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

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

Fountain Creek flood debris May 2014 via The Pueblo Chieftain

From The Pueblo Chieftain (Chris Woodka):

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

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

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

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

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

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

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

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

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

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

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

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

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

More Fountain Creek coverage here and here.


Snowmass: Colorado Water Congress summer meeting “Rallying Our Water Community” August 20-22

July 23, 2014
Westin Snowmass Resort

Westin Snowmass Resort

From email from the Colorado Water Congress (Doug Kemper):

Excitement continues to build for our 2014 Summer Conference and Membership Meeting. It will be held at the Westin Snowmass Resort, August 20-22. Our theme this year is “Rallying Our Water Community.” To register please visit: Conference Registration.

We will know in a couple of weeks if enough signatures have been gathered to place Initiative 89, Local Government Regulation of the Environment, on the 2014 Ballot. Whether it does or not, the water community will need to develop a greater public presence on these issues. Our conference is designed to help develop your advocacy skills and knowledge base.

We want to ensure we are focused on our member’s priorities when the Water Congress Board sets our priorities this fall. Summer Conference activities are designed to give you the opportunity to provide direct input to our leadership. We hope that you will take this chance to engage with us.

Our exciting program will again include a session with the Water Resources Review Committee. Additional honored guests include both Republican and Democratic candidates for the U.S. Senate, U.S. House Third District, and Attorney General. Don’t miss this chance to catch up with colleagues and meet new community members during our POND networking activities.

Highlights of our unique program sessions include:

Strategies for Finding Your Voice
Do you have adequate tools to advocate on behalf of Colorado’s water community? Practice conveying your message with other attendees and workshop leaders.

Senator Udall, Congressman Gardner, Congressman Tipton, and Former State Senator Tapia
We are pleased to host candidates for some of our top political offices as they address issues of keen importance to Colorado’s water community.

Costs of Doing the Right Thing
As we plan for our water allocation in the future, we rarely examine the full social and economic costs, including burdens on individual ratepayers. This panel will examine those costs, along with a brief overview of other economic challenges currently faced by Colorado water providers.

Mono Lake
For 100 years, the L.A. Aqueduct has been the source of legend and controversy. Today, drought imperils much of California’s water supply. How is Los Angeles handling the drought within the confines of a Public Trust Doctrine?

Mitigation for Transbasin Diversion
Past Aspinall Water Leaders will discuss historic transbasin water projects and their mitigation. What can we learn from the past?

We are looking forward to seeing you in Snowmass, August 20-22. Additional conference information and registration can be found at: Conference Information.

More education coverage here.


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

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

Arkansas River Basin — Graphic via the Colorado Geological Survey

From The Pueblo Chieftain (Chris Woodka):

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

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

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

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

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

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

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

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

More Arkansas Valley Super Ditch coverage here and here.


EPA: Our proposal to protect clean water does not regulate puddles and water on driveways and playgrounds

July 22, 2014

From the Public News Service (Stephanie Carson):

Groups like the American Farm Bureau Federation and other “big ag” organizations are protesting proposed federal rules that would redefine which bodies of water are regulated under the Clean Water Act.

Among the exceptions to that protest are farmers represented by the Denver-based Rocky Mountain Farmers Union. Bill Midcap, director of external affairs with the union, says he and his peers recognize the importance of maintaining the state’s limited water supply.

“We’ve broken ranks, but we think that education and clarity of these rules is something ag’s going to need,” says Midcap.

While opponents of the proposed regulations say they place a burden on the farm community, the Rocky Mountain Farmers Union launched a campaign this month called “They Don’t Speak for Me,” intended to underline the fact not all farmers agree with the “big ag” lobby’s opposition to the water rules.

The U.S. Environmental Protection Agency (EPA) says the proposed rule clarifications are needed to close loopholes in the Clean Water Act, and to ensure the ability of a new rule which would still offer exemptions for everyday agricultural activities. EPA representatives have been traveling around Colorado to help farmers understand the proposed regulations, and to demonstrate how the clarifications will enable farmers to continue irrigation of crops.

Julia McCarthy, environmental life scientist with the EPA, also notes the proposed regulations simply reinstate rules initially put into place in the 1970s.

“We want to make sure these headwater areas are providing a clean source of water for downstream communities and downstream irrigators so we don’t have issues with high pollution levels in the water that we’re using to water our crops,” says McCarthy.

The Clean Water Act was passed in 1972 to address water pollution, but Supreme Court decisions in 2001 and 2006 limited the Clean Water Act to waters deemed “navigable.” The EPA says this has created confusion when it comes to enforcement of water regulations.

Bill Midcap says he just wants to make sure farmers have a voice as the rules develop.

“Despite the opposition, these rules are going to move forward,” he says. “So, why not try to get real clarification of how the rules are being written, before they are written?” The EPA has extended their public comment period to Oct. 20.

More Environmental Protection Agency coverage here.


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

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

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

From the Glenwood Springs Post Independent (Greg Trainor):

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

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

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

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

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

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

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

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

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

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

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

More Colorado Water Plan coverage here.


EPA proposed rule: Normal farming activities like planting crops and moving cattle do not require permits

July 21, 2014

A look at Rio Grande Compact administration this season #RioGrande

July 20, 2014
Rio Grande and Pecos River basins

Rio Grande and Pecos River basins

From the Valley Courier (Ruth Heide):

After years of drought, more water in the San Luis Valley’s rivers is a welcome change, but it comes with a price.

