#ColoradoRiver: Many eyes are on the Shoshone Hydroelectric water right

From The Grand Junction Daily Sentinel (Dennis Webb):

The Colorado River District is asking Western Slope governments and water entities for more funding for continued study into ways to ensure the permanent preservation of a large, priority water right on the Colorado River.

The district and other contributors already have spent more than $200,000 looking into options to preserve the rights associated with the Shoshone Generating Station hydroelectric plant in Glenwood Canyon east of Glenwood Springs.

The district is now seeking to spend another $200,000 for the effort. It is shouldering half of the cost of the study.

The Shoshone plant has water rights dating to shortly after 1900. Its right to 1,250 cubic feet per second is senior to rights including those of Front Range municipal transmountain diverters.

As a result, the right ensures at least that level of flow both above and below the dam that serves the plant.

“The importance of that in the recreation and rafting industry frankly can’t be overstated. It’s huge,” Lee Leavenworth, an attorney advising Garfield County commissioners, told them Monday.

The small, 15-megawatt plant is owned by Xcel Energy. Western Slope interests long have feared that Xcel might sell the plant to a Front Range entity interested in buying and retiring the water right to allow more diversions under junior rights.

Xcel has said the plant’s not for sale and is important to Xcel’s power system reliability and stability.

But the Western Slope organizations aren’t taking chances, with the study exploring options including Western Slope acquisition of the plant and its water right should the plant go up for sale.

A 2013 agreement between Denver Water and 17 Western Slope water providers and governments included formalization of a protocol for generally continuing flows required by the plant even when there are plant outages. Denver Water also agreed to support possible Western Slope purchase of the plant.

Garfield commissioners on Monday agreed to commit up to $4,300 to the continuation of the study as part of a cost-sharing arrangement that would include entities from the Colorado River headwaters to the Utah state line.

“If that power plant is for sale we need to be first in line, the Western Slope,” Garfield Commissioner Tom Jankovsky said Monday.

He also voiced confidence in the ability of Western Slope entities to come up with what would be needed to buy the plant if that possibility arises.

“I think you would find that the money is there if we need to buy that,” he said.

“Why should I suffer for their sprawl?” — Bill Trampe

Sprawl
Sprawl

From ProPublic.org (Abrahm Lustgarten):

A vestige of 139-year-old water law pushes ranchers to use as much water as they possibly can, even during a drought. “Use it or lose it” clauses, as they are known, are common in state laws throughout the Colorado River basin and give the farmers, ranchers and governments holding water rights a powerful incentive to use more water than they need. Under the provisions of these measures, people who use less water than they are legally entitled to risk seeing their allotment slashed.

There are few starker examples of how man’s missteps and policies are contributing to the water shortage currently afflicting the western United States. In a series of reports, ProPublica is examining how decisions on water management and growth have exacerbated more than a decade of drought, bringing the West to the point of crisis. The Colorado River is the most important source of water for nearly 40 million people across California, Arizona, Nevada, New Mexico, Wyoming, Utah and Colorado, and supports some 15 percent of the nation’s food crops.

But the river is in trouble, and water laws are one significant cause. Legal water rights and state allocations have been issued for more water than the river, in an average year, can provide. Meanwhile its annual flow has been steadily decreasing as the climate changes and drought grips the region. And so, for more than a decade, states and the federal government have tried to wring more supply out of the Colorado and spread it further, in part by persuading the farmers and ranchers who use the vast majority of the river’s water and have the largest water rights to conserve it.

But in many ways it’s the vast body of often-antiquated law governing western water rights, officials acknowledge, that actively undermines conservation, making waste — or at least heavy use — entirely rational.

“Water is money,” said Eugene Backhaus, a state resource conservationist for the U.S. Department of Agriculture’s Natural Resources Conservation Service, which works to help ranchers use water more efficiently. “The way the current water law structure is, if they don’t use it for the assigned use, they could lose the water right.”

[…]

“The whole system is designed towards preserving the status quo,” said Jim Lochhead, the chief executive of the urban utility Denver Water, who formerly represented Colorado on interstate water negotiations. The most pragmatic approach, he thinks, is to build off existing water law while reforming its worst parts. But in a perfect world, he said, “I would abolish Colorado water rights law and start all over again with a clean slate.”

