Local developer Gary Miller donated a total of 1.833 cubic-feet-per-second (cfs) in water rights to the town, the rough equivalent of 13.71 gallons per second, or 1,185,000 gallons per day.
Sawmill Gulch is diverted from Willow Creek, within the Eagles Nest Wilderness, Linfield said. The diversion, appropriated in 1918, was originally intended for irrigation.
“I’ve owned this water for a long time,” Miller said. “I think the town of Silverthorne has done such a great job. I thought, ‘I’ve got the water; they’ve got a lot of people moving into the town.’ I thought the best thing for me to do was to give it to them.”
Though the town has not assessed the value of the water rights, the fact that they are dated before the Colorado River Compact adds inherent value. An agreement formed in 1922 among seven U.S. states in the Colorado River Basin, the Colorado River Compact allocates water rights between the states.
“Water with earlier dates is not subject to that compact and the rules related to water use within the Colorado River Basin, including the Blue River Basin,” Linfield said.
Since the water remains untapped, the town would put in the necessary infrastructure once an appropriate use is determined.
“The town of Silverthorne has millions of dollars invested in our water rights portfolio and we work diligently to manage and maintain those rights,” Linfield said. “While we feel our water portfolio is strong, we are always looking for ways to improve and protect this valuable resource.”
Congress must still approve the deal, but the key players – the federal Bureau of Reclamation, the Navajo Nation and the state of Utah – are in agreement on a settlement they say is both fair and likely to calm uncertainty on a major tributary to the Colorado River. The San Juan, popular with river-runners, traverses 383 east-west miles in the Four Corners area before it empties into the Colorado near Glen Canyon.
Daniel Cordalis, Navajo, is an advising attorney hired by the Navajo Nation to analyze the settlement along with his wife and fellow attorney Amy Cordalis, Yurok. “That analysis led us to believe the settlement is fair and provides the Navajo Nation a favorable resolution of their Utah water rights claims,” he said.
Earlier this month, Navajo Nation president Russell Begaye issued a tentative stamp of approval.
“The Office of the President and Vice President commend the Utah chapters along with their respective delegates for working hard to draft the settlement,” Begaye said in a statement.
The Navajo Nation was established by treaty starting in 1868, long before many of the regional rivers’ current users began drawing water. By law, the reservation theoretically holds rights senior to most competing uses, according to the “first in time, first in right” bedrock principle of Western water law. But for the Navajo Nation, as with many tribes, quantifying those rights – and thereby turning them from “paper” to “wet” water – has meant decades-long slogs through political negotiations and, sometimes, the courts. The Navajo Nation Council first announced in January that it had reached an agreement with the state of Utah and other stakeholders, entitling it to 81,500 acre-feet of water for use on the relatively small part of the reservation in Utah. Based on average per capita water use, 81,500 acre-feet of water could support 300,000 people a year, or irrigate between 25,000 and 40,000 acres.
The settlement includes a waiver of any past legal claims by the Navajo Nation against the state of Utah and the United States within the state of Utah, which is standard in Indian water settlements. In addition, the Utah-Navajo settlement contains an agreement by the Navajo Nation that, if there is not enough water to fill its needs, it will not assert priority over pre-existing, non-Native water users.
This alarms some in the conservation community, who question the value of water rights that can’t be enforced. “It kind of tells me that the state of Utah understands that there’s no water left for the tribes,” said John Weisheit, conservation director for Living Rivers, a Utah-based water advocacy group. “They’re first in rights, but last in line for water.”
But Cordalis said while water supplies are questionable by some measures on the Colorado River as a whole, the situation on the San Juan is more nuanced. “The San Juan River is not burdened with downstream water rights such that those existing water rights present a significant detriment to Navajo’s 81,500 acre-feet a year (AFY) right,” he said. “In our opinion, there will be enough water in the San Juan River to achieve the full settlement value on a yearly basis.”
Wayne Pullen, the Bureau of Reclamation’s Provo area manager and chairman of the federal negotiating team, added that there are few pre-existing uses on the San Juan River. He said small towns like Mexican Hat draw modest supplies, as do some small wells and agricultural irrigators.
Cordalis pointed to state of Utah and Bureau of Reclamation figures indicating that in the Upper Colorado River Basin Compact, Utah was apportioned 23 percent of the water available to the Upper Basin, or roughly 1.37 million AFY of Colorado River water. The Upper Basin includes all or part of the states of Arizona, Colorado, New Mexico, Utah, and Wyoming that draw water from above Glen Canyon Dam, while the Lower Basin users draw their water downstream of the dam. In 2009, Utah used just over 1.07 million AFY, leaving about 300,000 AFY in Utah’s Upper Basin apportionment. Navajo’s allocation will be counted against that share.
