Synopsis: A transition to ENSO-neutral is likely during late Northern Hemisphere spring or earlysummer 2016, with a possible transition to La Niña conditions during the fall.
Indicative of a strong El Niño, sea surface temperature (SSTs) anomalies were in excess of 2°C across the east-central equatorial Pacific Ocean during January. The Niño indices in the eastern Pacific declined, while Niño-3.4 and Niño-4 were nearly unchanged. The subsurface temperatures in the central and eastern Pacific increased due to a downwelling Kelvin wave, but toward the end of the month weakened again in association with the eastward shift of below-average temperatures at depth in the central Pacific. Also, low-level westerly wind anomalies and upper- level easterly wind anomalies continued over much of the tropical Pacific. The traditional and equatorial Southern Oscillation Index (SOI) values remained negative but weakened relative to last month. Convection remained much enhanced over the central and east-central tropical Pacific and suppressed over Indonesia. Collectively, these anomalies reflect the continuation of a strong El Niño.
Most models indicate that El Niño will weaken, with a transition to ENSO-neutral during the late spring or early summer 2016. Thereafter, the chance of La Niña conditions increases into the fall. While there is both model and physical support for La Niña following strong El Niño, considerable uncertainty remains. A transition to ENSO-neutral is likely during late Northern Hemisphere spring or early summer 2016, with a possible transition to La Niña conditions during the fall.
El Niño has already produced significant global impacts and is expected to affect temperature and precipitation patterns across the United States during the upcoming months (the 3-month seasonal outlook will be updated on Thursday February 18th). The seasonal outlooks for February – April indicate an increased likelihood of above-median precipitation across the southern tier of the United States, and below-median precipitation over the northern tier. Above-average temperatures are favored in the North and West, and below-average temperatures are favored in the southern Plains and along the Gulf Coast.
Click here to go to the US Drought Monitor website. Here’s an excerpt:
From February 2-3, a major low pressure system moved from the central Great Plains northeastward across the Great Lakes region and southern Ontario, accompanied by a variety of hazardous weather conditions to the central and eastern contiguous U.S. These hazards included heavy snowfall and blizzard conditions generally to areas north and west of the storm track, and severe weather to the Southeast. Straight-line and tornadic winds were responsible for most of the severe weather damage. Over the weekend, an area of low pressure developed off the Southeast Coast, accompanied by heavy rain over coastal areas, including most of Florida. This ocean storm tracked to the northeast, well off the Atlantic Coast, bringing heavy snow (generally 6-12 inches) to New England and eastern Long Island, NY. Some locations on Cape Cod also experienced high winds and blizzard conditions, with preliminary reports indicating peak wind gusts near 65 mph in Nantucket…
The Far West
Reservoir storage and Snow Water Content (SWC) data played a large role in the revisions made this week to the USDM map in northern California and southern Oregon. Following is a brief tally of the Percent of Capacity (PoC), and the Percent of Historical Average (PoHA) values for four key reservoir sites in northern California, as given by the State of California’s Department of Water Resources (February 9th): Trinity Lake (PoC 30 percent, PoHA 42 percent), Shasta (55 percent and 79 percent, respectively), Lake Oroville (47 percent and 70 percent, respectively), and Folsom Lake (62 percent and 117 percent, respectively). The Department of Water Resources also provides a Percent of April 1 average Snowpack and the Percent of Normal Snowpack for this date (February 10th), for the Northern Sierra/Trinity region (79 percent and 108 percent, respectively) and for the Central Sierra region (74 percent and 103 percent, respectively). As of February 10th, SNOTEL basin-average SWC values in the California Sierras range from 90-125 percent of average. SWC values in southern Oregon appear to be somewhat greater, ranging from 125-150 percent of average. The Northern Sierra 8-station precipitation index for Water Year 2016 (updated February 5th) shows the average value of this index is 8.4 inches in December, and 9.0 inches in January. For Water Year 2016, however, the December index value is 11.8 inches, and the January index value is 16.1 inches, both significantly above the long-term monthly averages.