With higher stream levels comes a higher obligation that must be paid to downstream states. Colorado Division of Water Resources Division Engineer for Division 3 Craig Cotten reminded Valley residents of that fact during his report on Tuesday to the Rio Grande Water Conservation District board.

When the forecasts increased for the Rio Grande and Conejos River systems, so did the curtailments on irrigators, he explained, because Colorado’s obligation to New Mexico and Texas also increased.

Cotten said the annual forecast for the Rio Grande has increased every month since May because more water is expected now than forecasters predicted this spring. The May forecast for the Rio Grande was 475,000 acre feet. In June the Natural Resources Conservation Service (NRCS) increased the projected annual index for the Rio Grande to 545,000 acre feet and this month bumped it up even higher to 590,000 acre feet.

“That’s up significantly from what we had projected earlier on in the season,” Cotten said. The obligation to downstream states from the Rio Grande is 158,400 acre feet from that new 590,000-acrefoot forecast. With the water that has already been delivered , estimated deliveries for this winter, and a contribution from the Closed Basin Project, the water resources division is projecting it must deliver about 22,000 acre feet during the remainder of the irrigation season. To reach that goal, the division is curtailing irrigators 25 percent, which is significantly higher than curtailments earlier in the irrigation season. Curtailments in April and May were 7-10 percent, with curtailments increasing to 15 percent in June, 21 percent by July 3 and 25 percent July 4th.

“That’s just because of the increased forecast amount and needing to deliver quite a bit more to the downstream states,” Cotten said.

“We are watching that pretty closely,” he added. “Depending on the monsoon season, if we do get a significant amount of rain and rain events, there’s a possibility we may have to go up a little higher than that.”

Curtailments on the Conejos River system are even higher. Since July 4, the curtailment on the Conejos has been 32 percent with only the #1 and #2 ditches in priority right now, according to Cotten . The curtailment on April 1 was 12 percent, decreasing to 6 percent by April 4 and 1 percent by May 7, but then increasing to 14 percent on June 7 and jumping to 27 percent by June 21.

“Curtailment of the ditches is indicative of raising the forecast every month,” he said. The projected annual index for the Conejos River system was 185,000 acre feet in May, 210,000 acre feet in June and is now estimated at 220,000 acre feet.

Of the 220,000 acre-foot annual flow , the Conejos River system owes 57,000 acre feet to New Mexico and Texas. To reach that goal, the Conejos will have to send about 8,000 acre feet downstream during the remainder of the irrigation season, according to Cotten.

Cotten shared the threemonth precipitation outlook from the National Oceanic and Atmospheric Administration for August, September and October.

“For the first time in quite a few years we are in the above-average range,” he said. “It’s looking like we are going to have a pretty good monsoon season.”

Temperatures during that three-month period will be another court case where the fine could top that.

“We are watching the well meter usage and metering and making sure everybody has active and accurate meters on their wells,” he said.

In his report to the Rio Grande Water Conservation District board on Tuesday, District Engineer Allen Davey said both the unconfined and confined aquifers had shown some improvement recently, but the basin has a long ways to go to re-establish the kind of aquifer levels the state legislature mandated, reflecting the levels of the period from 1978-2000 .

The confined aquifer, or deeper aquifer, has improved this last year by an overall total of about 2.66 feet in the wells included in Davey’s study. He said if the weather returned to a wetter cycle, with improved run off, irrigators would not need to pump as much, and the aquifers would naturally improve.

He added, “If we have bigger water years and the pumping stays the same, the aquifer will recover, and if the pumping is reduced, the aquifer will recover more.”

Since 1976 the unconfined aquifer, or shallow aquifer, in an area representative of the area now covered by the first groundwater management sub-district has declined a total of more than one million acre feet. Davey said the study area showed some improvement this spring with the aquifer level increasing by 105,000 acre feet during June, for example. “equal chances” of being in the average range.

Cotten said his office has had to file four or five court cases in the last month or so against well owners who did not comply with the well use rules, specifically not turning in well usage numbers or not having valid well meters in place. Fines could range from a few hundred dollars in simple cases to thousands of dollars. One irrigator is looking at a fine of more than $8,0000, Cotten said, and his office is currently working on He reminded the group that the target level required by legislators is -200 ,000 to -400 ,000 acre feet for a fiveyear running average.

“Right now it’s about 500,000 acre feet below that -400 ,000,” he said.

He said it’s like gas in a vehicle’s tank, and the more the vehicle uses, the lower the gas level is.

“What we need to do in order to recover is reduce the amount of ‘driving’ we are doing ,” Davey said. “Well users need to ‘drive’ less, pump less water, irrigate less land.”

More Rio Grande River Basin coverage here.


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

July 19, 2014

thehardestworkingriverinthewestcolooradoriver

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    From The Grand Junction Daily Sentinel (Gary Harmon):

    Colorado transmountain diversions via the State Engineer's office

    Colorado transmountain diversions via the State Engineer’s office

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

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

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

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

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

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

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

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

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

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

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

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

    Xeriscape landscape

    Xeriscape landscape

    From Colorado Public Radio (Ana Hanel):

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

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

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

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

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

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

    More Colorado River Basin coverage here and here.


    The Lower Ark District approves letter to the EPA about new rule as “water grab”

    July 18, 2014
    Groundwater movement via the USGS

    Groundwater movement via the USGS

    From The Pueblo Chieftain (Chris Woodka):

    A district formed to protect water in the Lower Arkansas Valley plans to weigh in on proposed rules that some say amount to a federal water grab. The Lower Arkansas Valley Water Conservancy District voted Wednesday to send a formal comment to the Environmental Protection Agency on its proposed Waters of the United States, claiming that it goes too far in regulating wetlands and even groundwater connected to streams.

