From the Pagosa Sun (Casey Crow):
The board of directors for the San Juan Water Conservancy District (SJWCD) voted unanimously on June 29 to accept an agreement regarding the loan restructuring for the Dry Gulch water storage project with the Colorado Water Conservation Board (CWCB), following a green light from the Pagosa Area Water and Sanitation District (PAWSD) last week.
According to a letter drafted by Rod Proffitt, president of the SJWCD, the district has limited water storage capacity to meet future water needs. The demands placed on the district for wildfire protection, drought and habitat are great and unsustainable. A situation worsened by state officials who used water from a tributary of the San Juan to offset the over-appropriation of the Rio Grande.
The water needs of the community led the district to partner with PAWSD, with the goal of building a water storage facility.
The Dry Gulch water storage project was halted due to the recession and changes occurring within PAWSD leadership, which then changed the direction of the project altogether.
From The Pueblo Chieftain (Chris Woodka):
Large chunks of the bank plunked into Fountain Creek Wednesday evening as Pueblo County Commissioner Terry Hart got a close-up look at the damage to Overton Road.
Two large wooden utility poles floated in the muck below, as the river cut back from the west base of the old Pinon Bridge, which washed out in the 1999 flood. After it slammed back into the east bank, it ran along the channel into a clump of trees. By morning the trees and part of the road would be gone.
“This is unbelievable,” Hart said. “The engineers tell us that Fountain Creek acts like a firehose, the way it moves around.”
Neighbors soon gathered at the spot. One of them was Tony Faxon, bringing his two children home to his 90-acre farm on Overton Road. He was worried about his well, which he had fortified a few days earlier after the last round of floods.
“It looks like the Washington Monument now,” Faxon said on Friday.
He explained the well is now a pole sticking 30 feet into the air — about half of its total depth.
He’s lost a chunk of land 80 by 500 feet and 30 feet deep so far this year.
While the house is on higher ground, he’s now faced with putting in a new well.
The Faxons have lived on Overton Road for four years.
“It’s been an ongoing struggle, but this has been the worst year,” Faxon said. “We couldn’t have anticipated this would happen.”
He’s not alone.
‘We need help’
At Friday’s meeting of the Fountain Creek Watershed Flood Control and Greenway District, which Hart chaired, a litany of damage was recited.
“We need some sort of help,” said Tracy Tolle, who farms for Frank Masciantonio in Pueblo County and Clear Springs Ranch in El Paso County.
“That’s our livelihood.”
Tolle has fought Fountain Creek for years and has seen it through higher water than what was flowing last week.
But the sustained midrange flows for weeks on end and saturated ground are taking their toll.
From his perspective, the actions of one landowner to wall off water just moves the river to the other bank, where the damage is amplified.
John Browning, who has a place on the east side of Fountain Creek in El Paso County, agrees.
He said fortifications on the west bank have created 50-foot cliffs where children play on the other side.
“You need to take care of both sides of the creek,” Browning said.
“Something needs to be done several decades ago.”
Jane Rhodes, Masciantonio’s sister and a Fountain Creek board member, brought pictures and descriptions of damage at a dozen places along Fountain Creek in Pueblo and El Paso counties.
Irrigation headgates are gone, acres of pasture and fields have vanished and wells wiped out by the whipsaw motion off the water over the past few weeks. Water snaked around one end of the new Pinon Bridge, setting up the possibility of future erosion.
Down the drain?
Up in El Paso County, a demonstration project sponsored by the Fountain Creek district — a showpiece that would show landowners how to use natural materials to turn the current — is gone, landowner Ferris Frost said.
Barriers set up to protect an organic gardening spot are washing away.
“The main channel is cutting through our headgates,” Frost said.
“It’s huge and fast . . . really extreme.”
The Fountain Creek board had few answers for landowners seeking help.
The district has no money, as it is awaiting $50 million from Colorado Springs Utilities when Southern Delivery System goes online. Ironically, SDS has permit issues ahead related to Colorado Springs’ failure to provide a stable source of funding for stormwater control.
Three weeks of rain have also cast clouds over some of the district’s activities, not just the Frost Ranch demonstration project.
“There is debris everywhere,” Hart said, telling the Fountain Creek board he has been watching the damage daily. “There is a lot of destruction going on and this is just the beginning.”
The city of Pueblo was getting ready to fire up its sediment collector again before the rains hit. The collector, installed four years ago when Fountain Creek was behaving itself, ran for a few weeks before a big wave buried it. It’s now under about three feet of sediment.
“We wanted to see if we could make it work without having to build coffer dams,” said Jeff Bailey, stormwater superintendent for the city of
Pueblo. The district also pushed for a demonstration project behind the North Side Walmart, where a detention pond and wetlands was constructed. The pond’s embankment partially washed out in the 2013 flood — and is probably eroding this time around — it’s been difficult to check. The pond has not had an impact on really large flows through Pueblo.
