“Prior appropriation is a doctrine of scarcity” — Greg Hobbs

Arkansas River Basin via The Encyclopedia of Earth
Arkansas River Basin via The Encyclopedia of Earth

From The Pueblo Chieftain (Chris Woodka):

If there was a message, it was: Water is everything and it starts here.

Retired Colorado Supreme Court Justice Greg Hobbs held the Arkansas River Basin Water Forum captive for about an hour with a mix of photos that ranged from historic images to family photo albums and a collection of historic maps, which he once owned but has donated to the Supreme Court.

His narrative wove a tale of almost mythical historic figures and hard-nosed facts to describe how Colorado water law took shape.

As is his custom, he opened his remarks with one of his own poems, “Colorado, Mother of Rivers.”

“When I was young, the waters sang of being here before I am, of falling wet and soft and slow to berry bog and high meadow,” Hobbs began, ending with: “I call the scarlet to the jaw as morning calls her own hatchlings, call Yampa, White, the Rio Grande, San Juan, the Platte, the Arkansas.”
Hobbs put a special emphasis on “Arkansas.”

“What a great river,” he gushed, marveling at how the Arkansas River flowed just a few yards from the auditorium at the Salida Steam Plant. “What a historical river this is.”

He then proceeded to take the crowd on a journey through time describing the state and the Arkansas River basin’s formation through civilization.

The Native Americans and Hispanic cultures that first occupied Colorado gave the state clues about how water should be managed. The people at Mesa Verde developed a domestic water system using reservoirs hundreds of years before Europeans arrived and Spanish settlers brought acequias to northern New Mexico to irrigate crops at a time when America was not yet a country.

“The more we get urbanized, the more we get dissociated from the land,” Hobbs said. “We need to recognize our Native American and Hispanic roots.”

North American Indian regional  losses 1850 thru 1890.
North American Indian regional losses 1850 thru 1890.

Maybe that kind of thinking led to his own son’s path in life. Hobbs talked about his son, Dan, who carried a sketch book with him everywhere as a child to plan the farm he one day hoped to own. Dan Hobbs now is a farmer on the Bessemer Ditch.

The elder Hobbs’ interest in water was more shaped by a career as first a water lawyer — he jokingly said it is not an honorable profession — and then as a Colorado Supreme Court Justice for nearly 20 years before his retirement last year.

And an intense interest in history.

Hobbs tried to set the record straight on John Wesley Powell, an early explorer of the Colorado River who argued for division of Montana counties along the lines of watersheds, but is often “misquoted” as trying to divide the entire American West in the same way.

In the Arkansas River basin, the Santa Fe Trail brought the first outside settlers to Bent’s Fort, and the discovery of gold in 1858 led to the formation of the Colorado territory in 1861 — a rectangular shape that took land from Utah, New Mexico, Nebraska and Kansas territories. The action also set up the “Mother of Rivers” status for Colorado, which now encompasses the headwaters for the Platte, Colorado, Arkansas rivers and the Rio Grande.

In 1861, Colorado developed the first concept that makes its water law unique, the idea that water can be separated from the land. Unlike a riparian system, Colorado water can be moved to farms that are not located beside a river. It set up a system of prior appropriation, where the first farmer to use the water is entitled to the first diversion.

When Colorado became a state in 1876, another layer of law was added to declare public ownership of the water, rather than individual users.

“What a profound statement our ancestors made,” Hobbs said.

As a result, the senior agricultural water rights remain the most valuable in Colorado, Hobbs said.

“We have a system in place where we can transfer water rights, and the most valuable water rights are our senior water rights,” Hobbs said.

He called periodic attempts to change Colorado’s system to a market- based exchange at one end of the spectrum or a public trust doctrine at the other are equally dangerous because they could leave some without water.

“Prior appropriation is a doctrine of scarcity,” Hobbs emphasized.

During his talk, he also outlined Native American water rights, the formation of compacts with other states, the development of cities on agricultural land and his personal reflections on state water leaders like Wayne Aspinall, Felix Sparks, Jim Isgar and Diane Hoppe.

It was like watching a river of information flow quickly by, hard to grasp in one sitting. Understanding water is like another passage from Hobbs’ poem: “And shape the stones to carry me, when I am young and full of fight for roaring here and roaring there, for pouring torrents in the air.”

rifflesaspenjournalismbrentgardnersmith

2016 #coleg: Gov. Hickenlooper signs HB16-1109 (Application Of State Water Law To Federal Agencies)

Photo via Bob Berwyn
Photo via Bob Berwyn

From The Vail Daily (Randy Wyrick):

Colorado lawmakers unanimously made federal water grabs almost impossible.