    The rules are an attempt to resolve conflicting U.S. Supreme Court decisions that center on the issue of “navigable waters.”

    “East of the Mississippi River, all waters may be navigable, but it doesn’t make sense for the arid West,” said Mark Pifher, the Arkansas River basin’s representative on the Colorado Water Quality Commission. Pifher, a Colorado Springs Utilities executive, typically attends Lower Ark meetings to update the Lower Ark on stormwater issues. He recently testified against the rule in Washington, D.C., on behalf of municipal and agricultural water interests.

    Leroy Mauch, the Prowers County director on the Lower Ark board, urged the board to jump into the federal fray.

    “We need to research this and send out a letter objecting to this,” Mauch said.

    Wayne Whittaker, the Otero County director, said the new policy sounds like continuation of years of federal attempts to insert control into state water issues.

    Most water groups in the West have taken a position that the rules are too intrusive. An exception is the Rocky Mountain Farmers Union, which claims the rules have sufficient exemptions that protect agriculture.

    Some in Congress are backing legislation that would simply not fund enforcement of the policy.

    From The Pueblo Chieftain (Chris Woodka):

    Activities on several fronts are aimed at improving surface sprinkler irrigation in the Lower Arkansas Valley. Several studies are aimed at reducing the obligation of farmers in group plans, known as Rule 10 plans, under state consumptive use rules designed to prevent expanded water use through increased farm efficiencies. Sprinklers have been the most effected by the rules, although drip irrigation, ditch lining and other methods are accounted for as well.

    On Wednesday, the Lower Arkansas Valley Water Conservancy District reviewed its projects that aim at the rules:

    A $70,000 state grant looking at the legal implications of using flood irrigation water rights decreed for the same ground as sprinklers as augmentation water. The district has suggested legislation to allow this, but it so far has not been introduced.

    A $175,000 proposed state grant to determine if tailwater measurements in state irrigation models are too high.

    A $120,000 study to determine if leakage from ponds that supply water to surface-fed sprinklers is too high.

    The goal is to reduce the obligation and find sustainable sources of replacement water, said General Manager Jay Winner.

    “These are parallel paths,” he told the board. “The day is coming when you won’t be able to buy water on the spot market.”

    More Environmental Protection Agency coverage here.


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

    July 16, 2014


    From the Glenwood Springs Post Independent (Jim Pokrandt):

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

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

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

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

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

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

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

    Jim Pokrandt is Colorado Basin Roundtable Chair.

    More Colorado Water Plan coverage here.


    Know the facts: Proposed rule to protect clean water — EPA

    July 15, 2014

    More Environmental Protection Agency coverage here.


    Colorado Water Congress: Initiative 75 withdrawn! #COpolitics

    July 15, 2014

    Click here to go to the CWC Colorado Water Stewardship Project web page.


    EPA’s efforts to clarify the Clean Water Act upsets some Colorado farmers — Colorado Public Radio

    July 14, 2014

    From Colorado Public Radio (Lesley McClurg):

    “It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction,” the EPA says.

    Yet the proposal is under attack by some the agriculture industry. The National Milk Producers Federation and the American Farm Bureau say the proposal could threaten farming, ranching, homebuilding and energy production.

    Colorado Farm Bureau president Don Shawcroft worries that the changes could apply to small streams or ditches that cross his ranch in the San Luis Valley.

    “There are many places where that water is diverted into farmer lands from the Rio Grande in the San Luis Valley,” he says. “Because there’s that nexus — that connection — then it is subject to all of the rules in the Clean Water Act, including whether I can put a fence across that ditch; whether I can use herbicides or pesticides. Those are the types of pertinent implications that greatly concern us.”

    EPA Administrator Gina McCarthy has been visiting farms throughout the country in an effort to further dialogue about the proposal. The EPA is taking comments on the proposed rule through October.

    More Environmental Protection Agency coverage here.


    Arkansas Basin Roundtable approves $175,000 for tailwater study

    July 14, 2014
    Flood irrigation in the Arkansas Valley via Greg Hobbs

    Flood irrigation in the Arkansas Valley via Greg Hobbs

    From The Pueblo Chieftain (Chris Woodka):

    The state is being asked to help fund a study that looks at farmers’ contentions that estimates for return flows to the Arkansas River are inflated. A standard of 10 percent for tailwater — water that sheets off fields during irrigation before it can soak in — is used in mathematical models adopted during the 24-year Kansas v. Colorado U.S. Supreme Court case under the Arkansas River Compact. Those models also affect consumptive use rules that apply to surface water improvements such as sprinklers or drip irrigation.

    The Arkansas Basin Roundtable last week forwarded a $175,000 grant request to the Colorado Water Conservation Board to determine if that number is too high.

    “Farmers on the Fort Lyon did not believe 10 percent was really happening,” said Leah Martinsson, a lawyer working with the Lower Arkansas Valley Water Conservancy District, which is applying for the grant.

    Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

    Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

    The ditch is more than 100 miles long and irrigates 94,000 acres and usually water short. That increases the likelihood that the estimate of tailwater runoff is too high, since much of the water never makes it back to the river, she explained. The higher the tailwater number, the greater the obligation from farmers to deliver water to the Arkansas River. So, reducing the figure in the group augmentation plans filed with the state would mean a reduction in the amount of replacement water.