Despite heavy rainfall in January, an above-average snowpack and rising reservoirs in many areas, the California State Water Resources Control Board recently approved an 8-month extension of existing drought-related emergency regulations. This is a reminder that although El Nino-related precipitation has been bountiful so far this winter, the drought situation in California remains very serious. Reservoir storage generally remains below-average and very significant groundwater shortages continue. There are also serious problems with tree mortality. The USDA estimates 29 million trees are already dead, and a Stanford group estimates another 29 million trees are showing significant stress. Given these various factors, it will take quite a while for improvements in the short-term to chip away at large, multi-year precipitation deficits.
Adjustments were made to the drought depiction this week in northern California and southern Oregon based on a wide variety of drought indicators and (mainly hydrological) feedback from drought experts across the region. Indicators used from the Western Regional Climate Center’s WestWide Drought Tracker (WWDT) included the Standardized Precipitation Index (SPI) and the Standardized Precipitation Evapo-transpiration Index (SPEI) at various time-scales, and the Palmer Drought Severity Index (PDSI). Current stream flows from the U.S. Geological Survey (USGS), Percent of Normal Precipitation (PNP) values from both ACIS and AHPS, CPC’s drought blends (short-term, long-term, and “worst-case”), and as noted above, SWC and reservoir information. Feedback from drought experts in California and Oregon played a key role in determining the modifications made to this week’s U.S. Drought Monitor.
In northwestern California, the D0, D1, and D2 contours were adjusted slightly eastward. Moderate drought (D1) was extended southward as far as Sonoma and Marin Counties. The D1/D2 boundary (separating moderate from severe drought) was moved slightly to the east, to central Siskiyou County, and eastern Trinity County. Extreme drought (D3) was eliminated from eastern and northwestern Modoc County, and exceptional drought (D4) was trimmed out of Lassen County. In southern Oregon, the D0, D1, and D2 contours were shifted slightly eastward. The D3 in southern Klamath and southern Lake Counties was eliminated. In northeastern Oregon, improved conditions warranted a one-category upgrade for Grant County, from D2 to D1…
The Great Plains and Upper Mississippi Valley
The primary revisions made to the drought depiction this week were in Texas. Most of the state has been drying out the last 30-days, with only two areas receiving more than a half-inch of precipitation. According to the Advanced Hydrologic Prediction Service (AHPS), far eastern Texas received moderate to heavy precipitation (0.5-3.0 inches), and the Trans-Pecos/western Edwards Plateau region generally received between 0.5-1.0 inch. However, many locations around the Abilene/San Angelo area have yet to receive measurable precipitation in 2016. Elsewhere, plant stress and elevated wildfire danger signaled either the expansion of, or introduction of, D0. In particular, deep South Texas has had very low dew points and strong winds. Topsoil moisture is rated by the U.S. Department of Agriculture (USDA) as very short to short. The additions rendered to the USDM map were guided by 1-4 month Standardized Precipitation Index (SPI) blends.
Small changes were also made to the depiction in northwestern Kansas and northeastern Colorado. The eastern portion of the D0 band (straddling the state border) was removed, due to somewhat improved conditions. Abnormal dryness (D0) was retained in Washington and part of Kit Carson Counties in northeastern Colorado, based primarily on SPI and soil moisture considerations.
An area to watch over the next few weeks is northeastern Oklahoma and northwestern Arkansas. This region has been quite dry during the past 30-days, with less than 0.10-inch of precipitation reported. A few counties (such as Franklin and Polk in Arkansas) have issued bans against outdoor burning. Dry spells are not uncommon during the winter, and it is noteworthy that this particular area received 10-14 inches of precipitation in late December…
The Rockies and Intermountain region
In central Nevada, some improvements seemed warranted. Using some of the same tools and indicators noted further down for California and Oregon, a one-category improvement was made to parts of northern Nye, Eureka, Lander, southwestern parts of Elko, and western White Pine Counties. No adjustments were made to the western counties of Nevada, as it takes time for the short-term gains in moisture to have a significant impact on long-term deficits. In southwestern Idaho, snowpack has nearly reached median peak annual values for the period of record. One-category improvements (from D1 to D0) were made in the Weiser, Bruneau, Salmon Falls, Oakley, and Raft basins, yet not to the Owyhee basin. Despite good snowpack, there is a significant lack of reservoir storage. In addition, for a large, low-elevation, high desert basin, a good snowpack doesn’t necessarily translate into adequate runoff…
During February 11-15, a half-inch or less of precipitation (liquid equivalent) is forecast for far northwestern California and the western margin of the drought region in Oregon. One to two inches of precipitation is anticipated across northern Idaho and northeastern Oregon. Unfortunately, much heavier amounts of precipitation (3-7 inches) are predicted for parts of the Pacific Northwest which are no longer in drought. Precipitation amounts of a half-inch or less are predicted for the Dakotas and most of the Mississippi Valley, with perhaps an inch for the Ark-La-Tex region, and for downwind areas of the Lower Great Lakes region.
