“…the waterways of Grand County have become the poster child for aquatic death by a thousand cuts” — Allen Best #ColoradoRiver

April 20, 2014
Denver Water's collection system via the USACE EIS

Denver Water’s collection system via the USACE EIS

Another independent journalist covering water issues is Allen Best purveyor of The Mountain Town News. Here’s an analysis of the recent agreement between Denver Water, Trout Unlimited, and Grand County for operating the Colorado River Cooperative agreement. Here’s an excerpt:

Located at the headwaters of the Colorado River, the waterways of Grand County have become the poster child for aquatic death by a thousand cuts…

Called the Mitigation and Enhancement Coordination Plan, the agreement between Denver Water, Grand County, and Trout Unlimited proposes to govern Denver’s incremental diversions through the Continental Divide known as the Moffat firming project. However, according to the architects of the deal, it should also serve as a model in the ongoing dialogue as Colorado’s growing metropolitan areas look to squeeze out the final drops of the state’s entitlements to the Colorado River, as defined by the Colorado River compact of 1922 and other compacts.

“It is a demonstration of a new way of doing business that should be a model as Colorado talks about meeting its water gaps (between demands and supplies),” says Jim Lochhead, chief executive of Denver Water.

“Instead of platitudes or politics or parochialism, you need to do it by sitting down and working together and dealing with the issues,” he adds…

There are skeptics, unable to explain this strange alchemy in which a river can in any way benefit from having less water, as the agreement insists can be the case.

Among those withholding enthusiasm is Matt Rice, the Colorado coordinator for American Rivers. He points out that the agreement covers just 4 of the 32 creeks and streams trapped by Denver Water in the Fraser Valley and the adjoining Williams Fork. Too, like too many other similar programs, the data collection begins after permits are awarded, not before, which he thinks is backward.

In short, while Denver is careful to talk about “enhancements,” he thinks it falls short of addressing full, cumulative impacts.

Cumulative impacts are likely to be a focal point of federal permitting. While the Environmental Protection Agency is likely to have a voice, the vital 404 permit must come from the U.S. Army Corps of Engineers. The parties to the new agreement have asked that their agreement be incorporated into the permit…

A far greater financial cost to Denver specified by the agreement is the agency’s commitment to forfeit up to 2,500 acre-feet annually of the city’s added 18,700 acre-foot take.

Based on the firm yield of the water and Denver’s rate for outside-city raw water to customers, this commitment is valued at $55 million.

Denver will make this water available for release into the creeks and rivers, to keep water temperatures colder and hence more hospitable to insects and fish. The water can also be used for flushing, to mimic what happens naturally during spring runoff, scouring river bottoms, to clear out the silt that clogs the spaces between rocks where mayflies and other insects live – and upon which fish feed…

A final environmental impact statement from the U.S. Army Corps of Engineers is expected in late April. The federal agency can also impose conditions of its own making. They would be included in a record-of-decision, which is expected to be issued in late 2015.

A permit from the Colorado Department of Health and Environment is also needed. Boulder County insists it also has say-so over enlargement of Gross Reservoir, an assertion contested by Denver Water.

In addition, the Federal Energy Regulatory Commission must award a permit for revised hydroelectric generation at Gross.

At earliest, expansion of Gross could start in 2018 and be ready to capture spring runoff in 2022…

The agreement represents a new wave of thinking about impacts of water diversions. The older way of thinking was demonstrated in the Colorado Big-Thompson project. Financed by the federal government, it gave the Western Slope a one-time package, Green Mountain Reservoir, between Kremmling and Silverthorne, to serve Western Slope needs, particularly the farmers near Grand Junction who need water for late-summer fruits and produce. The agreement did not cover a more recent problem seemingly caused by the diversion, algae that obscure the clarity of Grand Lake.

The most recent of of the new agreements since the 1990s provides more living, breathing elasticity. The foundation for the new agreement was announced in 2011 but not finalized until recently. Called the Colorado River Cooperative Agreement, it sharply restricts Denver’s ability to develop new water sources on the Western Slope and also calls for Denver to provide both water and money to address problems in the Vail, Breckenridge and Winter Park areas.

Then, in 2012, came agreements addressing the ambitions by five cities along the northern Front Range to increase the take of spring flows at Windy Gap, similar to what Denver wants to do at the Moffat Tunnel.

The Windy Gap settlement introduced adaptive management, an idea gaining favor in management of rivers of the West for several decades. The essential idea of Learning by Doing, the program embraced for both Windy Gap and the Moffat projects, is that it’s impossible to know exactly what to do in advance…

“In the past, you’d build a project, do the required mitigation and move on. That’s no longer the case. Denver Water is committed to a new way of doing business – one that approaches water management in a way that is collaborative and as beneficial to West Slope interests as possible. The partnership we’ve created through Learning by Doing is permanent. Our commitment is t o work with Grand County, Trout Unlimited and all the partners in Learning by Doing in an ongoing manner permanently into the future.”

More Denver Water coverage here.


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

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

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain (Chris Woodka):

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

[...]

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

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

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

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

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

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

More 2014 Colorado legislation coverage here.


“We want to plan for extreme hydrology the likes of which we have never seen” — Don Ostler #ColoradoRiver

April 16, 2014
Glen Canyon Dam -- Photo / Brad Udall

Glen Canyon Dam — Photo / Brad Udall

From Circle of Blue (Brett Walton):

Still in the earliest stages of negotiation, two remedies have emerged, both of which seek to fortify Lake Powell, the nation’s second largest reservoir, and preserve its capacity to generate electricity and supply water to the 40 million people who live in the watershed.

One strategy is an operational revision: release more water from upper-basin reservoirs during drought emergencies. The other option would cut demand: ask – or perhaps pay – farmers to stop growing crops in order to save water. Both approaches are technically and legally feasible, according to those involved in the discussions and outside experts.

