Writers on the Range: Can leasing irrigation water keep Colorado farms alive?

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Denver Post (Joshua Zaffos):

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,” [John 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.

Supporters believe the Super Ditch could eventually enable farms and cities to share up to 10,000 acre-feet of water. “We look at leasing water just like raising a crop,” says Schweizer, who is avoiding any potential conflict of interest by keeping his own farm out of the pilot. “It is a source of income, and anybody who’s doing that can have the water next year if they want to farm with it. And they are still in the valley, so the community stays viable.”

More Arkansas Valley Super Ditch coverage here.

Landowner challenges state’s interpretation of old decree — The Pueblo Chieftain

Fountain Creek Watershed
Fountain Creek Watershed

From The Pueblo Chieftain (Chris Woodka):

A Fountain Creek landowner has filed a complaint in Pueblo water court saying he has a right to the Fountain Creek underflow, as well as surface water.

Ralph “Wil” Williams, trustee of the Greenview Trust, filed the complaint in June, saying the state has incorrectly administered the water right to the 313-acre farm as solely surface water.

The property, located 8 miles north of Pueblo on Fountain Creek is emblematic of man’s interaction with Fountain Creek throughout recorded history. It was first settled by “Uncle Dick” Wooten in 1862 and has always been in farmland.

In the 1990s, it began to experience severe erosion from growth upstream, particularly the development in Colorado Springs.

Problems with the ditch came to a head after the 1999 flood, leading the owners to sue Colorado Springs for dumping more water in the creek, only to be locked out when the Legislature granted governmental immunity for flood damages.

In the most recent floods of the past five years, the Greenview has continued to lose land, including about 10 acres of trees to the storms in May and June.

“We’re trying to conserve the farm,” Williams said. Pueblo County, through a program in conjunction with the Fountain Creek Watershed Flood Control and Greenway District, is interested in purchasing the property as a restoration project.

The water rights are crucial to determining land value, Pueblo County Commissioner Terry Hart said.

“We weren’t successful in a Great Outdoors Colorado grant this cycle, and one of the things we have to do is shore up the land and water value,” Hart said.

Williams contends that past owners always intended to use the underflow of Fountain Creek as an alternate source to irrigate 315 acres of the property. Fountain Creek had intermittent flows, so the underflow would have been used during dry times when surface water could not be diverted, he claims.

Other water users employed the strategy in the early 1900s, when well technology was more limited. Most famously, the Ball brothers — who found success in the canning jar and aerospace industries — used the underflow of Fountain Creek to fill reservoirs in hopes of selling the water to Puebloans. The quality was unsuitable for drinking, however.

In preparing for the water court case, Williams collected old plats that show the location of underflow structures, basically horizontal wells that draw water by gravity.

The Colorado Division of Water Resources does not recognize the dual water right, and says Greenview Trust needs a substitute water supply plan if it plans to irrigate with wells.

“It’s based on an old statement that was not picked up in the decree itself,” said Division 2 Engineer Steve Witte. “It appears to us that there never was the intention to have a well.”

Williams disagrees, saying he spent two years collecting information in state files that he was initially told did not exist. “For me to have to spend two years researching the archives is ridiculous,” Williams said. “We are decreed against the source and the underflow. It’s one natural stream.”

More Fountain Creek coverage here.

State water board rules against Glenwood’s proposed whitewater rights — Aspen Journalism #ColoradoRiver

Upstream view of the Colorado River at the mouth of the Roaring fork River
Upstream view of the Colorado River at the mouth of the Roaring fork River

From Aspen Journalism (Brent Gardner-Smith):

IGNACIO — The ongoing effort by the city of Glenwood Springs to establish a new water right for three potential whitewater parks on the Colorado River was dealt a setback Thursday by the directors of the Colorado Water Conservation Board.

The CWCB board voted 8-to-1 to adopt staff “findings of fact” that the proposed water rights for a “recreational in-channel diversion,” or RICD, would “impair Colorado’s ability to fully develop its compact entitlements” and would not promote “the maximum beneficial use of water” in the state.

James Eklund, the director of the CWCB, and a nonvoting board member, was asked after the meeting what he would tell a kayaker in Glenwood about the board’s vote on Thursday.

“These are complicated issues,” Eklund said. “The CWCB values recreational water projects and takes very seriously its charge to strike a balance among recreational, environmental and consumptive uses. The proponent’s data and analysis weren’t able to demonstrate that the RICD as proposed struck this balance to the satisfaction of the CWCB.”