During the ensuing 5 days (February 16-20), the projected precipitation pattern generally favors above-median precipitation from the Pacific Northwest and northern Rockies eastward across North Dakota, and continuing eastward and southeastward across the Great Lakes region, the Ohio and upper Tennessee Valleys, Appalachians, and Atlantic Coast states from Maine to South Carolina. Below-median precipitation is favored from California and the Southwest eastward across central and southern sections of both the Rockies and Great Plains, most of the Middle and Lower Mississippi Valley, and the Gulf Coast states including all of Florida. This pattern is what would be expected of a La Nina winter, not an El Nino winter. At any rate, some drought relief is at least favored across the northern U.S. during this period, but this is not the case for places like (most of) California, the Southwest, and Texas. Dryness is rapidly expanding across Texas, and some degradation in the drought depiction will probably be needed next week.
Take a walk down memory lane with early February US Drought Monitor maps since 2010.
The Court for Water Division No. 3 is expected to set a trial date later this month for the proposed state groundwater rules in the San Luis Valley.
That trial date may not come until 2017, according to a draft case management order filed with the court Friday, but a long window before the trial may help State Engineer Dick Wolfe with his goal of coming to an agreement with objectors before trial.
To date, 29 parties have filed comments, although at least three of them did so in support of the rules.
The rules would cover the roughly 4,500 wells that draw off either of the valley’s two major groundwater bodies.
The unconfined aquifer is the shallower of the two and is recharged both by streamflow at the valley’s edge and by return flows from irrigation.
The confined aquifer is recharged mainly by streamflows on the valley rim, sits beneath the unconfined aquifer and holds artesian pressure.
Both are hydraulically connected, in varying degrees, to stream flows in the valley, meaning that groundwater pumping can injure surface water users.
The rules are designed to protect surface water users and restore aquifer levels by requiring groundwater users to either join a groundwater subdistrict, create an augmentation plan, or create a substitute water supply plan.
All three would require the mitigation of pumping impacts as determined by a staterun computer model that simulates the behavior of the valley’s groundwater.
Comments were filed by 21 parties at the end of November, although the court extended the comment period because of problems noticing the rules in the north end of the valley.
Many of those comments focused on whether the state’s groundwater model was sufficient for the rules.
Since then eight others have also weighed in.
As with previous objectors, there were two protestors among the latest group who argue that the rules only be approved to the extent that the groundwater model is accurate. Other objections focus on the proposed process the engineer’s office would use to set an irrigation season. The subdistrict operating under the Trinchera Water Conservancy District has also entered a protest, calling for the rules to allow it to submit a groundwater management plan. While the valley’s existing subdistrict and the four other proposed ones would all operate under a groundwater management plan, Trinchera is unique in that it is the only subdistrict not operating under the umbrella of the Rio Grande Water Conservation District.
Trinchera is in Costilla County, which is not a part of the Rio Grande district.
The state law that allows for the creation of conservancy districts does not make clear whether Trinchera can create a groundwater management plan.
Click here to read the report. Here’s the executive summary:
Experience with recent disaster recovery efforts highlights the need for additional guidance, structure and support to improve how we as a Nation address recovery challenges. This experience prompts us to better understand the obstacles to disaster recovery and the challenges faced by communities that seek disaster assistance. The National Disaster Recovery Framework (NDRF) is a guide to promote effective recovery, particularly for those incidents that are large- scale or catastrophic.
The NDRF provides guidance that enables effective recovery support to disaster-impacted States, Tribes and local jurisdictions. It provides a flexible structure that enables disaster recovery managers to operate in a unified and collaborative manner. It also focuses on how best to restore, redevelop and revitalize the health, social, economic, natural and environmental fabric of the community and build a more resilient Nation.