“Right now, it’s a money pit for us,” Bailey said. The city has to augment water stored in the area as well as maintain the pond.
There have been some things that work on Fountain Creek.
Things that work
At Clear Springs Ranch, which is owned by Colorado Springs Utilities on the east side of Interstate 25 near the Ray Nixon Power Plant, a ditch diversion structure across Fountain Creek was built in the 1970s. It survived the 1999 flood, but posed a problem for small native fish. A million-dollar fish ramp was constructed to help the fish get through.
In Pueblo, the city built rock jetties several years ago behind the Target Store on the North Side after Fountain Creek cut perilously close to the area in 1999. Those have held up through high water events as well.
The district still is studying construction of a dam or series of detention ponds along Fountain Creek to hold back the water and release it at more opportune times, but that effort is mired in a study of how to satisfy downstream water rights. In the meantime, Fountain Creek is playing ping-pong with land along its banks. Shoring up one side sends the water to the other and new channels are constantly being cut. While cities and counties have applied for disaster aid as roads, parks, trails and homes are threatened, the farmers are losing ground they’ll never get back. There’s no clear path for financial aid to the property owners.
“There’s a domino effect,” Tolle said, saying he thinks a multimilliondollar project built by Colorado Springs at Clear Springs Ranch may have breached in recent flooding. “Those ponds are not going to work.
You’ve got to give us help or there won’t be any farms.”
Meanwhile, Colorado Springs is looking at changing building codes to help minimize runoff into Fountain Creek. Here’s a report from Chris Woodka writing for The Pueblo Chieftain:
After the recent stomping by Mother Nature, the Fountain Creek technical team dug out the playbook Wednesday.
Like any team, the group is focused more on future victories and overcoming challenges than dwelling on past mistakes.
The team in this case is the technical advisory committee of the Fountain Creek Watershed Flood Control and Greenway District. It includes planners and engineers from Pueblo and El Paso counties, including the cities of Pueblo and Colorado Springs.
A big part of reducing future damage from flooding on Fountain Creek will be requiring future development — whether it’s a new project or redeveloping areas — to make sure flooding is not intensified by new hard surfaces such as streets, parking lots, sidewalks and roofs that prevent water from soaking into the ground.
“So often the developers design the development and tell the engineers, ‘Here, make it work.’ But urbanization almost always spurs the need for channel stabilization,” Steve Gardner, of the Colorado Springs stormwater department, told the group.
Gardner was explaining a drainage criteria manual Colorado Springs has developed in response to years of meetings that have improved understanding of Fountain Creek’s destructive nature. The earlier versions of the drainage manual supported projects that dumped water as quickly as possible into the waterway from flooded streets.
The new approach is to mimic natural conditions with techniques that encourage infiltration, move water through wetlands where possible and build detention projects that will handle a full spectrum of floods, Gardner said.
But it’s difficult to make up for the mistakes of the past, when many of the hills in Colorado Springs were paved as the city grew. One of the tough realities is that stormwater detention projects require land. Apparently, the government will take ground so the water won’t.
“Land allocation is a critical component,” Gardner said. “To get the water to spread out, you need more land. Urbanization results in taller peaks.”
That was seen during the May floods on Fountain Creek, the most recent of events where the creek turned into a river that ate banks, ripped away roads and changed course. With the ground saturated by weeks of rain, there was no opportunity for infiltration.
In that case, the drainage criteria manual recommends detention ponds to hold back the water, which also require land. A series of smaller ponds on tributaries would cost less to build and require less maintenance, Gardner said.
Such a system would allow localized storms to be contained, while reducing the cumulative effect on the creek. Among options studied by the U.S. Geological Survey, that system does not provide as much protection to Pueblo as larger detention ponds or a big dam.
Like any game plan, it has to be executed well to work. Issues still remaining include incorporating the drainage criteria manual with site planning, floodplain management on a larger scale, project phasing to make sure each project fits with others and adopting the same criteria throughout the entire 932-square-mile Fountain Creek watershed. Colorado Springs also faces challenges for funding a backlog of more than $500 million in stormwater projects in a way that satisfies Pueblo County and the Lower Arkansas Valley Water Conservancy District.
But standards for future development are an important step. Gardner said some developers are talking with the city and finding that things like natural infiltration channels can become amenities that increase property values.
“A lot of folks are stuck in the old way of doing things,” Gardner said.
It’s going to take a lot of dough and some big projects to fix problems on Fountain Creek. Here’s a report from Chris Woodka writing for The Pueblo Chieftain:
It’s going to take big projects to tame Fountain Creek. Even a $4.2 million project by Colorado Springs Utilities to redirect Fountain Creek into a less damaging course suffered damage from the June 15 storm surge after holding up reasonably well during relentless rain in May.