“We’ve never had to do this before because we never planned for this degree of low water storage,” Don Ostler, executive director of the Upper Colorado River Commission, an administrative body, told Circle of Blue. “We want to plan for extreme hydrology the likes of which we have never seen.”[...]

… in the iconic Colorado River, flows have been above average in only three of the last 14 years. If the rest of the decade follows a similar hydrological trajectory, “dramatic problems emerge rather quickly,” said John McClow, Colorado’s representative to the Upper Colorado River Commission. McClow told Circle of Blue that the basin states used computer simulations last June to replicate the 2001 to 2007 river flows, a rather dry period, from 2014 until the end of the decade…

The upper basin wants to prevent a call on the river, a circumstance in which the four states are unable to meet their legal obligations to send water downstream to Arizona, California, and Nevada. A call has never happened.

The upper basin also wants to keep Lake Powell’s surface elevation from dropping below 3,490 feet, the point at which hydropower generation from Glen Canyon Dam, which forms the reservoir, would probably stop. Lake Powell has never tested that limit, a theoretical threshold. Today, Powell’s surface elevation is 3,574 feet, having fallen 60 feet in two years.

Glen Canyon provides as many as 5.8 million people with a portion of their electricity. Revenue from electricity sales helps pay to operate the dams. It also underwrites measures to reduce salt in the Colorado River and revive fish habitat.

To keep Powell from draining, one option is to release more water from reservoirs located higher in the basin: Flaming Gorge, in Wyoming; Navajo, in New Mexico; and a Colorado cluster known as the Aspinall Unit. These Rocky Mountain reservoirs evaporate less water than Powell, located in Utah’s arid canyon country, said Malcolm Wilson, chief of the Bureau of Reclamation’s water resources group, which operates the reservoirs. But that does not preclude a shift in operations.

“There’s nothing to say we couldn’t release more water than we have to sustain Powell,” Wilson told Circle of Blue, stating that the interests of the upper basin and Reclamation align, both wanting to keep the dam’s cash register ringing…

McClow noted that recreation and environmental constraints would need to be respected. Each of the higher-elevation reservoirs has an endangered species in its watershed, he said.

Along with the reservoir shuffle, upper basin negotiators are debating what a farmland fallowing program would look like. More questions – Who pays for it? Which lands are targeted? – than answers exist now, McClow said.

Doug Kenney, a water policy expert at the University of Colorado’s Natural Resources Law Center, said he saw no obvious legal problems with the two options.

“As long as they don’t try to be too picky about who owns that water, then I think it’s entirely realistic,” Kenney told Circle of Blue. “If they want to be picky, then all sorts of legal issues and potential problems come forward.”

Kenney said that ascribing ownership to the water begins to resemble the selling or transfer of water rights across state lines, a bête noire for the basin. Better, he said, if the water is not earmarked and simply flows downstream.

Ostler, the river commission’s executive director, said that the upper basin would like to have a plan finalized by the end of the year…

…none of the [Lower Basin] representatives that Circle of Blue contacted offered many details about their drought planning.

“We’re certainly having discussions about existing drought and contingency planning for an ongoing sustained drought,” said Colby Pellegrino, who handles Colorado River issues for Southern Nevada Water Authority, the state’s largest water utility. “But we’re not to a point where we can say what those options will be.”

Tanya Trujillo, executive director of the Colorado River Board of California, also demurred and declined to comment.

Pellegrino did say that the lower basin states are using hydrology models used in the Bureau of Reclamation’s Colorado River Basin study, a comprehensive supply and demand assessment published in December 2012.

That study assessed water use through 2060, but the current drought discussions take a narrower view. Pellegrino said the lower basin interests are looking at options through 2026, the year that the shortage sharing agreement expires.

More Colorado River Basin coverage here and here.


Upper Arkansas Water Conservancy District board meeting recap

April 14, 2014
Graphic via the Upper Arkansas Water Conservancy District

Graphic via the Upper Arkansas Water Conservancy District

From The Mountain Mail (Joe Stone):

Upper Arkansas Water Conservancy District directors agreed to continue pursuing the district’s proposed Multi-use Project during the monthly board meeting Thursday in Salida. Director Greg Felt, Salida, provided an overview of the project, which has remained largely dormant for the past 2 years, and noted the widespread appeal of the project among diverse state agencies, local government entities and the conservation and recreation communities.

Benefits of the project would include:

• Preservation of agricultural irrigation.
• Two water storage reservoirs.
• Alluvial aquifer water storage.
• Conservation easements.
• Wildlife corridor protections.
• Protections for deer and elk populations.
• Drought water supply.
• New public access to the Arkansas River.
• New boating access to the river.
• Hydroelectric electricity generation.

Felt pointed out that these benefits align almost perfectly with Colorado water management objectives as identified by the Statewide Water Supply Initiative, or SWSI (swahzee), 2010 report.

Major components of the project would include Chaffee County’s most senior water right, the Trout Creek Ditch; the Helena Ditch; Moltz Reservoir; a proposed gravel pit reservoir; and 6,000-12,000 acre-feet of proposed aquifer storage.

Felt said significant challenges facing the project include financing and working with five different property owners.

District Manager Terry Scanga said he sent a proposal to the Colorado Water Conservation Board concerning the project and the potential for financing through the CWCB and said he would follow up to get a meeting set.

District Engineer Ivan Walter said, “The project is there” from an engineering standpoint and in terms of SWSI objectives. “It would be a missed opportunity if the Upper Ark (district) didn’t do it.”

Director Jeff Ollinger, Buena Vista, has a background in finance and suggested using the CWCB finance application to prepare for the CWCB meeting. He also noted the potential for the district to leverage other assets as collateral to obtain sufficient financing for the project.

Ollinger also stressed the need to accurately assess the risks associated with the project, citing the potential for wildfire in the Trout Creek drainage and the potential for a hazardous material spill along U.S. 24/285 between Johnson Village and Trout Creek Pass.
Either of these events could significantly affect water quality and, therefore, the ability of the Multi-use Project to generate revenue to make loan payments.