The NDRF defines:
• Core recovery principles
• Roles and responsibilities of recovery coordinators and other stakeholders
• A coordinating structure that facilitates communication and collaboration among all stakeholders
• Guidance for pre- and post-disaster recovery planning
• The overall process by which communities can capitalize on opportunities to rebuild stronger, smarter and safer
These elements improve recovery support and expedite recovery of disaster-impacted individuals, families, businesses and communities. While the NDRF speaks to all who are impacted or otherwise involved in disaster recovery, it concentrates on support to individuals and communities.
The NDRF introduces four new concepts and terms:
• Federal Disaster Recovery Coordinator (FDRC)
• State or Tribal Disaster Recovery Coordinators (SDRC or TDRC)
• Local Disaster Recovery Managers (LDRM)
• Recovery Support Functions (RSFs)
The FDRC, SDRC, TDRC and LDRM provide focal points for incorporating recovery considerations into the decisionmaking process and monitoring the need for adjustments in assistance where necessary and feasible throughout the recovery process. The RSFs are six groupings of core recovery capabilities that provide a structure to facilitate problem solving, improve access to resources, and foster coordination among State and Federal agencies, nongovernmental partners and stakeholders. Each RSF has coordinating and primary Federal agencies and supporting organizations that operate together with local, State and Tribal government officials, nongovernmental organizations (NGOs) and private sector partners. The concepts of the FDRCs, SDRCs, TDRCs and RSFs are scalable to the nature and size of the disaster.
The NDRF aligns with the National Response Framework (NRF). The NRF primarily addresses actions during disaster response. Like the NRF, the NDRF seeks to establish an operational structure and to develop a common planning framework. The NDRF replaces the NRF Emergency Support Function #14 (ESF #14) – Long-Term Community Recovery. Key ESF #14 concepts are expanded in the NDRF and include recovery-specific leadership, organizational structure, planning guidance and other components needed to coordinate continuing recovery support to individuals, businesses and communities.
Fundamentally, the NDRF is a construct to optimally engage existing Federal resources and authorities, and to incorporate the full capabilities of all sectors in support of community recovery. The effective implementation of the NDRF, whether or not in the context of a Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) declaration, requires strong coordination across all levels of government, NGOs
and the private sector. It also requires an effective, accessible public information effort so that all stakeholders understand the scope and the realities of recovery. The NDRF provides guidance to assure that recovery activities respect the civil rights and civil liberties of all populations and do not result in discrimination on account of race, color, national origin (including limited English proficiency), religion, sex, age or disability. Understanding legal obligations and sharing best practices when planning and implementing recovery strategies to avoid excluding groups on these bases is critical.
The NDRF is a guide to promote effective recovery. It is a concept of operations and not intended to impose new, additional or unfunded net resource requirements on Federal agencies. As responsibilities, capabilities, policies and resources expand or change, the NDRF will be revised as needed to ensure that it continues to provide a common and adaptable approach to disaster recovery.
Click here to read the newsletter. Here’s an excerpt:
River District to funnel $8M to irrigation projects
The Colorado River District Board of Directors has agreed to act as a funding conduit for up to $8 million in federal Natural Resourc- es Conservaon Service (NRCS) funding to help fi- nance a series of water use efficiency projects in four federal irrigaon projects in the Lower Gunnison Basin.
Last year, the River District was awarded $8 million of grant funding from the U.S. Department of Agriculture’s 2014 Farm Bill that will leverage up to $50 million worth of work in cooperaon with, and other funding from, the Bureau of Reclamaon and the Colorado River Basin Salinity Program.
The Board approved a new type of financial coop- erave agreement called an “Alternave Funding Arrangement” that enables the River District to act as an agent of the NRCS.
The Board directed staff to manage all of the NRCS funding for the benefit of the irrigaon districts in the four focus areas..
The four beneficiary irrigation project areas include the Uncompahgre Valley, Bostwick Park, the North Fork Valley and the Crawford Country. Deputy Chief Engineer Dave Kanzer and Water Resources Specialist Sonja Chavez have been the quarterbacks in the collaborative effort to perform mod- ernizaon and system opmizaon acvies that will increase agricultural water use efficiency within the Lower Gunnison Basin.
Kanzer noted that the irrigaon districts can lose more than 30 percent of their water to seepage and deep percolation.
