Mired in drought and torched by one of the hottest years ever measured, the seven states of the Colorado River Basin are acutely aware of how a desert can bully water supplies. They are not alone. In this cauldron of collaboration and competing interests is a collection of players who are just as significant for managing and responding to water scarcity but attract much less attention: the basin’s 29 federally recognized Indian tribes.
With the oldest claims to water, the tribes command a considerable role in directing the region’s future. Combined, they hold rights to a substantial portion of the Colorado River’s flow: roughly 20 percent, or 2.9 million acre-feet, which is more water than Arizona’s allocation from the river. The tribal share, moreover, will increase, perhaps by as much as hundreds of thousands of acre-feet as the 13 tribes without confirmed rights settle their claims with federal and state governments.
Years of careful negotiations, spurred by a desire to avoid long-running court battles, produced legal settlements that provide water for tribes, cities, and industries. Beneficial to all sides, the settlements were a catalyst for urban development and a tool for funding Indian water systems. Perhaps more importantly, the settlements are the foundation of a partnership, an inescapable union, between tribes and their neighbors, a union that will grow in importance as water becomes scarcer in the warming and drying American West.
“We’ve developed tremendous and valuable relationships with each other from being in the same room for years,” Kathryn Sorensen, director of the Phoenix water department, told Circle of Blue. “Water is always important and contentious in Arizona. But having relationships helps you have conversations when you want new solutions.”
John Schweizer has spent most of his life raising corn, alfalfa and other crops and about 200 cattle in Otero County, along southeastern Colorado’s Lower Arkansas River. It’s never been easy, but the last 15 years have been particularly tough on the nearly 81-year-old Schweizer and his neighbors. Their corner of the state is drier now than it was during the Dust Bowl. Meanwhile, growing Front Range cities are buying out farms and shifting their irrigation water to residential use — a process called “buy and dry.”
Cities have siphoned more than 100,000 acre-feet of ag water — enough for about 200,000 Colorado homes — from the Arkansas River Basin alone since the 1970s. In neighboring Crowley County, farming has vanished, school-class sizes are half what they were 50 years ago, and tumbleweeds from dried-up fields pile up along fences and block roads. “That’s what they’re stuck with, because there’s no more water,” Schweizer says. “It’s gone forever.”
Schweizer is president of the 35-mile-long Catlin Canal, which irrigates about 18,000 acres of farms. He’s hoping that the trial run of something called the Arkansas Valley Super Ditch will save the basin’s remaining communities and farms. The initiative is not actually a big ditch, but rather a scheme that allows six of the valley’s irrigation canals to pool their water rights and temporarily lease them to cities. Starting in March, five Catlin irrigators “leased” a total of 500 acre-feet of water, which would normally supply their fields, to nearby Fowler and the cities of Fountain and Security, 80 miles away. Under the agreement, communities can use the farm water to supply homes and recharge wells for up to three years out of every decade. During those years, the irrigators will have to fallow, or rest, some fields, yet will still be able to earn money from the water itself and farm the rest of their land.
More Arkansas Valley Super Ditch coverage here and here.
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In Colorado we have prior appropriation, the anti-speculation doctrine, and a long-lived and active water market, that have managed to keep the wolf at bay. Maximizing shareholder value is the wrong goal for the public’s water. Most water in Colorado is provided by local government entities.
Municipal use is a small part of the overall pie but large amounts of water are necessary for agriculture and the environment. You don’t want to squeeze either one too much. We’re not that good at forecasting the consequences of our engineering.
I asked Brad Udall if he thought the Colorado River Basin was in collapse. He said no, even in the worst case we should have 80% yield from the system. He said we have to use the water more wisely.
That is the definition of collapse: There is not enough water to stay status quo in the basin. This is at the same time that the environment requires that we undo some of our damage and share some water.
Click here to read my notes (Tweets) from the conference. (Scroll down to the bottom and read up from there. Tweets are published in reverse-chronological order.)
