#ColoradoRiver: Grand County rancher uses 2013 law to leave water in Willow Creek without penalty — Hannah Holm #COriver

From the Grand Junction Free Press (Hannah Holm):

A Grand County rancher has become the first person in Colorado to use a 2013 state law to intentionally leave water in a stream without fear of diminishing his water right. Working with the Colorado Water Trust , Witt Caruthers developed a plan to curtail diversions from Willow Creek when its flows drop to critical levels.

The additional flows will benefit half a mile of Willow Creek and then four and a half miles of the upper Colorado River before encountering the next downstream diversion, where another water user could potentially take the water. This stretch of the Colorado River has been heavily impacted for decades by upstream diversions across the Continental Divide to Front Range cities and farms.

The 2013 law, Senate Bill 13-019, allows some Western Slope water right holders to reduce their water use in up to five out of any consecutive ten years without having the use reductions count against them in water court calculations of “historic consumptive use.” This reduces the “use it or lose it” disincentive for conservation in Colorado water law.

The law applies only to water users in Colorado Division of Water Resources Divisions 4 (Gunnison River Basin), 5 (Colorado River Basin) and 6 (Yampa, White and North Platte River Basins). In order to qualify for the law’s protections, the water use reductions must be the result of enrolling land in a federal land conservation program or participating in an officially-sanctioned water conservation or banking program.

Jim Pokrandt of the Colorado River District, which approved Caruthers’s conservation program, told the Sky Hi Daily News that “we’re glad to be in the vanguard and helping the agricultural community protect their water rights when they want to lend the water rights to environmental purposes.” The same article quotes Caruthers as saying that he and his partners sought to “one, preserve our water rights but also to contribute to the overall maintenance of the ecosystem there by leaving water in the stream when it wasn’t needed.”

The Colorado Water Trust has also pioneered the use of other voluntary and market-based tools for landowners to share water with streams without diminishing their water rights. These include a 2003 law that created a streamlined process for water users to make short-term leases of water to the state for environmental purposes. The Trust first used this tool in 2012 by brokering a deal to support flows in the Yampa River. It has since been used in several other places.

Support and funding for such innovative water conservation efforts is rising as Colorado and the other states and cities that share the Colorado River are seeking ways to prop up water levels in Lakes Powell and Mead in the face of long-term drought.

This is part of a series of articles coordinated by the Water Center at Colorado Mesa University in cooperation with the Colorado and Gunnison Basin Roundtables to raise awareness about water needs, uses and policies in our region. To learn more, go to http://www.coloradomesa.edu/WaterCenter. You can also find the Water Center on Facebook at https://www.facebook.com/WaterCenter.CMU or on Twitter at https://twitter.com/WaterCenterCMU.

Willow Creek via the USGS
Willow Creek via the USGS

2013 Colorado legislation: Willow Creek provides test case for SB13-019

Willow Creek via the USGS
Willow Creek via the USGS

From National Geographic (Sandra Postel and Todd Reeve):

A groundbreaking 2013 Colorado law provides new flexibility that allows water rights owners to allocate water to a river during times of critical low flow.

In the Colorado River headwaters, just outside of Rocky Mountain National Park, Willow Creek is providing a test case for the new law.

There, Witt Caruthers, a ranch owner with rights to divert a portion of Willow Creek’s water, decided to develop a plan allowing him to leave water in the creek for up to five years during a 10-year period—without the threat of the “use it or lose it” provision.

The water for Caruthers’ ranch, which is delivered through two irrigation ditches not far from where Willow Creek meets the Colorado River, fills stock tanks for cattle and irrigates 70 acres (28.3 hectares) of pasture. Typically, the diversions begin in May and continue through late summer. By that time, rivers and streams that rely on snow melt are running low – and after diverters take their share of water, many streams are at risk of running completely dry. Such was the case with Willow Creek.

For Caruthers the conservation project offered a chance to do something positive for Willow Creek and to set a precedent for other rivers in the drought-stricken West.

“Colorado’s water system created an incentive to use our water even in times when it’s not absolutely necessary,” Caruthers told the Denver Post. “When you’re under that pressure to use it or lose it, you’re almost forced to abuse it. That’s to the detriment of all.”

Caruthers and his partners worked with the Denver-based Colorado Water Trust (CWT) to design the project. It essentially involves curtailing diversions from Willow Creek when flows drop dangerously low. Because there are no other diverters immediately downstream, the enhanced flows will benefit not only the lower half mile of Willow Creek, but also some 4.3 miles of the upper Colorado –including populations of brook and brown trout.