The Regional Conservaon Partnership Program (RCPP) funding from the NRCS will help minimize those losses by modernizing river diversions and water conveyance and deliveries for farm use. This work, combined with en- hanced management of reservoir releases, is projected to provide beneficial results related to increased agricultural producon, improved stream flows, beer water quality, and improved river habitat that, among other benefits, will help threatened and endangered fish species.
“In my view, this has to be done for the future of our agricultural producers in the basin,” said Eric Kuhn, General Manager of the River District.
Marc Catlin, River District Director from Montrose County, said: “The future is here, and we have got to start doing these things if we are going to maintain agriculture on the Western Slope.”
He called for the program to work with younger producers to help them learn how to farm with new technology.
“This is a big deal,” said Dave Merri, Director from Garfield County. “This is the product of 20 years of work in the Gunnison Basin. It is a great way to go ahead and put good stuff on the ground.”
Gunnison County Director Bill Trampe urged that the program provide an economic analysis of projects to help educate others to the pluses and minuses of the modernisations.
Tom Kay, an organic agricultural producer from Hotch- kiss, who has already implemented irrigation improvements, said his growing season has been lengthened due to beer water management that effecvely has stretched his water supplies. “Without Dave Kanzer and Sonja Chavez, this would be nowhere,” Kay said of the River District staff working on the project.
In late December, the U.S. Forest Service announced a compromise with the ski industry in their feud over water rights. Both sides gave ground, but just as interesting was who didn’t get deeply involved.
The environmental community mostly stayed on the sidelines, unwilling to hurl spears on behalf of the Forest Service. U.S. Rep. Scott Tipton, a Republican who represents much of Western Colorado, was triumphant if still warning of federal overreach. He called the Forest Service policy an “onerous attempt to hijack private water rights.”
In this king-sized bed of political alliances, there was some unusual spooning going on. Tipton, elected with Tea Party support and a predictable critic of the Environmental Protection Agency, in this case shared covers with the Aspen Skiing Co., which had even dispatched a top official to testify in Congress against federal involvement in water administration.
This matter of who-is-calling-the-shots on water, states or feds, is also part of the discussion in the Colorado Legislature this winter. Boulder-based water attorney Glenn Porzak, who represents the Eagle River Water Authority and other interests, brokered meetings in recent months around a bill now introduced as HB 16-1109, called the Colorado Water Rights Protection Act.
The bill has sponsors from legislators who rarely agree on anything: from Sen. Jerry Sonnenberg, a Republican from the farm country of Northeastern Colorado, to Rep. KC Becker, a Democrat from reliably liberal Boulder. Other co-sponsors are Rep. Diane Mitsch Busch, a Democrat from Steamboat Springs, and Sen. Kerry Donovan, a Democrat from Edwards.
The bill very fundamentally seeks to discourage federal efforts to claim jurisdiction over water rights on federal lands in some cases. Major environmental groups—including Western Resource Advocates, Conservation Colorado, and Trout Unlimited—have agreed to remain neutral.
Water has always been seen as an essential part of the Forest Service mission. That concern is what drove withdrawal of the forest tracts from the general domain beginning with the White River Reserve of northwest Colorado in 1881. Those withdrawals were driven, in part, because of concerns about water quality from timbering and other land uses. States, just as zealously, have been protective of their authority over water allocation. But water quality and water quantity are inextricably linked, and hence tension.
This tension has played out frequently over the decades on a variety of fronts. In the case of ski areas, the Forest Service in the 1980s developed a policy that said any water developed and used on the national forest in an area permitted for a ski area should be in the name of the United States. The federal agency, however, applied this policy inconsistently to ski areas. There are 122 ski areas on Forest Service land across the nation, mostly in the West.
Ski areas never liked this requirement and questioned the validity. Still, 65 water rights were given to the U.S. government, and they remain in the name of the U.S. government.
In 2004, the Forest Service created something called joint tenancy, whereby the ski areas and the U.S. government would together hold water rights. The Forest Service saw itself as being the landlord and the ski area being a tenant and the plumbing (and tap fee) for the house belonging to the landlord. This was applied to a handful of adjudications of water originating on ski areas. Many states, however, do not recognize this concept.
In 2011, the Forest Service issued a new policy. The ski industry objected to the new clause, which required that ski area operators developing new water sources within their permit areas to give the title to the water to the U.S. government.