Prior to the regular board meeting, directors met as the Enterprise Committee. Agenda items for the committee meeting included a financial report, an augmentation report, a reservoir and water storage report, and a precipitation and streamflow report.

In other business, Upper Ark directors:

Learned that Upper Colorado Basin snowpack conditions are similar to those in 2011 when the Frying Pan-Arkansas Project delivered 98,900 acre-feet of water to the Arkansas River and that the district has requested 1,000 acre-feet of project water for 2014.

Heard a legislative report from consultant Ken Baker, who said the Flex Water Market bill had been changed to prevent leased water from being diverted outside the basin of historic use for the water right in question.

Voted to drop Water Court case 95CW234, involving district efforts to extend augmentation services into the Texas Creek drainage.

Heard a presentation by U.S. Geological Survey Southwest Colorado Office Chief David Mau about the detrimental effects of wildfire runoff on water quality and how to mitigate those effects.

Learned the Southeastern Colorado Water Conservancy District approved a stipulation in Water Court case 04CW95 and signed a storage agreement with the Upper Ark district.
Were reminded that four directors’ seats are up for reappointment, and candidates have until May 1 to submit an application.

Learned district staff members are developing a memorandum of understanding with the town of Buena Vista for the Cottonwood Creek Integrated Management Plan.

Agreed to have legal counsel draft comments regarding the U.S. Environmental Protection

Agency’s proposed rules pertaining to water resources.

More Upper Arkansas Water Conservancy District coverage here.


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

April 6, 2014
Sheep Herders on the Uncompahgre Plateau

Sheep Herders on the Uncompahgre Plateau

From The Durango Herald (Katie Fiegenbaum):

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

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

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

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

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

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

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

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

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

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

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


Environmental groups are suing to prevent oil and gas exploration operations north of Del Norte #RioGrande

April 5, 2014
San Luis Valley Groundwater

San Luis Valley Groundwater

From The Pueblo Chieftain (Robert Boczkiewicz):

Environmental groups in the San Luis Valley say they are suing to protect an aquifer they call “the lifeblood” of the valley. The lawsuit alleges that proposed drilling for oil and gas on federal land just south of Del Norte endangers 7,000 water wells in the valley. The lawsuit asks a judge to overturn the federal Bureau of Land Management’s approval of the drilling by a Texas oil company.

The lawsuit against BLM was filed March 5 in U.S. District Court by the San Luis Valley Ecosystem Council and Conejos County Clean Water Inc.

The Conejos Formation aquifer “holds the lifeblood of the San Luis Valley ecosystem, culture and economy, as well as the headwaters of the Rio Grande (River),” the 37-page lawsuit states. “Any underground and surface water contamination due to oil and gas exploration in the project area would likely enter the Conejos Formation aquifer.”

“BLM violated the law by issuing (the oil) lease . . . without considering the unique and controversial effects” of the drilling, the lawsuit alleges. “A growing number of people . . . are concerned that the federal government has once again relied on a rushed, incomplete process,” approving the proposed drilling “without taking a hard look,” as law requires, at its impacts, the lawsuit asserts.

BLM said that it is reviewing the lawsuit.

The environmental groups contend that BLM’s environmental assessment of the drilling project incorrectly concluded there would be no significant impact.

More Rio Grande River Basin coverage here.


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

April 5, 2014
Roaring Fork River back in the day

Roaring Fork River back in the day

From the Aspen Daily News (Nelson Harvey):

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

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

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

More water law coverage here.


CWCB: 2015 Proposed Instream Flow Appropriations

April 5, 2014

Colorado instream flow program map via the Colorado Water Conservation Board

Colorado instream flow program map via the Colorado Water Conservation Board


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


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

March 28, 2014

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

March 26, 2014
Sheep Herders on the Uncompahgre Plateau

Sheep Herders on the Uncompahgre Plateau

From email from GovTrack.us:

Mar 25, 2014 9:46 p.m. — Bill Text

H.R. 3189: Water Rights Protection Act

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


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

March 26, 2014
Shoshone Falls hydroelectric generation station via USGenWeb

Shoshone Falls hydroelectric generation station via USGenWeb

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

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

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

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

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

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

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

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

That left the prospect lingering.

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

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

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

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

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

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

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

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

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

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

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

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

More Colorado River Basin coverage here and here.


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

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

Flood irrigation — photo via the CSU Water Center

From The Pueblo Chieftain (Chris Woodka):

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

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

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

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

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

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

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

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

More 2014 Colorado legislation coverage here.


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

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

Trail map for Powderhorn Ski Area via liftopia

From The Pueblo Chieftain:

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

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

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

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

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

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

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

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

More water law coverage here.


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

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

Trail map for Powderhorn Ski Area via liftopia

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

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

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

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

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

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

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

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

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

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

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

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

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


The Rio Grande River Compact Commission meets today

March 20, 2014
Rio Grande and Pecos River basins

Rio Grande and Pecos River basins

From the Associated Press via the Houston Chronicle:

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

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

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

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

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

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

More Rio Grande River Basin coverage here and here.


Colorado Water Stewardship Project: March Webinar Ballot Initiatives 2014 — Water and Related Issues

March 19, 2014
Justian I first codifier of riparian rights

Justian I first codifier of riparian rights

Click here for the details:

The CWSP is currently monitoring three proposed ballot initiatives which have the potential to significantly impact Colorado’s water allocation system. Join us March 25, at 12pm for this month’s webinar: Ballot Initiatives 2014- Water and Related Issues.

Doug Kemper of the Colorado Water Congress, Steve Leonhardt of Burns, Figa & Will P.C., and Floyd Ciruli of Ciruli Associates will present an overview of the recently proposed ballot initiatives related to a Public Trust Doctrine in Colorado, and will identify a few other proposed initiatives that may be of concern. They will provide understanding of the impact such initiatives might have and information on how you can take action to advance a sustainable water future for Colorado.

