Native Americans hold 20 percent of the [#ColoradoRiver] basin’s water rights — Circle of Blue

July 5, 2015

northamericanindianregionallosses1850thru1890

From Circle of Blue (Brett Walton):

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.”

More Colorado River Basin coverage here.


The Colorado Supreme Court upholds water court groundwater Sub-district #1 operating plan decision

July 4, 2015
San Luis Valley Groundwater

San Luis Valley Groundwater

From The Pueblo Chieftain (Matt Hildner):

The Colorado Supreme Court turned back four challenges Monday from San Luis Valley surface water users who objected to the operations of a groundwater management subdistrict.

The court’s opinion written by Justice Monica Marquez upheld rulings from the Water Division No. 3 Court in 2012 and 2013 that, among other points, allowed Subdistrict No. 1 to use groundwater from a federal reclamation project to mitigate the impacts of groundwater pumping.

In 2012, the subdistrict, which takes in 3,400 wells in the north-central valley, issued its first annual plan on the steps it would take to eliminate injury to senior surface water users and restore the aquifer.

The plan, which was approved by the Office of the State Engineer and the local water court, included the proposed use of 2,500 acre-feet from the Closed Basin Project as a source of replacement water. Objectors argued that the project itself caused injury to users along the Rio Grande, because the groundwater it draws from is tributary to the river and any withdrawals in the overappropriated basin is presumed to cause injury.

The state Supreme Court ruled against that argument, noting that objectors offered no proof that the project’s water was tributary to the Rio Grande.

Further, the court found that the use of project water did not violate its initial decree, nor interfere with the state’s ability to meet its obligations under the Rio Grande Compact.

The court also ruled that the subdistrict’s annual plan to replace injurious depletions did not have to be set aside pending the resolution of objections.

Moreover, its handling of augmentation wells in the annual replacement plan was legal.

Objectors included the San Antonio, Los Pinos and Conejos River Acequia Preservation Association, Save Our Senior Water Rights, Richard Ramstetter and the Costilla Ditch Co.

More San Luis Valley groundwater coverage here.


Arkansas Valley Super Ditch update: Slow slog to 500 acre-feet delivered

July 3, 2015
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The High Country News (Joshua Zaffos):

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.


Colorado Supreme Court rules against private streams — Aspen Journalism

July 1, 2015
Spring Creek (RFC Ditch) Roaring Fork River via Aspen Journalism

Spring Creek (RFC Ditch) Roaring Fork River via Aspen Journalism

From Aspen Journalism (Brent Gardner-Smith):

The Colorado Supreme Court ruled on June 29 that the Roaring Fork Club in Basalt is not entitled to new “aesthetic, recreation and piscatorial (fishing)” water rights for a private fly-fishing stream the club created in an existing irrigation ditch.

“The club failed to demonstrate an intent to apply the amount of water for
which it sought a decree to any ‘beneficial use,’ as contemplated by either the constitution or statutes of the jurisdiction,” the court’s decision stated.

The court also found that “the club’s proposed ‘uses’ of the water in question, as expressed in its application, cannot be beneficial within the meaning of the Act because the only purpose they are offered to serve is the subjective enjoyment of the Club’s private guests,” the decision states.

“The flow of water necessary to efficiently produce beauty, excitement, or fun cannot even conceptually be quantified, and therefore where these kinds of subjective experiences are recognized by the legislature to be valuable, it has specifically provided for their public enjoyment, scientific administration, and careful measurement,” the court found.

The court, however, did side with the Roaring Fork Club in a related dispute with its downstream neighbor Reno Cerise, who is a partner in St. Jude’s Co. In its decision, the court rejected claims from St. Jude’s over access to and management of the irrigation ditch in question, and the court awarded the club attorney’s fees in that aspect of the case.

But a majority of the justices on the court said a prior water rights decree issued to the club in 2013 by the water court in Glenwood Springs was now invalid because the water was not being put to a lawfully recognized beneficial use, which is a keystone of Colorado water law.

In a brief against the club’s arguments, attorneys for the Colorado Dept. of Natural Resources told the court it had concerns that using irrigation ditches for private aesthetic purposes could dewater long stretches of streams and rivers.

“Without established limits, such uses can result in complete depletions of stream reaches for unlimited distances to the detriment of the stream reach and its public aesthetic and piscatorial benefits, maximum utilization, and compact development,” the brief from the Dept. of Natural Resources stated.

As it stands now, the decision “effectively prohibits any future direct flow rights to divert water from the stream for aesthetic, recreation or piscatorial (fishery) purposes,” according to Peter Fleming, the general counsel for the Colorado River District, which filed a brief supportive of the club’s case.