The Colorado Water Rights Protection Act passed both the Colorado House and Senate without a single dissenting vote. The bill thwarts federal efforts to control or own water that begins on or passes through federal land, and to do so without paying for it.

That’s important in our region because about 80 percent of Eagle and Summit counties are federal land, said Glenn Porzak…

In fact, the Eagle River Water & Sanitation District and Upper Eagle Regional Water Authority both have water infrastructure on federal lands.

Rick Sackbauer, Eagle River Water & Sanitation District board chair, called the bill “a great victory for water right holders in the Eagle River valley and throughout Colorado.”

“The authority and other water providers have made enormous financial investments in water rights and water infrastructure in reliance on state laws,” said George Gregory, Upper Eagle Regional Water Authority board chair.

WATER RIGHTS TRIFECTA

Porzak with Porzak, Browning & Bushong, is water counsel for Eagle River Water & Sanitation District, Upper Eagle Regional Water Authority and many others. He worked on the bill for three years.

Porzak said the legislation does three things:

1. Forces the feds to buy water rights, instead of taking them by manipulating policy.

2. Forces the feds to go through state water court, in compliance with federal law.

3. Orders Colorado’s state engineer not to enforce any water rights restriction by the U.S. Forest Service or the Bureau of Land Management, and provides tools for water right holders to fight these agencies in court if necessary.

In other words, if the feds want water rights, then they have to buy them, like everyone else does.

“Water rights are a saleable commodity,” Porzak said. “They’re trying to get the water for free. This bill creates a financial disincentive. They (the feds) can issue a directive, but they do so at their peril.”

Trail map for Powderhorn Ski Area via liftopia
Trail map for Powderhorn Ski Area via liftopia

WHY IT BEGAN

The impetus for the bill began in 2012, when the Forest Service demanded that ski areas, in exchange for renewing their leases on public land, turn over their private state issued water rights to the federal government.

The ski areas sued and the U.S. Forest Service lost on procedural grounds. The Court ordered the Forest Service to go back to the drawing board, and while improvements have been made in the context of ski area policy, the Forest Service has subsequently issued other policy directives that raise additional concerns for private water right holders throughout Colorado.

The Forest Service said it was trying to make sure water rights stay with the ski areas, and aren’t sold separately if the ski area is sold.

“This legislation is not pie in the sky. It has real substance to it,” Porzak said.

“#Colorado has a workable fabric of law and governance that has stood the test of time” — Greg Hobbs

From The Mountain Mail (Joe Stone):

The 22nd annual Arkansas River Basin Water Forum featured retired Colorado Supreme Court Chief Justice Gregory Hobbs as keynote speaker Thursday at Salida SteamPlant.

Terry Scanga, Upper Arkansas Water Conservancy District general manager, introduced Hobbs as “a mentor and teacher to the water community,” praising Hobbs’ talent for writing clearly and succinctly about Colorado water complexities.

Hobbs’ talk painted a historical picture of Colorado water management beginning with the Ancestral Puebloans who lived at Mesa Verde and Hovenweep, where they constructed water storage reservoirs using primitive wood and stone tools.

Hobbs’ talk included slides from his collection of historical maps that show the evolution of various countries and territories in what is now the western United States, including a watershed map created by famous explorer John Wesley Powell.

Hobbs said Powell wanted to organize settlements around water and watersheds, which would have prevented trans-basin water diversion, forcing water users to conserve the scarce resource in the arid West.

Hobbs shared a wealth of historical information, noting that federal legislation in the 1860s separated water from the land and allowed water to be taken from one place to be put to beneficial use in another location.

This change from riparian water rights of the eastern U.S. laid the foundation for Colorado’s system of Prior Appropriation, summarized as “First in time, first in right,” Hobbs said.

Key to this system is the fact that the Colorado Constitution established water as a public resource in 1876, Hobbs said, adding that rights to use water are a special type of property right.

The Prior Appropriation system allows the transfer of water rights, and Hobbs said senior water rights are the most valuable property rights in Colorado.

Hobbs said the system has worked for more than 100 years, and recent efforts to subject water rights to the free market system would have devastating consequences.

When it comes to water, Hobbs said, “Colorado has a workable fabric of law and governance that has stood the test of time.”

Delph Carpenter's 1922 Colorado River Basin map with Lake Mead and Lake Powell
Delph Carpenter’s 1922 Colorado River Basin map with Lake Mead and Lake Powell

Glenwood Springs paddling toward whitewater parks, but rapids ahead

Looking up the Colorado River from the mouth of the Roaring Fork River. One of three proposed whitewater parks would be built in the river just upstream of the pedestrian bridge.
Looking up the Colorado River from the mouth of the Roaring Fork River. One of three proposed whitewater parks would be built in the river just upstream of the pedestrian bridge.