The CWCB board is required by state law to review all applications made in water courts for new recreational water rights, and to make a determination if the water right would prevent the state from developing all the water it legally can.

Colorado’s “compact entitlements” stem from the 1922 Colorado River Compact, which requires seven Western states to share water from the larger Colorado River basin.

The compact requires that an unspecified amount of water be divided between Colorado, Utah and Wyoming, and estimates of the amount of water Colorado can still develop under the compact range from zero to 400,000 acre-feet to 1.5 million acre-feet.

Mark Hamilton, an attorney with Holland and Hart representing Glenwood, told the CWCB board members Thursday that there would be “no material impairment” to the state’s ability to develop new water supplies.

“If the issue really is what’s the additional upstream development potential, we would point out that significant upstream development can still occur,” Hamilton said.

Hamilton also said that the recreational water right would be non-consumptive, meaning the water would stay in the river and simply flow over u-shaped, wave-producing concrete forms embedded into the riverbed.

Glenwood is seeking the right to call for 1,250 cubic feet per second of water to be delivered to three whitewater parks at No Name, Horseshoe Bend and Two Rivers Park, from April 1 to Sept. 30.

It also wants the right to call for 2,500 cfs for up to 46 days between April 30 and July 23, and to call for 4,000 cfs on five consecutive days sometime between May 11 and July 6 in order to host a whitewater competition.

Aurora and Colorado Springs, together as partners in the Homestake transmountain diversion project, are opposing Glenwood’s water rights application, which was filed in December 2013.

“We do not oppose reasonable RICDs, but we believe this RICD claim is extraordinary by any measure,” Joseph Stibrich, the water resources policy manager for the city of Aurora, told the CWCB board, which was meeting in Ignacio on the Southern Ute Indian Reservation.

“We believe that a water claim of over 581,000 acre feet will seriously impair full development of Colorado’s compact entitlement,” Stibrich said. “This claim will severely impact the state of Colorado’s ability to meet its future water needs.”

Stibrich also said “this RICD is going to shift the burden of water supply development to meet the future needs of the state to the Yampa, to the Gunnison, and to the Rio Grande basins, while promoting further dry-up of irrigated lands throughout the state.”

Denver Water is also opposing Glenwood’s water rights application.

As part of the Colorado River Cooperative Agreement, Denver Water agreed not to oppose a RICD application from Glenwood, but only if Glenwood did not seek a flow greater than 1,250 cubic feet per second, which is the same size as the senior water right tied to the Shoshone hydropower plant.

Casey Funk, an attorney with Denver Water, said the utility stands by its agreement, but since Glenwood has asked for more than 1,250 cfs, it is opposing the city’s water court application. However, Funk said Denver Water is willing to keep negotiating with Glenwood.

The city made the case on Thursday that it was asking for more than 1,250 cfs on only 46 days between April and September, and it was doing so because the stretch of the Colorado from Grizzly to Two Rivers Park was more fun to float at 2,500 cfs than 1,250 cfs.

According to testimony Thursday, Glenwood also offered to include a “carve-out” in its water right to allow for 20,000 acre-feet of water to be diverted, stored and transported upstream of the proposed whitewater parks at some point in the future.

But that did not do much to sway the concerns of the CWCB staff.

“Staff is concerned with this provision, as it does not include water rights for transmountain diversions,” stated a July 15 memo to the CWCB board from Ted Kowalski and Suzanne Sellers of the CWCB’s Interstate, Federal & Water Information Section.

The CWCB staff memo also found that Glenwood’s recreational water rights would “exacerbate the call on the river and materially impact the ability of the state to fully use its compact entitlements because the RICDs will pull a substantial amount of water downstream.”

Peter Fleming, the general counsel for the Colorado River District, suggested the CWCB board give the parties in the case more time to continue negotiating before it ruled on its staffs’ findings.

The River District, which is also a party to Glenwood’s water court case, represents 15 counties on the Western Slope.

“We think that compact issues are effectively done,” Fleming told the board about Glenwood’s application. “We believe there is sufficient water above the RICD to develop.”

But the CWCB board did not take Fleming’s suggestion, and after relatively little debate and discussion, a motion was made to accept the staff’s findings that Glenwood’s RICD failed two of the three criteria the CWCB board was supposed to rule on.

“I think it is really unfortunate that the board took the approach they did,” said Nathan Fey, the Colorado stewardship director for American Whitewater, after the board’s decision against Glenwood.

American Whitewater and Western Resource Advocates are both parties in the water court case, and they are supporting Glenwood’s application.

