San Miguel
 water rights 
are upheld
 — The Grand Junction Daily Sentinel

April 9, 2015

From The Grand Junction Daily Sentinel (Dennis Webb):

A Colorado Supreme Court ruling this week that upheld an instream flow water right in the San Miguel River in Montrose County also is being praised as an important one for the state’s instream flow program as a whole.

The court Monday ruled in favor of the Colorado Water Conservation Board in connection with its process for pursuing the water right for a 17-mile reach of the river. The board sought the right at the urging of the U.S. Bureau of Land Management and what is now Colorado Parks and Wildlife to preserve habitat for three sensitive fish species — the flannelmouth sucker, bluehead sucker and roundtail chub — and for “globally imperiled riparian communities.” A water court approved an instream flow protection of up to 325 cubic feet per second.

The Farmers Water Development Company had argued to the Supreme Court that the 
CWCB’s action was quasi-judicial, and as a result its notice and comment period failed to follow procedural due process. The high court found instead that the instream flow process is a quasi-legislative one that “concerns the rights of the people of Colorado, with a prospective policy focus on protecting the environment.”

The court’s opinion, written by Justice Allison H. Eid, said the legislature vested the CWCB with the exclusive authority to appropriate instream flows on behalf of state residents, and such an action is a policy determination within the agency’s discretion. The opinion also pointed out that the agency doesn’t decree instream flow rights, but decides whether to seek such a right from water court.

The Western Resource Advocates conservation group, which was a party to the case, called the ruling a landmark decision that will have a bearing on other instream flow applications by the CWCB.

“This is more than just a technicality. It’s about the very nature and strength of the instream flow program,” said WRA staff attorney Rob Harris.

CWCB director James Eklund said the decision affirms the agency’s instream flow program process. Had the court determined that the process is quasi-judicial, the agency would have to follow rigidly spelled-out proceedings involving legal pleadings and procedures, rather than its current system involving a hearing process involving a board, he said.

“Our board gets to ask the kind of questions they want to ask. There’s not as much in the way of getting them to the meat of the issue,” Eklund said. A quasi-judicial process would be more difficult for the agency to follow, he said.

Christopher Cummins, the attorney representing Farmers Water Development Co., could not be reached for comment.

Eklund said the ruling is important because the instream flow program “is the most robust tool that we have as a state to protect streamflows for the environment.”

“It does double duty for us,” he said, because it also protects flows at the state or local level, as opposed to the federal government doing so through Wild and Scenic River designations.

Western Resource Advocates said that, if not for instream flow protections, the fish to be protected in the San Miguel River might require protection under the Endangered Species Act.

Instream flow rights are nonconsumptive, aimed at maintaining minimum flows between points on a stream, or certain levels in natural lakes. According to the 
CWCB, since 1973 it has appropriated instream rights on more than 1,500 stream segments covering more than 8,500 miles of stream, and 477 lakes.

Eklund said the court ruling provides certainty to everyone involved in the instream flow rights process, including opponents to proposals. “You want to know the rules of the game when you get into it and this opinion helps provide some clarity on that,” he said.

Harris said the ruling will have some bearing on some big fights coming up this year on instream flow proposals, including one that ExxonMobil is challenging involving Yellow Creek in Rio Blanco County.

He noted that when it comes to allocation of water, instream flow rights are junior to rights already in existence before they were decreed. But he said some entities are seeking “carve-outs” that would give priority over instream rights to other water uses that haven’t even been come up with yet, and he objects to making instream rights second-class rights.

“Water rights for instream flows, they deserve a seat at the table like any other water right,” he said.

More water law coverage here.


Arkansas Basin Roundtable: Land use planning should be tied to water availability in future development #COWaterPlan

April 9, 2015
Sprawl

Sprawl

From The Pueblo Chieftain (Chris Woodka):

Land use planning should be tied to water availability in future development, the Arkansas Basin Roundtable decided Wednesday.

That was one of three additions to the basin implementation plan the roundtable is completing as part of the state water plan, ordered in 2013 by Gov. John Hickenlooper. The meeting was held at Colorado State University-Pueblo.

The roundtable also added planks to support full development of Colorado’s entitlement under the Colorado River Compact and a watered-down preference for marketing water within the basin, rather than to the Denver area.

The roundtable unanimously agreed that land use planners must consider water resources when new development is proposed, a tough issue that has frequently arisen during the past two years of consideration of the state water plan.

“One of the ways we will better encourage water conservation is to work with local communities on land-use planning,” said Reed Dils, a retired outfitter and former member of the Colorado Water Conservation Board.