By Brent Gardner-Smith, Aspen Journalism

GLENWOOD SPRINGS — In its effort to secure water rights for three proposed whitewater parks on the Colorado River, the city of Glenwood Springs has reached formal or conceptual agreements with a list of opposing parties in the water court case, including Denver Water, but it’s still facing opposition from Aurora and Colorado Springs.

“We have a number of parties that have already settled,” said Mark Hamilton, an attorney with Holland and Hart representing Glenwood. “And while there are still some significant question marks, we think the process so far has been productive and continues to be productive.”

Since December 2013, the city has been seeking a recreational in-channel diversion (RICD) water right tied to three whitewater parks on the popular Grizzly-to-Two Rivers section of the Colorado River, at No Name, Horseshoe Bend and the upper end of Two Rivers Park.

The two wave-forming structures in each of the three whitewater parks would operate under a common water right that could call for 1,250 cubic feet per second of water from April 1 to Sept. 30, 2,500 cfs of water for up to 41 days between April 30 and July 23, and 4,000 cfs on five consecutive days sometime between June 30 and July 6.

The 1,250 cfs level is the same as the senior water right tied to the Shoshone hydropower plant, which is upstream from the three proposed whitewater parks. Glenwood officials have previously said, however, that 2,500 cfs is a better level for boating and floating than 1,250 cfs, and the city wants the flows of 4,000 cfs for five days around the Fourth of July to hold expert whitewater competitions.

But Aurora and Colorado Springs, both as individual cities, and together as the Homestake Partners, have told the water court that Glenwood is seeking more water than it needs.

“Glenwood has ignored the law limiting a RICD to the minimum flow necessary for a reasonable recreation experience, and instead has reverse-engineered its proposed RICD to tie up half the flow of the mainstem of the Colorado River,” the Front Range cities said in a June 2015 statement filed with the court.

And the cities, which own conditional water rights upstream of Glenwood, said that the city’s proposed water right “would dramatically and adversely affect the future of water use in the Colorado River drainage, if not the entire state.”

Hamilton has met twice this year with representatives of Aurora and Colorado Springs, most recently on April 22 in Denver, to see if a deal can be worked out on how much water is appropriate.

“We’re talking,” said Joe Stibrich, the water resources policy manager at Aurora Water. “But, we’ll see where it goes.”

“There are ongoing negotiations and discussions that seem to be productive at this time,” said Kevin Lusk, principal engineer at Colorado Springs Utilities. “Whether or not we can reach agreement, of course, is really up to how those discussions go.”

A status conference with the water court referee is set for June 23. The referee could then decide to send the application up to James Boyd, the judge who hears Division 5 water court cases in Glenwood Springs, or the parties in the case could ask for more time to keep talking before heading to trial.

“We are actively communicating with Colorado Springs and Aurora concerning the possible development of additional call reduction provisions in order to protect future yield to their systems,” Hamilton said. “And we remain hopeful that a stipulated decree may be able to be entered after completion of these ongoing negotiations.”

Glenwood has recently worked out a “call reduction provision” with Denver Water.

“There has been a lot of progress on our end with the RICD discussions,” said Travis Thompson, a senior media coordinator at Denver Water. “In fact, in the collaborative spirit of the Colorado River Cooperative Agreement (CRCA), Denver Water has agreed to allow Glenwood Springs to exceed 1,250 cfs under certain conditions.”

In the CRCA, signed in 2013, Denver Water agreed not to oppose a future recreational water right application if it did not seek flows greater than 1,250 cfs. But given that Glenwood is also seeking 46 days at 2,500 cfs and five days at 4,000 cfs, above the relatively consistent flow of 1,250 cfs, Denver did file a statement of opposition in this case.

Glenwood and Denver have now agreed that Glenwood would reduce its call for the whitewater parks to 1,250 cfs if continuing to call at a higher rate, such as 2,500 cfs, would limit a potential future water project that is described in the CRCA as providing 20,000 acre-feet to the East Slope.

Staff at Denver Water approved such an agreement with Glenwood on March 9, according to Thompson, and Hamilton said a copy would soon be filed with the court.

A map filed by the city of Glenwood Springs showing the locations of three proposed whitewater parks. The city is seeking non-consumptive recreational in-channel diversion (RICD) rights tied to six rock structures built in the river, two in each of the three parks.
A map filed by the city of Glenwood Springs showing the locations of three proposed whitewater parks. The city is seeking non-consumptive recreational in-channel diversion (RICD) rights tied to six rock structures built in the river, two in each of the three parks.

Other opposers

Glenwood enjoys the support of three “opposers” in the case: American Whitewater, Western Resource Advocates and Grand County, as the entities have filed statements “of opposition in support,” which is an option in Colorado’s water courts.