Register at: https://www1.gotomeeting.com/register/296202737

More public trust doctrine coverage here.


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

March 18, 2014
Shoshone Falls hydroelectric generation station via USGenWeb

Shoshone Falls hydroelectric generation station via USGenWeb

From The Grand Junction Daily Sentinel (Dennis Webb):

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

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

Controlling river

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

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

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

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

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

Revenue stream

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

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

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

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

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

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

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

Electricity demand

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

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

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

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

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

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

Xcel investment

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

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

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

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

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

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

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

More Colorado River Basin coverage here and here.


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

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

Artesian well Dutton Ranch, Alamosa 1909 via the Crestone Eagle

From the Valley Courier (Ruth Heide):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More Upper Rio Grande River Basin coverage here.


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

March 16, 2014

Trail map for Powderhorn Ski Area via liftopia

Trail map for Powderhorn Ski Area via liftopia


From The Denver Post Editorial Board:

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

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

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

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

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

Unfortunately, it’s not that simple.

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

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

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

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

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

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

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

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

From The Grand Junction Daily Sentinel (Gary Harmon):

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

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

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

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

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

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

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

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

More water law coverage here.


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

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

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

From The Denver Post (Mark Jaffe):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More oil and gas coverage here and here.


H.R. 3189 passes the US House of Representatives

March 15, 2014

From The Pueblo Chieftain (Chris Woodka):

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

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

The bill protects Colorado water rights from federal encroachment.

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

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

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

From American Rivers (Matt Niemerski):

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

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

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

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

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

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

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

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

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

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

More water law coverage here.


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

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

Trail map for Powderhorn Ski Area via liftopia

From The Durango Herald (Joe Hanel):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the Seattle Times (Kyung M. Song):

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

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

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

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

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

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

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

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

More 2014 Colorado legislation coverage here.


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

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

Trail map for Powderhorn Ski Area via liftopia

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

More water law coverage here.

From The Goat (Krista Langlois):

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

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

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

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

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

More H.R. 3189 coverage here.


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

March 11, 2014
Justian I first codifier of riparian rights

Justian I first codifier of riparian rights

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

Public Trust Ballot Initiative Introduced

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

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

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

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

More 2014 Colorado November election coverage here.


Glenwood Springs RICD application draws 13 statements of opposition #ColoradoRiver

March 7, 2014
City of Glenwood Springs proposed whitewater parks via Aspen Journalism

City of Glenwood Springs proposed whitewater parks via Aspen Journalism

From the Glenwood Springs Post Independent (John Stroud):

One of the 13 formal “statements of opposition” filed in the case as of Thursday comes from another of Glenwood Springs’ major recreational attractions, the Glenwood Hot Springs Pool.

The Hot Springs, in a Feb. 27 water court filing, renewed its long-standing concerns that any whitewater park features constructed in and along the river near the springs’ aquifer could potentially harm the springs.

“Operation of the [proposed] Two Rivers Whitewater Park facilities may inundate and damage portions of the Colorado River riverbed and adjacent river banks,” which could in turn damage the Hot Springs Pool facilities, according to the filing by Hot Springs attorney Scott Balcomb.

At issue would be a proposed location for a potential new whitewater park at the east end of Two Rivers Park, just above the confluence with the Roaring Fork River. It’s one of three possible locations identified in the city of Glenwood Springs’ request filed late last year for a recreational in-channel diversion, or RICD. The others are near the No Name rest area on I-70 in Glenwood Canyon, and in the Horseshoe Bend section of the river just east of town, by the No Name Tunnels…

The city now hopes to build on the economic success of the whitewater sports boom by building a second play park. To accomplish that, however, it will have to negotiate with the various entities that have filed as opposers to make sure their concerns are satisfied. That could take several years, said Mark Hamilton, a water attorney who is representing the city of Glenwood Springs in ushering the case through Colorado’s water court.

“For a case like this, that’s not unexpected,” he said of the number of entities that have taken the formal step of opposing the city’s RICD request.

Just because an entity files a statement of opposition doesn’t necessarily mean that they will ultimately object to the request, Hamilton explained. It just means that they want to be party to the negotiations so that any current or future concerns are heard as the plans take shape, he said.

Hamilton said he believes the proposed Two Rivers Park location would be far enough downstream from the hot springs that it should not be a concern.

“Obviously, everybody acknowledges that the Hot Springs Pool is and will continue to be an important part of Glenwood Springs’ economy, and their concerns are something that will have to be a part of this discussion,” Hamilton said…

Other heavy hitters that have filed to be part of the discussions include the Denver Water Board, the state’s largest water utility which owns significant water rights on the Colorado River, plus the city of Colorado Springs, the Colorado River Water Conservation District, the Colorado Water Conservation Board and several upstream and downstream water users.

Denver Water would not have been able to oppose the request by Glenwood Springs under the recent new Colorado River Cooperative Agreement it signed with Western Slope water interests, except that the request is for more water during certain times of the year than Denver had agreed to in that deal, Hamilton also said.

The city’s request seeks a “shoulder season” base flow of 1,250 cubic feet per second during the month of April each year and again from July 24 through Sept. 30. That is less than the 1,280 cfs Denver Water agreed it would not object to. However, Glenwood also requests a maximum flow rate not to exceed 4,000 cfs for up to five days between May 11 and July 6 each year, and 2,500 cfs for as many as 46 days between April 30 and May 10 and July 7-23.

The extra amount during those times could impair Denver Water’s ability to divert water under the separate Shoshone relaxation agreement, according to the utility’s statement of opposition filed Feb. 28. Further, the request could also affect Denver Water’s ability to implement its agreement with Grand County for municipal, snowmaking and environmental purposes, the utility claims.

Grand County, which recently had its own RICD request OK’d, filed a formal statement of support for the Glenwood Springs request.