“It is unclear what evidence the staff presented that shows it is of material impairment to developing our water, or maximizing use of the state’s water,” Fey said. “Those are significant concerns, but I don’t think the state made a very strong case on those points. And it sounds like we would prefer to see another transmountain diversion and some future use on the Front Range, rather than protect the current river uses we have in our communities, like Glenwood Springs, now.”

The board’s finding will now be sent to the Division 5 Water Court in Glenwood Springs, where the city filed its water rights application and the process is still unfolding.

And while the CWCB board’s determination is not binding on a water court judge, it has to be considered by the court as part of the ongoing case.

But Hamilton, Glenwood’s attorney, said after the meeting that the court would also need to consider additional balancing information presented by Glenwood.

It could be an uphill journey for Glenwood, though, as the CWCB staff has also been directed by the CWCB board to remain a party in the water court case and to defend its “findings of fact,” which includes more issues than were considered by the CWCB on Thursday.

Given the board’s vote on Thursday, Stibrich of Aurora said settlement discussions with Glenwood Springs are now likely.

“I’m certain they will make overtures to us and we’ll talk,” Stibrich said. “We’ll see if something can be reached or not.”

Editor’s note: Aspen Journalism is collaborating with the Glenwood Springs Post Independent and The Aspen Times on coverage of rivers and water. The Post Independent published this story online on July 16, 2015.

More whitewater coverage here.

City of Glenwood Springs proposed whitewater parks via Aspen Journalism
City of Glenwood Springs proposed whitewater parks via Aspen Journalism

Pueblo Board of Water Works hopes to get a substitute water supply plan for the Riverwalk

Historic Arkansas Riverwalk via TravelPueblo.com
Historic Arkansas Riverwalk via TravelPueblo.com

From The Pueblo Chieftain (Chris Woodka):

The Pueblo Board of Water Works has filed a substitute water supply plan with the Colorado Division of Water Resources in order to supply water to the Historic Arkansas Riverwalk of Pueblo.

The plan is to replace water to HARP that is now being diverted by Black Hills Energy, which supplied HARP through a tailwater right, according to Bill Paddock, attorney for Pueblo Water.

Black Hills is planning on tearing down old Stations 5 & 6, the Downtown power plant, which would throw the diversion into question.

Pueblo Water has a 1993 water right for 30 cubic feet per second which provides the base flow for HARP. It is planning to supply another up to 90 cfs next year in order to prevent weeds and algae from growing and to maintain water quality.

Pueblo Water plans to use its fully consumable water rights, mainly those from transmountain diversions, but including some in-basin rights that have been converted, to supply HARP.

Documents in the case were filed Wednesday and are subject to comments from other water users who might be injured.

HARP water is diverted just upstream of the Downtown Whitewater Park near the East Fourth Street bridge. The intake became a matter of concern during discussions of the Pueblo Conservancy District in May regarding reconstruction of the levee through the area.

More Pueblo Board of Water Works coverage here.

Can we retire “Water flows uphill toward money”? — John Fleck

Squeezing money
Squeezing money

From InkStain (John Fleck):

I’ve come to the conclusion that the whole “water flows uphill toward money” thing is not only wrong, but that its wrongness is problematic.

It’s one of those intellectual shortcuts that can be dashed off uncritically, and audiences nod knowingly because of course water flows uphill toward money we all know that, and no further analysis is needed. Sometimes this is right. But across a huge range of water allocation decision making, it is utterly wrong. While “water sometimes flows uphill toward money, while at other times it doesn’t, and we should think carefully about why it is or isn’t the case here” might be more analytically useful, it lacks the rhetorical punch.

Why is this?

Rules. We have water allocation rules that frequently create barriers that make it difficult, if not impossible, to move water, even if the move might be hydrologically possible. I’m not arguing here that this is good or bad. I’m merely trying to point out that “water flows uphill to money” is a myth, and that it gets in the way of sane water policy conversations.

More water law coverage here.

The Arkansas Basin Roundtable ponies up $10,000 for WISE project

wise_SimpleFromDenverWater

From The Pueblo Chieftain (Chris Woodka):

It didn’t quite amount to paying northern cities to stay out of the Arkansas River basin…but it could help.

The Arkansas Basin Roundtable Wednesday agreed to chip in $10,000 to a multimillion-dollar project by the Water Infrastructure and Supply Efficiency partnership, but only if Aurora promises not to use it to create an artificial trigger for more leases from the Arkansas River basin.

