…things look pretty good, according to the state’s Water Availability Task Force.
It’s all thanks to more rainfall than normal in August in most of Colorado, which left reservoirs across the state with an average of seven percent more water than they would normally have at this time of year.
“Our reservoirs are at pretty high levels for this time of year,” said Tracy Kosloff of the Colorado Division of Water Resources and co-chair of the task force. “That’s giving our water providers a lot of confidence going into the coming months.”
But rainfall in September has been below average and water providers on the Front Range are reporting low stream flows…
That is why state officials are waiting to see what snow might eventually come.
“We’re more looking forward to the winter season and what type of snowpack we’re going to accumulate in our mountains,” Kosloff said. “That’s really going to be the driver of our water supply going into the 2017 water year.”
The report from the task force notes the long-term forecast is still uncertain. El Nino is over and it’s not clear if a La Nina might develop. La Nina can mean drier conditions for Colorado.
From the Colorado Water Conservation Board/Colorado Division of Water Resources (Taryn Finnessey/Tracy Kosloff):
Following above average temperatures in June and July across the entire state, August was cooler with slightly below average temperatures. Precipitation has varied over the last two months with some basins seeing half of normal moisture while others have had upwards of 150 percent of normal rainfall. The Front Range corridor remains dry and warm and drought conditions have also been expanded into Elbert and Lincoln counties. The forecast for the next two weeks shows mostly dry conditions coupled with moderate temperatures.
The months of June, July and August were collectively the 13th warmest summer period on record. Temperatures in September have been above normal in the southern half of the state and near normal to the north.
With the exception of the Yampa & White River basins, the state received near to well above average precipitation in August. However, September precipitation is tracking well below average in all basins. Statewide water year- to-date mountain precipitation, as reported from NRCS, is at 96 percent of normal as of September 16th. The 2016 water year ends September 30th.
Reservoir storage statewide is 107 percent of normal. The South Platte and Yampa& White basins have the highest storage levels in the state at 112 and 110 percent of average, respectively. The Upper Rio Grande has the lowest storage levels at 91 percent. All other basins are above normal at 104 to 109 percent of average.
Front Range water providers all reported storage levels ranging from 80 to 126 percent of average, however they did express some concern regarding low stream flows, which this task force will continue to monitor.
The long term forecast is highly uncertain at this point. El Nino has concluded and ENSO neutral conditions exist. It remains unclear if La Nina conditions will develop. However, should La Nina materialize it does not necessarily mean Colorado will experience drought conditions.
MONTROSE — Dick Wolfe, Colorado’s state water engineer, told a group of irrigators here last week that it’s illegal for someone to take more water than they need because they are speculating on the future potential value of their water rights.
Wolfe was one of several guest speakers at the Uncompahgre Valley Water Forum, which was held on Sept. 1 at the Montrose County Fairgrounds.
“He’s going to talk about probably one of the most misunderstood parts of Colorado water law, and that is ‘use it or lose it,’” Lipton said.
Wolfe, who has been state engineer since 2007, began by saying that some people who own a water right can have a “misunderstanding” of what it means to “own and operate that water right in the context of ‘lose it or use it.’”
“They are really thinking in their minds, ‘I better divert it or I’m going to lose it,’” Wolfe said. “So oftentimes the context of ‘use it or lose it’ is ‘divert it or lose it.’”
But that thinking should actually “be framed as ‘beneficially use it or lose it,’” Wolfe said. “Because really the true measure of your water right is based on the beneficial consumptive use of that water right. Not how much you diverted, but how much you beneficially used it.”
Wolfe also said that when you go to change a water right in water court, “the measure of your water right is not based on how much you divert, but how much you consume of that. That’s how much you can take and transfer into the future. That’s what values that water right.”
He said it was easy for short adages to roll off one’s tongue, but when it comes to water rights in Colorado, the phrase “use it or lose it” should really be a mouthful, as in “establish and maintain a pattern of beneficially using it, for its decreed beneficial use, over a representative period of time, while in priority, without waste, or lose it.”
Or, in short, “beneficially use or lose it.”
“The essence of a water right is the application to a beneficial use without waste,” said Wolfe, the official responsible for enforcing compliance with Colorado water law. “In Colorado there are laws — specific provisions and statutes — that prevent someone from wasting water.”