    While the concern of Fort Lyon farmers is the model used in the consumptive use rules, it also could affect the hydrologic-institution model that guides Colorado’s obligation from wells.

    “If we are prepared with good technical data, we will go in and try to change the H-I model,” said Bill Tyner, assistant division engineer with the Division of Water Resources.

    It would not be the first attempt to change the model. The state also is funding an ongoing lysimeter study at Rocky Ford to determine if evapotransporation rates in the Arkansas Valley are higher than assumed in the model.

    Another study is looking at whether ponds that feed sprinklers leak more than the model assumes.

    More Arkansas River Basin coverage here and here.


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

    July 11, 2014
    Fountain Creek Watershed

    Fountain Creek Watershed

    From The Pueblo Chieftain (Chris Woodka):

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

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

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

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

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

    After the meeting, he was clearly frustrated.

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

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

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

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

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

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

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

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

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

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

    More Fountain Creek watershed coverage here and here.


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

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

    Fountain Creek swollen by stormwater November 2011 via The Pueblo Chieftain

    From The Pueblo Chieftain (Chris Woodka):

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

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

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

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

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

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

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

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

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

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

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

    More Fountain Creek coverage here and here.


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

    July 8, 2014

    San Luis Valley Groundwater

    San Luis Valley Groundwater


    From the Valley Courier (Ruth Heide):

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

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

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

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

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

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

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

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

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

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

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

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

    More Rio Grande River Basin coverage here.


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

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

    Drought affected Lake Mead via the Mountain Town News

    From Circle of Blue (Brett Walton):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    More Colorado River Basin coverage here and here.


    Water Lines: Water, democracy and private property rights

    July 3, 2014

    Flood irrigation in the Arkansas Valley via Greg Hobbs

    Flood irrigation in the Arkansas Valley via Greg Hobbs


    From the Glenwood Springs Post Independent (Hannah Holm):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    From The Durango Herald (Sarah Mueller):

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

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

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

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

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

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

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

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

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

    More 2014 Colorado November election coverage here.


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

    July 1, 2014

    sloanslakebeforesunrise

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

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

    Initiative 103, by Phil Doe and Barbara Mills-Bria, proposed to establish an “inalienable right” of the people of Colorado to clean air, clean water (including groundwater), and the preservation of the environment and natural resources (called “Public Trust Resources”), as common property of all people, including future generations. It would require the state, as trustee of Public Trust Resources, to conserve and maintain them for the benefit of all the people. CWC and over 70 supporting entities from around the state opposed this Initiative on the grounds that it was unwise, unnecessary, expensive and disruptive to the responsible allocation and stewardship of Colorado’s water resources.

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

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

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

    From the Denver Business Journal (Cathy Proctor):

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

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

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

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

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

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

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

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

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

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

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

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

    More 2014 Colorado November election coverage here.


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

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

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

    From The Colorado Springs Business Journal (John Hazlehurst):

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

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

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

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

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

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

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

    Perhaps not…

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

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

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

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

    Use it or lose it.

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

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

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

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

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

    More Southern Delivery System coverage here and here.


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

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

    Southern Delivery System route map — Graphic / Reclamation

    From The Pueblo Chieftain (Chris Woodka):

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

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

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

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

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

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

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

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

    More Southern Delivery System coverage here.


    Montezuma County stipulates out of BLM Yellow Jacket Creek diligence case

    June 22, 2014
    Yellow Jacket Canyon via Four Corners Hikes

    Yellow Jacket Canyon via Four Corners Hikes

    From the Cortez Journal (Jim Mimiaga):

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

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

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

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

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

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

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

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

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

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

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

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

    More water law coverage here.


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

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

    Trail map for Powderhorn Ski Area via liftopia

    From The Grand Junction Daily Sentinel (Gary Harmon):

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

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

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

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

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

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

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

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

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

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

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

    From the Examiner (Charles Pekow):

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

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

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

    More water law coverage here.


    Moffat Firming Project support absent at Boulder BOCC hearing — Sky-Hi Daily News #ColoradoRiver

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

    Denver Water’s collection system via the USACE EIS

    From the Sky-Hi Daily News (Hank Shell):

    “There were numerous data issues raised that might be worth flagging,” said Elise Jones, Boulder County commissioner. “Everything from the use of median versus average in the statistics to whether or not the cost estimates are accurate. There were numerous other examples but that seemed to be a theme.”[...]

    At the beginning of the meeting, Boulder County Commissioners’ staff voiced concerns about the project’s Final Environmental Impact Statement.

    The 12,000-page Final Environmental Impact Statement is meant to reveal possible environmental impacts of the project.

    “There wasn’t a robust discussion of the need and purpose of the project,” said Michelle Krezek, the commissioners’ staff deputy. “Specifically, there wasn’t any analysis of water conservation measures that could be taken or other smaller projects that could be undertaken instead of this large project. So it was hard to determine whether this was the right alternative.”

    Other concerns included the absence of the Environmental Protection Agency from the process and the effect that expansion of the reservoir would have on Boulder County infrastructure.

    Though most of the discussion focused on the project’s impacts in Boulder County, Grand County arose multiple times during the discussion, from both Grand and Boulder county residents. Boulder County commissioners said that they would take into account testimony about the effects of the project on the Western Slope.

    “We would want to draw the Corps’ attention to those substantive comments even though they were outside Boulder County,” Jones said.

    More than 20 people spoke during the hearing, but only one speaker, Denver Water Planning Director David Little, was in favor of the project, though he did not present an argument to counter previous assertions.