The money is just a show of support for a $6.4 million component that would get the right mix of water into a pipeline that connects Aurora’s $800 million Prairie Waters Project with a $120 million pipeline south of Denver to meet the future needs of 14 water providers who are members of the South Metro Water Authority.

Seven of the state’s nine roundtables, including the Colorado River basin, have contributed $85,000 to the project. Two roundtables are set to act on requests for $20,000 in the next two months, and another $800,000 is being sought from a state fund. WISE is ponying up $5.5 million.

The Colorado Water Conservation Board will be asked to approve the grants in September.

WISE would deliver up to 10,000 acre-feet annually of reused water primarily brought into the South Platte River basin by Denver and Aurora. Its backbone would be nearly $1 billion in existing infrastructure.

The $6.4 million would be for a treatment plant that would blend Prairie Waters and well water in the East Cherry Creek Village pipeline. That would relieve demand on Denver Aquifer groundwater and the need for cities to buy farm water — including Arkansas Valley water — said Eric Hecox, executive director of the South Metro group.

“In the big scheme of things, this is important because it meets a need in a big gap area,” Hecox said.

The proposal caused unease for water conservancy districts which have agreements with Aurora, however.

“The city of Aurora transfers water out of the Arkansas basin,” said Terry Scanga, general manager of the Upper Arkansas Water Conservancy District. “This project increases demand on Aurora’s supplies. I’m not OK with this unless there is some sort of amendment that says if (a storage shortfall) is triggered, they won’t come back into the basin.”

Aurora signed agreements with the Upper Ark, Southeastern and Lower Ark districts over the past 12 years that limit new leases from the Arkansas Valley. There are numerous requirements of how Aurora uses and stores water that factor into a complex equation.

The roundtable agreed that the benefits of reducing demand on the Denver Basin aquifer in northern El Paso County would help the Arkansas Valley. The WISE project would also slow, but not necessarily stop, future water raids in the Arkansas Valley.

Jay Winner, general manager of the Lower Ark district, asked Hecox about South Metro’s 2006 master plan that included future Arkansas River projects as options. Hecox said a new master plan is being developed that does not contain those projects.

“So you can come into the Arkansas basin?” Winner asked.

“Legally, yes,” Hecox replied. “But we have no plans to.”

In the end, the roundtable endorsed the $10,000 token support, but only on the condition that Aurora formally assures the three districts and the roundtable that WISE won’t be used as an excuse to take more Arkansas River water.

More WISE project coverage here.

“Coloradans like a good story” — Justice Gregory Hobbs

Greg Hobbs at the 2015 Martz Summer Conference (of course there is a projected image of a map -- this one was the division of Colorado into water divisions by major basin, heeding the advice of John Wesley Powell)
Greg Hobbs at the 2015 Martz Summer Conference (of course there is a projected image of a map — this one was the division of Colorado into water divisions by major basin, heeding the advice of John Wesley Powell)

Here’s a long article about Greg from Marianne Goodland writing for the The Colorado Statesman. Click through and read the whole thing, here’s an excerpt:

When Gov. Roy Romer decided to appoint Hobbs to the state’s highest court in 1996, it was the realization of a career-long goal for the attorney. But Hobbs jokes a little about the day he learned he would be Romer’s pick.

He met with Romer, who had a tall stack of recommendation letters on his desk. Hobbs was one of three nominees for the Supreme Court vacancy, and would be among the seven justices Romer appointed during his 12 years in office.

When Romer asked Hobbs why he should appoint him to the Court, Hobbs says he replied that he holds the institutional knowledge of the various panels that work on natural resources issues. He’d drafted bills for the Legislature, and he’d worked with citizens’ boards and commissions, where he had to work collegially. That’s what Romer wanted: someone who knew how to get along with what was then a fractious group.

“You’re a flawed candidate,” Romer joked with Hobbs, referring to the stack of recommendations. Among those letters were commendations from Jim Martin, now at the Beatty & Wozniak firm and a former director of the Colorado Department of Natural Resources. Hobbs worked with Martin when Martin was on the staff of Sen. Tim Wirth, collaborating on a landmark 1993 wilderness bill. Romer waved Martin’s letter at Hobbs. “That’s the one,” the governor said.

Even with that support, though, Hobbs recalls that environmentalists were a little concerned about his nomination, given some of his past clients. “I’m not saying he exercised a freebie on me, but he put me on my guard,” Hobbs said.