But a series of smaller attempts to protect property by armoring it with piles of concrete or a living shield of plants were swept away in the raging waters.
And the district that was formed to find the best way to fix Fountain Creek has no money and unfinished plans on how to mend the monster.
“There’s good news and bad news,” said Pueblo County Commissioner Terry Hart. “The good news is that the district has the authority to handle the entire watershed. The bad news is that there’s a lot to study and we’re still trying to understand how this works.”
Even when the Fountain Creek Watershed Flood Control and Greenway District figures out the best way, there remains the question of money.
“There isn’t an unlimited source of money,” said Pueblo City Councilman Dennis Flores. “Our task is to find out what will work with the amount of resources we have.”
So far, not much is working, the Fountain Creek board learned from presentations Friday.
As part of its commitment to the Bureau of Reclamation and Pueblo County for the Southern Delivery System, Utilito ties is required to restore wetlands, and its $4.2 million Clear Springs Ranch project was the way to achieve that. In fact, the Army Corps of Engineers certified the work in January, said Allison Moser, an engineer for Utilities.
The project covered 6 acres, fixed a past erosion cut and routed Fountain Creek away from the bluff to the west, which it had been undercutting. Thousands of plants were just getting established after being planted last year. The spreading wetlands were designed to handle the overflow of Fountain Creek during high water without sacrificing ground.
But the May storms deposited silt over much of the area and began to damage the bank of a channel that had been reinforced with 2-foot boulders.
“We really saw a lot of sedimentation, but the wetlands were designed to handle sedimentation,” Moser said. “The intention was to have the plants fill in over 10-15 years, but it took it in just two weeks (of high water). It left a lot of debris.”
The June 15 storm, which caused peak flows of 20,000 cubic feet per second at Fountain the next day, ripped through the new bank and left the river in its old course and sent the main flow of Fountain Creek to the west bank again.
“There’s still some evidence the structures held,” Moser said. “We have not been able to get our guys back down there to look at it.”
Utilities has the kind of resources unavailable to most landowners to undertake such a large project, and from Moser’s description it may not be enough to keep Mother Nature under control.
“One of the things we learned is that you need a big footprint to make a difference,” Moser said.
That was borne out by comments from Ferris Frost, whose family’s ditches and a district demonstration project were destroyed in the May floods. The June flooding added more silt to injury.
She showed slides of the damage, as well as how concrete rip-rap installed by her neighbor Jane Green after the September 2011 flood was obliterated this year. Green had put in the bank armor after a 2011 flood cut through an old levee and added even more material when the 2013 flood took a second bite.
Some of the slides showed a large island with mature cottonwoods that had developed years ago from the constant erosion of a 50-foot bluff that Frost calls “The Great Wall.”
“This is terrible,” said Jane Rhodes, a Pueblo County landowner who sits on the Fountain Creek board. “It looks this way all down the creek.”
Pueblo County is still assessing the damage to see if disaster aid is available, Hart said in response to questions from Frank Masciantonio, Rhodes’ brother and one of the owners of land that has been severely eroded.
The district has master plans for Monument Creek and Fountain Creek south of Colorado Springs, and is in the process for developing another for Upper Fountain Creek, which has its own set of problems stemming from the 2012 Waldo Canyon Fire, General Manager Larry Small explained.
What it does not have is money. It will begin receiving $50 million in five annual installments in 2016 if SDS comes on line. That’s on schedule, but Pueblo County commissioners are lining meetings later this year to determine if Utilities is complying with all of its commitments under the county’s 1041 permit for SDS.
“What we’re trying to get our minds around are these two projects (Clear Springs Ranch and Frost Farms) and how well they survived or didn’t survive,” Hart said. “The question is whether we stabilize stream banks or do we need to look at the source of the water?”
More Fountain Creek coverage here.
From the Las Vegas Review-Journal (Henry Brean):
The business end of the Southern Nevada Water Authority’s new intake pipe at Lake Mead is a reinforced concrete vault that pokes up from the bottom of the reservoir, the last stop in a dark tunnel 3 miles long.
You can’t feel the weight of the lake 40 feet above your head, but it’s impossible not to think about it. A curved disc of stainless steel, 16 feet across and an inch and a half thick, is all that separates you from more than 3 trillion gallons of water that covers the vault to a depth of more than 300 feet.
Not to worry, says Jim Nickerson, project manager for this $817 million construction job.
“There isn’t a crane in the world that could lift that cap,” he says.
The weight of all that water is exactly what’s keeping the lid on the authority’s new intake tunnel. But that’s not the only pressure being placed on the project.