Pueblo County is angling to become the owner of the most senior water rights on Fountain Creek.
The purchase would be aided by the Fountain Creek Watershed Flood Control and Greenway District, which voted Friday to line up financing for the deal, which is expected to complete by the end of the year.
“I see this as a fascinating project. This meets all the charges the district has: flood control, recreation, restoration and conservation,” Commissioner Terry Hart said. “I love history. I’m thrilled with it.”
The Greenview Trust property, located 8 miles north of Pueblo along Overton Road, is about 360 acres with water rights dating back to 1862. Like other farms on Fountain Creek, it has faced erosion issues for years, and the owners sued the city of Colorado Springs after the 1999 flood over the growth that increased the base flows in the waterway.
Negotiations are still underway for the purchase of the property and details cannot be discussed publicly, Hart said.
“We still have some due diligence issues,” Hart said.
The county has some other water rights, but the Fountain Creek purchase would give it more legal standing on water rights issues as projects develop along Fountain Creek.
The Fountain Creek district board voted 9-0 to line up some of the financing for the possibly $3.72 million project in open session Friday, since public grants and loans are involved.
Collateral for the $1 million loan from the CWCB would be the upcoming payments by Colorado Springs Utilities to the Fountain Creek district under the 1041 permit with Pueblo County. The first payment would come due in early 2017, if the Southern Delivery System goes online by 2016, as expected.
The property could be used for wetlands or for detention facilities that would aid flood control.
Pueblo County intends to put a conservation easement on the property as well because of its historic significance, Hart said.
“This is exactly what we want to be doing as a district,” said Richard Skorman, who sits on the Fountain Creek board.
“The Lower Ark is obviously excited about this,” said Melissa Esquibel, a Lower Ark board member who sits on the Fountain Creek board.
Board member Jane Rhodes, a Fountain Creek landowner, is related to the family which is selling the property.
The measure addresses what some believe to be an antiquated prohibition on collecting and storing rainwater from roofs in Colorado.
“Colorado is the only state where it is illegal to collect and use rainwater,” said Rep. Daneya Esgar, D-Pueblo, who co-sponsored the bill. “I’m glad to see so much bipartisan support for this common-sense bill.”
The measure was amended to allow individuals to keep rain from their roof in up to two 55-gallon rain barrels for use in their garden or on their lawn. The bill started at two rain barrels with a combined storage of 100 gallons, but lawmakers decided to slightly raise the number.
Sponsors pointed out that an estimated 97 percent of water that falls on residential property never ends up in a river or stream system.
But critics say the measure would steal water rights from downstream users. They say water does not belong to someone simply because it fell on a roof. Instead, the water is return flow that someone downstream has a right to, especially if that water is being stored, say critics.
Republican Reps. Don Coram of Montrose and J. Paul Brown of Ignacio both voted against the measure. Coram said the bill serves as a literal slippery slope, suggesting that what starts as roof collection could end in allowing Coloradans to collect rainwater off their entire property.
“We keep nibbling away on the prior appropriation doctrine, and you know you eat an elephant one bite at a time,” Coram said, referring to the system in Colorado in which water rights are granted to the first person to take water from an aquifer or river, despite residential proximity.
“I object more to changing the process,” Coram added.
The bill would also set standards for rain barrels, including mandating screens to filter out debris and insects.
Sponsors estimated that with two 55-gallon barrels, residents cold capture more than 600 gallons of water each year.
Environmental groups praised the bill as another step towards conservation.
“While the amount of water saved is modest, having rain barrels in yards around the state will serve as an important tool to increase Coloradans’ knowledge of our limited rainfall and water supply,” said Pete Maysmith, executive director of Conservation Colorado. “This common-sense step should help people understand the need for smart water conservation policies.”
In the 1894 hit song “Playmate, Come Out and Play With Me,” the rain barrel is forever lodged in our collective consciousness right between the apple tree and cellar door.