None of the antiquated parts of what across the entire basin is referred to loosely as “water law” play as much a role in stressing the water system — or seem as fixable — as the one known as “use it or lose it.”

Originally devised in part to keep speculators from hoarding water to build wealth and power, the intent of “use it” laws was to make sure the people who held rights to water exercised them. They could keep those rights indefinitely, passing them on through generations or selling them…at great profit, as long as they constantly put the water to what most Western water laws refer to as “beneficial use.”

[…]

Denver and other eastern Colorado cities already take 154 billion gallons of water across the Continental Divide from western Colorado each year. Schemes to build more tunnels to divert more water from rural western areas like Gunnison are a constant concern. And last July the utilities and groups that represent the lower river states’ biggest urban areas — including Las Vegas, Denver and Los Angeles — proposed a pilot program to find additional water supplies in the agriculturally rich parts of Colorado, in part by paying people like Trampe to fallow fields, be more water-efficient or perhaps lease or sell their water rights.

“The cities continue to grow and grow and grow … and they expect me — or us as an industry — to give up water,” Trampe said. “Why should I suffer for their sprawl?”

[…]

“Do we want to fix it in a way that sends more water to Arizona?” asked [John McClow], the water attorney. “We’re still parochial about that. If we save some water, I think we want to use it ourselves.”

Aspen to develop river management plan for upper Fork — The Aspen Times

Roaring Fork River in early July 2012 via Aspen Journalism
Roaring Fork River in early July 2012 via Aspen Journalism

From Aspen Journalism (Brent Gardner-Smith) via The Aspen Times:

The city of Aspen is seeking consultants to help it prepare a river management plan for the upper Roaring Fork River, which has been plagued in drought years by low flows as it winds through central Aspen.

“The city of Aspen plans to study the upper Roaring Fork River, from its headwaters to a point just below the confluence with Maroon Creek,” the city’s request for proposals, or RFP, says.

April Long, the city’s stormwater manager, said the development of a river management plan was one of the Aspen city council’s top ten goals in 2015. Long said she expects regional engineering firms specializing in water to put together teams of consultants and submit proposals to the city, which are due by Jan. 15.

“Since 2008, the city has focused on improving the quality of water discharged through its outfalls. The city now feels it is important to focus its attention on one of the other probable causes for impairment – inadequate flows during periods of drought,” the RFP says.

The city’s RFP also says it expects proposed consulting teams “to include members with experience and expertise in water resources engineering, river science, hydrology, water quality, stream geomorphology, Colorado water rights and water law, and group facilitation.”

Long said the city’s river management plan will be similar to the ‘”stream management plans” that are called for in the recently released Colorado Water Plan, and that ongoing work being done by the Colorado Water Trust for Pitkin County on ways to add more water to the river will be looked at when formulating the city’s river plan.

“Our ultimate goal for the project is to develop a plan that outlines operational, management, and physical options that improve the health of the river while respecting each stakeholder’s rights and interests,” the city’s RFP says.

The Roaring Fork River flows into the city’s boundaries at Stillwater Drive east of downtown Aspen.

The stretch of the river between there and the confluence with Castle Creek has been known to drop below 32 cubic feet per second, which the Colorado Water Conservation Board considers the minimum amount of water necessary to protect the river’s environment “to a reasonable degree.”

“In the early 2000s several studies investigated the health of the Roaring Fork River and reported a severely degraded or impaired stretch of river within the city,” the RFP says. “The instream flow determined for this stretch in the 1970s is 32 cubic feet per second. During the droughts of 2002 and 2012, the river in this stretch dropped to only 5 cfs – only 15 percent of the instream flow.”

One big factor in the amount of water in the Roaring Fork River through Aspen is the Salvation Ditch, an irrigation ditch that diverts water from the river at Stillwater Drive.

The ditch has a senior 1902 water right that allows up to 58 cfs of water to be diverted and sent across lower Red Mountain to Woody Creek.

During the drought of 2012 there were days when there was more water flowing down the Salvation Ditch than was flowing down the Roaring Fork as it winds through town.

For example, according to a study done by S.K. Mason Environmental LLC, on July 27, 2012 there was 17.4 cfs flowing in the Salvation Ditch and 7.6 cfs of water flowing down the Fork below the ditch.