    “The passion that the people in the audience have shown and some of the information that they’ve brought forward is important for you to consider in augmenting your comments to the corps,” said Little.

    The Boulder County Commissioners will now submit their new comments to the Army Corps of Engineers.

    More Moffat Collection System Project coverage here and here.


    Colorado: Not much love for proposed new water diversions

    June 19, 2014

    Originally posted on Summit County Citizens Voice:

    EPA raises questions about compliance with Clean Water Act

    Denver Water plans to increase transmountain diversions through the Moffat collection system will be up for comment at a pair of upcoming meetings.

    Denver Water plans to increase transmountain diversions through the Moffat collection system is not drawing rave reviews, as numerous entities have expressed significant concerns about impacts to water quality. bberwyn photo.

    By Bob Berwyn

    FRISCO — For all the detailed information in the 16,000-page study for Denver Water’s proposed new water diversions from the Western Slope, there are still more questions than answers, according to formal comment letters filed in the past few weeks.

    As currently configured, the proposal to shunt more water from Colorado River headwaters streams to the Front Range could worsen water water quality in many streams that are already feeling the pain of low flows, EPA water experts wrote in a June 9 letter.

    View original 500 more words


    CU Law: Colorado River Governance Initiative #ColoradoRiver

    June 17, 2014
    Colorado River Basin including out of basin demands -- Graphic/USBR

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

    Click here to read the announcement:

    The Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (GWC) is excited to announce the release of two new studies prepared by the GWC’s Colorado River Governance Initiative:

    Restoring Sacred Waters: A Guide to Protecting Tribal Non-Consumptive Water Uses in the Colorado River Basin is a detailed review of strategies available to tribes seeking to protect non-consumptive uses of their federal reserved rights. It surveys potential legal and political hurdles that tribes may encounter when applying their rights to instream flows and offers practical strategies derived from case studies the advice of tribal officials on how to surmount these hurdles. Strategies outside of the application of Indian federal reserved rights are also explored, including how federal environmental laws and conservation easements have been used to create additional flows in reservation streams.

    Click here for Restoring Sacred Waters

    Research Needs in the Colorado River Basin is a synthesis of ideas gained from interviews and reports assessing the state of research post Basin Study, identifying those areas where additional progress is most needed to aid the policy discussions. Embedded in this effort is an assessment of the role that the academic community can play going forward in addressing any shortcomings.

    Click here for Research Needs in the Colorado River Basin

    All reports of the Colorado River Governance Initiative can be found at the Colorado River Information Portal:

    http://www.waterpolicy.info/projects/CRIP/index.html

    For more information on Restoring Sacred Waters,
    Please contact:
    Julie Nania at Julie.Nania@Colorado.edu or
    Julia Guarino at Julia.Guarino@Colorado.edu

    For more information on Research Needs in the Colorado River Basin, please follow up with Doug Kenney at Douglas.Kenney@Colorado.edu.

    More Colorado River Basin coverage here.


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

    June 16, 2014

    laplatasfromroadt

    From the Cortez Journal (Jim Mimiaga):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    More water law coverage here.


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

    June 16, 2014
    Twin Lakes collection system

    Twin Lakes collection system

    From The Aspen Times (Scott Condon):

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

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

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

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

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

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

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

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

    More water law coverage here.


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

    June 13, 2014
    Basin roundtable boundaries

    Basin roundtable boundaries

    From The Pueblo Chieftain (Chris Woodka):

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

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

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

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

    The CWCB will review basin plans in July.

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

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

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

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

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

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

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

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

    More Colorado Water Plan coverage here.


    2014 Colorado November election: Will the Public Trust Doctrine issue make the ballot this fall?

    June 10, 2014
    Justian I first codifier of riparian rights

    Justian I first codifier of riparian rights

    From the Valley Courier (Ruth Heide):

    Water initiatives that could have a significant impact on the San Luis Valley are still awaiting Colorado Supreme Court decisions before moving forward to the November ballot box. Still awaiting the higher court’s direction are two initiatives Initiatives 89 and 103 that advocate the Public Trust Doctrine, which would present a radical change from the current water administration throughout the state.

    Another ballot initiative, Initiative 75, has already passed through the higher court and now has the green light to collect signatures to place it on the 2014 ballot. Although not directly related to water issues, Initiative 75, the Right to Local Self-Government , could affect water developments and investments. It drew a court challenge from the business community.

    The ballot title states: “An amendment to the Colorado constitution concerning a right to local self-government , and, in connection therewith, declaring that the people have an inherent right to local self-government in counties and municipalities , including the power to enact laws to establish and protect fundamental rights of individuals, communities, and nature and the power to define or eliminate the rights and powers of corporations or business entities to prevent them from interfering with those fundamental rights; and declaring that such local laws are not subject to preemption by any federal, state, or international laws.”

    Initiative 75 was just one of more than 100 separate initiatives proposed or re-proposed this year. Eleven have been cleared so far to begin the signature-gathering process , and another 34 are still pending before the Colorado Supreme Court.

    Those include Initiatives 89 and 103.

    The Colorado Water Stewardship Project challenged the title-setting process for Initiatives 89 (Local Government Regulation of Environment ) and 103 (Public Trust Resources), arguing that the proposed initiatives did not meet the requirement of a single title.

    These initiatives promote the Public Trust Doctrine. Since the 1800′s Colorado has operated under the Doctrine of Prior Appropriation, rather than the Public Trust Doctrine, so passage of these amendments could radically change the way water is administered in the state. Public Trust Doctrine holds that natural resources such as water are common property, while the Doctrine of Prior Appropriation operates under the principle that the first to put the water to use has priority over subsequent water users on that stream.