This new policy was applied to the Powderhorn Mountain Resort, located on Grand Mesa near Grand Junction, Colo. With partners, long-time ski industry executive Andy Daly had purchased the ski area in 2011. As a condition of transferring the permit for use of Forest Service land, says Daly, he and the other new owners were required to transfer the water rights to the Forest Service.
“They said they would not approve the permanent transfer of the permit (from the former owner) unless we agreed to the language,” he says.
That water portfolio for Powderhorn is 15 pages long and includes a wide variety of sources, from springs to access to a ditch drawing water from Mesa Creek, many rights filed in the 1980s but some predating the creation of the ski area.
At the time, Daly thought the Forest Service had over-stepped.
“In my mind, it was always considered a taking, from the perspective that the Forest Service was taking the water right of the ski area and not guaranteeing that those water rights could be used in perpetuity for what they were being used at the ski area.”
That same year, the National Ski Areas Association sued. The judge agreed, striking the Forest Service requirement—but on procedural grounds, not substantive grounds.
Adhering to the elaborate set of procedures and requirements yielded a new directive that the Forest Service announced in late December. The Ski Area Water Clause entered in the Federal Register clearly constitutes a compromise, if some dissatisfaction remains.
Ski areas give up their autonomy about water rights. They cannot just sell their water rights on the open market. They agree—even if they don’t necessarily believe—that the Forest Service should have some say-so over how much water is needed to run a ski area.
If an operator sells the ski area, the water rights must be included in the assets. If the buyer declines to buy the water, the Forest Service gets the first right of refusal. The Forest Service could decide the water isn’t needed, in which case the ski area would be allowed to sell the water rights to a buyer of its choosing.
Going forward, ski areas can continue to own all the water rights they develop on the ski areas, whether through wells, dams, or diversions. They do not need to transfer them to the U.S. government. However, the directive leaves intact prior water rights filings, including some that were ceded to the U.S. government.
The Forest Service requires ski areas to document sufficient water to support their operations in snowmaking and other uses for on-mountain operations.
The agency does not claim rights to water that originates off the ski permit area. In the context of Colorado, for example, both Vail and Beaver Creek use from the Eagle River, pumping it onto the ski mountains to make snow. Another example is augmentation water, such as that held in Green Mountain Reservoir and released as needed to meet senior water rights downstream by more senior users downstream on the Colorado River.
Jim Bedwell, the director of recreation in the Rocky Mountain region, calls it a good compromise but maintains that the Forest Service has a legitimate need.
“Ski areas do change hands,” he says, “and there is significant consolidation going on in the industry right now. Our real desire is that the public doesn’t see any difference, regardless of changes, and there will be some of the same opportunities for the public to ski, with the same quality of experience—but the water rights will be tied to the forest. That was our interest all along.”
Geraldine Link, director of public policy for the National Ski Areas Association, sees little reason ski areas would get rid of water rights. “Why would you sell the water rights if it wasn’t absolutely crucial?” she says. “That diminishes the value of your ski area.”
NSAA chose not to battle the Forest Service further for a number of reasons, she said: The restrictions apply to a limited class of water rights; litigation is expensive, and the outcome of a lawsuit uncertain.
But the new language gives ski area operators assurances that the value of their investments will be protected. “That’s a big deal for the ski areas.”
She also struck a diplomatic tone, describing ski areas and the U.S. Forest Service as partners for more than 75 years in providing the public with a concentrated outdoor experience, first in snow and now as four-season resorts.
“We have a lot going on. Our partnership is much greater than just water. That is the context for how we look at this new clause and say, ‘This will work for us.’”
But Tipton proclaimed it a rebuff of Forest Service overreach. “Western water users are right to be wary of any action on water rights by this Administration, which has been dead set on slowly expanding federal control over water in the Western U.S,” he said in a Dec. 30 statement.
Tipton cited support from a number of familiar allies, but some unusual teammates, too, including the Gunnison County commissioners, which trend toward Democratic policies.
Chris Treese, director of internal affairs for the Colorado River Water Conservation District, also questions Forest Service authority. Water use, he argues, should be strictly within the domain of state water courts. Too, he harbors doubts whether the Forest Service should have any say-so in determining how much water is needed to operate a ski area.