“We need to recognize how complicated it will be to achieve that end,” said Brett Gracely, water resources manager for Colorado Springs Utilities, who noted his own community’s attempts to integrate future water supplies and development. He did not oppose the addition to the plan, however.

The roundtable was not as cohesive on the issue of keeping water in the basin.

Dave Taussig, a water lawyer from Lincoln County, said he understood why water rights owners want to sell to water providers in the Denver area, in order to maximize value. But that would strip water from farms in the Arkansas River basin, harming the landscape and economy.

“Because it is so overap­propriated, water has to go to fill the gap in our basin before it’s sold to another basin,” Taussig said.

Most on the roundtable agreed with him.

“We have to make it attractive to leave water in the valley,” said Reeves Brown, a Beulah rancher and member of the Lower Arkansas Valley Water Conservancy District.

But others disagreed, saying the Arkansas River basin already imports water from the Colorado River, and that mechanisms to manipulate prices to keep water in the basin would drive up the prices artificially.

“I don’t know where you’re going to get the money to keep this valley green,” said John Schweizer, president of both the Catlin Canal and Arkansas Valley Super Ditch. “It sounds like a good idea, but I don’t think it will work.”

The final wording expressed only a “preference” for marketing water only within the Arkansas basin, and pledged the roundtable’s support to develop ways to make it more attractive to leave water in the basin.

Dan Henrichs, superintendent for the High Line Canal, opposed any steps to use water banks or other methods that might run afoul of Colorado water law’s prior appropriation system. He agreed to write a minority opinion.

The roundtable also adopted a simple statement that supports the state in achieving full development under the Colorado River Compact. Henrichs, Dils and SeEtta Moss, of the Arkansas Valley Audubon Society, opposed the option. Henrichs again argued for abiding by the prior appropriation doctrine, while Dils and Moss wanted to continue a collaborative approach with other roundtables.

On another Colorado River issue, the roundtable agreed to remain neutral on how existing transmountain diversions might be affected if future diversions from the Colorado River such as the Flaming Gorge pipeline are developed.


Landmark Legal Decision Protects Rivers and Instream Flows — Western Resource Advocates

April 7, 2015

From Western Resource Advocates (Rob Harris/Joan Clayburgh):

Today the Colorado Supreme Court rendered a landmark decision upholding the “instream” water right for the breathtaking San Miguel River.

The court deemed that a senior water rights holder, Farmers Water Development Company, is unaffected by the State of Colorado’s instream water rights on the San Miguel river and affirms that state water rights are a legitimate and essential tool to protect Colorado’s fish and wildlife.

“We’re ecstatic that the Colorado Supreme Court upheld permanent protection for this scenic river in Colorado’s Red Rock Canyon country,” said Rob Harris, Staff Attorney at Western Resource Advocates (WRA) and WRA’s lead defender before the Supreme Court. “Healthy rivers are important for wildlife and recreation. This case will long be remembered for preserving healthy rivers throughout Colorado as a legacy for future generations. Fishermen, boaters, and wildlife need these sorts of instream water right protections secure water for their needs.”

In 2013, the Water Court in Montrose ruled in favor of the Colorado Water Conservation Board’s application for “instream flow” protection that permanently safeguards water flowing in the San Miguel River for fish. This will also benefit recreational users. The San Miguel River is one of the last relatively free-flowing rivers in Colorado. The Water Court approved an instream flow protection of up to 325 cubic feet per second, enough to support the vulnerable native fish in the San Miguel.

Farmers Water Development Company challenged this decision, claiming their water right would be negatively impacted, which today the Supreme Court found to be incorrect.

“We are proud of the part we’ve played legally defending this instream flow water right,” said Rob Harris. “We believe this ruling not only protects the distinctive San Miguel, but ensures we have a vital tool to leave a legacy of healthy rivers throughout Colorado. We thank the Colorado Water Conservation Board, Colorado Parks and Wildlife, the Bureau of Land Management and our tireless partners in the conservation community who helped make today’s victory possible.”

The San Miguel River is unique, rising in the San Juan Mountains southeast of Telluride and flowing through San Miguel and Norwood canyons, then past Placerville and Nucla – joining the Dolores River in Montrose County. This river is renowned for exciting whitewater boating and tremendous trout fishing.

This visually stunning river flows through Colorado’s red sandstone canyon country and is also home to three native fish that are struggling to survive.

Without dedicated instream flows in the San Miguel and elsewhere, these fish could require protective action under the federal Endangered Species Act. Colorado’s Instream Flow Program allows for a fair, collaborative process where local stakeholders have a voice in protecting Colorado’s rivers and streams, and the San Miguel water rights reflect that approach.