(Please also see “Don’t take more than you need: wrangling wasted water on the Western Slope,” by Aspen Journalism.)
The ‘use it or lose it’ report
Wolfe said given the misperceptions about “use it lose it,” he began participating two years go with a group of stakeholders to help the Colorado Water Institute at Colorado State University issue a special report on the subject.
The report, released in February, is called “How diversion and beneficial use of water affect the value and measure of a water right,” and is subtitled “Is ‘use it or lose it’ an absolute?”
“It was engineers, attorneys, environmentalists, people from the cattleman’s association, corn growers,” Wolfe said of the group. “We thought we had a very wide range of stakeholders in this.”
He said the resulting 11-page document, which is in a question-and-answer format, is a helpful document that has been “very valuable in our administration efforts.”
“Administration” refers to managing the almost 180,000 decreed water rights in Colorado, which give people the right to use water from the state’s rivers and aquifers, but do so in priority based on the date of their water rights.
“We recognize that even some of our own staff had misunderstandings, misperceptions, of this ‘use it or lose it,’” Wolfe said. “So as water users come into contact with [our staff], we’ve got to make sure we are sending a consistent message on what it means when we talk about ‘use it or lose it.’”
Still applies in some cases
Wolfe described several ways in which some aspects of “use it or lose it” can still shape a water right, which is why the phrase has such staying power.
One is when you have a conditional water right.
Every six years in Colorado “you either have to demonstrate that you are maintaining diligence or that you’ve put it to use to make it absolute,” Wolfe said of such rights. “If you have an inability to put that water to beneficial use, there is a potential to lose that through [the] diligence process.”
Another area where “use it or lose it” can apply is to absolute water rights, where water has been physically put to beneficial use.
But Wolfe said that “as long as you’re operating within the decreed conditions of that decree, you’re not going lose it.” And, he added, it is only in “very rare situations where an issue would come up with an absolute water right.”
Wolfe explained that every 10 years, regional division engineers prepare an “abandonment list” of water rights that have not been used consecutively in the last 10 years.
But once put on such a list, the holders of the water rights can usually explain that they never intended to abandon their water right.
Wolfe said it’s “pretty easy” for a water rights owner to get off the list, and “they can continue to move forward until we go to the next abandonment process 10 years later.”
Another area where “use it or lose it” comes up is in a change case in water court. If someone goes to sell a water right, they can’t sell the portion they’ve never put to beneficial use, Wolfe explained.
He then walked the audience through an example.
Say a farmer has a paper right to divert 150 cubic feet per second from the river, but they only divert 100 cfs.
“This could be because over time, maybe they’ve put in a sprinkler irrigation system, something that made them more efficient, so that they are only needing to divert 100 cfs,” Wolfe said.
The farmer’s corn crop consumes 60 cfs of the 100 cfs that has been diverted, and so 40 cfs returns to the river, either on the surface or underground.
So when the farmer goes to sell their water right to a city, they can sell the 60 cfs that was historically consumed by the crop. But they can’t sell the 40 cfs that returned to the river — in order to make sure that downstream users still get the same amount of water as before the sale.
“That’s the measure of your water right, how much you’ve historically consumed,” Wolfe said.
But if the farmer was overly worried about “use it or lose it,” they might instead divert 150 cfs — the full decreed amount of water in their right, he said.
“When someone is thinking about ‘use it or lose it,’ they oftentimes think about, in this example, ‘I’ve got 150 cfs water right, I’m only diverting 100 cfs, so boy, if I’m concerned about maybe selling that someday, and I might lose some of my water right, I better divert that entire 150 cfs,’” Wolfe said. “This can lead to a practice of diverting more water than someone needs.”
Wolfe said the state of Colorado has the right to reduce the amount of water someone diverts from the river, if they are taking more than they need to get the job done.
“If we determine in that process that there is waste occurring, then we can curtail that water right back to what we think is a representative duty of water,” Wolfe said. “Remember, in the state constitution, the water belongs to the public. It’s the public resource, and there are a lot of laws written trying to protect this precious resource we have.
“We have this duty to only use what you beneficially need without waste, because there is all these other people and other uses that rely on that public resource.”