“What the settlement does is provide that flexibility for tribal members to both use water now and have enough water for future development, which ultimately is most important,” Cordalis said…
“We want to be part of the decision-making, but we are not,” said Anna Frazier, a long-time activist with the Navajo grassroots group Diné CARE. Still, there has not been public opposition to the Utah San Juan settlement as there was to the Little Colorado proposal in 2012.
Leonard Tsosie, a Navajo Nation Council delegate representing the Baca/Prewitt, Casamero Lake, Counselor, Littlewater, Ojo Encino, Pueblo Pintado, Torreon, and Whitehorse Lake chapters, has been promoting the settlement among his colleagues and constituents, as a way to support existing and future Navajo communities in southeastern Utah. “We can dream all we want but if there is no water, there is no development,” he said.
In addition to the water rights, the settlement calls for a Congressionally allocated, $200 million Utah Navajo Water Development Fund for Utah Navajo water projects.
So far, all seven Navajo chapters in Utah have approved the settlement, and the Navajo Nation Council voted 13-7 to approve it. President Begaye’s office pointed out that if the Navajo Nation is going to push for a legislative package, it must do so before the September Congressional lame duck session.
A State Engineer Map of 1907-8 shows the Grand River Ditch diverting from Water District 51, upper Colorado River drainage, across the Continental Divide into Water District 3 in the upper Poudre River drainage (shown in red middle left hand side); also showing Chambers Lake (upper left hand side of map)
July 20 inspection of Grand River Ditch led by Dennis Harmon, General Manager, Water Supply and Storage Company. From left to right Randy Gustafson (Water Rights Operation Manager, City of Greeley), Dennis Harmon, and Michael Welsh (Historian, University of Northern Colorado).
The Grand River Ditch has an appropriation date of 1890 for 524.6 c.f.s of water diverted from the Colorado River Basin to irrigate 40,000 acres of land in the Poudre Basin through the Larimer County Ditch. The water flow of the ditch is continuously measured at this gauging station on La Poudre Pass.
West of the Divide, the Grand River Ditch contours towards and around the Never Summer Range in Rocky Mountain National Park (established in 1915 after construction of the Grand River Ditch) for 14.77 miles to Baker Gulch.
A wetland at the western side La Poudre Pass,
gives birth to the baby Colorado River.
Discarded horse slip scrapers bolted together perhaps to armor the spillway of a small now-breached dam in the vicinity of the ditch.
The Grand River ditch is located above the Little Yellowstone Canyon with spectacular views of the Never Summer Range.
The mining town of Lulu City was located down in the valley where, not far beyond, Lake Granby now gathers water for delivery east to Northern Colorado through the Adams Tunnel.
In the early 21st Century a stretch of the Grand River Ditch was washed away and repaired. Rehabilitation of the mountainside is proceeding under supervision of the National Park Service. Water Supply and Storage Company contributed $9 million in settlement of NPS claims.
The easement Water Supply and Storage Company owns for the Grand River Ditch also serves as a hiking path along a number of gushing creeks.
The ditch is fitted with gates that are opened to bypass creek water after the summer season comes to a close.
The water flowing through La Poudre Pass drops into Long Draw Reservoir located in the Roosevelt National Forest east of the Continental Divide.
Moose and deer share wetland meadows of a long summer evening.
Water Supply and Storage Company stores Poudre River water in Chambers Reservoir.
Greg Hobbs and Dennis Harmon on the Continental Divide.
FromThe Texas Tribune (Jim Malewitz) via The Midland Reporter-Herald:
More than three years after Texas filed a complaint in the U.S. Supreme Court alleging that New Mexican farmers were slurping up too much water along the river — illegally curbing the flow downstream into Texas — the justices appear likely to take up the challenge.
That’s after Gregory Grimsal, a court-appointed special master, issued a draft report recommending that the court deny New Mexico’s motion to dismiss the complaint, a major development in the high-stakes dispute.
“This is a big victory for the state of Texas,” said Russell Johnson, a water rights lawyer who is not involved in the case. “The special master has in essence swept aside the impediments to Texas pursuing a claim.”
If Texas ultimately prevails, it could receive more than just extra water. New Mexico could be forced to fork over hundreds of millions of dollars in damages, experts say.
Like most interstate water skirmishes, this one is complicated and has deep historical roots. Grimsal’s report, currently in draft form, spans 273 pages.
Here are five things you should know about the battle.
— The Rio Grande holds some of the most studied and squabbled-over waters in North America. And it’s drying up.