But Colorado has waited 121 years since then for the use of rain barrels to become legal.
On Monday, the state House took the first step toward legal rain collection with the passage of HB1259, which would allow collection of up to 110 gallons in two 55-gallon drums. The bill passed 45-20 and now heads to the state Senate.
“Colorado is the only state where it is illegal to collect and use rainwater,” said state Rep. Daneya Esgar, who co-sponsored the legislation. “I’m glad to see so much bipartisan support for this common-sense bill.”
She sponsored the bill after hearing people talk about rainwater collection.
“It makes more sense to collect the water and use it when it’s needed,” Esgar said. “Really, the purpose is to get people to talk about water use and to be conscious of it.”
Colorado’s ban on rain barrels can be traced back to the state constitution and subsequent court cases that prohibit any sort of detention of water upstream from a senior right. It’s the same concept that poses a dilemma when considering flood detention structures.
Has the rain-barrel ban been rigorously enforced?
“Not that I can recall,” said Division 2 Engineer Steve Witte. “I would say it’s been rarely enforced. If people ask, there is a policy on (the Division of Water Resources) website.”
A 2009 state law (SB80) authorized the use of rain barrels in connection with other water rights. Another 2009 bill (HB1129) authorized pilot projects for rainwater harvesting. So far, the proposed Sterling Ranch development in Douglas County has been the only applicant.
HB1259 would allow any single-family residence or multifamily residences with four or fewer units to collect rainwater. Rainwater could only be used on lawns or in gardens, and would not be allowed as drinking water or for any other indoor uses. Barrels also would be required to have a sealable lid.
Opponents of the bill said it opened the door to other forms of capturing water before it reaches downstream users. Supporters argued that 97 percent of the water on residential lots never makes it into the stream system anyway.
If the rain-barrel law passes, homeowners will have a new source of water for that apple tree, while keeping rain from sliding down the cellar door.
FromThe Grand Junction Daily Sentinel (Charles Ashby):
he Colorado Senate gave final approval Tuesday to a water bill that made some Western Slope lawmakers a bit uneasy.
The measure, [SB15-183], requires water court judges, when considering changes in water uses, to decide based on actual historical use of that water, rather than uses not approved by a prior water decree.
Several Western Slope lawmakers from both parties questioned why such a bill would be necessary, saying it allows water rights owners who use water for unapproved purposes to get away with that illegal use.
“We have water courts for a reason,” said Sen. Ellen Roberts, R-Durango. “Water courts are highly trained to deal with technical issues. This bill basically is skipping over the water courts system and coming here to the Legislature to try and get a legislative result, as compared to having it well considered in the court system that, again, is trained to deal with these kinds of things.”
Supporters of the measure said the bill is designed to give direction to water court judges based on a recent Colorado Supreme Court decision in a case between Dick Wolfe, the state’s water engineer, and the Sedalia Water and Sanitation District over the district’s historical use of water.
Rep. Jerry Sonnenberg, R-Sterling and a sponsor of the bill, said it’s the Legislature’s job to give direction to the courts when there is undefined law on an issue.
“The question here is, do we want a consistent use of water, a consistent means of determining what the volume or quantity of that water is, as the Supreme Court did in the Sedalia case?” Sonnenberg said. “That’s what we’re trying to do, is clarify what they have asked us (about) what should and should not be used in quantifying a water right in a change of use.”
Sen. Kerry Donovan, D-Vail, said the bill rewards water users who use that water for unapproved uses.
The bill has support from virtually every water group in the state except the Colorado River Water Conservation District.
In the end, only eight senators voted against the bill, including Donovan, Roberts and Sens. Ray Scott, R-Grand Junction, and Randy Baumgardner, a Hot Sulphur Springs Republican whose district includes Garfield County. It now heads to the House for more hearings.
In a related matter, the House approved a water bill Tuesday that allows the Colorado Water Conservation Board to acquire water rights for up to 12 pilot projects to measure efficiency savings for instream flow use.