    Colorado Supreme Court Justice Gregory Hobbs has described The Public Trust Initiative as dropping “what amounts to a nuclear bomb on Colorado water rights and land rights.”

    Initiative 89′s ballot title is: “Shall there be an amendment to the Colorado constitution concerning a public right to Colorado’s environment, and, in connection therewith, declaring that Colorado’s environment is the common property of all Coloradans; specifying that the environ- ment includes clean air, pure water, and natural and scenic values and that state and local governments are trustees of this resource; requiring state and local governments to conserve the environment; and declaring that if state or local laws conflict the more restrictive law or regulation governs?”

    Initiative 103′s ballot titles is: “Shall there be an amendment to the Colorado constitution concerning public ownership of natural and environmental resources, and, in connection therewith , creating a public trust in those resources, which include clean air, clean water, and the preservation of the environment and natural resources; requiring the state, as trustee, to conserve and maintain public trust resources by using the best science available to protect them against any substantial impairment, regardless of any prior federal, state, or local approval; seeking natural resource damages from anyone who substantially impairs them, and using damages obtained to remediate the impairment; allowing Colorado citizens to file enforcement actions in court; requiring anyone who is proposing an action or policy that might substantially impair public trust resources to prove that the action or policy is not harmful; and criminalizing the manipulation of data, reports, or scientific information in an attempt to use public trust resources for private profit?”

    The Colorado Water Stewardship Project is supporting legal actions before the Colorado Supreme Court regarding these initiatives, and the higher court is expected to rule on these appeals before July.

    In the meantime The Colorado Water Stewardship Project is continuing to bring awareness to these initiatives and what they could mean to the water community throughout the state.

    About 70 groups ranging from municipal utilities and the Colorado Association of Commerce and Industry to conservation and conservancy districts have approved resolutions opposing the Public Trust Doctrine.

    San Luis Valley entities that have passed resolutions include: San Luis Valley Irrigation District, Rio Grande Headwaters Land Trust and the Commonwealth Irrigation Company.

    If the Colorado Supreme Court confirms the contested ballot titles and their proponents receive the green light to proceed with acquiring signatures, they would have to collect 86,105 valid registered voters’ signatures to get these initiatives on the ballot this fall. The deadline to collect those signatures and turn them in to the Secretary of State’s office would be August 4.

    More 2014 Colorado November election coverage <a href="


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

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

    Colorado instream flow program map via the Colorado Water Conservation Board

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

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

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

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

    More 2014 Colorado legislation coverage here.


    “What it really means is the seep ditches can come into priority” — Steve Witte #ArkansasRiver

    June 7, 2014
    John Martin Reservoir back in the day

    John Martin Reservoir back in the day

    From The Pueblo Chieftain (Chris Woodka):

    High flows in the Arkansas River are satisfying more water rights than have been met in 14 years.

    Colorado’s water rights system gives priority to water rights based on the earliest dates that water was put to a beneficial use. A call is placed on the river according to the most junior right entitled to water.

    For the Arkansas River below John Martin Dam, that call sat at 1949, the year of the Arkansas River Compact, for the first time since 2000.

    “That means we can put water in John Martin Reservoir, which is then divided between Colorado and Kansas,” said Steve Witte, Water Division 2 engineer.

    Throughout the year, flood events briefly raise Arkansas River levels high enough to allow storage in John Martin Reservoir. But the prolonged levels above 4,000 cubic feet per second have allowed storage to continue for days, rather than a few hours, as typically happens in a flood.

    Actually, the river had a split call Wednesday, with water above John Martin flowing into the Great Plains Reservoirs (via the Fort Lyon Canal).

    Water below is going toward the 1949 compact. That satisfies all but a few water rights in Colorado.

    “It’s being fed by return flows. What it really means is the seep ditches can come into priority,” Witte said.

    The state four years ago shut down seep ditches, because they captured return flows that should have been going to Kansas, under the state engineer’s interpretation.

    Witte expects the river conditions to continue for the next few days.

    Meanwhile, about 23,000 acre-feet of Fryingpan-Arkansas Project water has been imported through the Boustead Tunnel into Twin Lakes.

    More Arkansas River Basin coverage here and here.


    Will The #ColoradoRiver Be Restored To Its Former Glory? — Jon Waterman

    June 7, 2014
    Jonathan Waterman paddling the ooze in the Colorado River Delta

    Jonathan Waterman paddling the ooze in the Colorado River Delta

    Here’s an in-depth look at the current state of the Colorado River Basin from Jon Waterman writing for Elevation Outdoors Magazine. Click through and read the whole thing. Here’s an excerpt:

    In the arid Southwest we put a lot of faith into a century-old agreement. Created by skillful lawmakers in 1922, it’s called the Colorado River Compact and it has little bearing on the reality of the river in 2014, or most years as it turns out. The boosters of growth who wrote the 2,000 page document had no inkling that the two decades before 1922 were much wetter than the fossil record. They relied upon a single gauge to calculate the River’s past and future volume. And so the Colorado River Compact charted the future by mandating who could take how much water from the lifeline of the Southwest—and began the process of diverting it dry.

    It’s impossible to understand the current state of the river witout looking at these actions of the past. Seven states blithely divided up the river and began planning dams as if the Colorado’s water would spring eternal. The Colorado River Compact became the foundation for legislation—collectively known as the Law of the River—that would extensively store and divert water partly to various industry and cities, but mostly to farms (eventually using 78 percent of the river).