The river is lifeblood for folks in three U.S. states and Mexico. It’s an international border. It’s ravaged by drought. The river begins about 12,000 feet above sea level in Colorado and flows southeast after cutting through New Mexico. It forms the Texas-Mexico border between Chihuahua State and El Paso, where it flows through a concrete channel.
Before reaching Texas, the Rio Grande collects at New Mexico’s Elephant Butte Reservoir, which is currently just 13 percent full.
Of the American West’s four iconic river basins, the Rio Grande is “facing the largest climate-change water-supply deficits,” according to a December 2015 report in the journal Ecological Applications.
— The three-state Rio Grande Compact prevents states from claiming more than their fair share of the water. Except when it doesn’t.
In the 1910 Rio Grande Project, the federal government established an irrigation system aimed at helping agriculture and industry in the states the river flows through. But that project, which also upheld a 1906 treaty that promises Mexico 60,000 acre-feet of water annually, didn’t specifically address state-by-state allocation. Historically, Texas has received 43 percent of the water, with New Mexico getting 57 percent.
Congress approved the Rio Grande Compact in 1938, which determined how much water folks in Texas — the most downstream state — should get before those upstream sucked it up. Or so Texas argues.
Now, the states are fighting over whether the compact actually requires New Mexico to cede a certain amount of water to Texas.
— Both states’ arguments have quirks.
Texas claims New Mexico is siphoning off more water than the compact allows by drawing too much from the river itself and pumping too much groundwater from wells nearby.
The groundwater argument “is probably what makes New Mexico go batshit crazy,” said Johnson, the water rights attorney.
That’s because Texas law does not recognize the nexus between groundwater and surface water — that over-pumping can lower river levels. Since New Mexico’s law does make the connection, however, Texas argues that it has the responsibility to ensure its wells are not curbing the river’s flow.
New Mexico points out that the compact does not explicitly state that it must deliver 43 percent of water to the state line. Rather, the agreement aims only to ensure enough water flows into the Elephant Butte Reservoir and is properly stored, the state claims. Previous agreements, in fact, had split the water between the two states.
That line of defense may be “ignoring reality,” Johnson said. “That seems to fly in the face of what the compact was intended to do — apportion the water between the states.”
— This time, the feds are siding with Texas
Despite Texas’ often-testy relationship with the federal government, the Obama administration actually supports the state’s position here.
In 2014, the U.S. solicitor general filed a motion to intervene on the Lone Star State’s side, arguing that the 43 percent figure of water New Mexico must send into Texas was “frozen” by the time the compact took effect.
The federal government also believes it has a stake in the outcome because of its international duties to provide Rio Grande water to Mexico, as detailed in the 1906 treaty.
But the federal government might not get the chance to make those arguments before the justices. That’s because Grimsal, the special master, recommended that the court dismiss the federal motion “to the extent that it fails to state a claim” under the compact.
New Mexico officials have focused on that partial victory in their public statements.
“We applaud the Special Master’s suggestion to limit the claims of the United States, and we will continue to work diligently in protecting the interests of all New Mexicans and our water,” Attorney General Hector Balderas, a Democrat, said in a statement this week.
— Resolving this case could still take years and plenty of taxpayer money.
It’s not clear when the Supreme Court will decide whether to accept the case. And if the challenge moves forward, that will take some time.
Though Grimsal’s report was filled with plenty of facts for the justices to evaluate, his job could be just beginning. If the case continues, he would oversee a full-fledged trial — complete with extensive discovery — before the justices ever heard oral arguments.
Together, the states and federal government have already been charged nearly $400,000 for Grimsal’s services, according to court documents. That tab will likely grow.
Meanwhile, the office of Texas Attorney General Ken Paxton has spent nearly $116,000 litigating the case, its records show.
Paxton declined to comment on the case.
A spokesman for the Texas Commission on Environmental Quality said that agency agrees with Grimsal’s recommendation. “We believe we have a strong case and the draft opinion validates the need to litigate Texas’ concerns,” Terry Clawson said in an email.
Each party has until Aug. 1 to comment on the report. Grimsal can still make changes before submitting his final recommendations.
“Water is the new gold,” said Scott Shuman, a partner in Hall and Hall, the auction house that will sell 411 acres of the Reynolds Farm and 13.75 shares in the Highland Ditch, along with the big-ticket item: 276 units of Colorado-Big Thompson water.