Fleming, in an interview, said that while the court’s decision did strip the club of its decree for such uses, it did not apply to other existing water right decrees.

springcreekrfcditchroaringforkaspenjournalism

Origins of the case

In 2007 the club applied to divisional water court in Glenwood Springs for formal recognition of a right to divert 21 cubic feet per second from the Roaring Fork River into an existing irrigation ditch for “aesthetic, recreation and piscatorial uses.”

The application for new water rights were in addition to the club’s existing water rights on the ditch, which include an irrigation right.

In its application, the club told the water court that in 1997 it had improved an irrigation ditch – the RFC Ditch – which is 14-to-25 feet wide and can move up to 45 cubic feet per second (cfs) of water.

And it said it was now using the ditch, which it dubbed “Spring Creek,” as an “aesthetic and recreational amenity to a golf-course development, as well as for fish habitat and as a private fly-fishing stream.”

On its website, the Roaring Fork Club states that “fishing around the Club property includes private access to eight stocked ponds, a one-mile stretch along the acclaimed Roaring Fork River and the one-mile long ‘Spring Creek’, an offshoot of the Fork that flows through the golf course.”

The club straddles 383 acres on either side of the Roaring Fork River just upvalley of downtown Basalt. It has about 550 members and includes 40 privately owned cabins.

“The club’s fishing, non-fishing, golfing and other members and visitors enjoy the scenic beauty that is Spring Creek, as the visual backdrop of the water feature and the sound of higher flowing water combine to create a unique experience for members, cabin owners and guests alike,” wrote an attorney for the club, Scott Miller, of the Basalt law firm of Patrick, Miller and Noto, in a recent supplemental brief to the court.

Miller’s brief also notes that the irrigation ditch, now a private fly-fishing stream, includes “pools, riffles, drop structures, and spawning beds, all of which enhance the overall aquatic habitat and cold water trout fishery in Spring Creek, and which require flowing water.”

Miller could not be reached for comment on the court’s decision.

But in 2013 St. Jude’s, which also uses the RFC Ditch to receive water downstream of the club, appealed the water court’s issuance of a decree to the club for aesthetic uses to the Colorado Supreme Court, which directly hears appeals from divisional water courts around the state.

“Recognition of aesthetics as a beneficial use would effectively function as a policy decision that the visual enhancement of private property is more important than any uses of junior upstream appropriators, and also more important than maintaining streamflow in the natural stream,” St. Jude Co.’s attorney, Gregory Cucarola of Sterling, argued in a recent brief to the Supreme Court.

After review, seven of the justices on the Supreme Court sided with St. Jude’s, at least as far as its water rights arguments went.

“The water court’s judgment decreeing the club’s new appropriative rights must therefore be reversed, and the decree for aesthetic, recreation and piscatorial uses vacated,” the court ruled.

Aerial view of the Roaring Fork Club (exhibit at trial) via Aspen Journalism

Aerial view of the Roaring Fork Club (exhibit at trial) via Aspen Journalism

A variety of views

Two justices issued a dissenting opinion in the case.

“The value that Spring Creek creates, as well as the ability to determine the amount of water needed to achieve its purposes, suggests that aesthetic, recreational, and piscatorial uses satisfy the ‘beneficial use’ requirement,” the dissenting opinion stated. “So, is such a flow-through feature “tantamount to a ‘forbidden riparian right,’” as the majority asserts? I think not.”

The dissenting opinion was written by Justice Monica M. Marquez, who was joined by Justice William W. Hood, III.

The Colorado River District released a statement about the court’s decision, after an inquiry from Aspen Journalism, from Peter Fleming, the district’s general counsel.

“The River District is disappointed in the Colorado Supreme Court’s decision in the St. Jude’s Co. v. Roaring Fork Club case that effectively prohibits any future direct flow rights to divert water from the stream for aesthetic, recreation or piscatorial (fishery) purposes,” Fleming said in an email.

“The majority opinion mistakenly characterizes recreational and fishery uses as purely ‘passive’ uses of water. Perhaps more importantly, the opinion creates an entirely new requirement that a water right is valid only if the intended use is achieved through an ‘objectively-active’ means of production.

“As noted in the Court’s dissenting opinion, the majority opinion ‘abolishes a well-established practice of the water courts in granting applications for [aesthetic, recreational, and piscatorial flow-through water rights].’

“Many existing West Slope landowners have invested in such features – a practice that has little or no impact on Colorado’s consumptive use of its Colorado River Compact entitlement,” Fleming said. “The decision will adversely impact the future ability of private land-owners to increase the value of their property through the construction of water features.”

The “ranch owners”

Also filing a joint amicus brief in the St. Jude’s case – in support of the private club – were Roaring Fork Homeowners Association, Inc., Thomas Bailey, Galloway, Inc., Jackson-Shaw/Taylor River Ranch, LLC, Crystal Creek Homeowners Association, Inc., Charles E. Nearburg and Catamount Development, Inc., and the Flyfisher Group, LLC.