However, Tom Moore, the president of the Salvation Ditch Company, said the shareholders who own land along the ditch company also need the water in dry years, they have made significant investments in the water system, and they are concerned about weakening their water right by not diverting the water.

He also pointed out that the Salvation Ditch water right is senior to the 1930s era water rights held by the Twin Lakes Reservoir and Canal Co., which diverts water under Independence Pass. As such, the Salvation Ditch plays a role in keeping water in the Roaring Fork River, he said.

The city’s Long said talking with the Salvation Ditch Co. will be an important part of the river management plan, which is why the city is seeking proposals that include consultants with an expertise in working with various stakeholders.

The city’s RFP says “we hope that by determining valuable attributes of the river, we can work together as a community to lessen impairment and improve water quality, river health, ecological health, recreational opportunities, and riparian habitat in ways that closer meet the community’s goals.”

Editor’s note: Aspen Journalism is covering rivers and water in collaboration with the Glenwood Springs Post Independent and The Aspen Times. More at http://www.aspenjournalism.org.

A view of the Salvation Ditch diversion dam and head gate, just of off Stillwater Drive, east of Aspen. Smith / Aspen Journalism
A view of the Salvation Ditch diversion dam and head gate, just of off Stillwater Drive, east of Aspen. Smith / Aspen Journalism

2015 #COleg: Rain Barrels To Be Reconsidered — #Colorado Public Radio

Rain barrel schematic
Rain barrel schematic

From Colorado Public Radio (Nathan Heffel):

After failing to pass the state legislature in 2015, Democratic lawmakers plan to again introduce a bill allowing the use of rain barrels for outdoor irrigation. Its sponsors say Colorado is the only state that outlaws the practice.

Rep. Jessie Danielson, D-Wheat Ridge, says the new bill will look similar to the one that failed last session, but she’s also working with opponents in hopes of better success in 2016.

Ski areas win water fight with feds — The Aspen Times

Photo via Bob Berwyn
Photo via Bob Berwyn

From The Aspen Times (Randy Wyrick):

The latest potential federal water grab may have dried up died Wednesday morning when the Forest Service threw in the towel…

The Forest Service insisted that water rights established on national forest land should be tied to the land, and that the federal government should own those water rights. The Forest Service says the policy is designed to keep ski areas from selling water rights for other purposes.

“By the Forest Service Chief’s own admission, there has not been an instance of ski area water rights being sold off for other uses,” said Rep. Scott Tipton, R-Colo, who represents western Eagle County and the rest of Western Colorado in the U.S. House of Representatives.

Ski areas should use water for skiing, the Forest Service said in publishing its directive Wednesday.

“Because water for snowmaking and other uses is critical to the continuation of ski areas on NFS lands, the Forest Service has a strong interest in addressing the long-term availability of water to operate permitted ski areas, the Forest Service statement said…

DEFEATING THE FEDS

The National Ski Areas Association took the Forest Service to federal court, saying the Forest Service’s policy was an illegal taking, that no federal law gives the Forest Service the authority to take water rights, and the U.S. Supreme Court has ruled repeatedly that water is regulated by the states, said Geraldine Link, public policy director with the National Ski Areas Association.

Because it’s a federal issue, they landed in federal court where the NSAA got an injunction against the Forest Service. The federal judge told the Forest Service to go to back to the drawing board.

The Forest Service entered its Ski Area Water Clause into the federal record Wednesday morning. The directive was expected by the end of the year, and the Forest Service made it with a day and a half to go in 2015.

“We’re happy about this approach. It protects the ski areas in water rights. At the same time it protects the Forest Service’s commitment for winter recreation in the long term,” Link said.

Now, instead of giving water rights to the federal government, ski areas remain at the helm of their water rights for the future, Link said.

“We’re partners with the Forest Service, and together we deliver a recreation package that’s unparalleled in the world,” Link said. “It’s not only good for the Forest Service and ski areas, it’s good for the public.”

HOW ALL THIS STARTED

Oregon rancher Tim Lowry started it all when the BLM tried to curtail his family’s grazing rights. He spent 10 years and $800,000 in legal fees, finally winning a verdict from his state’s Supreme Court. Lowry testified that he had purchased those water rights, and the feds refused to compensate him for them.