    Ecology, let alone science, was overruled when it came to taming the disruptive Colorado River—which was prone to unpredictable floods, reddened moods, and maddening droughts. The Law of the River, along with sorting out rights, would help control this unruly Force of Nature.

    Central to this mindset was the prevailing Prior Appropriations Doctrine, defined as “use it or lose it,” which assigned highest priority water rights to the earliest users. It all began with miners who didn’t necessarily own land alongside rivers but were putting the water to what became known as “beneficial use.” The new doctrine first appeared in a Colorado court in 1872, then was adopted by other western states, citing that arid climates could not abide by the old Riparian Doctrine, which actually prevented river diversions that jeopardized downstream users.

    Few foresaw that the population served by the Colorado River would grow to 36 million…

    Among many well-regulated spigots controlled by the Law of the River was a 1944 treaty with Mexico. Our southern neighbors had no choice but to accept ten percent of the annual Colorado River flow, paving the way for large portions of the Mexican Delta to turn as dry and hard as the concrete slabs holding up thousands of well-plumbed Southwestern U.S. subdivisions. Not so across the border. As most of the world now works double-time to conserve and recycle, present-day water buffalos in the Southwest continue to sprinkle non-native lawns, revere cows (sustained by hay, drinking more river water than any other crop) and cling to outdated principles likely to remain on the books. Unless the West adopts more progressive policies, they will continue to use the river as if it were 1922.

    The problem is this increasingly intricate plumbing system—to the chagrin of Earth Firsters everywhere—performed as planned, with the exception of a wet spell in 1983 that nearly popped the Glen Canyon Dam, penultimate cork of the Colorado River. Meanwhile, those who cared about the River, let alone those Mexican communities whose livelihood depended upon tourists and coastal fishing, were devastated…

    When Mexico’s Morales Dam opened its river gates on March 23, 2014, a crowd cheered. Further downstream, the San Luis Rio Colorado community of Mexico spent weeks barbecuing and playing music out on the once dry river banks to celebrate, at long last, the Colorado River running past their town. From here, it flushed a soup of bottles and foam down into the Delta, a Rhode Island sized sprawl of ancient grains washed out of the Rockies and carved from the Grand Canyon. Even if the river can’t be restored to its “PreDambrian” glory, regularly flooding to the sea, regular pulses of water into the mid delta could at least support riparian shrubbery, small forests and habitat for various fauna, including 380 species of birds…

    There is also hope to be found in Colorado River Basin states, where water trusts are being established to allow senior water rights holders to donate water back to the river, without losing their future water rights. If a basin-wide water trust could be established, along with healthier minimum stream flows that would assure the future of the river, America’s most renowned scenic wonder will have a fighting chance.

    More Colorado River Basin coverage here and here.


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

    May 26, 2014

    From the Albuquerque Journal (Kathaleen Roberts):

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

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

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

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

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

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

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

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

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

    More Rio Grande River Basin coverage here and here.


    Water Information Program: Colorado water history, law and infrastructure

    May 25, 2014
    Smith Ditch Washington Park, Denver

    Smith Ditch Washington Park, Denver

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

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

    FIRST IN TIME, FIRST IN RIGHT

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

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

    BIRTHPLACE OF RIVERS

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

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

    ‘LAW OF THE RIVER’

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

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

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

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

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

    DAMS & CANALS

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

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


    Weld ag industry pleased with EPA outreach, but still questioning proposed water rules — The Greeley Tribune

    May 22, 2014

    longspeak

    From The Greeley Tribune (Eric Brown):

    Weld County farmers and ranchers appreciated federal officials traveling here recently to explain portions of rules proposed by the U.S. Environmental Protection Agency and Army Corps of Engineers in March. However, they say, there are still questions and concerns, and some will likely push for an extension of the July 21 deadline to comment on the complex proposal. Ag organizations across the country have been taking seriously the “Waters of the U.S.” rule.

    The purpose of the rule, EPA officials say, is to clarify protection under the Clean Water Act for streams and wetlands, since determining Clean Water Act protection became confusing and complex following Supreme Court decisions in 2001 and 2006. For years, members of Congress, state and local officials, agricultural and environmental groups and the public asked for a rulemaking to provide clarity.

    But some who requested such clarification — particularly the ag industry — aren’t satisfied now, and instead see the rule as a possible expansion of the federal government’s reach.

    EPA officials recently toured Greeley-area ag operations and others around the state, holding meetings with local producers and representatives of ag organizations. There, they stressed all of the exemptions provided to the ag industry now in the EPA’s rules still would be in place under the new rules, along with emphasizing other points.

    But local producers, and others, say they’re still concerned about “unintended consequences,” largely because Colorado’s state water laws are so much different and much more complex than those of other states, and the EPA’s rules might conflict with them, or continue leaving questions for farmers trying to comply, when doing things such as building fences or using pesticides to control bugs and weeds along “Waters of the U.S.”

    “We just have a totally different way of doing things here, but the EPA tries making one-size-fits-all rules for farmers across the country,” said Dave Eckhardt, a LaSalle-area farmer, whose farm was toured by EPA officials last week. “I’m just not sure it can work that way.”

    A very basic difference, for example, is that many farmers on Colorado’s Front Range and plains, because of the limited precipitation, divert water onto their fields for irrigation, while farmers in other areas — like the Midwest, which sees much more precipitation — set up their fields to divert excess water off of them.