And Glenwood has now filed formal agreements in water court that it has reached with five other true opposers with a range of issues: Glenwood Springs Hot Springs & Lodge Pool, Inc., BLM, Grand Valley Water Users Association, Orchard Mesa Irrigation District, and Ute Water Conservancy District.

The Glenwood Hot Springs Lodge & Pool is concerned about the project disrupting the deep Leadville limestone aquifer that provides its hot water.

But they’ve reached an agreement with the city that allows them to review construction plans for the wave structures at the Two Rivers Park location and requires the city to monitor the resulting wave structures for five years to watch for scouring of the riverbed, among other provisions.

And an agreement between Glenwood and the BLM was filed with the court in June 2015. It says that if the city needs to cross BLM property to create a whitewater park in Horseshoe Bend then the city will go through the required federal land use process.

The city has also signed a memorandum of understanding with CDOT that moves issues coming from the use of land at the No Name rest area on I-70 out of water court and into a future potential land-use application.

“One of the conditions is that the city will have to work with CDOT as they move forward with building the whitewater park, as the (No Name) location falls in CDOT right-of-way,” said Tracy Trulove, a communications manager for CDOT. The agreement has yet to be filed with the court.

A graphic presented to the Glenwood Springs city council in December showing the size and timing of the city's water right application on the Colorado River. The large dark blue block at the bottom represents a seasonal base line flow of 1,250 cfs. The smaller block on top represents 46 days at 2,500, the narrow dark blue spike is 5 days at 4,000 cfs.
A graphic presented to the Glenwood Springs city council in December showing the size and timing of the city's water right application on the Colorado River. The large dark blue block at the bottom represents a seasonal base line flow of 1,250 cfs. The smaller block on top represents 41 days at 2,500, the narrow dark blue spike is 5 days at 4,000 cfs.

District support

The city is also close to finalizing agreements with the Colorado River District, the town of Gypsum, and the West Divide Water Conservancy District, according to Hamilton.

Peter Fleming, general counsel for the Colorado River District, which represents 15 West Slope counties, said staff at the district is now comfortable with proposed settlement language in the Glenwood case.

And he said once the district’s initial goals in a RICD case are met, the district often stays in the case on the side of the applicants “in order to support the right of its constituents to use water for recreational purposes that will support and/or enhance the local economy.”

“We anticipate that such participation may be necessary in the Glenwood Springs RICD case,” Fleming said.

At the end of the list of opposers is the Colorado Water Conservation Board, a state agency whose board of directors in June 2015 recommended against the proposed RICD after concluding it would “impair Colorado’s ability to fully develop its compact entitlements” and would not promote “the maximum beneficial use of water” in the state.

“While we stand by our initial decision on this RICD, we’re encouraged that the applicants are actively seeking resolution with stakeholders and hope they will resolve the issues we raised,” James Eklund, director of the Colorado Water Conservation Board, said this week.

Eklund said the CWCB staff will likely reconsider Glenwood’s proposal after it has reached agreements with other opposing parties in the case, and if staff is satisfied, bring the proposed decree back to the board.

“Water for recreation in Glenwood Springs and around Colorado is essential and we want to make sure all RICDs strike the right legal, design, and safety balance,” Eklund said.

Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of water and rivers in Colorado. The Daily News published this story on Saturday, April 30, 2016.

2015 #coleg: HB16-1337 (Appellate Process For Decisions About Groundwater) killed in Senate Judiciary Comm.

Crop circles -- irrigated agriculture
Crop circles — irrigated agriculture

From The Grand Junction Daily Sentinel (Charles Ashby):

A bill to prevent new evidence from being presented in groundwater rights appeals got caught in a legislative maelstrom Tuesday from which it can’t return.

After more than two hours of public testimony, most of which was in favor of the idea, the measure at first failed to get a motion to be referred out of the Senate Judiciary Committee, leaving it in a kind of legislative limbo for a while.

Later, however, the panel returned and killed HB1337 long after its sponsor, Sen. Ray Scott, R-Grand Junction, had left.

During that time, Scott had started to investigate ways to get the support he needed to revive the bill in hopes of persuading the chairwoman of the committee, Sen. Ellen Roberts, to have an actual vote on it.

Problem was, though, that Durango Republican was one of a majority of senators on the five-member committee who opposed the bill, which the committee ultimately killed on a unanimous vote.

Scott wasn’t happy at the outcome because he believed he had the votes to get the measure out of committee even though it was opposed by Senate President Bill Cadman, R-Colorado Springs, who took nearly three weeks to assign it to a committee.

“Sad to see such disingenuous activities by senators,” the Grand Junction Republican said. “Didn’t even have the courage to kill the bill in front of farmers and ranchers who are left holding the empty water bucket.”