The self-described “ranch owners” told the court that together they own 27,000 acres of land in Colorado.

They argued in their brief that “private use of water” actually benefits the public.

“Private use of water for piscatorial and aesthetic purposes benefits the public and the appropriator,” the “ranch owners” brief states. “As noted above, the economy of western Colorado is changing. More and more ranches are being purchased not just for traditional ranching uses, but also for their aesthetics and fish and wildlife values.

“The resulting increase in land values significantly increases the tax base of local governments and the overall health of local economies. Moreover, it is well established in the scientific literature that ditches and man-made streams operated for fishery purposes benefit not just these off channel structures, but the fishery as whole,” the brief said.

The brief also said that “the ranch owners, and many others, have also constructed water features on their properties, such as artificial waterfalls, cascades and waterways that greatly enhance the aesthetics and value of a property. The design of these improvements often requires the services of landscape architects and engineers.”

The ranchers also argue that if private streams are valuable to a landowner, then they are “beneficial” under state water law.

“Just as beauty is in the eye of the beholder, beneficial use is principally in the eye of the (water) appropriator,” the brief states.

County and state don’t support

On the other side of the issue were Pitkin County and the Colorado Department of Natural Resources, both of which filed amicus briefs (Pitkin County, DNR) with the Supreme Court against the Roaring Fork Club’s arguments.

“A diversion into a ditch for private piscatorial, recreational, or aesthetic uses is not a statutorily or Supreme Court-approved beneficial use, but has been recognized by various water courts in unappealed decrees,” a brief filed by attorneys for the department states.

The department’s brief also noted that when it comes to the enjoyment of water, a “more is better” factor raises questions about the potential wasting of water.

“With a ‘more is better’ duty of water unsupported by scientific evidence, subjective private piscatorial and aesthetic uses can result in complete depletions of stream reaches for unlimited distances to the detriment of the stream and its public piscatorial and aesthetic uses, resulting in waste and inefficiency, impairment of existing undecreed exchanges of water, and future exchanges,” the department’s brief states.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times and the Glenwood Springs Post Independent on coverage of rivers and water. The Times published a version of this story online on Tuesday, June 30, 2015.

More water law coverage here.


Thank God we have a #colorado because we have a chance to have a snowpack above 8,000 feet — Greg Hobbs #martz2015

June 13, 2015
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 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 heeding the advice of John Wesley Powell to organize by watershed)

(If the Tweet above does not display correctly use your browser refresh button. There are timing problems with content between WordPress and Twitter at times.)

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.)


Sale of Fort Lyon Canal lands that were subject to High Plains, A&M speculation ruling nearly complete

May 20, 2015
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain (Chris Woodka):

The sale of farms once targeted for buy-and-dry on the Fort Lyon Canal won’t be complete for a month.

Pure Cycle Corp. announced Tuesday that the deadline for due diligence on the sale of 14,600 acres of land for about $53 million will continue until June 18. When the sale was announced in mid-March, a due diligence period of 60-91 days was expected.

Arkansas River Farms LLC, an affiliate of C&A Companies Inc. and Resource Land Holdings LLC, has an agreement to buy the farms from Pure Cycle.

The farms, along with about 23 percent of the shares for water on the Fort Lyon Canal, were originally purchased by High Plains A&M prior to 2003 and sold to Pure Cycle in 2006. High Plains had lost a legal bid to market the water throughout the state when the Colorado Supreme Court ruled its plan violated the antispeculation doctrine of Colorado Water Law.

Lamar pipeline via The Pueblo Chieftain

Lamar pipeline via The Pueblo Chieftain

Pure Cycle announced its intentions to move water to the Front Range when it purchased the Fort Lyon shares. C&A Companies also unveiled a plan to move water from the Lamar Canal to metropolitan communities through its subsidiary GP Resources in 2011. While neither of those plans have advanced, they had not been taken off the table.

Pure Cycle has been leasing the water and ground back to farmers. GP Resources has been raising feed for a Kansas dairy, and there has been talk of building a dairy in Colorado.

Resource Land Holdings has more than $550 million in assets in 25 states and Canada.

“The buyers of our farm portfolio have been working hard surveying, investigating title, ownership, and all customary diligence matters of a transaction of this nature. We have nearly 80 separate properties and as one might expect, diligence on that many properties is time-consuming,” said Mark Harding, Pure Cycle president.

“To date, no material ownership issues have been identified and we do not expect any material title issues to surface through the process.”

Arkansas River Farms has a policy of not speaking with the press at least until the deal is complete, said Karl Nyquist, a partner with C&A, when reached by phone Tuesday.

The deal is scheduled to be closed in August, Harding said.

More Arkansas River Basin coverage here.


How will the #COWaterPlan address the big questions? — the Colorado Independent

May 18, 2015

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