Colorado Sen. Michael Bennet called the Forest Service’s directive “balanced.”

“Water is a precious resource on which Colorado’s ski areas rely for economic sustainability and growth. We are lucky to live in a state with world class skiing right in our back yard and we want to keep it that way,” Bennet said.

According to Colorado Ski Country USA, Colorado’s ski industry generates $4.8 billion each year for our economy and supports more than 46,000 year-round equivalent jobs.

From The Denver Post (Jason Blevins):

The U.S. Forest Service will not require ski resorts to transfer water rights to the federal government as a condition of operating on public land. Instead, the agency will require ski areas to prove there is enough water to sustain skiing for the future.

The ski industry applauded the final decision Wednesday, as the agency released its final directive on the issue of water rights at ski areas on federal land.

In 2011, the Forest Service, which oversees 122 ski areas that count 23 million visits a year, proposed a clause in its permitting process that would require ski resorts to transfer water rights to the federal government.

The Forest Service had argued that the clause would assure the water would never be separated from the land. The agency feared that as the value of water rights climbs in the arid West, ski areas might see more economic benefit in selling water rights than in using the water for snowmaking and ski operations. The National Ski Areas Association sued the Forest Service in January 2012 over what it called an illegal taking of private property. In late 2012, a U.S. District Court judge overturned the new water rule and the Forest Service vetted it in a series of public meetings…

“The final directive focuses on sufficiency of water to operate ski area on NFS lands,” reads the directive. “This final directive will promote the long-term sustainability of ski areas on NFS lands by addressing the long-term availability of water to operate ski areas before permit issuance.”

The agency acknowledged how ski resorts in Colorado and New Mexico often spend millions of dollars on water projects. Many Western resorts consider water rights to be business assets.

In an important point raised by the ski resort industry since the water clause was proposed in 2011, the Forest Service acknowledges that water rights, especially in the West, are a matter of state law.

The decision protects ski areas’ investment in water and the Forest Service’s commitment of natural resources to winter recreation, said Geraldine Link, director of public policy at the National Ski Areas Association.

“In the bigger picture, this benefits the recreating public,” Link said. “The goal here is improving the long-term sustainability for ski areas on federal land. This will encourage further investment by ski areas in water resources and that provides stability and certainty for the local communities in which they operate.”

More USFS coverage on Coyote Gulch here.

USFS Final Notice: Ski Areas Water Clause

Copper Mountain snowmaking via ColoradoSki.com
Copper Mountain snowmaking via ColoradoSki.com

In “Prior Appropriation” states like Colorado the USFS is requiring a hydrological analysis of water rights that will be used to operate the ski area under its permit. The analysis must demonstrate adequacy for the needs under the permit. Also, before severing any part of a right dedicated to the permit another hydrological analysis must show that no harm to the needs under the permit. The rule also covers what can be done with a right if the permittee sells the ski area.

They’ve backed off on the transfer of title for rights to the United States.

Click here to read the the permit language in prior appropriation states.

Click here to read US Representative Tipton’s statement:

Today, Congressman Scott Tipton (R-CO) issued this statement in response to the U.S. Forest Service’s publication of the final directive for the Ski Area Water Clause in the federal record.

“The Forest Service’s conditional use of permit for ski areas has been one of the Administration’s most onerous attempts to hijack private water rights. While the latest version of the directive is improved from the original that sought to outright force the transfer of private water rights to the federal government, there still is room for improvement. The latest rendition of this ill-fated directive places unnecessary restrictions on private water rights holders, in an attempt to solve a problem that doesn’t exist. By the Forest Service Chief’s own admission, there has not been an instance of ski area water rights being sold off for other uses. Furthermore, there is still ongoing concern that while the Forest Service may not require the outright transfer of private water rights in this directive, it is still enforcing manuals that do.

“Western water users are right to be wary of any action on water rights by this Administration, which has been dead set on slowly expanding federal control over water in the Western U.S. We continue to work on getting legislative protections in place to codify state water law and defend private water rights users from federal taking and interference as our Water Rights Protection Act seeks to do.”