“Grand County has been actively involved in efforts to preserve, protect, restore, and improve streams in the headwaters of the Colorado River and its tributaries and resolve various controversies with Denver Water,” the county stated in support of Glenwood’s application. “The [RICD] that this application seeks is consistent with Grand County’s efforts.”

Hamilton said the case has been assigned to a water referee in Glenwood Springs to oversee the initial negotiations. There will also be an administrative hearing before the Colorado Water Conservation Board, which will make a recommendation on the request.

He noted that the Grand County case is nearing completion after about 3-1/2 years, while a similar request recently granted to the town of Carbondale for a RICD on the Roaring Fork River took multiple years to process as well.

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

Three of the objectors are municipal water providers on the Front Range — Denver Water, Aurora Water, and Colorado Springs Utilities. They depend on water from the Colorado River basin and are concerned about new recreational water rights limiting their future water management options.

Three entities — the Colorado Department of Transportation (CDOT), the BLM and the Glenwood Hot Springs Lodge and Pool — are concerned about the proposed locations of the whitewater parks.

The Colorado River District, which represents 15 counties on the Western Slope, is generally supportive of Glenwood’s application, according to the district’s attorney Peter Fleming, but like the Front Range entities, it also has concerns about limiting the amount of water available for future junior water rights upstream of the proposed whitewater parks.

The West Divide Water Conservancy District, based in Rifle, simply told the court it “is the owner of vested water rights that may be injured by the granting of this application.”

Another four entities say they just want to monitor the case: the town of Gypsum; the Orchard Mesa Irrigation District in Palisade; the Ute Water Conservancy District and the Grand Valley Water Users Association, both in Grand Junction.

The Colorado Water Conservation Board (CWCB) also filed a statement, as it routinely does for applications of a new “recreational in-channel diversion right,” or RICD. The state agency is charged with reviewing such proposals and sending findings to water court.

And Grand County has filed a document perhaps unique to water court — a “statement in opposition in support of application.” This means Grand County supports Glenwood’s applications, but wants to be involved in the case via the filing of a required statement of opposition…

Technically, there were 13 statements of opposition filed in the case. The three Grand Valley water users, however, filed a joint application, so there are a total of 15 objecting entities. And Aurora and Colorado Springs, in addition to each filing a statement, also filed together as the Homestake Steering Committee. The two cities are partners in the Homestake Reservoir on the headwaters of the Eagle River, which flows into the Colorado River at Dotsero, which is located above the three proposed whitewater parks…

He said he expected that Denver Water would file an objection, as Glenwood has asked for the rights to more than 1,250 cubic feet per second (cfs) of water. That rate of flow is the same as the senior water right held by Xcel Energy for the Shoshone hydro plant, which also is above the three proposed whitewater parks…

And that’s the amount of water for a Glenwood whitewater park that Denver Water said it could support in the recently finalized Colorado River Cooperative Agreement, which was signed by Denver Water and 17 other entities.

“One of the provisions for support was that the recreational in-channel diversion wouldn’t exceed 1,250 cfs at the Dotsero gage,” said Travis Thompson, a media coordinator with Denver Water. “This is the amount of water needed to mimic the senior Shoshone call.”[...]

Hamilton, Glenwood’s water attorney, said the requested water rights sought above 1,250 cfs are “purely based on kayakers and boaters saying it sure would be great to have that much flow.”

He said he’s in discussions with Denver Water about Glenwood’s application and will soon be talking with all the objectors in the case…

And the Glenwood Hot Springs Lodge and Pool is concerned that wave-creating structures built in the river near the hot springs pool could harm the underground aquifer that supplies hot water to the pool. Kjell Mitchell, the president and CEO of the Hot Springs Lodge and Pool, said engineering studies have shown the boundary of the underground aquifer extends from above the pool to below Two Rivers Park. The city has proposed that one of its whitewater parks be built just above Two Rivers Park.

“The primary issue of our concern is the potential scouring of the river which could create a hole in the bottom of the river and damage the aquifer,” Mitchell said.

More whitewater coverage here.


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

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

Denver Water’s collection system via the USACE EIS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More Moffat Collection System Project coverage here and here.


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

March 4, 2014
Pelton wheel

Pelton wheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More hydroelectric coverage here.


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

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

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain editorial staff:

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

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

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

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

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

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

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

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

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

More 2014 Colorado legislation coverage here.


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

February 1, 2014
Rio Grande Silvery Minnow via Wikipedia

Rio Grande Silvery Minnow via Wikipedia

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

Asinine.

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

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

From The Pueblo Chieftain (Chris Woodka):

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

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

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

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

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

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

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

More Rio Grande River Basin coverage here and here.


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

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

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain (Chris Woodka):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More 2014 Colorado legislation coverage here.


Fort Collins loses 1985 conditional right for Halligan Reservoir

January 28, 2014
Reservoirs NW of Fort Collins

Reservoirs NW of Fort Collins

From the Northern Colorado Business Report (Steve Lynn):

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

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

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

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

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

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

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

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

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

More Cache la Poudre watershed coverage here.


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

January 27, 2014
Rio Grande and Pecos River basins

Rio Grande and Pecos River basins

From the Albuequerque Journal (John Fleck):

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

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

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

More Rio Grande River Basin coverage here.


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

January 22, 2014
Rio Grande Silvery Minnow via Wikipedia

Rio Grande Silvery Minnow via Wikipedia

From the Albuquerque Journal (John Fleck):

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

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

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

More endangered/threatened species coverage here.


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

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

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain (Chris Woodka):

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

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

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

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

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

More Arkansas Valley Super Ditch coverage here and here.


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

January 21, 2014
Reservoirs NW of Fort Collins

Reservoirs NW of Fort Collins

From the Fort Collins Coloradoan (Kevin Duggan):

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

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

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

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

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

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

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

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

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

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

More water law coverage here and here.