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on the coverage of rivers and water. The Daily News published this story on Tuesday, Sept. 6, 2016.
The Republican River Compact Administration signed off on a resolution presented by Colorado last week during the three-state entities’ annual meeting.
The resolution lays out the final steps Colorado has to take for compliance with the Final Settlement Stipulation and Republican River Compact, between it, Nebraska and Kansas.
If Colorado meets the requirements laid out in the resolution, it will be protected from any further lawsuit filings in the matter by Kansas or Nebraska.
“It basically means Kansas can’t come after us again and again,” Colorado State Engineer Dick Wolfe said. “It doesn’t prevent them from raising some other issue we haven’t thought of yet.”
He added the states have agreed to try to work out future issues among themselves instead of immediately going to the costly and time-consuming non-binding arbitration process.
“This is not nearly as restrictive as some people fear,” Deb Daniel, general manager of the Republican River Water Conservation District, said of the resolution.
A final agreement on the use of Colorado’s compact compliance pipeline, as well as the voluntary retiring of more acreage along the South Fork of the Republican River, are the key components in the resolution. Colorado already has removed 23,838 acres from irrigation in the South Fork Republican River Basin, through voluntary retirement programs such as the federally-funded CREP.
The resolution, presented last week in Burlington by Wolfe, and signed by him and Kansas’ David Barfield and Nebraska’s Gordon W. Fassett, calls for Colorado to utilize voluntary programs to retire up to an additional 25,000 acres from irrigation in the South Fork Republican River basin.
The resolution states Colorado will retire at least 10,000 acres by 2022, and the remaining 15,000 acres by December 31, 2027. It also includes language allowing Colorado to submit to the other states for their approval a plan to reduce consumption within Colorado by other means if the state cannot or will not retire 25,000 acres by the 2027 deadline.
“It gave us and the users the most flexibility going into the future,” Wolfe said.
Daniel noted the agreement does not make any mention of stream flows or how much acre feet of water must be removed from consumptive use, only acreage.
MEEKER – The mule in a pasture east of Meeker along the White River seemed happy to see Erin Light, a state division engineer, and Shanna Lewis, a water commissioner, when they went to take a look at the amount of water flowing through the Meeker Ditch on July 11.
Lewis, who grew up on a Colorado ranch, praised the mule’s beautiful, deer-like coloring and said they’d become friends on her frequent visits to check the ditch.
But the warm equine reception the two enforcers of Colorado water law received differed from the response they sometimes get from ranchers in Division 6, which encompasses the Yampa, White and North Platte river basins, especially when they are visiting a ditch because they think its operator is diverting more water than they need through their head gate.
“I would say I’m more telling than I am curtailing,” said Light, who has been the division engineer based in Steamboat Springs since 2006. “There have only been a few situations where I’ve actually said, ‘That’s it. We’re curtailing you.’ And they’re very obvious situations where they’ve got a lot of water going down the tail end of their ditch, where you can’t argue that this isn’t waste.
“Where the problem becomes in determining waste is that I can go out to a piece of land and say, ‘Oh my gosh, you’ve got 6 inches of water on this land. There’s ducks swimming around. This is wasteful,’” she continued. “You can go to the landowner or the irrigator and say, ‘This is waste,’ and they’ll stare you right in the face and say, ‘The hell it is.’”
Division and state engineers working for Colorado’s Division of Water Resources, as Light does, are the only officials who have the authority to determine if waste is occurring on an irrigation system. And their primary response is to curtail wasteful flows at the head gate.
But determining if there is waste in a ditch is a case-by-case exercise. It’s site specific and time sensitive, and it can take time to understand how someone manages their ditch.
There’s no state definition of waste or written guidelines, but in the end it’s a fact-based analysis focused on how much water is needed to irrigate so many acres.
An allowance is also made for customary inefficiencies on a ditch system. Water leaking out of an old ditch, for example, is not considered waste. But beyond inefficiency, which is often a physical issue, there is waste, which is usually a water-management issue.
And waste is a much bigger issue on the Western Slope than on the state’s drier eastern plains, where irrigators have long watched for anyone wasting water.
Free river, or not
In 2014, Light served the Meeker Ditch with a written curtailment order, and she also told the big Maybell Canal on the Yampa River that they had to stop wasting water.