Instream water rights help keep water in a river or lake. The rights dedicate minimum water flows between specific points to preserve or improve the natural environment. These can be used to protect fisheries, waterfowl, frogs/salamanders, unique geologic or hydrologic features and habitat for threatened or endangered fish. The rights can be monitored and enforced, thereby insuring long-term protections.

The legal challenge by Farmers Water Development Company would have threatened the continued vitality of Colorado’s Instream Flow Program, and today’s decision allows all current and future in- stream flow protection efforts to continue.

More San Miguel watershed coverage here and here.


CWCB: The next Water Availability Task Force meeting is April 15

April 7, 2015
April drought outlook via the Climate Prediction Center

April drought outlook via the Climate Prediction Center

From email from the Colorado Water Conservation Board (Ben Wade):

The next Water Availability Task Force meeting will be held on Wednesday, April 15, 2015 from 9:30-11:00a at the Colorado Parks & Wildlife Headquarters, 6060 Broadway, Denver in the Bighorn Room.

The agenda has been posted at the CWCB website.

More CWCB coverage here.


Is The Public Engaged When It Comes To Colorado’s Water Plan? — KUNC #COWaterPlan

April 7, 2015
Colorado Water Plan website screen shot November 1, 2013

Colorado Water Plan website screen shot November 1, 2013

From KUNC (Maeve Conran):

…despite an extensive education and outreach campaign, just how involved is the general public in planning Colorado’s water future?

Kate McIntire, the women in charge of public engagement and outreach for the Colorado Water Conservation Board, said they’ve mostly relied on volunteers in a process that goes back 10 years when the Public Education, Participation and Outreach group was established. Later, McIntire said, they engaged the nine basin roundtables to help.

“This is really a grassroots process and so we never intended to or didn’t have millions of dollars to throw into reaching everyone across the state in terms of a more traditional advertising campaign,” said McIntire. “Spreading the word grass roots isn’t something that happens overnight.”

The Water Board received more than 15,000 comments directly and through the nine basin roundtables when creating the draft plan. That’s not enough for state Senator Ellen Roberts, a Republican from Durango. She still thinks there’s a lack of awareness amongst the general public.

“I think that’s the challenge that we saw here at the legislature,” said Roberts. “The Governor and the executive branch of the Colorado government has done a lot of outreach but it’s a topic that most people… all they really care about is when they get up in the morning does water come out of the shower, can they make their cup of coffee or cup of tea?”

In 2014 the senator co-sponsored a successful bill that called for more involvement by the legislature in water planning. That led to a series of public meetings in all the major river basins of Colorado.

“What we were trying to do with Senate Bill 14-115 [.pdf] last year was to go out to the more general public, the kind of people who show up at our town hall meetings, who maybe have no idea about Colorado water law or how complicated it is,” Roberts said. “They’re not following like the people on the basin roundtables.”

Theresa Connelly, a water advocate with Conservation Colorado, is heartened by what she sees as a growing awareness in water issues in the state, even if there’s a lack of awareness about an actual water plan.

“Folks may not know as much that there’s an actual state water plan going on, but folks are very aware of water issues that we’re facing,” she said.

But Connolly, like Senator Roberts, said the public outreach effort needs to be more inclusive. She cites the fact that many of the meetings were in the middle of the workday, which made it difficult for some to attend. People may not have time to attend a meeting, but maybe they’ve sent an email or a postcard, and those voices should also be heard.

“I think sometimes those small actions are disregarded as a form letter or something that isn’t truly meaningful and I think that that’s absolutely not true,” Connelly said.

The Colorado Water Conservation Board has received over 2000 comments in the first few months since the draft was submitted and adds all input received through May 1 will be considered in the second draft, said the board’s McIntire. She points out that the CWCB is responding to all comments received and those responses are available for public review.

“And all those responses are cataloged and available for review by anyone on our website.”

More Colorado Water Plan coverage here.


The Arkansas Basin Roundtable will wrap up its Basin Implementation Plan next week #COWaterPlan

April 2, 2015
Basin roundtable boundaries

Basin roundtable boundaries

From The Pueblo Chieftain (Chris Woodka):

For many Arkansas Basin Roundtable members, it seemed they were speaking Greek when they started meeting in 2005. But next week, the group finally will wrap up its portion of the state water plan.

The roundtable will fine-tune the draft basin implementation plan Wednesday. A public comment meeting to review the plan will be from 10:30 a.m. to noon, followed by the roundtable meeting at 12:30 p.m.