Although the project restores only a small volume of water to the stream, that additional flow at crucial times of the year can help keep Willow Creek connected to the Colorado River, enhance water quality, and sustain fish and other aquatic organisms.

This past June, the chief engineer of the Colorado River District approved the CWT-Caruthers conservation program.

The Willow Creek project also sets a precedent that could be a game-changer for other Colorado rivers, as well as for farmers and ranchers that have the ability to use less water and share any surplus with a river. For those who desire to balance economic productivity with recreation interests, fish and wildlife needs, and community benefits, this new law offers a positive step forward.

The beauty of the new law, says Amy Beatie, CWT’s Executive Director, “is that it allows for a very simple, low-risk and flexible way for a water user to experiment with leaving water in a river.”

“It is one of the most straightforward programs the state has ever created to allow flexibility in water use,” Beatie continued, “and it has potential to benefit entire water user communities that are interested in collaborating to keep water in the river.

This 2013 Colorado law provides added flexibility and longer-term benefits for rivers than a 2003 state law that was designed to ensure that rivers aren’t denied water when they need it most.

The 2003 law was first tested during the drought of 2012 on the Yampa River, another upper Colorado tributary and the heartbeat of the popular tourist town of Steamboat Springs. That law allows farmers, ranchers and water districts to temporarily lease water to rivers and streams in times of need.

The following year, CWT and partners replicated that leasing approach on several other rivers, including the Fraser, another headwater tributary. The Fraser suffers not only from low flows during droughts, but also from trans-continental tunnel systems that divert its water to the Denver area.

Colorado’s 2013 law also gives water-rights protection to participants in the Colorado River System Conservation Program, an $11 million pilot initiative of the US Bureau of Reclamation and the water agencies supplying the four largest cities drawing upon the Colorado River – Denver, Los Angeles, Las Vegas and Phoenix. Some $2.75 million will be spent in the upper Colorado River Basin.

Although a small step for the restoration of the state’s rivers, Colorado’s new law breaks important new ground. And it may just inspire other western states to add flexibility to their systems of water rights so that more rivers can keep flowing.

Sandra Postel is director of the Global Water Policy Project and Freshwater Fellow of the National Geographic Society. Todd Reeve is CEO of the Bonneville Environmental Foundation. They are co-creators of Change the Course.

Change the Course, a partnership of National Geographic, Bonneville Environmental Foundation and Participant Media, provided funding to support the flow restoration projects in the Willow Creek, Fraser and Yampa Rivers.

Pitkin County ponies up $35,000 to help the Colorado Water Trust

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 (Collin Szewczyk):

A three-pronged approach to restore local water flows got a shot in the arm on Tuesday when Pitkin County supported a $35,000 Healthy Rivers and Streams grant to help a Front Range nonprofit’s plan to keep more water in the Roaring Fork River.

The project looks to provide a pathway for water right holders to leave more of their allocation in the Roaring Fork without being penalized, and assess availability of other water sources to combine the total for maximum benefit for the river.

The Denver-based Colorado Water Trust is spearheading the project, which aims to extend a non-diversion agreement for the city-owned Wheeler Ditch; look into the utilization of up to 3,000 acre-feet of water that would otherwise be diverted through the Independence Pass Transmountain Diversion System to bolster flows near Aspen; and study ways to use more water in Grizzly Reservoir to benefit the Roaring Fork.

The funding will go toward coordinating the project; the completion of a feasibility analyses; forecasting instream flow needs for the upcoming irrigation season; performing outreach; and monitoring and reporting of streamflow and project benefits, according to a supplemental budget request from Lisa MacDonald, of the Pitkin County Attorneys Office.

Amy Beatie, executive director of the Colorado Water Trust (CWT), said this is a “real opportunity” to put water back in the Roaring Fork River, especially in the stretch between the Salvation Ditch and Castle Creek…

Wheeler Ditch non-diversion agreement

Aspen City Council partnered with the Colorado Water Trust in 2013 on a one-year Wheeler Ditch non-diversion agreement to improve streamflow conditions on a section of river that flows through the city. This area stretches from the ditch, which is located near the eastern edge of town, down to the Rio Grande Park, the CWT grant application noted. The agreement was also renewed in 2014.

When the water level in the river fell below 32 cubic feet per second (CFS), the city reduced the Wheeler Ditch diversions to keep water in the river, leading to an increase of about 2 to 3 CFS from mid-July through the end of the irrigation season.

Under the new proposal, this Wheeler agreement would be extended for 10 years, but only five of those years are covered under SB-19.

The water trust’s hope is that once others with water rights see the success of non-diversion agreements, they too will allow more water to remain in the Roaring Fork without penalty.