The measure was designed to align the Colorado Groundwater Commission with other state panels when it comes to adjudicating certain issues, in this case, groundwater rights. Unlike decisions made by that commission, appeals in all other state panels — much like lower courts in general — bar the introduction of new evidence on appeal.

Scott said that practice has allowed well-funded water rights sellers to try a case twice, something small farmers and ranchers told the committee they can’t afford to do.

The bill also pitted two well-heeled investors against each other: former GOP Gov. Bill Owens and billionaire businessman Phil Anschutz. Owens, who opposed the bill, is executive director of a land and water development and asset management company; Anschutz, who supported the bill, has numerous farming interests, many of which rely on groundwater supplies…

On Tuesday, the Senate gave final approval to SB97 to bar the Legislature from using severance tax revenues for anything other then their intended purpose.

Those taxes, paid by mineral extraction companies, go to fund the Colorado Department of Natural Resources and in grant and direct disbursements to local communities, to offset the impact of such industries as mining and oil and gas development.

From The Denver Post (Joey Bunch):

A legislative battle over ground-water disputes that divided top Republicans washed out in committee Tuesday afternoon.

House Bill 1337 would have made it harder for municipalities, developers or others to win court cases for permits to pump water that might otherwise be used agriculture didn’t get a motion for a vote after hours of testimony from farmers and water districts.

The bill would keep those who would dispute decisions from the state Ground Water Commission from introducing new evidence in the appeal process. Their competitors said it would allow them to out-spend farmers, ranchers and rural water districts to overpower them in court.

“The size of a checkbook should not determine how water is managed,” Marc Arnusch, a Weld County farmer and member of the Lost Creek Ground Water Management District told the Senate Judiciary Committee Tuesday.

Committee chairwoman Ellen Roberts, a Republican from Durango who is a lawyer, said that instead of the routine 2 out of 100 state Ground Water Commission cases a year that are appealed to district court, many more would have to pay for studies and legal expertise up front to hedge against the potential of an appeal later.

“I don’t see how this would reduce costs for everybody,” she said. “It would drive them up.”

The bill was sponsored by Sen. Ray Scott, a Republican from Grand Junction who is considering a run for governor in 2018.

Scott and House sponsor Don Coram have been at odds over the bill with Republican Senate President Bill Cadman and the last Republican governor, Bill Owens, who personally urged Republican lawmakers to kill the bill.

Owens works for an investment group that deals in water.

The legislation sailed through the Democrat-led House, passing 60-5 on April 1. It was not assigned to a Senate committee until three weeks later.

“It’s been a wild ride to get to this hearing,” Scott said.

The bill’s supporters fear municipalities getting well permits to pump year-round instead of seasonally, as agriculture does.

“No one wants to see more ‘buy and dry’ of ag water,” Colorado Farm Bureau president Don Shawcroft said. “This legislation is necessary to level the playing field on applications to change water rights in designated basins. What’s happened is that if the application is appealed to the district court, the applicant is using legal maneuvering to bring new information that was not presented to the Ground Water Commission.”

From The Durango Herald (Peter Marcus):

A measure that aimed to level the playing field for farmers and ranchers appealing groundwater rights rulings drowned in the Legislature on Tuesday.

The legislation would have prohibited entering new evidence on appeal after a state commission makes a decision on groundwater disputes…

The bill had powerful opposition from former Gov. Bill Owens, a Republican, and Senate President Bill Cadman, R-Colorado Springs.

“Big boy politics at its worst,” lamented Rep. Don Coram, R-Montrose, who co-sponsored the bill in the House, where it passed 60-5, with the support of Rep. J. Paul Brown, R-Ignacio.

The 12-member Colorado Ground Water Commission issues decisions on disputes. Appeals, however, are handled by water court judges in district courts across the state.

State law allows for new evidence to be entered upon appeal when the issue hits water court, though such appeals are rare.

At that time, larger water interests – often those that try to transfer water from agricultural to municipal use – rely on water engineers and other experts to stack evidence in the case, say proponents of the bill.

Smaller farmers and ranchers – who are fighting for their water rights – are forced to invest in attorneys to combat the insertion of new evidence. Costs can become unbearable.

“It finally puts a stop to the games being played by those looking to take advantage of our designated basin system,” Marc Arnusch, a member of the Ground Water Commission, said of the legislation.

“A case must be heard again completely from the beginning, which causes a great deal of time and money.”

Coram assumed the measure would be a simple fix to an obvious problem. But that was before it became embroiled in politics.

Since leaving office in 2007, Owens has worked on water and land resource issues, including proposing water sales to municipalities. Coram gave Owens and Cadman “100 percent credit” for the bill’s troubled path in the Senate.