Despite the Forest Service’s insistence that under the new ski area permit condition it will no longer require the transfer of water rights, Forest Service manual 2441.32 (Possessory Interests), which is currently being enforced, instructs the agency to continue to claim water rights of permittees. It is unclear if or how the Forest Service plans to reconcile the conflicting instructions.

Section 2541.32 of the 2007 Forest Service Water Uses and Development Manual directs:

“Claim possessory interest in water rights in the name of the United States for water uses on National Forest System lands as follows:

“Claim water rights for water used directly by the Forest Service and by the general public on the National Forest System.

“Claim water rights for water used by permittees, contractors, and other authorized users of the National Forest System, to carry out activities related to multiple use objectives. Make these claims if both water use and water development are on the

“National Forest System and one or more of the following situations exists:

a. National Forest management alternatives or efficiency will be limited if another party holds the water right.

b. Forest Service programs or activities will continue after the current permittee, contractors or other authorized user discontinues operations.”

See the full manual HERE.

Tipton has led the charge in Congress to protect private water rights users from federal takings and interference. He is the sponsor of the Water Rights Protection Act, H.R. 1830, which would provide water users with a line of defense from federal attempts, such as the Forest Service Groundwater Management Directive and ski area permit clause, to take private water rights without compensation or restrict user access to them. H.R. 1830 has passed the House in the 113th and 114th Congresses, and has wide support from local, state and national stakeholders including the National Ski Areas Association.

More coverage of the USFS on Coyote Gulch here.

#ColoradoRiver: When Levee Breaks — Are Cracks Showing in Foundation of Western US Water Law? — The National Law Review

Prior appropriation example via Oregon.gov
Prior appropriation example via Oregon.gov

From The National Law Review (Fred E. Breedlove III):

Dwindling surface water supplies [in the Southwest and particularly in the Colorado River Basin] have revealed cracks in the roughly 150 year old bedrock foundation of Western Water Law – the prior appropriation doctrine…

[Prior Appropriation] is a system that has tended to concentrate the ownership of water in historic uses (such as agriculture) at the expense of more recent uses (such as industry and cities). Most states allow these rights to be moved to a different place or type of use (such as industry and cities) through a “sever and transfer” procedure, although this process can be complex and cumbersome.

One hundred fifty years ago, the primary concern being addressed by the law of prior-appropriation was ensuring that the first people to stake mining claims would have enough water to mine…Today, water from a single river system supports countless competing uses on a much grander scale that could not have been anticipated in the 19th century, including mining, agriculture, industrial, municipal/domestic, and environmental. Completely cutting off lower priority water uses on a river to ensure the full allocation of senior right holders’ deliveries are made at the expense of people downstream who depend on that water source for domestic potable uses can seem unfair at the least, dangerous at the worst. On the other hand, it is also unfair to force senior water right holders to give up water rights that they believed were fully protected under the law when deciding to invest in their use of that water. In both cases, there are also significant economic impacts associated with reduced or eliminated water deliveries that should be considered.

The solution to this problem, however, is probably not to completely scrap the aging prior appropriation doctrine. Rather, the doctrine can be salvaged by improving transferability of water rights. Peter Culp, Partner at Squire Patton Boggs (US) LLP, recently co-authored a comprehensive analysis of investment opportunities in the Colorado Basin and explored potential strategies for adapting the prior appropriation doctrine to the 21st century. Those strategies include water sharing agreements, water banking, leases, exchanges, and others.

For example, on the Colorado River, water users have come together voluntarily to address water scarcity in order to avoid the potential catastrophe that could result from a strict enforcement of the prior appropriation doctrine. Back in January of this year, I wrote about how Colorado River water users have agreed to preemptively share the burden of decreased supplies as a result of drought and climate change. The Lower Basin states are taking steps to develop (often through conservation) additional water in Lake Mead in order to stave off a shortage on the river that could have serious economic consequences…

Whether water users like it or not, change is not only coming, change is here. Even if drought ends tomorrow, a rigid system of water rights based on prior appropriation that lacks flexibility for allowing right transfers, water sharing agreements and other arrangements is untenable in the modern world where competing demands with high social and economic value conflict over limited water resources. The current shift to sharing risk and cooperative solutions to water scarcity problems is the way of the future.

Photo from http://trmurf.com/
Photo from http://trmurf.com/