Beatie added that the city of Aspen has given the CWT a “resounding thumbs-up” in its efforts.

“[The non-diversion agreement] is an informal agreement where a water user decides not to use its water right for its decreed purposes,” she explained. “But can instead leave it in the river. There’s no transfer obligations, it’s a very simple and private process and it’s a private contract between the trust and the city to experiment with leaving water in this section of river.”

More water from Grizzly Reservoir

Beatie said a right to 800 acre-feet of water in Grizzly Reservoir was acquired in a settlement by the Colorado River Water Conservation District in an application for a junior right enlargement.

John Currier, chief engineer with the Colorado River Water Conservation District, explained that out of the first 2,400 acre-feet that’s diverted in any given year under the junior water right, 800 goes to the river district.

“Through agreements with the city and county, that water is to be used in various ways, primarily for instream flow purposes,” he said.

Currier added that the real task of the overall project is figuring out how to marry the three sources and maximize the benefit.

“This was water that the river district secured,” Beatie noted. “It’s 800 acre-feet, about 750 of which can be used by a combination of the river district and Aspen for environmental purposes.”

Beatie said the river district is allowing CWT to analyze how the water can best be used and “sow this supply together with the Wheeler Ditch project.”

The CWT then intends to investigate how to best utilize the Grizzly water to enhance Roaring Fork streamflows, especially in years in which the Wheeler Ditch isn’t being diverted.

According to the CWT grant application, the first 40-acre feet of Grizzly Reservoir water would “be held in a mitigation account for subsequent release to enhance flows in the Roaring Fork during the late irrigation season.”

“The remaining water is to be stored either in Grizzly Reservoir in a Colorado River Water Conservation District account (up to 200 acre-feet) or held in [Twin Lakes Reservoir] storage,” the application continued.

Commissioner Steve Child asked if Grizzly Reservoir could be enlarged to provide more water on the West Slope.

Currier said that while nothing is in the works yet, the idea has “been on the radar screen.”

Water from the ‘Exchange’

In the third part of proposal, known as the “exchange,” the CWT will also investigate, in partnership with the water district, how to restore flows via the Independence Pass Transmountain Diversion System.

This could provide up to 3,000 acre feet of water “in exchange for equivalent bypasses from the headwaters of the Roaring Fork River,” the CWT grant application noted.

But Beatie said that while this arrangement has been implemented, it’s never been formally approved.

“The state engineer cannot administer an agreement, they need to administer a water right,” she said. “There may be more steps that need to be undertaken, both to secure this water right as instream flow, and then to have it protected.”

Wide support for effort

The Pitkin County commissioners supported the HRS grant allocation for the project, and praised the city’s involvement.

“From the bottom of my heart I want to applaud the city for taking the lead on this during the drought and continuing and following through,” said Commissioner Rachel Richards. “It’s just been fabulous.”

Dave Nixa, vice chair of the Healthy Rivers and Streams Board, said data from this project could provide a huge opportunity to increase local flows, calling it the most comprehensive grant request that HRS has ever received.

“We’re talking about, could some of those places be Snowmass Creek and the Crystal [River]?” he said. “Where we could use the value of this as a catalyst to encourage others to participate.”

April Long, stormwater manager for the city, said Aspen is looking at creating a river management plan for the Roaring Fork, calling it a top priority.

“It’s something that we’ll be working with the county very closely on, and all the other stakeholders in the suburb section of the watershed in the next two years to develop an operational river management plan for how we can maintain flows in drought years,” she said.

The CWT had already attained a matching grant from the Colorado Water Conservation Board, and the total budget for the project is approximately $70,000, according to a letter from Beatie to the HRS board.

“The idea behind this application is that it’s a really good start,” Beatie said, “Our experience is that one step forward into solving flow shortages is often the catalyst to bring more energy and enthusiasm and other water rights and water users into the program.”

“On a stream, one cubic foot a second can make a big difference” — Amy Beatie #ColoradoRiver

From The Denver Post (Bruce Finley):

For 139 years, state enforcers have said farmers, cities and ranchers who don’t use all the water they are entitled to could have their rights curtailed. Critics have said that discourages conservation.

A first deal in the works, made possible by a 2013 law, lets a ranch owner near Granby leave water in Willow Creek, a tributary of the overtapped Colorado River, without facing penalties.

A second deal would leave more water in the Roaring Fork River, another Colorado River tributary, in Aspen.

Colorado Farm Bureau leaders said they’re watching to make sure water left in rivers by those who don’t exercise their senior rights stays available to next-in-priority irrigators.