When it goes on line in September, the so-called third straw becomes a lifeline for the Las Vegas Valley, which draws 90 percent of its water supply through two existing intakes that will eventually stop working should the lake continue to shrink.
On Monday morning, the water authority led a small group on the first — and likely the last — media tour down the entire 3-mile tunnel to the intake structure, which is basically a concrete box the size of a Starbucks with walls 7 feet thick.
Soon no one will be able to make this trip.
Nickerson said all the work underground should be finished and construction equipment cleared away by August. Then workers will shut off the pumps that keep groundwater at bay, allowing the tunnel to gradually fill over two or three weeks. Once the water pressure in the tunnel equals the pressure around it, a crane floating on the surface of lake will lift the 19,000-pound stainless steel cap, allowing water to flow freely into the intake.
The big chunk of steel will go into storage, just in case they ever need to drain and inspect the tunnel.
Activity at the site has been constant since 2008, when Las Vegas Tunnel Constructors began excavating a 600-foot vertical access shaft on a peninsula at the western edge of Lake Mead. Since then, the project has been hit by a series of setbacks — and the death of one worker — that added more than two years and almost $40 million to the cost.
The work reached a major milestone in December, when the massive tunneling machine specially built for the job completed its 3-mile journey by punching into the 1,200-ton intake structure, which was built on shore and floated out onto the lake. In 2012 the 100-foot-tall intake structure was sunk into a hole blasted in the lake bed and secured with 12,000 cubic yards of special concrete pumped into place from a flotilla of cement trucks on barges.
Nickerson said that when the tunneling machine finally chewed its way into the side of the intake structure two years later, it missed its intended target by just 2 millimeters on one side and 3 millimeters on the other.
“There was a jobwide hole-through party,” he said.
The 1,500 ton, $25 million digger is now long gone. It was removed from the tunnel piece by piece over the first three months of the year, with most of it already shipped back to the factory in Germany.
More Colorado River Basin coverage here.
From The Pueblo Chieftain (Chris Woodka):
Colorado Springs Utilities and Gary Walker have reached a $7.1 million settlement for the damage to Walker Ranches from the Southern Delivery System pipeline.
The pipeline crosses 5.5 miles of the 63,000-acre property on its route from Pueblo Dam to Colorado Springs. The $841 million SDS project is scheduled to go online next year and will supply water to Colorado Springs, Fountain, Security and Pueblo West.
On May 6, a jury awarded Walker $4.75 million, which included a $4.665 million judgment beyond the $82,900 stipulated value of the easement across Walker Ranches. Damages plus interest would have brought the total payment to $5.78 million, according to a joint press release.
Utilities disputed the amount, and filed an appeal on May 7. Walker Ranches appealed the decision on May 14. Those appeals were dismissed as part of the settlement reached June 16, but announced on Thursday.
The final agreement resolves all claims for $7.1 million, the press release said.
Utilities will also install fencing on Walker Ranches to prevent cattle from entering the area of the SDS pipeline scar that is being revegetated, and will work with Walker to erect berms on the property to reduce erosion.
The agreement also commits both parties to work together in the future to protect the right of way.
Utilities said the settlement provides more certainty about the ultimate cost of the project, reducing the possibility of an expensive appeals process.
“It has always been our intent when working with property owners to use the court process as a last resort,” John Fredell, SDS program director, said in the news release. “By successfully resolving these issues with Mr. Walker, we can focus on completing the required revegetation on his property and finishing the SDS project on time and under budget.”
Walker, when contacted by The Pueblo Chieftain , declined to comment because of the conditions of the settlement.
During the trial, Walker claimed the SDS project had compromised a $25 million conservation easement on 15,000 acres he was negotiating with the Nature Conservancy. He has used about $13 million from past easements to expand the ranches, which is part of a long-term plan to prevent further urban sprawl in northern Pueblo County.
Ray Petros, Pueblo County’s special counsel, said he has not seen the settlement agreement, so he is uncertain about how the county’s 1041 permit for SDS would be affected. The county is teeing up compliance hearings later this year on revegetation and Fountain Creek flood control, which are referenced in conditions that are part of the 1041 permit.
Here’s the release from the Northern Colorado Water Conservancy District (Brian Werner):
With the Army Corps of Engineers release of the Northern Integrated Supply Project’s supplemental draft environmental impact statement, NISP proponents have accomplished an important milestone toward constructing two new, and very much needed, reservoirs in northern Colorado.
The SDEIS began in 2009 following a four-year process to produce a draft EIS. The NISP SDEIS is one of the most extensive and intensive reviews of a water project ever undertaken in Colorado. The additional studies closely analyzed riparian habitat, water quality, aquatic resources and hydrologic modeling.
“We are pleased to have reached this important milestone after 12 years and nearly $15 million in expenditures by the NISP participants,” Northern Water General Manger Eric Wilkinson said. “The SDEIS shows that the project is needed to meet a portion of the participants’ future water needs.”