“I’ve worked on things in this building that’s taken me two, three years to get through. I’ll be back,” Coram said.

Critics of the bill – including Sen. Ellen Roberts, R-Durango – say the measure would erode an unbiased appeals process before a judge. They point out that most of the commission members are political appointments by the governor, unlike a court.

“It’s a stacked commission,” Roberts said.

“When you go to court, there is an independent judge … there are procedural differences.”

Proposal creates ‘monumental’ friction — the Valley Courier

Rio Grande del Norte National Monument via the Bureau of Land Management
Rio Grande del Norte National Monument via the Bureau of Land Management

From the Valley Courier (Ruth Heide):

Proponents of an expanded national monument met with water leaders and some resistance on Tuesday in Alamosa.

Rio Grande Water Conservation District (RGWCD) Board Member Dwight Martin , who lives in the southern part of the San Luis Valley where the proposed expansion would occur, was clear in his opposition to expanding the existing Rio Grande del Norte National Monument northward from New Mexico into the San Luis Valley.

“I am adamantly opposed to this monument designation ,” Martin said. “We really don’t need this monument in Conejos County. I really don’t see what it serves.”

He added that the Conejos County commissioners are also opposed to the monument expansion. Martin said about 90 percent of Conejos County residents at a meeting he attended on the monument were opposed to the expansion, and he questioned why the expansion was needed.

Anna Vargas, project coordinator for Conejos Clean Water, the organization promoting the monument expansion, responded that the meeting Martin attended was a meeting hosted by opponents .

“There has been interest in supporting the national monument, and there has been opposition that has been raised,” Vargas said. “We have tried to address all the concerns.”

Vargas told water board members on Tuesday that Conejos Clean Water had accepted language recommended by the water district to safeguard water rights within the monument, if it is expanded into the Valley. The language also recognizes the existing Rio Grande Natural Area, which lies in the proposed monument expansion.

“We are not trying to trump any of the work that’s been done on the natural area,” Vargas said.

Vargas recently completed the intensive water leadership course sponsored by several water groups including the Rio Grande Water Conservation District. She said the course gave her a better understanding of water issues and rights, such as the Rio Grande Compact. She said she had not viewed the monument expansion as affecting water rights but as more of a land protection issue . She said she now understood the potential problem implied water rights could generate.

“We don’t want national monument designation to have any implied water rights,” she said. The goal of the monument expansion, she said, is to preserve the land for traditional uses.

The Rio Grande del Norte National Monument, encompassing 242,500 acres, was designated by presidential proclamation in 2013. The expansion proposal would bring the monument north of the New Mexico state line into the southern part of the Valley and would encompass about 64,000 additional acres of Bureau of Land Management (BLM) land, Vargas explained.

She said the goal would be to preserve traditional uses such as piñon and wood gathering, hunting, fishing and other recreational uses. The monument would also prevent the land from being sold or leased for mining extraction. The turquoise mine would be “grandfathered in,” she said.

Vargas said proponents of the monument expansion want to be proactive in protecting the land from oil and gas activity.

“To us, that is a threat,” she said.

In 2007 that threat was real, she said, with four oil/gas sales involving 14,500 acres in the San Luis Hills and Flat Tops. The reason drilling did not occur, she added, was “basically because of a loophole” created because private landholders had not been notified of the sales.

“What we don’t want is a repeat of that,” she said. There might not be a loophole to prevent it in the future, she added.

Martin said, “This is really about oil and gas and not about protecting the land. All the monument will do is make it more restrictive for landowners.”

Vargas said that is why Conejos Clean Water is trying to get more community input and address these issues. She said there are rumors that the group is trying to prevent such uses as cattle grazing, but that is not the case. Such traditional uses are what the monument would protect, she said.

The land would continue to be BLM property, public lands, she said.

“We want it to stay publicly accessible.”

“Thank you for recognizing the concerns the district expressed,” RGWCD Attorney David Robbins told Vargas.

The district also sent a letter to the Department of the Interior and Colorado’s congressional delegation expressing the district’s concerns about the monument expansion without terms and conditions that would ensure water resources and the Rio Grande Natural Area are not adversely affected. The Rio Grande Natural Area, created through a federal, state and local partnership, integrates the management of federal and private properties along the Rio Grande between Alamosa and the state line to protect the riparian corridor for several purposes including Rio Grande Compact deliveries.

The district’s letter to congressmen regarding the monument expansion stated: “Every federal withdrawal or designation carries with it an implication that sufficient water will be made available to support the purposes of the designation unless specifically disavowed. The flows of the Rio Grande and the Conejos rivers in this area of the San Luis Valley are intimately tied to the economic and social health of the entire region, and reflect 150 years of water use practices that support the entirety of the San Luis Valley’s population as well as a water management structure designated to allow Colorado to freely utilize its share of the Rio Grande and its tributaries pursuant to the Rio Grande Compact. Any new federal land use designation that could impact or interfere with the water use practices in the San Luis Valley or Colorado’s ability to utilize the water resources to which it is entitled must be strenuously resisted by our elected federal representatives , as well as all of our state officials . This matter is of enormous importance.”