And she did so even though neither river was “under administration,” the term for the body of water being called out by senior downstream diverters, so both were considered in a “free river” condition.
Nor was there another water right that was being injured by either ditch’s diversions.
Just in the past 10 days, Light’s office has informed rancher Doug Monger that water is being wasted in the irrigation system he manages on his Yampa River Ranch three miles east of Hayden.
Monger is a Routt County commissioner, a member of the Yampa-White Roundtable, and a director on the Colorado River Water Conservation District’s board.
When asked Tuesday, during a break in a daylong strategic retreat at the River District, about Light’s belief that he was wasting water, he responded in a way that she has heard before.
“I don’t know what the hell difference it makes if I’m wasting water or not, it’s going back in the river,” Monger said. “Who the hell cares, if it’s a free river.”
“I know he is wasting water,” Light said Monday of Monger. “And he should be the poster child of what should be done, not what shouldn’t be done.
“About 10 days or so ago, our water commissioner approached a bunch of water users in the ditch system,” she explained. “There are several ditches that combine and co-mingle there.
“They were immediately going, ‘That’s Doug Monger’s responsibility, Doug’s the one controlling that,’ which I take as Doug is the one controlling the head gates,” Light said. “One of our water commissioners, Brian Romig, went to Doug and said, ‘We’ve got a problem here. You’re diverting too much water.’ From what Brian told me, Doug somewhat recognized it. He concurred that he needed to reduce his diversions.”
But Tuesday, Monger was not willing to go that far, saying he understood from the water commissioner only that he was still figuring out how Monger’s ditch works.
“I won’t acknowledge it,” Monger said of the allegation that he was diverting more water than he needs. “And if they start coming up with some scenario on it, we can always get our attorney. “
That was the same initial response that David Smith, the primary shareholder on the Meeker Ditch, had when Light curtailed his ditch in 2014.
But since then, and after spending $40,000 in legal and engineering fees, Smith has come around to see Light’s point.
“I would tell you that Erin and I started out on opposite ends on this thing, but both of us have kind of tried to work our way towards middle ground that we can both agree on,” he said.
Smith was busy this week bringing in hay on his well-tended fields along the White River just west of Meeker — the same fields his grandfather irrigated.
“I’ve had some disagreements with her, but Erin is an intelligent gal,” he said of Light, who has a master’s degree in civil engineering from Colorado State University with an emphasis in hydraulics and hydrology. “We’ve worked with her, and we’ve worked with the people that she has here, and at the end of the day it’s helped all of us, and I think we’re all better educated because of it.”
Laying down the law
The Meeker Ditch has a water right dating back to 1883 to divert 20 cubic feet per second (cfs) of water and two other later and smaller rights that allow it to divert 25.95 cfs in all.
The ditch diverts water from the White River just east of Meeker, runs it through Meeker proper, and then to fields west of town. (See map).
In her August 2014 curtailment order, Light said the historic water rights held by the Meeker Ditch represent enough water to irrigate about 1,000 acres, but today only 153 acres are actively being irrigated. And engineers at Resource Engineering Inc. calculated that the Meeker Ditch only needed 6 cfs to irrigate the fields still served by the ditch.
Attorney Kevin Patrick of Patrick, Miller and Noto, a water law firm with offices in Aspen and Basalt, had hired Resource Engineering to analyze the irrigation ditch on behalf of a client who owned commercial property under the ditch.
Since 2004, the property had been intermittently subject to flooding by water leaking from the ditch.
Patrick sent the engineering report and a letter to Light. “The ditch is diverting unnecessary water which is merely being spilled” and “the excessive running of water, over that reasonably required for the reasonable application of water to beneficial use for the decreed purposes and lands, is forbidden” under state law, the letter says.
After investigating the matter, Light found the ditch had been consistently diverting about 20 cfs at its head gate, but was then sending much of the water out of the ditch and down Curtis Creek, Sulphur Creek or Fairfield Gulch, back toward the White River.
Light then curtailed diversions at the Meeker Ditch head gate, which she has the authority to do. And when asked to do so by Smith, she put the curtailment order in writing.
“Colorado statute clearly prohibits the running of water not needed for beneficial use,” Light wrote in her order, dated Aug. 15, 2014.