“It’s really come a long way, and a lot of work has gone into it,” said Jim Broderick, roundtable chairman. “The review is set up so that in the future, it’s an active plan that can be used.”

A draft for review is posted on the roundtable’s website (arkansasbasin. com). The draft plan is the culmination of the roundtable’s past decade of work.

The plan starts out with a quote by Frank Milenski, an Otero County farmer and writer who fought for agricultural water rights during his long tenure on the Southeastern Colorado Water Conservancy District and through the Catlin Canal: “When you first start out, understanding water is like trying to understand Greek. After a while it starts getting to where it kinda registers; then if you stick with it, it becomes fascinating. Water is the most valuable thing there is on Earth.”

To illustrate the point, the document is complex and weighty, especially for those who have not been along for the whole ride. Fascinating would not be the first adjective most would choose to describe it, but the value of water to future growth is apparent on nearly every page.

The full basin implementation plan is 773 pages long, including appendices. It has three major purposes:

  • To organize Arkansas River basin issues under the Colorado Water Conservation Board’s state water plan, being drafted under Gov. John Hickenlooper’s 2013 executive order.
  • To highlight future challenges faced by basin water users.
  • To describe the need and action plans for current and future water projects.
  • The Arkansas Basin Roundtable is one of nine in the state formed in 2005 to address the municipal water gap in Colorado, first identified in the Statewide Water Supply Initiative. The state’s goal was to fill a projected gap in water supplies with the least damage to agriculture, recreation and wildlife habitat.

    The roundtable’s earliest meetings often were dominated by position statements from water interests throughout the basin, but soon shifted toward obtaining state water supply reserve account grants for projects up and down the Arkansas River. Presentations over the years also increased the group’s knowledge of short- and long-term water projects.

    The group also has worked to insert the need for future agricultural water supply and for more storage into state planning.

    For the past two years, the group has been focused on gaining consensus about the water plan. Last year, it hosted 17 public meetings to solicit input on its basin implementation plan.

    More IBCC — basin roundtable coverage here.


    Durango: 33rd Southwestern Water Conservation District’s (SWWCD) Annual Water Seminar, Friday, April 3

    April 1, 2015
    Durango

    Durango

    From the Pagosa Springs Sun (Renita Freeman):

    Water experts will speak at the 33rd Southwestern Water Conservation District’s (SWWCD) Annual Water Seminar at the Doubletree Hotel in Durango on Friday, April 3, from 8:30 a.m. to 4:30 p.m.

    This year’s theme is “New Solutions to Old Problems.” A broad range of topics on the agenda will be addressed during the meeting including the Colorado River basin contingency planning efforts, the future of agriculture in Colorado, the state water plan and the incorporation of water conservation in land use planning.

    The meeting’s agenda, as listed in a news release from SWWCD, has registration and breakfast scheduled to begin at 8 a.m. Welcoming remarks and introductions will be made by John Porter, SWWCD board president, and Bruce Whitehead, executive director.

    The morning’s presentations will feature Jim Havey with Havey Productions presenting a documentary on the Great Divide. Moderator Steve Harris will present Exploring Water Conservation Strategies. Assisting in this presentation will be state Sen. Ellen Roberts, Drew Beckwith with Western Resource Advocates, Dominique Gomez with Water Smart Software and Mark Marlowe from the Town of Castle Rock.

    Whitehead will speak on the Colorado River Planning Convergence; he will be assisted by Greg Walch from the Southern Nevada Water Authority and Colorado Water Conservation Board (CWCB) members Ted Kowalski and Eric Kuhn.

    The afternoon’s agenda will begin with recognition of the water leaders followed by the film “Resilient: Soil, Water and the New Stewards of the American West” presented by Kate Greenberg from the National Young Farmers Coalition. Greenberg will also present Agriculture’s Future in the Colorado River Basin. Assisting with this presentation will be Ken Nowak from the U.S. Bureau of Reclamation and Pat O’Toole, a local producer from the Family Farm Alliance.

    “The State Water Plan: Meeting Local Water Needs” will be presented by John Stulp from the Interbasin Compact Committee. Assisting Stulp will be CWCB board member Rebecca Mitchell. Carrie Lile, Ann Oliver and Mike Preston from the Southwest Basin Roundtable will also take part in the presentation.

    The press release stated advance registration is $35 or $40 at the door. Online registration is available by going to http://swwcd.org/programs/annual-water-seminar. Mail-in registration forms are also available on the website. The Doubletree Hotel is located at 501 Camino del Rio. Registration will begin 8 a.m. on April 3.

    More education coverage here.


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