As Colorado’s population has grown, so has demand for water. Shuman said he expects farmers, cities and developers to try to get a piece of the Reynolds Farm portfolio…
High demand means prices are already high. C-BT shares have sold for between $25,000 and $28,000 each, according to the Northern Colorado Water Conservancy District, the agency that manages the C-BT system — which conveys water from the headwaters of the Colorado River to the Front Range and plains.
This means the C-BT water alone could bring in $6.9 million to $7.7 million, compared with the auction house’s estimate for the land of $5,000 to $15,000 per acre, or $2 million to $6.2 million…
These particular water rights are especially attractive because they can be used for multiple purposes — agriculture, development and industrial processes, including fracking — and can be easily traded as long as they stay within C-BT boundaries, said Reagan Waskom, director of Colorado State University’s Colorado Water Institute…
The Reynolds farmland, which is northeast of the intersection of Interstate 25 and Colorado 66, is bounded by Weld County roads 9 1/2, 32 and 13, and another property.
It is not annexed into a town, although it is in Mead’s growth area. Town manager Mike Segrest said he assumes it will be annexed in the future…
“The price of water is out of reach and the price of land is out of reach.” Waskom said. “Those are development prices.”
He said a farmer would need to have deep pockets and be willing to work the land without making much profit. He added that a young farmer could buy the land and the ditch rights and not the C-BT shares, shifting to dryland farming of crops such as wheat. But that’s a difficult transition and profits would be minimal, especially compared with an irrigated farm.
“Bankers are not going to go there with him,” Waskom said.
It’s more likely that a developer will buy the land, Waskom said. A developer could build on the land or transfer the water rights to a water provider that supplies an area where it has a project.
“I feel like it is inevitable,” Waskom said about the possibility that the water will be separated from the land. “I wish we could plan it better so that our best agricultural lands could stay in working lands. To me, it’s all being driven by the market, which I’m not saying is bad, but it may not end up with the kind of Front Range Colorado we want in 10 to 20 years.”
Here’s part one of a recap of the meeting in Brush yesterday from Stephanie Alderton writing for The Fort Morgan Times:
The Colorado Ag Water Alliance, along with the Colorado Cattlemen’s Association and the Colorado Water Institute, hosted a three-hour workshop for producers to help explain the new Water Plan’s application to agriculture. Speakers with various roles in water and agriculture talked about the new state plan’s emphasis on alternative transfer methods (ATMs) to conserve water, how the plan will be implemented in the South Platte Basin in particular and how farmers can increase water efficiency. People came from all over the state to hear and discuss details in the plan.
“A good Colorado plan needs a good South Platte plan,” Joe Frank, of the South Platte Basin Roundtable, said. “Nine out of the top 10 ag producing counties are in this basin.”
During his talk, the first of the day, he explained that the area has an increasing water supply gap as the population grows, which the Water Plan seeks to address. Frank’s group is in charge of implementing the plan in South Platte by coming up with a balanced, pragmatic program for farmers that is consistent with Colorado law. He said that program will focus on maximizing the use of existing water, encouraging farmers and other organizations to use ATMs in order to share water more effectively and promoting multi-purpose water storage projects, among other things.
Mike Applegate, of the Northern Water Board, talked about the status of current storage projects all over the state, while MaryLou Smith of Colorado State University gave a list of reasons why producers should want to use their water differently in an effort to conserve more. Phil Brink, of the CCA, reported the results of a survey on farmers’ opinions of ag water leasing, while Dick Wolfe, an engineer with the Colorado Division of Water Resources, explained the problems with the “use it or lose it” mentality farmers tend to have toward their water rights. John Schweizer, a producer from the Arkansas Basin, talked about the success of the Super Ditch near his hometown, an ATM project that recently started seeing results. After a final panel made up of people involved in various ATM projects, including Morgan County dairy farmer Chris Kraft, the audience spent more than an hour trading questions and comments with the speakers.
The purpose of the workshop, according to a CAWA press release put out beforehand, was to bring people together to discuss the “opportunities and barriers” the Water Plan presents. The speakers in the second half of the day presented many opportunities in the form of ATMs and other projects. For example, Schweizer said the Super Ditch, though it’s taken many years to be completed, has the potential to help many farmers conserve water without new legislation or complicated water rights battles.
“We’ve had a lot of people say this wouldn’t work,” he said. “We’re starting to prove them wrong…I see nothing but a glorious future for this project.”
But it was clear that many people at the workshop saw many remaining obstacles to water efficiency. During the question and answer session at the end, several people pointed out that, while ATMs can make it easier for farmers and other organizations to share water, they can’t solve the problem of water shortages by themselves.
“We are concerned that the state Water Plan talks so much about these ATMs, and a lot of policy makers around the state are counting on them,” Smith said while moderating the discussion. “Part of what we want to do is get the message of what you guys are saying back to some of those policy makers.”