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

January 20, 2014
Acequia San Antonio via Judy Gallegos

Acequia San Antonio via Judy Gallegos

From the Valley Courier (Ruth Heide):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More Rio Grande River Basin coverage here.


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

January 16, 2014
Reservoirs NW of Fort Collins

Reservoirs NW of Fort Collins

From the Northern Colorado Business Report (Steve Lynn):

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

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

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

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

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

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

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

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

More Cache la Poudre River Watershed coverage here and here.


Public Trust Doctrine effort spurs the Colorado Water Congress to respond

January 10, 2014
Justian I first codifier of riparian rights

Justian I first codifier of riparian rights

From the Northern Colorado Business Report (Steve Lynn):

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

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

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

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

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

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

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

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

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

More Public Trust Doctrine coverage here.


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

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

Colorado Water Plan website screen shot November 1, 2013

From the Glenwood Springs Post Independent (Hannah Holm):

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

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

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

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

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

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

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

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

More education coverage here.


Does the Endangered Species Act Preempt State Water Law? — Robin Kundis Craig

January 7, 2014

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

December 26, 2013

Justian I first codifier of riparian rights

Justian I first codifier of riparian rights


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

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

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

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

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

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

More Public Trust Doctrine coverage here.


Colorado legislative panel hopes to allow ditch company diversions impacted by #COFlood to avoid water court

December 23, 2013
Flooding St. Vrain River September, 2013 via Voice of America

Flooding St. Vrain River September, 2013 via Voice of America

From The Denver Post (Kurtis Lee):

As communities across Colorado continue to recover from September’s widespread floods, lawmakers on Friday proposed measures meant to alleviate some devastation and address future natural disasters. Among the measures proposed from the bipartisan flood recovery panel were efforts to free up cash for local jurisdictions and help landowners affected by shifts in streams and rivers. Current state law prohibits county commissioners from transferring general fund money into funds for road and bridge projects.

“We need to give counties the flexibility to fix their roads,” said Sen. Matt Jones, D-Louisville, who is sponsoring a measure that allows such transfers. “Because here’s a challenge: Boulder County has $10 million a year for their road and bridge fund and $100 million in repairs from the floods. And because federal funds come later, it creates a cash flow problem.”

The proposal, which has bipartisan support, allows counties to transfer money from its general funds to its road and bridge funds if the governor declares a disaster emergency in that county. Jones said the measure has also garnered the support of Colorado Counties Inc.

September’s floods spanned 24 counties. A mix of federal and state money allowed for the reopening of 27 roads and bridges with temporary repairs. Several years of complex challenges remain in these counties as each works toward permanent fixes to roads.

A separate proposal from Friday’s meeting at the state Capitol allows landowners with water rights to relocate, for example, a ditch head gate that becomes inoperable because of a change in the natural flow of a stream or river. Those individuals would have to consult with state engineers and meet certain criteria but would be able to bypass the state’s water court system, which can result in a lengthy process.

“This can no question help farmers because agriculture needs to be diverting water as soon as possible for the growing seasons,” said Rep. Jerry Sonnenberg, R-Sterling, who is sponsoring the proposal.

Several other ideas were floated by the committee, which plans to meet again in early January before the session convenes.

Rep. Mike Foote, D-Lafayette, brought forward a suggestion — but no draft of a bill — by the Colorado Oil and Gas Conservation Commission. Foote said the commission would like to give its director authority in cases of emergency to order shutdowns of oil and gas operations. Currently such orders must come from the commission’s board.

Sen. John Kefalas, D-Fort Collins, offered a proposal to wave the requirement that disaster recovery workers from out of state must pay Colorado state income taxes.

“They would be totally excluded,” said Kefalas, who hopes to present a draft bill to the committee at its next meeting.

More 2014 Colorado legislation coverage here.


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

December 23, 2013
The Code of Hammurabi via Wikipedia Commons

The Code of Hammurabi via Wikipedia Commons

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

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

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

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

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

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

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

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

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


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

December 23, 2013
The Glenwood Wave

The Glenwood Wave

From the Glenwood Spring Post Independent (John Stroud):

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

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

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

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

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

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

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

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

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

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

More whitewater coverage here.


Colorado takes important step in resolving Republican River dispute

December 21, 2013
Republican River Basin

Republican River Basin

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

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

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

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

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

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

From The Denver Post (Bruce Finley):

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

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

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

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

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

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

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

More Republican River Basin coverage here and here.


Colorado delivers annual accounting for Arkansas River administration to the compact commission

December 20, 2013
Arkansas River Basin via The Encyclopedia of Earth

Arkansas River Basin via The Encyclopedia of Earth

From The Pueblo Chieftain (Chris Woodka):

Colorado’s credit for water deliveries at the Kansas state line stands at more than 58,700 acre-feet under a rolling 10-year average. The annual accounting of deliveries, related to a 24-year U.S. Supreme Court case over the Arkansas River Compact, was given to the compact administration Wednesday.

In 2012, marked by statewide drought, there was a net depletion of 5,500 acre-feet to the Arkansas River. That was combined with other flows since 2003 to calculate the 10-year average.

While the final decision in the court case was issued in 2009, Colorado and Kansas continue to work through issues related to water deliveries.

Bill Tyner, assistant engineer for Colorado Division 2, reported that 1,160 acre-feet of replacement water was made available by the Lower Arkansas Valley Water Conservancy District to compensate for on-farm sprinkler improvements on more than 14,500 acres covering 100 farms.

Tyner reported a pond study is showing about 18 percent seepage, which is nearly twice the assumed rate in a “conservative” computer model. The pond study will be complete next year, but results from individual measurements already are being applied as credits for about 20 individual farmers.

“We’ll report next year on any changes we make in the model,” Tyner said.

Kansas accepted Colorado’s evaluation of the presumptive depletion for well pumping at 36.5 percent next year, said Kelly Thompson of the Colorado Division of Water Resources.