“We’re definitely taking a wait-and-see approach,” CFB president Don Shawcroft said. “We had a certain understanding when the law was passed, but it’s certainly up to the interpretation of the court and lawyers.”

The Colorado law says not using water won’t diminish or cancel a water right if the owner is enrolled in a conservation program with local approval.

Colorado River District officials last week approved the Willow Creek deal. Water saved initially will be small, flows of a few cubic feet per second into stream channels.

But the emerging alternative to Use It Or Lose It — developed by the Colorado Water Trust — marks a milestone in modernizing the state’s first-come, first-serve system for allocating water.

“We can look at the local water rights and determine if leaving water in a particular section of a river would create environmental benefits,” said Amy Beatie, director of the trust, devoted to saving rivers.

“The benefits could be significant,” Beatie said. “On a stream, one cubic foot a second can make a big difference.”[…]

Given the water pressures in the West, Louisiana-based ranch owner Witt Caruthers this year decided to try the new approach at his head-gates along Willow Creek.

“Colorado’s water system created an incentive to use our water even in times when it’s not absolutely necessary. When you’re under that pressure to use it or lose it, you’re almost forced to abuse it. That’s to the detriment of all,” Caruthers said.

He and his partners turned to the Colorado Water Trust to take advantage of the new law. Without it, he said, “You’re caught between taking what you need and taking what you are entitled to.”

When drought nearly dried up the Roaring Fork River a few years ago in Aspen, city officials began thinking about how to ensure a minimal flow by leaving water they divert from their Wheeler Ditch to irrigate parks and feed fountains.

Yet their efforts to leave water in the river led to legal challenges by competing users, who claimed the city’s senior rights must be reduced if it stops diverting its full allotment, said Phil Overeynder, utilities engineer for special projects.

“Aspen is interested in doing this. Leaving a little water in that stream is what we are trying to accomplish,” Overeynder said.

Agricultural irrigators are wary of changing Colorado water law, said John McKenzie, director of the Ditch and Reservoir Company Alliance. Yet the system causes many to flood fields with more water than they need for fear that government will list their water as abandoned, McKenzie said.

“We want to protect ditch company water rights,” he said. “But if there’s a mechanism where a ditch company that doesn’t need the water could allow it to flow down a river, and there was no ‘abandonment’ of that water, it could help a ditch company. There are costs to diverting water.”

More SB13-019 coverage here.

First lease-fallowing pilot project under HB13-1248 to move to CWCB next week

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain (Chris Woodka):

A state engineer’s review of a plan to lease water from the Catlin Canal to upstream cities will move to the Colorado Water Conservation Board later next week. The state board is scheduled to review the plan on Jan. 26, the first day of its two-day meeting in Denver.

The plan is the first pilot project under 2013 legislation, HB1248, that allows the CWCB to review projects that lease water from farms to cities on a long-term, temporary basis. In order to provide the water, agricultural land must be dried up during the lease. No more than 30 percent of any given farm may be fallowed during the 10-year lease period.

Seven farms with 1,128 acres on the Catlin Canal will be dried up on a rotational basis to provide up to 500 acre-feet (163 million gallons) per year to three municipal water users: Fowler in Otero County, and Fountain and the Security Water and Sanitation District in El Paso County. If approved, the lease would begin this year.

The CWCB accepted the project in September, but will look at the details in the upcoming review. The state engineer’s office reviewed the plans in a way similar to a water court application or substitute water supply plan.

Bill Tyner, assistant Water Division 2 engineer, told the Southeastern Colorado Water Conservancy District Thursday that a review of the application has been completed and will go to the CWCB next week with a recommendation to proceed.

The review included concerns about impacts on other water rights from Southeastern and other groups in the Arkansas Valley.

“It’s an important time in the Arkansas River basin for those who have tired to get a lease-fallowing program going. It’s finally going to occur,” Tyner said.

The program is supported by the Arkansas Valley Super Ditch, a corporation that includes members from several ditches, as well as the Lower Arkansas Valley Water Conservancy District.

More HB13-1248 coverage here. More Arkansas River Basin coverage here.

Lower Ark board meeting recap: “We’re trying to see if a lease-fallowing program is viable” — Jay Winner

From The Pueblo Chieftain (Chris Woodka):

The Colorado Water Conservation Board last week approved a pilot project that will provide the town of Fowler water from several farms on the Catlin Canal over the next 10 years. The project is the first to be attempted under 2013 legislation, HB1248, that authorized demonstration projects that determine if lease-fallowing projects are a viable alternative to permanent dry-up of farms. It is also the first test of the viability of the Arkansas Valley Super Ditch.