Representatives of the district also personally met with congressmen and Deputy Secretary of the Interior Mike Connor.

The district presented language protecting the Rio Grande Natural Area that it requested be included in the monument designation, were that to occur, and Conejos Clean Water has agreed to that language.

Robbins said the Valley’s congressmen and Department of Interior also assured the district they would not move forward with a monument expansion unless the district’s concerns were properly addressed.

Who owns the water in Ruedi Reservoir? The list includes, indirectly, ancient fish.

There are three main types of water in Ruedi Reservoir.
There are three main types of water in Ruedi Reservoir.

By Brent Gardner-Smith, Aspen Journalism

BASALT — Knowing who owns, or controls, the water in Ruedi has become of greater public interest since 2013, when all of the water in the reservoir was sold, as the new ownership regime could change how much water is released from the reservoir in any given year.

And how much water is released from Ruedi has implications for the quality of the trout fishing on the lower Fryingpan River and the health of four species of endangered fish in the Colorado River below Palisade.

Given that, we thought it worth figuring out who owns the water in Ruedi, and the resulting list, signed off on by the Bureau of Reclamation, is below.

There are three types of water in Ruedi. The first is “fish water,” or water held in storage in Ruedi until it is released to benefit struggling populations of native fish in the Colorado River between Palisade and Grand Junction, in what’s known as the 15-mile reach.

The fish water is released from Ruedi and sent down the Fryingpan River, which flows into the Roaring Fork River in Basalt, which in turn flows into the Colorado River in Glenwood Springs.

The second type of water in Ruedi is “contract water.”

This is water that has been sold by the Bureau of Reclamation to recover the costs of building and operating the reservoir.

Contracts for annual delivery of water from Ruedi 
vary in size from 12,000 to 15,000 acre-feet (AF) and there are now over 30 individuals and entities with water contracts.

When these Ruedi water owners are called out by senior downstream water rights holders, most significantly the large diverters near Grand Junction collectively known as “the Cameo call,” then they can ask Reclamation to release their “augmentation” water in Ruedi instead of stopping their normal use of water from their local sources.

In practice, this does not happen very often. But in a dry year, it could be important to many of the contract holders.

The third type of water can be viewed as “reservoir water.”

This is water not generally released from the reservoir, and includes the “dead” pool, the “inactive” pool, the “recreation and regulatory” pool and the “replacement” pool in Ruedi.

Ruedi was built, in part, to provide a “replacement” pool for the big upstream diversions of the Fry-Ark project, but these various “reservoir” pools are not a big factor in shaping the amount of flow out of the reservoir.

An angler in the Fryingpan River last fall, when the river was running about 300 cfs.
An angler in the Fryingpan River last fall, when the river was running about 300 cfs.

2015 flows

The question of how much water was flowing out of Ruedi, and who owns it, became an issue for many anglers on the lower Fryingpan River in September and October last year, when the river was consistently flowing at about 300 cubic feet per second.

At that level, the river can be hard to wade across, and local fly-fishing guides began to get complaints from some regular customers, who prefer levels in the 230 to 250 cfs range.

The river was high last year because 24,412.5 AF of water was released from Ruedi to help the endangered fish. This was an increase from 2014 and 2013, when 15,412 AF and 10,412 AF was released, respectively, as fish water.

There are three sub-pools of fish water in Ruedi, totaling 15,412.5 AF.

The first pool is 5,000 acre feet of fish water under contract to the CWCB and provided to the U.S. Fish and Wildlife Service for use in the 15-mile reach.

The second pool of fish water contains 5,412.5 AF. This pool is under contract to the Colorado River District, which acts as a custodian for the water on behalf of Western Slope interests.

The third pool contains another 5,000 AF and remains under the control of Reclamation, which considers it available for use in four-out-of-five years, or 80 percent of the time.

This third pool of fish water is, in essence, “extra” water that is provided by Reclamation to help the fish when conditions in Ruedi allow.

So while there is a total of 15,413.5 AF of fish water in Ruedi, only 10,413.5 AF of it is counted in our tally under the heading of “fish water.” We list the third pool of 5,000 AF, under the heading of fish water, but it is actually included in the “reservoir water” category.