Kansas still has issues with a Colorado water court decree for the Lower Arkansas Water Management Association, said Eve McDonald, of the Colorado attorney general’s office.

For the second consecutive year, Kansas took no water from its account in John Martin Reservoir because of the low volume of water, dry conditions and the timing of flows, which arrived past the point when they could be used in Kansas.

“We lose less through evaporation than by running it down the river,” said Kevin Salter of the Kansas Division of Water Resources.

More Arkansas River Basin coverage here.


Upper Arkansas Water Conservancy District board meeting recap

December 19, 2013
Upper Arkansas Valley

Upper Arkansas Valley

From The Mountain Mail (Joe Stone):

During the monthly meeting of the Upper Arkansas Water Conservancy District board of directors, consultant Ken Baker discussed preliminary efforts to develop a bill that would create a “flexible water market,” saying he believes some form of bill will be enacted during the next legislative session.

Baker said the bill would allow the amount of water attributed to historical consumptive use on irrigated land to be put to other uses during temporary fallowing of that land and allow the water to be put to any beneficial use without designating the specific use, as is currently required. Through a flex market, Baker said, agricultural water rights holders could implement rotational fallowing of their farmland and lease a portion of their water for other beneficial uses, while retaining sufficient water to sustain agricultural activities and keep the land in production. A key element of this approach, Baker said, is that the bill would grant the state water engineer the authority to approve flex market filings and agreements, removing Water Court from the process except for appeals.

Baker also noted that nothing proposed in the bill to date addresses storing or transferring water leased through the proposed flex market system. Baker said one concern with the legislation is basin-of-origin protections for water in the Arkansas River Basin because similar bills passed in 2013, HB-1248 and HB-1033, do not protect the Arkansas Basin from transbasin diversions.

In other business, directors:

  • Learned that a final decree was issued granting absolute storage rights for all district water in O’Haver Reservoir and all but 100 acre-feet of district water in North Fork Reservoir.
  • Learned that the Colorado Water Conservation Board approved a grant to fund phase 2 of the Helena Ditch project, which will include construction of concrete components to ensure sufficient capacity in the ditch and a bypass to return excess diverted water back to the river.
  • Learned from hydrologist Jord Gertson that Arkansas River Basin snowpack has reached 139 percent of average and that the district is gaining native and transbasin winter water in Twin Lakes Reservoir.
  • Heard comments from attorney Kendall Burgemeister indicating U.S. Sen. Mark Udall’s proposed Browns Canyon National Monument legislation “seems favorable to the district.”
  • Heard from Director Tim Canterbury that preliminary discussions have begun in an effort to craft legislation concerning livestock ponds that have no water rights, some of which the Colorado Division of Water Resources officials have ordered drained.
  • Discussed the exemption from the priority system of livestock that drink from a free-flowing stream or ditch.
  • Received a list of projects from the Personnel and Finance Special Committee and were asked to prioritize projects and submit those priorities to the committee prior to the January meeting.
    Heard from Cañon City Water Superintendent Bob Hartzman about ongoing efforts to protect the watershed through erosion prevention and revegetation in areas burned by the Royal Gorge Fire.
  • Heard from Director Frank McMurry that the U.S. Forest Service will no longer pursue its plan of forcing ski resorts to surrender their water rights, a plan that agricultural water rights holders had opposed.
  • Approved, by an 8-4 vote, dropping opposition to the Lower Arkansas Water Conservancy District’s Super Ditch case if the Lower Ark district agrees to drop its opposition to the Upper Ark district’s 04CW96 case. McMurry, Canterbury, Tom French and Bill Jackson voted against the measure.
  • Renewed the U.S. Geological Survey contract for the Groundwater Network Study.
  • Approved stipulations negotiated with St. Charles Mesa in case 04CW96 relating to basin-wide exchanges.
  • Learned from Burgemeister that the deadline for filing oppositions in the district’s Cottonwood Creek exchange case had been extended into February because the Aspen newspaper failed to post notice of the filing.
  • More Arkansas River Basin coverage here.


    “It’s obvious there isn’t anything like” the Rio Grande — Gabriel Eckstein

    December 16, 2013
    Rio Grande and Pecos River basins

    Rio Grande and Pecos River basins

    Here’s a report about Rio Grande River administration from Julián Aguilar writing for The New York Times. Click through and read the whole article. Here’s an excerpt:

    Researchers say the Rio Grande is one of the most studied and controversial bodies of water in North America. But with various levels of government in two countries making decisions that influence it, the Rio Grande has become the subject of interstate and international legal battles that have intensified during the continuing drought.

    “It’s obvious there isn’t anything like” the Rio Grande, said Gabriel Eckstein, a professor at the Texas A&M University School of Law and the director of the International Water Law Project. “It’s a border river amongst U.S. states and internationally. You just have so many stakeholders with different jurisdictions and laws that apply.”[...]

    It is at the New Mexico border where water needs and individual interpretations of laws create one controversy. New Mexico and Texas are embroiled in a lawsuit over groundwater extraction. Texas argues its neighbor is allowing excessive pumping, reducing the flow of the Rio Grande into Texas.

    A 1938 compact between Colorado, New Mexico and Texas governs how much of the river’s water the states are allotted. Mr. Eckstein says that the compact does not consider different state practices.

    “Are they allowed to do it? That’s a different question,” he said. “New Mexico has a different law for groundwater versus surface water, and it’s unclear whether the compact relates to that.”

    As the Rio Grande continues southeast, intrastate needs create more domestic discord. Tom Miller, the director of the Lamar Bruni Vergara Environmental Science Center in Laredo, said people there are monitoring a proposal by the city of San Antonio that would pipe in water from the San Felipe Springs in Val Verde County. The springs feed the river, and Mr. Miller said the action would harm one of the few hundred springs left in a state that once had thousands.