Participating farms would be dried up no more than three years of the next 10 in order to supply 500 acre-feet (163 million gallons) annually to Fowler. Seven farms with 1,128 acres will be dried up on a rotational basis to provide the water under a plan filed by the Lower Arkansas Valley Water Conservancy District and the Arkansas Valley Super Ditch.

The CWCB reviewed comments on the project expressing concern from Aurora, the Lower Arkansas Water Management Association, Tri-State Generation and Transmission Association, the Southeastern Colorado Water Conservancy District and Colorado Beef, a Lamar feed lot. The comments were similar to filings made in the past in water court cases that sought to permanently change water rights. Most expressed concern that their water rights would not be injured by the program and sought to assure that measurements in the program are accurate. Some were supportive of the program and all wanted to be notified of progress or changes in the program.

“We’re trying to 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.”

From The Pueblo Chieftain (Chris Woodka):

How much water is staying down on the farm?

The state will spend $175,000 to study the amount of water returning to the Arkansas River from fields on the Fort Lyon Canal. That will be matched with $50,000 from the Lower Arkansas Valley Water Conservancy District. The Colorado Water Conservation Board approved the grant last week as a way to address contentions from farmers that the amount of tailwater return to the Arkansas River has been overestimated. The outcome could affect the formulas used by the Colorado Division of Water Resources in administering the Arkansas River Compact and rules that govern wells or surface irrigation. It could also make more water available to farmers to lease under the Super Ditch or other rotational lease-fallow programs.

The grant was approved in July by the Arkansas Basin Roundtable.

The state now recognizes a 10 percent return of water from fields, or tailwater, that are flood irrigated. That water must be replaced under state rules adopted during the 24-year Kansas v. Colorado court case.

The Fort Lyon Canal is 100 miles long and irrigates 94,000 acres, so farmers contend water soaks into the ground and never makes it to the river. It is anticipated that the collection and analysis of data will take about two years to complete, at which time further work could be contemplated.

From The Pueblo Chieftain (Chris Woodka):

Leaky ponds are good news for farmers in the Lower Arkansas Valley. The second year of a pond study in a normal water year is showing similar results as last year, when drought gripped the region.

“We’re not seeing a significant difference,” said Brian Lauritsen, a consultant on the study being funded through the Lower Arkansas Valley Water Conservancy District and the Colorado Water Conservation Board.

Water leakage on more than 20 ponds averaged about 20 percent this year, compared with 18 percent last year. Most are on the Fort Lyon Canal. It had been thought the numbers would be higher when the ground was drier.

“Usually, you don’t want to see ponds leaking,” said Jack Goble, engineer for the Lower Ark district.

But in this case, there is a chance the state will adjust its formula used to determine how much water irrigators owe for return flows that are reduced through more efficient irrigation techniques such as sprinklers. More leakage means less water owed to the river.

The Lower Ark also has built two ponds on the Catlin Canal designed specifically to leak. Called recharge ponds, they are designed to return water to the Arkansas River over time, the way that water flows through the aquifer in farming operations. One pond fills part of the need for Rule 10 surface irrigation plans, while the other is credited to Rule 14 well plans. One pond contributed 135 acre-feet (44 million gallons) in a month, while the other leaked 120 acre-feet (40 million gallons) in 21 days.

“I hope we’re able to get more of these ponds, especially in the lower part of the basin,” said Jay Winner, general manager of the Lower Ark District.

More HB13-1248 coverage here. More Lower Arkansas Valley Water Conservancy District coverage here.

DWR: HB13-1248 Fowler Pilot Project Lessons Learned Workshop, June 5

Flood irrigation -- photo via the CSU Water Center
Flood irrigation — photo via the CSU Water Center

From email from the Colorado Division of Water Resources (Kevin Rein):

During the 2013 legislative session, the General Assembly enacted HB-1248 to provide for fallowing-leasing pilot projects. At its November 2013 Board meeting, the CWCB approved Criteria and Guidelines for the pilot projects and in December, the CWCB received an application for selection and approval of a pilot project for the Town of Fowler. That application was subsequently withdrawn.

On June 5, 2014, CWCB staff will hold an informal workshop to review the Fowler Pilot Project and discuss the lessons learned through the application and review process. The CWCB’s objective is to apply lessons learned to any upcoming pilot project applications.

Fowler Pilot Project
Lessons Learned Workshop
June 5, 2014
9:00 am to Noon
1313 Sherman Street
Room 318

RSVP Not Required

More 2013 Colorado legislation coverage here.