“I appreciate the fact that they are no longer requiring ski areas to assign ownership to deed title over to the federal government. That is significant. But I question whether they have the true expertise to determine sufficiency of quantity for water. Exactly how are they going to measure that?” he asks. “There are implications for the private property nature of Western water rights.”
Treese does commend the Forest Service for recognizing in its final rule the fundamental difference between the prior appropriation laws of Western state and the riparian laws of the East.
Bypass flows different
Bypass flows are a related, but different issue—as environmental groups were careful to point out.
In the case of bypass flows, the Forest Service requires that water from dams and other such uses of the national forests lands let a certain amount of water continue to flow downstream, to achieve biological purposes of streams and rivers. After a 2004 federal decision upheld the Forest Service in a case involving a reservoir on the Arapahoe-Roosevelt National Forest, Colorado Trout Unlimited issued a statement that the ruling should “silence those who have asserted that the Forest Service does not have the authority to protect rivers on National Forest lands.”
But while environmental groups strongly support bypass flow requirements, at least some of them suggested—if they were willing to talk at all—that the Forest Service had sharp elbows in the ski area case.
“The best analogy I can make is that if you are a tenant in a building, your landlord can tell you not to play the radio loud after 10 p.m., that’s essentially what a bypass flow is,” explains Rob Harris of Western Resource Advocates.
“It just puts a limit on the exercise of your property right, which you agreed to by agreeing to the privilege of leasing or renting the apartment—or by leasing the federal land. By contrast, this ski area clause said give me your radio. I will not renew your lease unless you give me your radio. That’s fundamentally the difference.”
The bill in the Colorado Legislature very specifically remains neutral about bypass flows while otherwise arguing strongly that water rights are a matter under Colorado’s jurisdiction.
Porzak, who drafted the language, says the bill is “totally disconnected” from bills introduced by Tipton and by U.S. Sen. Cory Gardner.
Environmental groups, however, remain wary of Tipton’s legislation. They think it would swing the pendulum too far. In the words of Harris, versions of Tipton’s bill “have in fact threatened a lot of the natural values in public lands.”
View from enviro sidelines
An informed sidelines opinion comes from Ken Neubecker, who has been affiliated with several water-related environmental water organizations in Colorado, currently American Rivers. He also knows Colorado water law intimately. “Tempest in a teapot, and it just got blown completely out of whack,” he says. It shouldn’t have taken nearly so long to work out, he says. “It’s damned turf battles. Sometimes you do need to defend turf, but other times you do it simply because you can.”
Neubecker says the Forest Service should not be made into “some sort of retrograde exile in their own land,” as he thinks some would prefer. On the other hand, “you don’t get along by throwing bombs at your neighbors,” which is how he saw the Forest Service demand.
“They have a responsibility to the American public to manage these lands properly, and in the West, that means having some sort of administrative authority over what happens with water. That being said, it has to be done within the context of state water law. They can’t just sort of imperially say that federal agencies law supersedes states law, because when it comes to water, it doesn’t. They have to respect the legitimate rights of water rights owners.”
This latest conflict can be seen as part of a long-standing tension between state governments, private interests, and the federal government.
The lion’s share of these forests—including the Holy Cross, Montezuma, Cochetopa, and Uncompahgre in Colorado, the Shasta in California, the Sawtooth and Weiser reserves in Idaho, and the Dixie in Utah—were withdrawn from the general domain, made unavailable for homesteading, in 1905 by the order of President Theodore Roosevelt. In Colorado, many people were plenty unhappy.
In 1909, Gifford Pinchot, the first leader of the U.S. Forest Service, arrived in Denver to meet with angry stockmen, lumbermen, and miners, who accused the federal government of over-reach. Elias Ammons, a future governor, told Pinchot that there were men living on the reservations “who were living in a state of fear.” Pinchot, according to the Scientific and Mining Press, replied that if it were not for the Forest Service, there would be no small stockmen at all.
Pinchot won the argument that day, but the argument has never been completely settled, as witnessed by these periodic Sagebrush rebellions, of which the Bundy family of Nevada and Oregon are only the most militant, extreme actors. Of course, we’re still arguing about the Civil War, too. Until last year, a Confederate flag flew over the grounds of the state capitol in Charleston, S.C.