The SDEIS includes a proposed mitigation plan illustrating how NISP participants will provide additional water to the Poudre River during low flows, build low-flow/fish-friendly bypass structures at key sites on the river through Fort Collins, and implement river restoration measures.
“NISP is a collaborative, regional project that will play a key role in addressing Colorado’s challenging water future by managing available water supplies that would otherwise flow out of state and do so while addressing environmental concerns in a proactive way,” Wilkinson added.
The SDEIS and additional information is available on the U.S. Army Corps website at: http://www.nwo.usace.army.mil/Missions/RegulatoryProgram/Colorado/EISNISP.
For additional information on NISP visit http://www.gladereservoir.org.
From the Fort Collins Coloradoan (Nick Coltrain):
Public comment will now be accepted through Sept. 3, versus the initial 45 days. The corps’ posting does not include more public hearings on the proposal. There are two planned — one in Fort Collins and one in Greeley — for near the end of July.
The corps cited “a number of requests to extend the comment period” in its extension notice. At least one request, from U.S. Rep. Jared Polis, a Democrat whose district includes Fort Collins. Anti-NISP group Save the Poudre also planned to ask for an extension and Fort Collins city staff analyzing the NISP report said the length of the comment period would dictate when they presented their findings to the city council.
Polis asked for a minimum of 120 for the report to be digested and commented on. He cited concerns by the Fort Collins city government that it have enough time for complete analysis and outreach on the proposal.
Low flow releases are part of the mitigation plan. From the Fort Collins Coloradoan (Nick Coltrain):
The report, which clocks in at just shy of 1,500 pages, is the precursor to at least two public hearings and a 45-day public comment period on a plan to build two new Northern Colorado reservoirs capable of delivering more water to Colorado’s growing Front Range.
U.S. Rep. Jared Polis, a Democrat whose district includes Fort Collins, has already requested the public comment period be extended to 120 days.
Documents released Friday add to a 2008 draft environmental impact statement for the water storage proposal. The U.S. Army Corps of Engineers, which compiled the reports and is the ultimate authority on whether construction will be permitted, determined “substantial additional analysis was needed” after its initial report underwent public comment.
About 675 letters, emails and oral statements regarding NISP were recorded during that process.
“We are pleased to have reached this important milestone after 12 years and nearly $15 million in expenditures by the NISP participants,” Northern Colorado Water Conservancy District General Manger Eric Wilkinson said in a statement. “The SDEIS shows that the project is needed to meet a portion of the participants’ future water needs.”
Northern Water, a public agency that coordinates water management in Northern Colorado, proposed the project to help meet future water needs along the Front Range. It expects a final permit decision in 2017…
NISP opponents fear the project will siphon water away from the Poudre River, which flows through Fort Collins on its route to connect with the South Platte River near Greeley…
In its statement, Northern Water notes that the supplemental report includes mitigation plans to ensure additional water will be released back into the Poudre River during low flows, and includes construction of fish-friendly bypass structures and river restoration measures…
The project, if approved, would lead to the construction of the Glade and Galeton reservoirs, with an estimated combined storage of more than 215,000 acre-feet of water, 40,000 of which would go to municipal water supplies each year. The larger of the two, Glade Reservoir, would be larger than Horsetooth Reservoir.
Glade Reservoir would be built just north of Ted’s Place, the country store and gas station at the junction of Colorado Highway 14 and U.S. Highway 287. It would require portions of U.S. 287 to be relocated.
The reservoir, capable of holding up to 170,000 acre feet of water, would cover the land north of Ted’s Place and south of Owl Canyon with Poudre River water.
Galeton Reservoir, built northeast of Greeley, would be filled with water from the South Platte River.
From The Greeley Tribune (Catherine Sweeney):
RESIDENTS INTERESTED IN COMMENTING ON THE SUPPLEMENTAL DRAFT OF THE NORTHERN INTEGRATED WATER SUPPLY ENVIRONMENTAL IMPACT STATEMENT SHOULD DO SO PRIOR TO SEPT. 3. THERE ARE TWO PUBLIC HEARINGS IN WHICH TO DO SO:
» 5 p.m. July 22 at the Hilton Fort Collins, 425 W. Prospect Road, Fort Collins
» 5 p.m. July 23 at the Weld County Administration Building, 1150 O St., Greeley.
To view the supplemental draft environment statement, and to learn where to send written comments, go to the Army Corps of Engineers’ website.
Submit comments in writing to John Urbanic, NISP EIS Project Manager, U.S. Army Corps of Engineers, Omaha District, Denver Regulatory Office, 9307 S. Wadsworth Blvd., Littleton, CO 80128 E-mail: http://email@example.com..