And then the governor asked for two other things: “Don’t put any poetry in your opinions,” as some judges are fond of doing. (Hobbs, a published poet, agreed). Second, Romer said, “Go home and get a tie. A real tie.” (Hobbs usually wears a bolo.)[…]

Asked where his abiding interest in water comes from, Hobbs says, simply, “Luck.”

The Environmental Protection Agency and a host of federal air and water quality laws were in their infancy while he was in law school. “I got in on the ground floor of the environmental decade,” he said.

After San Francisco, Colorado beckoned again, and Hobbs wound up at the EPA, working on air quality issues for three states. What he learned from that experience, he said, was that the “front-line attorneys” on the air quality issues worked in the attorney general’s office. The action for a young attorney was with the attorney general, he said.

That’s where he headed next. The department was in the midst of a big reorganization. Prior to 1975, attorneys for each state agency were based within their agencies. The reorganization brought all the attorneys into the attorney general’s office, and Hobbs was asked to take on the natural resources area, including water quality, water rights, and air quality issues…

After serving at the attorney general’s office, Hobbs’ career as the water law expert got its next big push when he joined Davis, Graham and Stubbs in 1979. His biggest client was the Northern Colorado Water Conservancy District, the largest water district in the state. “I never expected to be working for a public entity,” he said. “How could you want for a better water client?”[…]

His first mentor on the high court was Chief Justice Anthony Vollack. “I really lucked out with that,” Hobbs said. Vollack, a former state senator, and a former “member of the club,” was an expert on getting what he wanted from the General Assembly…

He explained the process for voting on a case. Nothing is voted on until all seven justices are ready to vote. Hobbs said if a justice isn’t ready, and needs more time for thinking, writing and forging the best opinion, that justice can ask for a “pass,” and the vote is delayed.

“I‘ve always tried to write for 7-0 but I’m satisfied with 4-3,” he said with a smile.

What stands out on cases? How hard it is, Hobbs said. It’s the avalanche of reading, the travails of writing to expert colleagues, and vetting the writing with the law clerks.

“We think we have a good draft, propose it and six other people have something they want you to consider,” he said, laughing. “We all see it a little bit differently. We’re working with language. Words are the coin of the realm.”

Hobbs, ever the teacher, said good opinions are written in an active voice. “If you can’t take the rule of law and put it in active sentence how can you expect the General Assembly and the clients or lawyers to understand it?”

Every justice writes in every field, Hobbs said. He stands out on water law because he’s practiced it and knows the nuances. “I write more in-depth when I’m writing an opinion. When you write in someone else’s expert field, like criminal law, you tend to be a little more tentative. You have more resonance in a majority opinion if it’s a field you’ve practiced in.”[…]

“My maturation as a justice came in writing water opinions,” Hobbs said. One of the biggest opinions was the Fort Lyons case, which involved 100 miles of canal, and an investor group that bought one-third of the shares of the canal. They went to the water court for a change of use order, but without specifying what the new use would be. “We rediscovered [through that case] that Colorado water law is anti-speculation,” Hobbs noted…

Hobbs, ever the teacher, said it’s no accident that Colorado’s borders form a trapezoid. It was a decision by the Union Congress during the Civil War to make sure the whole of the Continental Divide, and the four major rivers, was in one state. It served as a barrier against the Confederacy and against Kansas, a pro-Confederacy state. Colorado’s borders ended the wagon train routes for the Confederacy to Colorado’s mineral riches, especially gold, Hobbs said.

What’s next for Hobbs? He said he’s talking with the University of Denver and Colorado States University about teaching advanced seminars in water law.

He also hopes to be more involved with the statewide water plan, which released its second draft earlier this week. Hobbs, a member of the education committee for the plan, wants to work on educational outreach…

What he finds interesting these days: in addition to his duties as a Supreme Court Justice, Hobbs serves as vice-president of the Colorado Foundation for Water Education, working on the Foundation’s quarterly magazine, Headwaters. It’s been a unique situation, Hobbs said, to be able to teach and write in that way under the judicial canon of ethics.

If you walk around the first floor of the Ralph L. Carr Justice Center with Hobbs, you’ll see another sign of his passion for education, an interactive display with state-of-the-art tools to teach children of all ages about the law. Hobbs delights in showing off the education area, pointing out his favorite sections, asking what visitors know about important decisions in Colorado law. He does all of this with a twinkle in his eye, clearly enjoying the experience of sharing his knowledge.

“There’s always something interesting to do, like working on educational outreach for the water plan, if I can help,” Hobbs said. “Coloradans like a good story.”

Coyote Gulch posts referencing Hobbs here and here.