reservoir and the Arkansas River, and eventually reaches Aurora and Pueblo.

The Pueblo Board of Water Works owns the right to half of the water diverted through Busk-Ivanhoe tunnel, and in 1993 it changed the use of its water right from irrigation to municipal.

In 1987, Aurora bought the other half of Busk-Ivanhoe water and started using its half of the water for municipal purposes. But it didn’t come in for a change-of-use decree from water court until 2009.

Aurora’s 2009 application received 35 statements of opposition and as is common in water court, opponents were winnowed down to a core group. Many cases are settled before trial, but this case went to a five-day trial in July 2013.

Judge Schwartz’s subsequent ruling in May established the parameters of how a new decree for Aurora’s water should read, and the draft decree is now being prepared, Ely said. Once the proposed decree is filed with the court, it will trigger the appeal period in the case. Appeals in water court cases go directly to the Colorado Supreme Court.

Greg Baker, the manager of public relations for Aurora Water, was contacted early Friday afternoon for comment. He said officials were in various meetings throughout the day, and they couldn’t be reached by deadline.

Busk-Ivanhoe tunnel entrance

Busk-Ivanhoe tunnel entrance

“Zero” years

Ely said Pitkin County is primarily concerned about the judge’s decision not to take into account the 23 years that Aurora used water for undecreed purposes, i.e.,, municipal instead of irrigation.

Ely said it is a “fundamental” part of Colorado water law that non-use diminishes the scope of your water right when you go to change it, and it appears Aurora is getting “special treatment” because the water right is a transmountain diversion.

He said that when determining the “historic consumptive use” of a water right — which is what can legally be changed to another use — it is common practice for the court to reduce the scope of a water right by averaging in any years of “zero” or non-use. And undecreed uses typically count as “zero” years.

“But what the court said in this case said was, ‘We’re just not going to look at those years’ of zero use,” Ely said.

Judge Schwartz decided that the period from 1928 to 1986 — before Aurora started using the water — was the best “representative period” to use to determine how much water Aurora had been putting to proper use.

“The representative study period to be utilized should be based on a period of time that properly measures actual decreed beneficial use, and that excludes undecreed uses,” Schwartz concluded.

“The use of zeros during the years of undecreed use would permanently punish (Aurora) for the undecreed use after 1987,” Schwartz also wrote. “This court does not view a change application case as a means to permanently punish a water user for undecreed use.”

In regard to the issue of undecreed storage, the judge looked at the history of the water right, and found that while the original decree from 1928 may have been silent on the subject of East Slope storage, it was always part of the plan by the water developers to store water in a reservoir on the East Slope.

“West Slope Opposers assert that the storage of the Busk-Ivanhoe water in the Arkansas River Basin is an ‘expansion’ of use,” Schwartz wrote. “Storage of the Busk-Ivanhoe water in the Arkansas River Basin is not an expansion. Said storage has always been a part of the water right.”

Ely said the Colorado River District is more concerned about the storage issue than Pitkin County is. However, the county does feel the judge’s overall response to Aurora’s request to change its water right was faulty.

“We knew they were going to be able to change their use, it was just a question of how much,” Ely said. “And it was a question if the Front Range would be held to the same standard as everybody else, in terms of using their water consistent with a decree, or if they get some kind of special treatment for being a transbasin diversion. The judge, and his order, found that they should get some kind of special treatment, and we think that runs contrary to the law.”

Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on the coverage of land and water in Pitkin County. More at http://www.aspen
journalism.org.

More water law coverage here.


Follow

Get every new post delivered to your Inbox.

Join 939 other followers

%d bloggers like this: