Four streams in the San Juan National Forest, including Vallecito Creek, are being looked at as relatively non-controversial ways to promote this by acquiring junior in-stream flow rights to the Colorado Water Conservation Board, which administers the in-stream flow program within the prior appropriation system.
The section of Vallecito Creek being discussed runs 17.7 miles from a high-elevation cirque lake south to the Forest Service boundary above Vallecito reservoir. The other creeks are Himes Creek in Mineral County, Little Sand Creek in Hinsdale County, and Rio Lado Creek, a tributary to the Dolores River.
The La Plata County Commissioners got an update on this on Sept. 13. The federal claims have been seen over the years as a threat to the state’s prior appropriation system and state administration of water rights – especially claims on lower elevation rivers and streams that could threaten upstream private or municipal water rights.
“We’ve come close to resolving this in District 7 (Water Court), but not quite,” said Bruce Whitehead, director of the Southwest Water Conservation District. “Right now it’s still an active case. Within the last year or two, the Forest Service and state started having discussions… The Forest Service was interested in how in-stream flow could help resolve the reserve rights. We looked at the streams the Forest Service was interested in. If we’re successful, it could be a great tool to resolve these outstanding cases without being litigated.”
He continued, “We’re looking for certainty, that they are state appropriated rights. We don’t want to expand the state in-stream flow program. We’re kind of in a wait-and-see mode.”
Forest Service staffer Anthony Madrid said, “In the 1990s, there was a big effort to work out a settlement. That stalled out. This past year, we’ve put more effort into it. We want free-flowing streams to support aquatic and riparian values. We’re really excited to engage in this new process.”
Jeff Baessler, director of the CWCB’s in-stream flow program, told commissioners that back in 1973, in-stream flow was not considered a beneficial use in state water law. State legislators passed SB 97 that year to make it a beneficial use and gave the CWCB authority to acquire those rights to ensure reasonable preservation of the natural environment and provide regulatory certainty for current water users under prior appropriation…
“Today I’m only talking about new appropriations. This new right probably would be January 2017,” Baessler said.
Whitehead added that the proposed in-stream right on Vallecito Creek won’t change anything. “It preserves the status quo,” he said.
The Forest Service came to CWCB in January this year with its recommendations for the four streams, Baessler said. He said before the nine member CWCB can make an in-stream flow recommendation, there has to be a determination that a natural environment exists, that there’s an “indicator species” to be protected, that the natural environment can be preserved with the amount of water available for appropriation, and that there won’t be injury to senior water rights.
The in-stream right will be “the minimum amount necessary” to serve the purpose, he said. “We have to quantify that amount. Sometimes people say, ‘I’ve seen this stream dry, so that’s the minimum.’ The minimum is the amount necessary to preserve the natural environment, such as the fishery. We look at median flow over time.”
Those studies are now happening on the proposed section of Vallecito Creek. Madrid said, “If the weather holds, we should have the data collection by the end of the month.”
Whitehead said that if CWCB supports a recommendation, it directs staff to file for the in-stream right in Water Court. Those can be contested. “At this point, we’re supportive of the whole process. Everyone is waiting to see the data, to make sure it’s reasonable,” he said. “Technically we’re still in litigation (with the Forest Service). We need to see where everything goes.”
Baessler acknowledged, “The in-stream flow program is controversial. There’s an impact we can have to other users, especially lower on the river. When senior users file for a change of use or something, we’ll file a statement of opposition if we think there’ll be harm to the status quo. That’s where it gets controversial.”
These four streams are high elevation on Forest Service land, he said. He doesn’t think they’ll be contested.
Whitehead added, “There are many counties that have contested in-stream flow because of impact on future growth. These shouldn’t be.” And the hope is they can become a model to resolve the federal reserved rights claims from 1973 within the state appropriation system, he said. “If they are successful, there may be other streams in the future to use this process. They are in areas that we hope will be the least controversial. This could be the start of what the Forest Service will do in the future.”
Acting San Juan National Forest Supervisor Russ Bacon said, “On Division 7 (Water Court), we haven’t used this process before. We’d prefer a local solution to a process that involves judges. The next big step is the data. There are still a lot of unknowns… We’re always looking for a better path than reserve water rights.”
ASPEN – A representative of the U.S. Forest Service told Aspen City Council Tuesday that the federal agency is likely to oppose the city if it files to extend conditional water rights it holds for dams on upper Maroon and Castle creeks.
The city has until Oct. 31 to submit a due diligence filing in Division 5 water court in Glenwood Springs to keep its conditional water rights alive for another six years, and the council held a work session Tuesday where it took public comment on the issue.
Kevin Warner, who is serving as the acting district ranger in the Aspen-Sopris Ranger District, said legal counsel for the Forest Service at the regional level had advised him that the federal agency would likely submit a statement of opposition if the city filed to extend its conditional water rights.
He said that given the city’s ongoing exploration of whether or not it should seek to renew its conditional water rights, the Forest Service also took an “in-depth” look at the rights.
“In this instance, we’ve taken a little more time, looked into it,” Warner told the council. “And based on advice from our counsel, we are considering filing a statement of opposition to this diligence filing.”
If built as currently described by the conditional water rights, the Maroon Creek Reservoir would store 4,567 acre-feet of water behind a 155-foot-tall dam, just below the confluence of East Maroon and West Maroon creeks.
The Maroon Creek Reservoir would cover 85 acres of Forest Service land about a mile and a half below Maroon Lake. The reservoir would also inundate portions of the Maroon Bells-Snowmass Wilderness.
The potential Castle Creek Reservoir would hold 9,062 acre-feet of water behind a 170-foot-tall dam located about two miles below the ghost town of Ashcroft.
The reservoir, inundating 120 acres, would affect mostly private land but would also flood some Forest Service land within the wilderness.
The city originally filed for the water rights in 1965, citing an expectation that it would need to build at least one of the reservoirs by 1970 to meet demands for water.
In its last diligence filing in 2009, the city told the water court “it has steadily applied effort to complete the appropriation of this water right in a reasonably expedient and efficient manner.”
On Tuesday, the city’s director of utilities and environmental initiatives, David Hornbacher, told the city council there could be a gap in the future between the city’s water supply and demand, especially given climate change, but he did not cite the specific size of the perceived gap, or how the potential reservoirs would be used to meet it.
He did, however, recommend that the city file an application in water court to maintain its conditional water rights and then look at alternatives.
A draft resolution put forward by city staff says “the city should also continue to further investigate alternative locations and sizing requirements of the Maroon Creek Reservoir and/or Castle Creek Reservoir, and, if appropriate, seek water court approval for modification of one or both conditional decrees, with their existing appropriation dates.”
Not compatible with USFS management plan
Art Daily, a member of the Aspen City Council and a veteran attorney with Holland and Hart in Aspen, asked Warner during Tuesday’s work session whether the Forest Service viewed filing a statement of opposition in water court as an “opportunity” or a “responsibility.”
Statements of opposition in water court cases do not always reflect a party’s intent in the case. A statement could be simply a way to monitor court proceedings, or it could signal intent to litigate against a proposed water right.
In response to Daily’s question, Warner said the agency saw it as a responsibility to oppose the city, rather than an opportunity.
Warner said the Forest Service’s opposition to the city’s water rights was based on the fact that the reservoirs would inundate portions of the Maroon Bells-Snowmass Wilderness.
“Based on our understanding of the Wilderness Act, and the fact that there was no exception built into the designation for the Maroon-Bells Wilderness Area … it would need to go to the president” in order for the reservoirs to be approved, Warner said.
Without such an authorization, the Forest Service could not support the city’s conditional water rights.
“It is nothing against this particular one, it’s just a legal thing,” Warner told the council. “It is kind of our opportunity in the court system to say, ‘You guys would have to get this done,’ and therefore it is kind out of our control.”
Will Roush, conservation director at Wilderness Workshop in Carbondale, told the city council in an Aug. 19 letter that no president has granted such an exemption to the Wilderness Act since it was approved 52 years ago.
Roush wrote, “the city would have to convince the president of the Unites States that the ability of Aspen residents and second homeowners to water their lawns in late summer was of a greater national interest than the internationally recognized ecological and scenic values of the Maroon Bells-Snowmass Wilderness.”
He also urged the city, on behalf of Wilderness Workshop, to abandon its conditional water rights.
This is not the first time the Forest Service has warned the city of Aspen that its proposed dams and reservoirs conflict with federal policy.
In 2009, the last time the city filed to extend its conditional water rights, White River National Forest Supervisor Scott Fitzwilliams sent the city a letter about its conditional water rights, but did not file a statement of opposition.
“As currently decreed, the locations of the Castle Creek and Maroon Creek reservoirs would not comply with the goals and objectives of the White River National Forest’s land and resource management plans for these areas,” Fitzwilliams wrote. “For example, the Maroon Creek Reservoir, as currently sited, would not be compatible with the specific management of the highly visited area for the protection of its high scenic value. Both proposed structures would conflict with our management objective to maintain or improve long-term riparian ecosystem conditions on the forest.”
County in question
In addition to the likely pushback from the Forest Service, American Rivers has also stated it will oppose the city in water court.
“American Rivers strongly encourages the city of Aspen to not file to maintain its conditional water rights for new dams on Castle and Maroon creeks,” wrote Matt Rice, the director of the Colorado River basin program for American Rivers on Aug. 17. “Aspen does not need these dams for municipal water supply, climate resiliency, or for stream protection now or at any time in the foreseeable future.”
Last month, Rice also said in an interview that American Rivers would oppose the city in water court if it filed to extend the conditional water rights.
The Roaring Fork Conservancy also weighed in with an Aug. 25 letter to the council, arguing that based on relevant studies, the city “appears to have sufficient water supply to meet its forecasted demand” without the reservoirs, which would “result in needless, drastic alteration of the natural landscape of two of our state’s most scenic places.”
“Rather than prolonging this debate for another six-year diligence cycle, Roaring Fork Conservancy believes now is the appropriate time to cancel these conditional water rights and tfor the city to pursue any other water demand and supply initiatives,” says the letter signed by director Rick Lofaro.
The city council also heard Tuesday from Lisa Tasker, the chair of Pitkin County’s Healthy Rivers and Streams Board, which recently sent a letter to the city saying the board “does not support new construction of impoundments on Maroon and Castle creeks.”
Tasker also suggested that Pitkin County might oppose the city’s diligence filing.
But Laura Makar, an attorney with the county who specializes in water issues, said Wednesday that the board of county commissioners “has not taken any position on any possible permutation of a diligence application the city of Aspen might file and I expect the [commissioners] will not have any position until any application is filed.”
Opposition in Maroon Creek Valley
The city also received a letter from an attorney representing the Larsen Family Limited Partnership, which owns water rights on Maroon Creek.
Craig Corona, a water attorney in Aspen who represents the Larsen family, wrote a letter on Aug. 17 to the city saying, “The city has not demonstrated that it will have a water supply shortfall in the future raising questions as to the need for these water rights. Even if such a supply issue arises, the city has other far less damaging options to meet its needs, including improving conservation and efficiency, developing additional groundwater sources (which the city is currently doing), and developing multiple smaller storage structures in more appropriate locations.”
Corona also told the city that it “should not file for diligence on its Castle Creek and Maroon Creek Reservoir water rights and should allow them to be canceled.”
Marcella Larsen of Aspen is co-manager of the Larsen Family Limited Partnership. She’s also a member of the Maroon Creek Caucus, which advises Pitkin County on land use in the Maroon Creek Valley.
Larsen recently sent a comment letter to the city from the Maroon Creek Caucus, opposing the Maroon Creek Reservoir, noting, “The city has made several statements to the public that it has no plans to build the reservoir and merely seeks to keep its options open by maintain the water rights. But when it files in court, the city will have to prove that it ‘can and will’ build the reservoir. Put differently, the city must prove that the project is essentially a foregone conclusion, not just a potential pursuit.”
The caucus concluded, “We think the only reasonable decision is for the city of Aspen to choose to not maintain its Maroon Creek Reservoir water right.”
The city council next plans to meet in a closed-door executive session with its water attorney on Monday about its conditional water rights, and then hold another public work session on Tuesday.
It also plans to vote on Oct. 10 whether or not to file to maintain the conditional water rights.
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of rivers and water. The Daily News published this story on Thursday, Sept. 22, 2016.
Click here for all the inside skinny and to register. From email:
Just a friendly reminder…
Register now for the 10th Annual Water 101 Workshop and Pilot 202 Session to be conducted September 22 (8:30 am to 5:00 pm) and 23 (8:30 am to 12:00 noon), 2016 at the La Plata County Fairgrounds in Durango, CO.
The workshop qualifies for 10 continuing education credits (CEC) for lawyers, as well as CEC’s for realtors, TU’s for water utility personnel, and contact hours for teachers.
Colorado Supreme Court Justice Greg Hobbs (retired) will once again be the keynote speaker. See the sessions agenda and flyer for more information. Register for either session or both online (www.waterinfo.org) or call (970) 247-1302.
Click here to read the summary. Here’s an excerpt:
The Colorado Cattlemen’s Association (CCA) and Partners for Western Conservation (PWC) initiated the Ag Water Network in late 2015 with the objective of helping to ‘keep ag water connected with ag land.’ The Ag Water Network is partially funded by a Walton Family Foundation grant.
The state water plan, released in November, 2015, estimated Colorado’s population could swell to 10 million people by 2050, nearly doubling our current population of 5.4 million. The plan projects that the demand for water driven by the increasing population could result in a municipal and industrial water supply gap of 560,000 acre-feet. Statewide, this could result in the loss of 700,000 irrigated acres by 2050 through the purchase and transfer of water rights from irrigated agriculture to urban areas. Such large-scale dry-up of irrigated agriculture would have permanent adverse economic, environmental and food security impacts.
The water plan acknowledges the economic, environmental and cultural value of Colorado’s agriculture industry. To minimize ‘buy and dry’ of irrigated farmland, the plan emphasizes water conservation, increased storage, and alternative agricultural transfer methods (ag water leases) as the primary means for closing the projected water supply-demand gap.
Rotational fallowing, deficit irrigation, and planting lower consumptive use crops are the main practices being used and/or tested for “creating” consumptive use water that would otherwise have been used by crops. Consumptive use (CU) water is water retained by the growing plant plus the amount lost through evapotranspiration.
The consumptive use (CU) water can be leased to municipal, industrial, recreational, environmental or agricultural interests provided the lease complies with state water law. All alternative ag transfers, or “ag water sharing” agreements must be voluntary, temporary and compensated. A variety of state laws have been passed over the last decade to ensure that a participating landowner’s water right(s) are not negatively impacted as long as the terms of the lease agreement comply with state law. Ag water leasing represents a sustainable approach that enables irrigated land to stay in production, albeit at a reduced output level, while helping supply water for other uses.
Ag water leasing is a new concept to most Colorado ag producers. The purpose of the ag water survey was to assess the level of knowledge of ag water right holders throughout the state regarding water leasing terms and concepts, and determine ag water right holder perspectives, concerns and interest related to leasing.
The survey was initiated February 26th, 2016 and closed on July 15, 2016, and received more than 300 responses. The first question – “do you own or lease ag water rights?” – was answered “no” by 51 respondents, leaving 266 respondents that said they own or lease agricultural water rights. The survey contained 25 background and water-related questions as well as a section at the conclusion which allowed respondents to leave comments or ask questions. All 25 survey questions are listed in the Appendix .
The Republican River Compact Administration signed off on a resolution presented by Colorado last week during the three-state entities’ annual meeting.
The resolution lays out the final steps Colorado has to take for compliance with the Final Settlement Stipulation and Republican River Compact, between it, Nebraska and Kansas.
If Colorado meets the requirements laid out in the resolution, it will be protected from any further lawsuit filings in the matter by Kansas or Nebraska.
“It basically means Kansas can’t come after us again and again,” Colorado State Engineer Dick Wolfe said. “It doesn’t prevent them from raising some other issue we haven’t thought of yet.”
He added the states have agreed to try to work out future issues among themselves instead of immediately going to the costly and time-consuming non-binding arbitration process.
“This is not nearly as restrictive as some people fear,” Deb Daniel, general manager of the Republican River Water Conservation District, said of the resolution.
A final agreement on the use of Colorado’s compact compliance pipeline, as well as the voluntary retiring of more acreage along the South Fork of the Republican River, are the key components in the resolution. Colorado already has removed 23,838 acres from irrigation in the South Fork Republican River Basin, through voluntary retirement programs such as the federally-funded CREP.
The resolution, presented last week in Burlington by Wolfe, and signed by him and Kansas’ David Barfield and Nebraska’s Gordon W. Fassett, calls for Colorado to utilize voluntary programs to retire up to an additional 25,000 acres from irrigation in the South Fork Republican River basin.
The resolution states Colorado will retire at least 10,000 acres by 2022, and the remaining 15,000 acres by December 31, 2027. It also includes language allowing Colorado to submit to the other states for their approval a plan to reduce consumption within Colorado by other means if the state cannot or will not retire 25,000 acres by the 2027 deadline.
“It gave us and the users the most flexibility going into the future,” Wolfe said.
Daniel noted the agreement does not make any mention of stream flows or how much acre feet of water must be removed from consumptive use, only acreage.
Here’s the release from Governor Hickenlooper’s office:
Gov. John Hickenlooper today announced Colorado, Kansas and Nebraska established an agreement this week in the longstanding conflict over water from the Republican River basin, as the Republican River Compact Administration signed two resolutions.
Representatives from the three states have been meeting monthly for over two years, in an effort to change the approach and improve how they manage interstate water matters. This effort has created a new focus on transparency and certainty as all three states work to serve their water users. The intent of these resolutions is to replace the need for annual reviews and instead provide long-term surety to water users.
“We are proud to be part of this historic agreement,” said Hickenlooper. “For the first time since signing the Compact, the three states have worked together to resolve their issues without litigation and have brought certainty to the water users in the basin. This is how we do our best work in Colorado and defines our approach to addressing our water challenges — cooperation and collaboration.”
“Signing these resolutions shows the commitment from all three states to engage in open and transparent dialogue for the past two years,” said Kansas Governor Sam Brownback. “This long-term agreement will ultimately improve water management for water users in Kansas as well as Nebraska and Colorado.”
The resolutions signed this week will provide flexibility and greater certainty to all water users in the region, while remaining consistent with the terms of the Republican River Compact and the Final Settlement Stipulation of 2002. The three states have been involved in various litigation and arbitration for the past 15 years over administration of water in the Republican River basin, and this agreement is a significant and positive step forward, with the next steps focusing on working with the basin’s water users to implement these agreements.
“It has been a priority of the states to collaborate on interstate water matters to ensure each state’s water users are protected while also maintaining a positive working relationship between the compacting states. “These resolutions represent a long-term strategy for representing each state and ultimately improving water management for water users in all three states,” said Nebraska Governor Pete Ricketts.
The Republican River basin begins in the plains of eastern Colorado and flows through northwest Kansas and southern Nebraska, ultimately returning to Kansas. The Republican River Compact was negotiated during the early 1940s with participation by the states of Colorado, Kansas and Nebraska and a representative of the President of the United States. The Compact was formally signed in 1942. Its purposes are to provide for equitable division of such waters, remove all causes of controversy, promote interstate comity, promote joint action by the states and the United States in the efficient use of water and the control of destructive floods, and provide for the most efficient use of waters in the Republican River basin.
The state official in each of the three states who is charged with administering water law serves on the Republican River Compact Administration. For more information about the Compact, go to the following websites:
I have noticed a lot of chatter lately about the situation at Lake Mead. Dramatic overuse, prolonged drought, and the effects of increased temperatures have led to a historically low volume of water stored in the largest reservoir on the Colorado River. One of the most critical components of water in the west is less than 40% full. Yet while some people scramble for a quick fix or point fingers, others see the long game and note the optimism that working together for smart, sustainable solutions can bring. There is hope, there is a roadmap, and together we have the knowledge, skill, and foresight to make it happen.
The Discovery Channel recently produced a new documentary, Killing the Colorado, a made-for-TV version of the lengthy ProPublica series of the same name. The show is excellent, comprehensive, and features a number of voices that you may not expect to be featured in a film about the environment. Imperial valley agricultural producers, water managers, a red-state Senator and a blue-state Governor – all identifying problems facing the basin, and most putting forth an optimistic view that a human-caused predicament can be solved with human-inspired ingenuity.
One quote in particular is poignant – there is a scene with Colorado Governor John Hickenlooper in his office flipping through a binder full of historic water compacts. Upon his observance of the generations of water agreements, he remarks “The thing you realize when you go through these [water] compacts, is that everyone is in this together.” Given the situation facing Lake Mead, a growing chorus of voices around Lake Powell, the birth of the Colorado Water Plan, and a recognition that heathy rivers support healthy agriculture and sustainable economies, we truly are all rowing the same boat together in the Colorado Basin.
But, how can Lake Mead affect Colorado from a thousand miles downstream? Well, due to the Colorado River Compact of 1922, headwaters states like Colorado must send a certain amount of water to the Southwestern states of Arizona, Nevada, and California – it’s the law of the river, and the law of the land. And since when the Compact was developed, California was a fast growing destination, it has priority and can “call” for water if needed. For years, California has had the luxury to get much of the surplus of water that Colorado and Wyoming have sent downstream to be stored in Lake Powell and Lake Mead. But now with prolonged drought, a fast-growing population across the entire Southwest, and a substantial agricultural economy (especially in the Imperial Valley), the era of surplus water is over. As such, Lake Mead is directly connected to Colorado, whether we like it or not, and that connection is the Colorado River.
Killing the Colorado does a fantastic job over nearly an hour-and-a-half of highlighting a variety of colorful characters who have recognized that shortage and a lack of water will change everything in the future – that future is now. But while both the show and the written article are excellent at highlighting the situation, they don’t delve deeply into what I think is most important – that real solutions do exist, and we know how to implement them, it simply takes our collective will to get them moving. Solutions like urban and agricultural conservation and efficiency, like reuse and recycling, like innovative water banking and flexible management practices, like continuing the shift towards renewable energy (solar and wind don’t devour cooling water like natural gas and coal plants require). But while these efforts all seem daunting and out of an individual’s control, there are actions that each of us can take every day that together, make a huge difference. Like buying and installing your own rain barrel for your outside plants and flowers, like supporting your local farmer at the farmer’s market – small things that have a great impact, especially when we all do them together.
Solutions do exist, and as Arizona Senator Jeff Flake said “The drought over the past couple of years has awakened all of us to the future we have if we don’t do better planning. There are many things that are out of our control…Planning is so important. Conserving. Recharging. Water banking. Water markets. These are all important things that have to take place.”