A view of Ruedi Reservoir showing the face of the dam, the spillway, the building that houses a hydropower plant, and an overflow outlet just above it. The pool just below the outlets often has the biggest fish on the river lurking within it.
A view of Ruedi Reservoir showing the face of the dam, the spillway, the building that houses a hydropower plant, and an overflow outlet just above it. The pool just below the outlets often has the biggest fish on the river lurking within it.

Contract water as fish water

In addition to the 15,413.5 AF of fish water released in 2015, there was also 9,000 AF of contract water released as fish water, which was a new development for both Ruedi and the lower Fryingpan River.

The 9,000 AF of contract water released as fish water was part of a 12,000 AF pool of water bought in 2013 by Ute Water Conservancy District in Grand Junction.

Ute Water bought its 12,000 AF for $15.6 million, or $1,300 an AF, to use as a back-up source of water. But last year it entered into a lease contract with the CWCB, at $7.20 an AF, so that the water could be used instead to benefit the endangered fish.

After Ute Water and CWCB finalized a lease arrangement in August to release up to the full 12,000 AF, only 9,000 AF could be released by the end of October without bringing flows over 300 cfs in the lower Fryingpan.

This year, though, Ute Water and CWCB hope to get an earlier start on releasing the full 12,000 AF as fish water, on top of the three pools of fish water totaling 15,412.5 AF.

If they succeed, that could mean 27,412.5 AF of water could be released from Ruedi as fish water, and flows in the Fryingpan could again be in the range of 300 cfs.

Given the discussion of water in Ruedi, a lingering question is, how much of the other contract water can be turned into fish water?

Bob Rice, a contracts specialist at Reclamation, said some of the water in contracts held by the Colorado River District could potentially be used for fish water, but it is currently unlikely that they will be.

While other contracts may also include the flexibility for the water to be used for “piscatorial,” or fish, uses, almost all of the water held by other contract holders is limited to use within their individual jurisdictions, and not in the 15-mile reach. The 12,000 acre-feet owned by Ute Water is a rare case, as the 15-mile reach is within their boundary.

So while more contract water may not turn into fish water in the future, it is the case that a fair amount of contract water could also be released along with fish water, at the request of the owners of the water. And that could bring the river up.

A map showing Ruedi Reservoir, the Fryingpan River, and the 15-mile reach on the Colorado River near Grand Junction.
A map showing Ruedi Reservoir, the Fryingpan River, and the 15-mile reach on the Colorado River near Grand Junction.

The list

Here’s the list of who owns water in Ruedi, by acre-feet.

Some entities have multiple contracts for water in Ruedi. In those instances, we have added up the AF in each contract and combined them and included the amount of AF in each contract in parenthesis.

Ownership of Water in Ruedi Reservoir

Fish Water

5,000 AF Colorado Water Conservation Board, for 15-mile reach
5,412.5 AF Colorado River District, for 15-mile reach

Subtotal: 10,412.5 AF

(5,000 AF) (CWCB, for 15-mile reach, available 4-out-of-5 years. It’s often used as fish water, but technically it is in the “reservoir water” pool).

Contract Water

12,000 AF Ute Water Conservancy District
11,413.5 AF Colorado River District (500, 530, 700, 4,683.5, 5,000)
6,000 AF Exxon Mobil Corp.
2,000 AF Colorado River District (tied to 5,412.5 fish water as “insurance” water)
1,790 AF Basalt Water Conservancy District (300, 490, 500, 500)
1,250 AF Battlement Mesa Metropolitan District
600 AF West Divide Water Conservancy District (100, 500)
550 AF City of Rifle (200, 350)
500 AF Town of Basalt (200, 300)
500 AF City of Glenwood Springs
500 AF Snowmass Water and Sanitation District
500 AF Town of Carbondale (250, 250)
400 AF Mid-Valley Metropolitan District (100, 300)
400 AF City of Aspen
400 AF Town of New Castle
400 AF Garfield County
330 AF Summit County
300 AF Town of Silt (83, 217)
200 AF Town of Palisade
185 AF Ruedi Water and Power Authority
150 AF Wildcat Ranch Association (50, 100)
140 AF Wildcat Reservoir Company
125 AF Town of DeBeque (25, 100)
100 AF Crown Mountain Park and Recreation District (38, 62)
100 AF W/J Metropolitan District
75 AF Town of Parachute
43 AF Starwood Water District
35 AF Thomas Bailey
30 AF Elk Wallow Ranch LLC
21 AF Owl Creek Meadows
20 AF Westbank Ranch Homeowners Association
15 AF Owl Creek Ranch Homeowners Association
15 AF Ted and Hilda Vaughan
Subtotal: 41,087.5 AF

Reservoir Water

28,000 AF replacement pool
21,778 AF recreation and remaining regulatory pool
1,032 AF inactive pool
63 AF dead pool
Sutotal: 50,873 AF

Total Water

102,373 AF