FromThe Grand Junction Daily Sentinel (Dennis Webb):
A proposal to divert Colorado River water to Denver recently has won the endorsement of Gov. John Hickenlooper and the approval of the Colorado Department of Public Health and Environment.
But Denver Water’s Gross Reservoir expansion project may be just as notable for its general lack of opposition west of the Continental Divide. That’s thanks to a wide-ranging agreement, effective in 2013, in which Denver Water obtained concessions including a promise that numerous Western Slope parties to the agreement wouldn’t oppose the expansion project. In return, Denver Water made a number of commitments to the Western Slope.
Now Western Slope interests are working on a similar agreement with Northern Water and others on what’s called the Windy Gap Firming Project, which would store Colorado River water in a proposed Boulder County reservoir.
These approaches represent a far cry from how the Western Slope used to respond to transmountain diversion proposals.
“This is the new paradigm. It’s not the old school. In the old school it was like … we’ll see you in court,” said Jim Pokrandt of the Colorado River District, a party to the 2013 Denver Water deal.
For Denver Water, what’s called the Colorado River Cooperative Agreement provided greater certainty for its customers through means such as resolving longtime disputes regarding West Slope water. For the Western Slope, the deal meant dozens of obligations by Denver Water, such as millions of dollars in monetary payments to various entities, protections of Colorado River flows and water quality, a commitment to further water conservation and reuse efforts by Denver Water customers, and a provision aimed at helping assure maintenance of historic flows in the Colorado River even when the Shoshone Power Plant in Glenwood Canyon is not operating. That hydroelectric plant has a senior right helping control flows in the river.
Another key point in that deal is a promise that Denver Water and its customers won’t try to further develop Colorado River water without agreement from the river district and affected counties.
The cooperative agreement has 18 signatories but more than 40 partners, primarily West Slope governments, water conservation and irrigation districts, and utilities. Among them are the Ute Water Conservancy District and multiple irrigation districts in Mesa County.
Pokrandt said the 2013 deal is a win-win for both sides of the Continental Divide.
“That said, yes, more water would be moving east” if the Gross Reservoir project proceeds, he said.
The project, also sometimes called the Moffat Collection System Project, would nearly triple the capacity of the Boulder County reservoir. Denver Water is targeting water in the Fraser River, a tributary of the Colorado.
“Right now there are some periods of time when Gross Reservoir is full at its current size and their water rights are in priority but they can’t take any more water,” Pokrandt said.
The project has an estimated cost of $380 million, and Denver Water hopes to obtain the remaining major permits by the end of next year. CDPHE in June certified that the project complied with state water quality standards, and Hickenlooper endorsed it last week.
“The state’s responsibility is to ensure we do the right thing for Colorado’s future, and this project is vital infrastructure for our economy and the environment,” Hickenlooper said in a news release. “The partnerships and collaboration between Denver Water, the West Slope and conservation organizations associated with this project are just what the Colorado Water Plan is all about.”
That recently adopted plan in some respects took its lead from the Denver Water/Western Slope deal in seeking to address the state’s future water needs in a cooperative rather than confrontational manner statewide.
Pokrandt conceded that not everyone loves the Gross Reservoir proposal…
Trout Unlimited takes a more positive view of the Gross Reservoir project, pointing to its inclusion of a “Learning by Doing” program requiring monitoring of the health of the Fraser River and adjusting operations as needed. The Gross Reservoir proposal envisions drawing water from the Western Slope in wetter years and seasons, but providing the Colorado River watershed with extra water during low flow periods and investing in restoration projects.
“Moreover, Denver Water has entered into partnerships on the Front Range to ensure that the project alleviates chronic low-flow problems in South Boulder Creek. Both sides of the Divide benefit,” David Nickum, executive director of Colorado Trout Unlimited, said in a news release…
Denver Water Chief Executive Officer Jim Lochhead said in a news release, “The Denver metropolitan area is tied to the economic and environmental health of the rest of the state, and Denver Water is committed to undertake this project in a way that enhances Colorado’s values.”
Pokrandt said Western Slope water interests face the reality that under the state Constitution the right to appropriate water shall not be denied if the water can be put to beneficial use and a party can obtain the necessary financing and permitting.
“There’s not a legal stance to say no, so that’s why the river district was even formed in 1937, was to negotiate these things, because no is not an answer in the legal arena because of the Colorado Constitution,” he said.
When it comes to water rights, Pokrandt said, “in the Colorado Constitution, the Continental Divide doesn’t exist.”