Light cited a Colorado statute that reads “it shall not be lawful for any person to run through an irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his land, it being the intent and meaning of this section to prevent the wasting and useless discharge and running away of water.”
And she addressed the issue of water being released from the ditch and back to the river.
“Generally when water is being wasted off the end of the irrigated acreage, through waste gates, or at the tail end of the ditch, the head gate should be turned down to eliminate that waste of water,” Light wrote. “In this case it appears that water is being diverted at too great a rate for the lands that are being irrigated, and the rate of diversion is not being reduced to eliminate waste.”
Light’s stance on enforcing waste has the backing of her boss, State Engineer Dick Wolfe.
Use it or lose it?
Both Wolfe and Light served recently on a committee, convened by the Colorado Water Institute at Colorado State University, that issued a report in February on the widely brandished piece of advice to irrigators to “use it or lose it.”
The report is called “How diversion and beneficial use of water affect the value and measure of a water right” and is subtitled “Is ‘use it or lose it’ an absolute?”
The 11-page report ends with several declarative statements about waste that give further backing to Light’s approach, and that she might well wish to see chained to every head gate on the Western Slope.
“Water that is diverted above the amount necessary for application to a beneficial use (including necessary for transit loss) is considered waste,” states the report.
“Increased diversions for the sole purpose of maintaining a record of a larger diversion are considered waste,” it says, referring to the practice of diverting toward the full amount of a decree in order to bolster the future potential value of a water right.
And, “Wasteful diversions will either be curtailed, or will not be considered as part of the water right’s beneficial use.”
Wolfe, who recently gave a presentation to the Colorado Ag Water Alliance on the “use it or lose it” report, said that Light is not being overzealous in her enforcement of waste.
“She is not going out and as a division engineer purposely looking and being more assertive or aggressive about trying to find where waste is going on,” Wolfe said. “These are ones that just came to our attention.”
Alan Martellaro, the division engineer for Division 5, has not taken the same approach as Light when it comes to curtailing waste.
“To actually actively go look for waste is not something that’s historically been done unless there’s a call on the stream,” said Martellaro, who is based in Glenwood Springs and whose jurisdiction includes the Colorado, the Roaring Fork, and the Crystal river basins. “It just hasn’t been the mode we’ve ever been in.”
Kevin Rein, the deputy state engineer who also served on the “use it or lose it” committee, said issues vary from division to division.
“In Division 6, in the Yampa-White, we’ve had periods of free river without administration for a long time, because it hasn’t been over-appropriated,” Rein said. “That means not being water short. So very often people were just diverting whatever they wanted because, why not? But she’s really directing herself to getting people to measure their diversions and pay attention to duty of water. I think you choose what’s important in your division. That’s important in her division.”
“Duty of water” is essentially how much water someone needs to grow crops on a certain amount of land, without waste. In the Yampa and White river basins, the duty of water is generally held to be that it takes 1 cfs to adequately irrigate 40 acres of land.
After giving a presentation at a water workshop in Gunnison in June about the “use it or lose it” report, Rein was asked why the state doesn’t go around and curtail people who are over-diverting.
“We do, as resources allow,” Rein said. “It’s simply a matter of looking at our water districts where we, maybe, have one water commissioner and maybe a deputy. Maybe if they each had two or three more deputies, then we could do that.”
Light sounds like she could use some help.
“When it comes down to obvious waste,” she said, “I would say we have a tremendous problem with it. I had a long-standing water commissioner — he was with us for 40 years and grew up a rancher — tell me one day, ‘The problem with irrigators today is they don’t go out and move their sets. They just open the head gate wider.’”
“Sets” refers to how irrigators have set various control points, such as check dams and internal head gates, along their ditches.
“That just blew me away,” Light said. “Here’s a longtime rancher living in the community of Meeker his entire life who is more or less telling me that his co-irrigators … just open up their head gate and don’t move sets anymore. To me, that’s where the inefficiency is. Go out, divert less water, and move your damn sets.”
After receiving Light’s written curtailment order in August 2014 on the Meeker Ditch, Smith appealed it to an administrative hearing officer, which was a rare move.