U.S. Sen. Cory Gardner, who serves on the Committee on Energy and Natural Resources, focused on the harm “buy and dry” deals could do to Colorado…
Weld County Commissioners Barbara Kirkmeyer and Mike Freeman both attended the rally and expressed their support.
“It’s very important to me,” Freeman said. “We know the cost of buy-and-dry.”
Freeman represents Weld County’s District 1, which covers the northern half of the county. It also covers a vast amount of farmland, which would be considered for water lease deals.
Meanwhile, NISP supporters rallied at a shindig at Northern’s HQ yesterday. Here’s a report from Saja Hindi writing for the Loveland Reporter-Herald:
Speakers at the Northern Colorado Integrated Supply Project support rally made a consistent call to action to their attendees — make their voices heard…
The U.S. Army Corps of Engineers began its first environmental impact statement in 2004 with a draft open to public comment in 2008. The following year, they decided to conduct a supplemental draft environmental impact statement, and that was released June 19 of this year for public comment. The comment period was extended recently through Sept. 3.
The final impact statement is scheduled to be released in 2016 with a record of decision in 2017.
If the agency allows for the project to move forward, construction could begin 2019 and be completed in four years…
Senators, congressional leaders and local elected officials were among the 175 attendees at the fifth rally in support of the project at Northern Water in Berthoud Thursday afternoon.
“We all know this is a valuable project needed for this area, and it must move forward,” said Eric Wilkinson, Northern Water General Manager.
It’s not going to dry up the Poudre River, Wilkinson asserted to the crowd, rather make use of available water supplies in Northern Colorado. And it’s needed for the 15 participants in the project, the future of the region, the future of the state and for future generations, he added.
Sen. Jerry Sonnenberg, R-Sterling, told the crowd there’s been a lot of talk this year in Colorado about rain barrels and harvesting water.
“Ladies and gentlemen, let’s help build this ultimate rail barrel,” he said. “Let’s build NISP.”[…]
U.S. Sen. Cory Gardner, R-Colo., also addressed the crowd, stressing the urgency of the project.
“These are the faces of NISP, the faces that know their communities need this water to survive,” Gardner said.
He said residents need to be serious about the infrastructure needs of the country and can’t keep pushing the projects down the road because delays will affect costs, people’s employment and access to water for individuals and agriculture.
Gardner said in an interview that the permitting process in these projects needs to be examined because both NISP and the Chatfield Reservoir project have taken more than a decade — even with broad bipartisan support.
From The Denver Post (Bruce Finley):
Northern Colorado leaders rallied Thursday urging quicker green lights for their “ultimate rain barrel” — a $713 million project that would divert water from the federally protected Cache La Poudre River and store 71 billion gallons in two new reservoirs.
They contend this Northern Integrated Supply Project is crucial for 400,000 future Front Range residents in some of the nation’s fastest-growing areas around Colorado’s oil and gas boom.
Since April, so much rain filled existing reservoirs and flowed into the South Platte River that Nebraska got 1.3 million acre-feet that Colorado could have caught if it had more storage space such as NISP’s Glade and Galeton reservoirs, Northern Water manager Eric Wilkinson said Thursday. Northern Water has been seeking permits since 2004 and still faces federal and state regulatory hurdles.
Erie, Fort Morgan, Windsor, Firestone, Frederick, Dacono and others “are trying to meet their future water needs,” Wilkinson said.
Poudre water wouldn’t be taken during dry times, ensuring flows of at least 50 cubic feet per second during summer and 25 cfs in winter. Mitigation of harm to wetlands would lead to restoration of habitat elsewhere, he said.
“NISP will not dry up the Poudre River,” Wilkinson said. “This project makes beneficial use of available water supplies.”
Gov. John Hickenlooper’s administration must complete environmental reviews; a state spokeswoman said Hickenlooper and two key water officials were traveling and couldn’t respond to queries. Federal water engineers at the U.S. Army Corps of Engineers this week extended by 30 days a public-comment period on the latest environment impact document, due to be done next year.
Construction couldn’t begin before 2019, Northern Water officials said, assuming permits are issued…
The alternative to developing new water supplies would be for booming cities and industry to buy more water from farmers, leading to a dry-up of 100 square miles of irrigated agriculture, project proponents said. That would mean a $400 million loss of agricultural output, U.S. Sen. Cory Gardner said at the rally.
“That is economic devastation,” Gardner said. “We can’t keep pushing it down the road. The longer this takes, the higher the cost, and the more acres that get dried up.”
This spring, water flows in the Poudre, a South Platte tributary with upper reaches protected as wild and scenic, were sufficient for Northern Water to trap and store 130,000 acre-feet in the two proposed reservoirs, officials said. The project goal is to store enough water to supply 40,000 acre-feet a year to 15 participating water providers.