    “We’re very concerned about this intrabasin transfer of water,” said Mr. Miller, whose Webb County office is just feet from the Rio Grande’s banks. “How will it affect the general water table of the river, and will it lower so that the water will have a harder time being delivered to the intended recipients? How will it affect ours?” San Antonio officials say considering the option is necessary to help satisfy its growth needs, which have been magnified by the drought.

    The clearest example of how international politics affects the Rio Grande is a 1944 water treaty between the United States and Mexico. The treaty states that Mexico must provide the United States surface water from Mexican tributaries that feed into the river. In turn, the United States is to deliver water from the Colorado River. Mexico is supposed to provide 1.75 million acre-feet of water every five years. American officials contend that Mexico should supply 350,000 acre-feet annually, unless prevented by extreme environmental circumstances. Others say Mexico can make good on its delivery at any point during the cycle.

    Sally Spener, a foreign affairs specialist with the El Paso-based International Boundary and Water Commission, said that as of Nov. 23, the supply deficit was 275,000 acre-feet, down from 484,000 in June.

    The deficit prompted Senators John Cornyn and Ted Cruz, Republicans of Texas, to file legislation urging Mexico to comply and Gov. Rick Perry to write the Obama administration with a similar demand.

    But Mexico has not technically violated the treaty. And in certain areas along the Rio Grande, its tributaries are the main supplier of water. Mexico also cites the drought as one reason it continues to hold on to its supply.

    At Falcon Lake, a massive reservoir that straddles Mexico at Tamaulipas State and Webb and Zapata Counties in Texas, more than 80 percent of the water that is distributed comes from Mexico, Mr. Miller said…

    Mr. Eckstein said that bureaucratic hurdles also affect what stakeholders know about the river and how it is fed. Transnational aquifers, he said, are a mystery because data is not shared across the border. Knowing how many aquifers span the border would inform public use practices and legislation, he said, citing the basics of the hydrological model.

    More Rio Grande River Basin coverage here.


    Arkansas River Basin: “We’re getting screwed here. Does Kansas owe me water?” — Dale Mauch

    December 15, 2013
    Augmentation pond photo via Irrigation Doctor, Inc.

    Augmentation pond photo via Irrigation Doctor, Inc.

    From The Pueblo Chieftain (Chris Woodka):

    Farmers are still not happy with the state’s accounting of the impact of surface irrigation improvements on return flows to the Arkansas River.

    “We’ve got to change the formula,” Lamar farmer Dale Mauch told officials Friday after learning of preliminary results from a two-year pond study at a meeting hosted by the Prowers County Soil Conservation District. “We’re getting screwed here. Does Kansas owe me water?”

    The pond study is being conducted under a state grant through the Lower Arkansas Valley Water Conservancy District and won’t be finished until next year. But results from 2013 show that ponds leak about twice as much as assumed under a state formula adopted in 2010 surface irrigation rules.

    The rules are meant to assure that Colorado does not take more of its share than it is entitled to under the Arkansas River Compact with Kansas, said Assistant Division Engineer Bill Tyner.

    The Lower Ark district provided 1,160 acre-feet of replacement water to make up for calculated deficits caused by sprinklers on 107 farms under Rule 10 plans this year. Most of the sprinklers are located on the Fort Lyon Canal. Those included 81 ponds, which were presumed to leak at a rate of about 10 percent under the state formula.

    But a study of 20 ponds by engineers Jerry Knudsen and Brian Lauritsen shows they leaked anywhere from 3-45 percent, averaging about 18 percent. Those numbers were used in the state calculations, but only for ponds that were measured.

    Ponds with higher leakage tend to crack as they dry up between irrigation runs, Knudsen said. Because of the drought, irrigation runs were less frequent this year, and most of the 50 farmers who attended the meeting expressed doubts that a water-short ditch like the Fort Lyon Canal owed any water to the river under those conditions.

    Cutting back the amount of augmentation water needed for the Rule 10 plans is critical to making irrigation affordable. The price of augmentation water is expected to increase, especially in years such as this one when it is not readily available. Water used for this year’s Rule 10 plans ranged in cost from Fry-Ark water, which costs $7.50 per acre-foot, to water leased from the Pueblo Board of Water Works, at a cost of $250 per acre-foot (including storage). Other sources included the Larkspur Ditch and Twin Lakes water owned by the Lower Ark district.

    While the cost is going up, water leasing also competes with well groups, said Jay Winner, manager of the Lower Ark district.

    “Buying water on the spot market in the future is not promising,” Winner said.

    More Arkansas River Basin coverage here and here.


    Republican River Basin: Special Master William Kayatta, Jr. reduces Nebraska’s damages to $5.5 million

    December 10, 2013
    Republican River Basin

    Republican River Basin

    Here’s a report the Imperial Republican (Russ Pankonin) via The Yuma Pioneer. Click through and read the whole article. Here’s an excerpt:

    Last Friday’s report by Special Master William Kayatta, Jr. gave Nebraska the upper hand in a dispute between Kansas and Nebraska that dates back to 2010.

    “The decision could have only been $5.5 million better,” said Upper Republican Manager Jasper Fanning. Kayatta said Kansas was entitled to damages of $5.5 million versus the $80 million they had sought.

    Fanning said the only way the report could have been more favorable for Nebraska was if Kansas hadn’t gotten any damages at all, he noted. Fanning said the reduction in damages was important. But even bigger was a change in the accounting process that ultimately determines how much water is available to Nebraska, he added. That will be worth many times more over the years than the $5.5 million Nebraska will have to pay Kansas, Fanning said.

    In addition to the accounting change, Kayatta said Nebraska should not be charged for evaporation that occurred from Harlan County reservoir in 2006.

    These two rulings will gain the basin from 16,000 to 18,000 acre feet towards water use calculations for 2007.

    In addition, the accounting change will result in additional water supply annually, Fanning said. That additional water will be a boost in helping Nebraska stay in compliance with the 2002 settlement agreement reached with Kansas over basin water supplies, he added.

    More Republican River Basin coverage here and here.


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