Wolfe said the appeal, which was addressed to him, “is the only curtailment order that I am aware of that has been appealed since I have been state engineer.” He’s been state engineer since since 2007 and has been with the Division of Water Resources since 1993.
An attorney for the Meeker Townsite Ditch Co., which owns the Meeker Ditch, told the state that Light was “attempting to restrict the diversion of water down the Meeker Ditch at a time when the White River is not under an administrative call and at a time when no other water rights owner is affected by the diversion.”
At that point, the state stepped in to defend Light’s curtailment order, and Philip Lopez, an assistant attorney general, prepared an answer to Smith’s appeal.
In his answer, Lopez cited a relatively straightforward statute that reads: “During the summer season it shall not be lawful for any person to run through his irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his land, and for domestic and stock purposes, it being the intent and meaning of this section to prevent the wasting and useless discharge and running away of water.”
And he quoted the Colorado Supreme Court in Fellhauer v. People, where it said, “The right to water does not give the right to waste it.”
As to the matter of Light, or any other division engineer, not being able to curtail waste if there is not a call on the river, Lopez wrote “the division engineer has the authority to curtail [the Meeker Ditch’s] wasteful diversions at any time pursuant to [state law], regardless of whether or not the White River is under administration.”
Lopez did concede, though, that the water rights held by the Meeker Ditch still allowed it to divert water, as long as they did so “without waste.”
That’s an important distinction for Smith, who insists that he wasn’t technically curtailed, only that he can’t waste water when diverting.
“She hasn’t curtailed me to the amount of water that I can use,” Smith said. “All that Erin tells me is that whatever amount of water I have in the ditch, that she doesn’t want us wasting any water.”
Light has a different take.
“We curtailed them,” Light said. “We issued an order to stop wasting. They hired an attorney. They hired an engineer. It went to the hearing officer. They don’t waste anymore.”
The hearing officer in the case denied the ditch’s appeal, indicating it was a matter for water court. But Smith declined to go there.
“We kind of came to a working agreement that we were going to try to work with it, but as far as the laws, there was never a test case,” Smith said.
That may be, but on July 11, when Light and Lewis measured the flow in the Meeker Ditch, it was running at 6 cfs, not 20 cfs as it often used to.
The Maybell Canal
Light has also curtailed another irrigation ditch in Division 6, the Maybell Canal on the Yampa River near Maybell, which she found was similarly diverting more water than it needed.
The canal diverts water from the Yampa into a head gate located in a canyon on the edge of Little Juniper Mountain, about 30 miles west of Craig. (See map).
The Maybell Canal has a senior water right for 42.2 cfs that was adjudicated in 1923 and appropriated in 1899. It also has a junior right for 86.8 cfs that was adjudicated in 1972 and was appropriated in 1946.
The waste on the Maybell Canal was brought to Light’s attention by one of her water commissioners who’d visited the ditch. Light then verbally instructed the canal’s manager to stop wasting water. Mike Camblin, manager of the Maybell Irrigation District, wasn’t happy when he got the curtailment order from Light, but he’s now working to secure funding to make $197,000 worth of improvements to the irrigation system.
On July 13, the Yampa-White-Green basin roundtable approved a $108,000 grant of state funds to help fix several issues on the ditch system. One of those improvements is a modern, automated “waste gate” a mile below the head gate.
Camblin said such a remote-controlled system won’t work at the head gate, which is higher up in the canyon without cell phone service and prone to being washed out by high water.
But he is willing to use the automated gate to reduce sending more water than necessary out the bottom of the ditch, where the water returns to the Yampa River.
The arrangement for the new gate does not entirely please Light, however. She insisted that Camblin agree to send someone up to the head gate within three days after receiving information from the new automated gate that they are over-diverting.
An agreement to that end has been worked out and is poised for adoption, both Light and Camblin said.
“The whole goal is to not only help Erin out but to make us better at what we do,” Camblin told his fellow roundtable members on July 13.
In an interview this week, Camblin said, “At times we were probably taking more water than we need, but that’s what this whole process is about, to cut that down.” He said he is forging a productive working relationship with Light.
“I think it all comes down to communication, especially with Erin and the water commissioners,” he said. “If they get to know us and how our ditch can run better, and we allow them to do that, and we communicate, we can solve a lot of problems.”