Gardner said he’ll work to accelerate permitting in Washington, D.C.[…]
More than 150 state lawmakers, mayors, county commissioners, water providers and residents attended Thursday’s rally.
“We’ve got to find a way to keep Colorado’s water in Colorado,” state Sen. Jerry Sonnenberg said. “We’ll have the ultimate rain barrel, ready to be filled, right up the road here.”
From Aspen Journalism (Brent Gardner-Smith):
The Colorado Supreme Court ruled on June 29 that the Roaring Fork Club in Basalt is not entitled to new “aesthetic, recreation and piscatorial (fishing)” water rights for a private fly-fishing stream the club created in an existing irrigation ditch.
“The club failed to demonstrate an intent to apply the amount of water for
which it sought a decree to any ‘beneficial use,’ as contemplated by either the constitution or statutes of the jurisdiction,” the court’s decision stated.
The court also found that “the club’s proposed ‘uses’ of the water in question, as expressed in its application, cannot be beneficial within the meaning of the Act because the only purpose they are offered to serve is the subjective enjoyment of the Club’s private guests,” the decision states.
“The flow of water necessary to efficiently produce beauty, excitement, or fun cannot even conceptually be quantified, and therefore where these kinds of subjective experiences are recognized by the legislature to be valuable, it has specifically provided for their public enjoyment, scientific administration, and careful measurement,” the court found.
The court, however, did side with the Roaring Fork Club in a related dispute with its downstream neighbor Reno Cerise, who is a partner in St. Jude’s Co. In its decision, the court rejected claims from St. Jude’s over access to and management of the irrigation ditch in question, and the court awarded the club attorney’s fees in that aspect of the case.
But a majority of the justices on the court said a prior water rights decree issued to the club in 2013 by the water court in Glenwood Springs was now invalid because the water was not being put to a lawfully recognized beneficial use, which is a keystone of Colorado water law.
In a brief against the club’s arguments, attorneys for the Colorado Dept. of Natural Resources told the court it had concerns that using irrigation ditches for private aesthetic purposes could dewater long stretches of streams and rivers.
“Without established limits, such uses can result in complete depletions of stream reaches for unlimited distances to the detriment of the stream reach and its public aesthetic and piscatorial benefits, maximum utilization, and compact development,” the brief from the Dept. of Natural Resources stated.
As it stands now, the decision “effectively prohibits any future direct flow rights to divert water from the stream for aesthetic, recreation or piscatorial (fishery) purposes,” according to Peter Fleming, the general counsel for the Colorado River District, which filed a brief supportive of the club’s case.
Fleming, in an interview, said that while the court’s decision did strip the club of its decree for such uses, it did not apply to other existing water right decrees.
Origins of the case
In 2007 the club applied to divisional water court in Glenwood Springs for formal recognition of a right to divert 21 cubic feet per second from the Roaring Fork River into an existing irrigation ditch for “aesthetic, recreation and piscatorial uses.”
The application for new water rights were in addition to the club’s existing water rights on the ditch, which include an irrigation right.
In its application, the club told the water court that in 1997 it had improved an irrigation ditch – the RFC Ditch – which is 14-to-25 feet wide and can move up to 45 cubic feet per second (cfs) of water.
And it said it was now using the ditch, which it dubbed “Spring Creek,” as an “aesthetic and recreational amenity to a golf-course development, as well as for fish habitat and as a private fly-fishing stream.”
On its website, the Roaring Fork Club states that “fishing around the Club property includes private access to eight stocked ponds, a one-mile stretch along the acclaimed Roaring Fork River and the one-mile long ‘Spring Creek’, an offshoot of the Fork that flows through the golf course.”
The club straddles 383 acres on either side of the Roaring Fork River just upvalley of downtown Basalt. It has about 550 members and includes 40 privately owned cabins.
“The club’s fishing, non-fishing, golfing and other members and visitors enjoy the scenic beauty that is Spring Creek, as the visual backdrop of the water feature and the sound of higher flowing water combine to create a unique experience for members, cabin owners and guests alike,” wrote an attorney for the club, Scott Miller, of the Basalt law firm of Patrick, Miller and Noto, in a recent supplemental brief to the court.
Miller’s brief also notes that the irrigation ditch, now a private fly-fishing stream, includes “pools, riffles, drop structures, and spawning beds, all of which enhance the overall aquatic habitat and cold water trout fishery in Spring Creek, and which require flowing water.”
Miller could not be reached for comment on the court’s decision.
But in 2013 St. Jude’s, which also uses the RFC Ditch to receive water downstream of the club, appealed the water court’s issuance of a decree to the club for aesthetic uses to the Colorado Supreme Court, which directly hears appeals from divisional water courts around the state.