    “We’re all so different,” Eckhardt said.

    Under the new rules, certain irrigation ditches that carry water to “Waters of the U.S.” actually would become “Waters of the U.S.” — that includes two ditches Eckhardt and his family use, he said, along with many other ditches in Colorado. Eckhardt said those irrigation ditches that would become “Waters of the U.S.,” on paper, still shouldn’t be impacted because of the current ag exemptions that are expected to stay in place.

    “But you can’t help but wonder what issues might pop up due to these other changes,” he said. “Or what might happen down the road as agriculture changes.

    “We’ve been burned more than once on this. Farming is complex, and every operation is different. I’m afraid we’ll end up doing what we’ve been doing already — constantly checking with the Corp (of Engineers) to make sure we’re not violating anything.”

    Colorado also has unique augmentation requirements. For someone to legally pump water out of the ground in Colorado, most wells must have an approved augmentation plan to make up for depletions to the aquifer. The pumping of that groundwater draws down flows in nearby rivers and streams — surface supplies owned and used by senior water rights holders. A common augmentation method is building recharge ponds, which allow water to seep into the ground over time to replace groundwater depletions. Some, like Colorado Farm Bureau Vice President Brent Boydston, questioned how recharge ponds would fit into the rules, but said after the meeting he didn’t get the explanation he was looking for.

    “It seemed like they just kept telling us to include it in our comments,” Boydston said. “They couldn’t explain a lot of this to us.”

    John Stulp, who serves as Colorado Gov. John Hickenlooper’s special adviser on water, said during a recent meeting in Greeley that the state might push for an extension to comment on the rule.

    EPA officials there said Colorado wouldn’t be the first to make that request.

    Still, many who took part in the conversations in Greeley said they think the waters have calmed some, thanks to the EPA’s recent outreach efforts.

    “I’m very confident now in that the more aggressive criticism of the rule was not well-founded,” said Mark Sponsler, executive director and CEO with the Colorado Corn Growers. “This isn’t at all an effort by the EPA to regulate every drop of water that hits the Earth.”

    Meanwhile, others still have their concerns.

    The American Farm Bureau Federation is pushing its “Ditch the Rule” campaign.

    Additionally, Rep. Cory Gardner, R-Colo., earlier this month joined 45 members of the Senate and Congressional Western Caucuses in sending a letter to EPA Administrator Gina McCarthy, calling on the EPA to put a stop to the rule proposal that “will radically expand federal regulatory authority under the Clean Water Act.”

    “During an exchange I had with Administrator McCarthy … she testified that she was not familiar with Colorado water law as compared with other states’ water laws,” Gardner said. “It is appalling that the EPA is pushing out rules to control Colorado’s water without taking into account previous state actions.”

    More Environmental Protection Agency coverage here.


    #RioGrande River Basin: A look at administration of the Rio Grande Compact from the Colorado side

    May 18, 2014
    Rio Grande and Pecos River basins

    Rio Grande and Pecos River basins

    From The Taos News (J.R. Logan):

    The offices of the San Luis Valley Irrigation District are housed in an aging Quonset hut on a sleepy side street in Center, Colo. To an outsider, the hand-painted sign and worn carpet imply an organization that is old-fashioned and outdated. But in reality, the district is part of one of the most modern and sophisticated water management operations in the country.

    District superintendent Travis Smith has made a career out of water management in the San Luis Valley. He’s well acquainted with the myriad challenges the valley’s irrigators face — both environmental and economic — and he’s wary of outsiders who are quick to criticize the enormous amount of water consumed by the farmers he serves.

    In recent years, those criticisms have grown louder. Prolonged regional drought has strained relations between water users north and south of the border. Long sections of the Río Grande in New Mexico have dried up entirely, and the state’s pecan and chile industries have suffered badly for lack of water.

    Rafting outfitters in Taos County have joined those focusing their ire north. Some guides complain scant Río Grande flows are killing their businesses. This is particularly true because rafters and kayakers can’t run one of the area’s main recreation attractions — the Taos Box — if irrigators leave almost nothing of the river in the late spring and summer.

    In preparation for his interview with The Taos News, Smith has three things on his desk: the daily Río Grande flow report detailing exactly how water from the river will be allocated that day; a pocket-sized copy of the Río Grande Compact, which shows how much water Colorado owes New Mexico; and a newspaper article about a Santa Fe environmental group threatening to sue Colorado over its irrigation practices.

    More Rio Grande River Basin coverage here.


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

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

    Rifle Falls back in the day via USGenWeb

    From the Rifle Citizen Telegram (Mike McKibbin):

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

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

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

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

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

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

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

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

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

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

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

    More Colorado River Basin coverage here and here.


    Well augmentation enforced by the Colorado Division of Water Resources

    May 12, 2014
    Typical water well

    Typical water well

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    More groundwater coverage here.


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

    May 5, 2014
    Justian I first codifier of riparian rights

    Justian I first codifier of riparian rights

    From the Ouray County Plaindealer (Sheridan Block):

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    More Roaring Fork River watershed coverage here and here.


    San Luis Valley: Pumpers worry about augmentation water debt

    April 28, 2014
    San Luis Valley Groundwater

    San Luis Valley Groundwater

    From The Valley Courier (Ruth Heide):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    More Rio Grande River Basin coverage here.


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

    April 27, 2014

    Hermosa Park

    Hermosa Park


    From The Durango Herald (Joe Hanel):

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

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

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

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

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

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

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

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

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

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


    “…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.


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