Watch that stick
Dan Birch, the deputy general manager at the Colorado River Conservation District and a member of the Yampa-White basin roundtable, is supportive of the improvements that Camblin is trying make on the Maybell Canal.
“I think Mike’s really trying to do the right thing, and I think he wants to take a look at ways he can manage his diversions better,” Birch said. “I certainly don’t think he’s diverting just for the sake of diverting.”
Birch also cautioned against using a stick to beat back waste.
“You can’t go into a situation and say, ‘Hey, you guys are wasting water, I want you to reduce your diversions,’” Birch said. “You really have to be prepared to go into that situation and say, ‘Hey, look, here’s something that we’re seeing here. Let’s have a conversation. I’m interested in exploring what we might do to improve flow in the river.’”
But Light feels the Maybell Canal needed to be prodded into action.
“What has partially pushed the Maybell Canal to go the direction they have is us really putting our foot down that we’re not going to allow this waste to continue,” she said. “Again, the waste is so blatant. They were diverting about 54 cfs at the head gate, and we estimated about 18 cfs going out the tail end. It’s like, ‘No, you can’t do that.’”
Birch was asked directly if he thought the Maybell Canal would be making its proposed improvements without Light’s enforcement actions.
“That’s a fair question, and my immediate response is probably not,” he said.
While Light has been able to work with both Smith and Camblin, she knows she’s raising the hackles of ranchers in the Yampa and White river basins.
“I don’t think the irrigation community wants to be told they’re wasting,” she said. “I’d love to do more as far as waste, but I do have to tread lightly.”
Editor’s note: Aspen Journalism, the Aspen Daily News and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published this story on Sunday, July 24, 2016
From the Fort Collins Coloradoan (Jacey Marmaduke):
Citing low flows in the winter and insufficient flushing flows in the spring, river experts give the health of the Cache la Poudre River moderate marks. Ken Kehmeier, senior fishery biologist at Colorado Parks and Wildlife, gives it a “C-plus.” Ellen Wohl, a Colorado State University geosciences professor, prefers “needs improvement.”
“It’s not going to catch on fire like the Cuyahoga River did in the ‘60s, but it’s a very different river than it was in say, 1858,” she said. “I’d never give up on the Poudre. It’s ailing in health, but it can recover, and it’s not anywhere near being done.”
What does the future hold for the Poudre? That interpretation depends a lot on who you ask. It also will depend on how Northern Colorado leaders respond to potential obstacles raised by climate change, urban development and the Northern Integrated Supply Project.
Colorado’s in a weird spot when it comes to climate predictions.
While it’s clear temperatures will increase — they already have — there’s no consensus on whether climate change will bring more, less or the same precipitation to Colorado.
Regardless, warmer temperatures are an issue for the Poudre and its aquatic life and water users. The Poudre is fed primarily by mountain snowmelt, and as Colorado’s average temperatures rise, the spring pulse — the onset of higher spring flows fed by snowmelt — will come earlier than usual.
John Stokes, Fort Collins Natural Areas director, said he already sees it happening on the Poudre.
“Our snowmelt is getting earlier and earlier. It’s probably about two weeks earlier now than it used to be,” Stokes said. “As that accelerates, what does that do to our storage in the mountains, which is snow and ice? We rely on the timing of that storage.”
Not everybody agrees with Stokes. Poudre River Commissioner Mark Simpson said flows have varied so much during the last 50 years that he doesn’t see a shift in the peak, which generally occurs around the first week of June.
[Ellen Wohl] said she hasn’t necessarily noticed that trend on the Poudre — the system is so meticulously managed that it can be hard to tell when high flows are the work of Mother Nature or water engineers, she added…
The biggest protection — literally — is a development buffer zone of 300 feet on either side of the river through most of Fort Collins. That’s nearly the length of a football field. The buffer zone, which is enhanced by city ownership of most of the land along the river, quells any fears that the Poudre will one day turn into a built-out river walk. It also mitigates flood risk.
“Maybe In a perfect world we would have had quarter- or half-mile setbacks from the river,” Stokes said. “This river used to go all over the place. It would change its course frequently. But now, it’s pretty much locked into its location because of the way we’ve developed around it.”