“Recognition of aesthetics as a beneficial use would effectively function as a policy decision that the visual enhancement of private property is more important than any uses of junior upstream appropriators, and also more important than maintaining streamflow in the natural stream,” St. Jude Co.’s attorney, Gregory Cucarola of Sterling, argued in a recent brief to the Supreme Court.
After review, seven of the justices on the Supreme Court sided with St. Jude’s, at least as far as its water rights arguments went.
“The water court’s judgment decreeing the club’s new appropriative rights must therefore be reversed, and the decree for aesthetic, recreation and piscatorial uses vacated,” the court ruled.
A variety of views
Two justices issued a dissenting opinion in the case.
“The value that Spring Creek creates, as well as the ability to determine the amount of water needed to achieve its purposes, suggests that aesthetic, recreational, and piscatorial uses satisfy the ‘beneficial use’ requirement,” the dissenting opinion stated. “So, is such a flow-through feature “tantamount to a ‘forbidden riparian right,’” as the majority asserts? I think not.”
The dissenting opinion was written by Justice Monica M. Marquez, who was joined by Justice William W. Hood, III.
The Colorado River District released a statement about the court’s decision, after an inquiry from Aspen Journalism, from Peter Fleming, the district’s general counsel.
“The River District is disappointed in the Colorado Supreme Court’s decision in the St. Jude’s Co. v. Roaring Fork Club case that effectively prohibits any future direct flow rights to divert water from the stream for aesthetic, recreation or piscatorial (fishery) purposes,” Fleming said in an email.
“The majority opinion mistakenly characterizes recreational and fishery uses as purely ‘passive’ uses of water. Perhaps more importantly, the opinion creates an entirely new requirement that a water right is valid only if the intended use is achieved through an ‘objectively-active’ means of production.
“As noted in the Court’s dissenting opinion, the majority opinion ‘abolishes a well-established practice of the water courts in granting applications for [aesthetic, recreational, and piscatorial flow-through water rights].’
“Many existing West Slope landowners have invested in such features – a practice that has little or no impact on Colorado’s consumptive use of its Colorado River Compact entitlement,” Fleming said. “The decision will adversely impact the future ability of private land-owners to increase the value of their property through the construction of water features.”
The “ranch owners”
Also filing a joint amicus brief in the St. Jude’s case – in support of the private club – were Roaring Fork Homeowners Association, Inc., Thomas Bailey, Galloway, Inc., Jackson-Shaw/Taylor River Ranch, LLC, Crystal Creek Homeowners Association, Inc., Charles E. Nearburg and Catamount Development, Inc., and the Flyfisher Group, LLC.
The self-described “ranch owners” told the court that together they own 27,000 acres of land in Colorado.
They argued in their brief that “private use of water” actually benefits the public.
“Private use of water for piscatorial and aesthetic purposes benefits the public and the appropriator,” the “ranch owners” brief states. “As noted above, the economy of western Colorado is changing. More and more ranches are being purchased not just for traditional ranching uses, but also for their aesthetics and fish and wildlife values.
“The resulting increase in land values significantly increases the tax base of local governments and the overall health of local economies. Moreover, it is well established in the scientific literature that ditches and man-made streams operated for fishery purposes benefit not just these off channel structures, but the fishery as whole,” the brief said.
The brief also said that “the ranch owners, and many others, have also constructed water features on their properties, such as artificial waterfalls, cascades and waterways that greatly enhance the aesthetics and value of a property. The design of these improvements often requires the services of landscape architects and engineers.”
The ranchers also argue that if private streams are valuable to a landowner, then they are “beneficial” under state water law.
“Just as beauty is in the eye of the beholder, beneficial use is principally in the eye of the (water) appropriator,” the brief states.
County and state don’t support
On the other side of the issue were Pitkin County and the Colorado Department of Natural Resources, both of which filed amicus briefs (Pitkin County, DNR) with the Supreme Court against the Roaring Fork Club’s arguments.
“A diversion into a ditch for private piscatorial, recreational, or aesthetic uses is not a statutorily or Supreme Court-approved beneficial use, but has been recognized by various water courts in unappealed decrees,” a brief filed by attorneys for the department states.
The department’s brief also noted that when it comes to the enjoyment of water, a “more is better” factor raises questions about the potential wasting of water.
“With a ‘more is better’ duty of water unsupported by scientific evidence, subjective private piscatorial and aesthetic uses can result in complete depletions of stream reaches for unlimited distances to the detriment of the stream and its public piscatorial and aesthetic uses, resulting in waste and inefficiency, impairment of existing undecreed exchanges of water, and future exchanges,” the department’s brief states.
Editor’s note: Aspen Journalism is collaborating with The Aspen Times and the Glenwood Springs Post Independent on coverage of rivers and water. The Times published a version of this story online on Tuesday, June 30, 2015.
More water law coverage here.