The pilot projects would take at least 10 years to complete.
Greg Hobbs at the Colorado Water Congress January 2012
Colorado Columbine photo via Greg Hobbs
Hobbs’ family hike
Flood irrigation in the Arkansas Valley via Greg Hobbs
David Robbins and J.C. Ulrich (Greg Hobbs) at the 2013 Colorado Water Congress Annual Convention
Greg Hobbs, Dick Bratton, Jim Pokrandt
Peter McBride and Greg Hobbs at CFWE Colorado Water 2012 event
Greg Hobbs, Diane Hoppe
Greg Hobbs and Coyote Gulch at Colorado College State of the Rockies Speaker Series 2011
Bents Fort photo via Greg Hobbs
Will Hobbs, Greg Hobbs, Dan Hobbs, and a string of fish for dinner, Mary Alice Lake, Weminuche Wilderness, 1986 via Greg Hobbs
Justice Hobbs is a friend of Coyote Gulch. Over the years I’ve published a small portion of his poems including photo poems that he’s written in the recent past. On the occasions where I’ve had an opportunity to talk with him at some length I’ve learned the depth of his life experience — he has travelled, written, and learned about the world around him due to his curious nature and love of knowledge. His love of family also shows up in conversations.
One of my favorite Hobbs’ poems :
To each of us
The land, the air, the water,
Mountain, canyon, mesa, plain,
Lightning bolts, clear days with no rain,
At the source of all thirst,
At the source of all thirst-quenching hope,
At the root and core of time and no-time,
The Great Divide Community
Stands astride the backbone of the continent,
Gathering, draining, reflecting, sending forth
A flow so powerful it seeps rhythmically
Alive to each of us,
To drink, to swim, to grow corn ears
To listen to our children float the streams
Of their own magnificence,
Out of their seeping dreams,
Out of their useful silliness,
Out of their source-mouths
High and pure,
The Great Divide,
You and I, all that lives
And floats and flies and passes through
All we know of why.
Reprinted, with permission, from Colorado Mother of Rivers, Water Poems by Justice Greg Hobbs
Another poem that Greg sent in the wee hours of the morning after we all learned of Ed Quillen’s passing:
Hurrah for Quillen!
Curmudgeon Wit gloried in the
great First Amendment.
Reprinted, with permission.
Here’s an article about his retirement from Mark Harden writing for the Denver Business Journal:
Gregory J. Hobbs Jr., a Colorado Supreme Court justice known as an expert on water and environmental law, will retire Aug. 31 after more than 19 years on the high court, the court announced Thursday.
Greg Hobbs was appointed to the court in April 1996 by Gov. Roy Romer and has twice been retained for 10-year terms by the state’s voters.
He previously practiced law for 23 years, focusing on water, environment, land use and transportation.
In 2007, Hobbs was named by then-Supreme Court Chief Justice Mary Mullarkey to lead a committee to review the state’s water-court system.
In 1997, Hobbs wrote a key Supreme Court ruling in a case over the way in which Denver Water figured its rates, brought by suburban water districts. The decision said Denver Water has the authority to set rates however it likes, but warned that the utility can’t “abuse its authority” to “reap monopoly profits.”
Hobbs is a former senior partner with Hobbs, Trout & Raley PC, and partner with Davis Graham & Stubbs LLP. He also previously served as first assistant Colorado attorney general with the Natural Resources Section and as an enforcement attorney with the U.S. Environmental Protection Agency.
Hobbs — a native of Gainesville, Florida — also has written poetry, collected in the 2005 book “Colorado, Mother of Rivers: Water Poems”; formerly taught environmental law at the University of Denver; and once was a sixth-grade teacher in New York City.
Thanks for your friendship Greg and good luck to you in retirement.
More Coyote Gulch posts that reference the Justice here and here
On Apr. 10, the DU Water Law Review Annual Symposium will honor the career and contributions of Justice Greg… http://t.co/jY4YFgwnbF