Proponents say Northern Colorado needed NISP yesterday. Opponents argue that the project will irreversibly damage the river that has long been a lifeblood for the region.
Reservoirs are “exhibit A” for the future of Western water, said Brian Werner, spokesman for NISP initiator Northern Water.
“We’re going to need reservoirs for the next 200 years,” he said. “We’ve got to figure out where to store that water in the wet times so you can use it in the dry times.”
It’s easy to reduce NISP to a lengthy timeline and a lot of bureaucratic jargon, but it’s more than that. The project has become symbolic of a major question about the future of water use: How do we meet the water needs of staggering population growth without harming our rivers?
NISP would divert from the Poudre during peak springtime flows. That causes concern for many because the river needs flushing flows to thrive.
“As the water moves, it has the power to carry things,” Kehmeier said. “When you take that power away from it, then all those sediment pieces drop out and deposit on the (river bed).”
Sediment buildup can make the river dirtier, smellier and fill it with algae and non-native, potentially invasive, species.
Wohl is skeptical of NISP, partially because of the flushing flows issue and partially because the river already lacks a natural flow regime.
Downstream, “the volume of the water isn’t really natural,” Wohl said. “That has a cascade of effects. If you change the amount of water in a river, you change the energy available for processes like picking up and moving sediment, you change the shape and size of the river, you change the habitat available for organisms.”
But it’s possible for NISP to coexist with a healthy river if Northern Water plans accordingly, Kehmeier said.
“With these flushing flows, you’re looking for a recurrence interval,” he said. “Every one-and-a-half to two years, you should have a flow that’s considered bank-full.”
NISP could also boost historically low winter flows on the Poudre by releasing reservoir water into the river during dry times, Kehmeier said.
“From a fisheries standpoint, the Poudre is as limited by low flows, probably more so, than it is by flushing flows,” he said. “Fish don’t survive very well without water.”
Wintertime releases are a component of Northern Water’s recently unveiled conveyance refinement proposal, which is basically a plan to run 14,000 acre feet of the diverted water through most of the Poudre’s stretch in Fort Collins. The move was partially intended to address some of the city of Fort Collins’ issues with NISP, but the city, which is not a NISP member, has yet to respond to the new plan…
What’s next for NISP:
The Army Corps of Engineers says it will release a final environmental impact statement for the project sometime in 2017. After that must come a 401 permit and a record of decision, which NISP opposition group Save the Poudre Executive Director Gary Wockner anticipates will come in 2019. If the record of decision approves the project, Save the Poudre is prepared to challenge it in court, setting off a legal battle which could take years.
From the Fort Collins Coloradoan (Jacey Marmaduke):
Poudre River Commissioner Mark Simpson knows that better than anybody. It’s his job to keep track of water rights for the various groups who’ve sometimes paid roughly the price of a new car for each share of water to irrigate their crops, power their businesses and provide to their residents.
Technically, the people of Colorado own the water flowing in Northern Colorado’s Cache la Poudre River. If you want to put the water, to use, though, you have to buy a water right. That can sometimes be as simple as going to the state’s water court, paying a fee and filling out some paperwork…
If you want to use water during a dry year, you need an old water right — some date back to the 1860s and 1870s. People sell older, senior water rights for astronomical prices.
For Simpson, the last several years have been a relief because the Poudre’s flow has been higher than average. The amount of water that runs through the Poudre varies wildly annually, from 100,000 acre feet during dry years to 700,000 acre feet during historically wet years.
The average is about 300,000 acre feet, almost enough to fill Horsetooth Reservoir twice.
During dry years, when everybody wants water but few can get it, Simpson works months without a day off.
“You’ve really got to be paying attention,” he said. “You don’t want a dry-up in town because you shorted somebody. I make it a big point for myself to always be watching the river when it’s on its way down.”
Simpson estimated about 85 percent of the Poudre’s water is diverted for agriculture — mostly corn and hay — and about 15 percent is used for municipal water supplies and industry.
Some of the biggest industry users of Poudre water include breweries, microprocessor factories and other industrial manufacturers. Municipal users of the Poudre include Fort Collins and Greeley. Recreational users have an important place at the table, although their use is classified as “non-consumptive” and is free.
Click through to read the whole article. Ms. Marmaduke talks to users of the river’s water.