Congress must still approve the deal, but the key players – the federal Bureau of Reclamation, the Navajo Nation and the state of Utah – are in agreement on a settlement they say is both fair and likely to calm uncertainty on a major tributary to the Colorado River. The San Juan, popular with river-runners, traverses 383 east-west miles in the Four Corners area before it empties into the Colorado near Glen Canyon.
Daniel Cordalis, Navajo, is an advising attorney hired by the Navajo Nation to analyze the settlement along with his wife and fellow attorney Amy Cordalis, Yurok. “That analysis led us to believe the settlement is fair and provides the Navajo Nation a favorable resolution of their Utah water rights claims,” he said.
Earlier this month, Navajo Nation president Russell Begaye issued a tentative stamp of approval.
“The Office of the President and Vice President commend the Utah chapters along with their respective delegates for working hard to draft the settlement,” Begaye said in a statement.
The Navajo Nation was established by treaty starting in 1868, long before many of the regional rivers’ current users began drawing water. By law, the reservation theoretically holds rights senior to most competing uses, according to the “first in time, first in right” bedrock principle of Western water law. But for the Navajo Nation, as with many tribes, quantifying those rights – and thereby turning them from “paper” to “wet” water – has meant decades-long slogs through political negotiations and, sometimes, the courts. The Navajo Nation Council first announced in January that it had reached an agreement with the state of Utah and other stakeholders, entitling it to 81,500 acre-feet of water for use on the relatively small part of the reservation in Utah. Based on average per capita water use, 81,500 acre-feet of water could support 300,000 people a year, or irrigate between 25,000 and 40,000 acres.
The settlement includes a waiver of any past legal claims by the Navajo Nation against the state of Utah and the United States within the state of Utah, which is standard in Indian water settlements. In addition, the Utah-Navajo settlement contains an agreement by the Navajo Nation that, if there is not enough water to fill its needs, it will not assert priority over pre-existing, non-Native water users.
This alarms some in the conservation community, who question the value of water rights that can’t be enforced. “It kind of tells me that the state of Utah understands that there’s no water left for the tribes,” said John Weisheit, conservation director for Living Rivers, a Utah-based water advocacy group. “They’re first in rights, but last in line for water.”
But Cordalis said while water supplies are questionable by some measures on the Colorado River as a whole, the situation on the San Juan is more nuanced. “The San Juan River is not burdened with downstream water rights such that those existing water rights present a significant detriment to Navajo’s 81,500 acre-feet a year (AFY) right,” he said. “In our opinion, there will be enough water in the San Juan River to achieve the full settlement value on a yearly basis.”
Wayne Pullen, the Bureau of Reclamation’s Provo area manager and chairman of the federal negotiating team, added that there are few pre-existing uses on the San Juan River. He said small towns like Mexican Hat draw modest supplies, as do some small wells and agricultural irrigators.
Cordalis pointed to state of Utah and Bureau of Reclamation figures indicating that in the Upper Colorado River Basin Compact, Utah was apportioned 23 percent of the water available to the Upper Basin, or roughly 1.37 million AFY of Colorado River water. The Upper Basin includes all or part of the states of Arizona, Colorado, New Mexico, Utah, and Wyoming that draw water from above Glen Canyon Dam, while the Lower Basin users draw their water downstream of the dam. In 2009, Utah used just over 1.07 million AFY, leaving about 300,000 AFY in Utah’s Upper Basin apportionment. Navajo’s allocation will be counted against that share.
“What the settlement does is provide that flexibility for tribal members to both use water now and have enough water for future development, which ultimately is most important,” Cordalis said…
“We want to be part of the decision-making, but we are not,” said Anna Frazier, a long-time activist with the Navajo grassroots group Diné CARE. Still, there has not been public opposition to the Utah San Juan settlement as there was to the Little Colorado proposal in 2012.
Leonard Tsosie, a Navajo Nation Council delegate representing the Baca/Prewitt, Casamero Lake, Counselor, Littlewater, Ojo Encino, Pueblo Pintado, Torreon, and Whitehorse Lake chapters, has been promoting the settlement among his colleagues and constituents, as a way to support existing and future Navajo communities in southeastern Utah. “We can dream all we want but if there is no water, there is no development,” he said.
In addition to the water rights, the settlement calls for a Congressionally allocated, $200 million Utah Navajo Water Development Fund for Utah Navajo water projects.
So far, all seven Navajo chapters in Utah have approved the settlement, and the Navajo Nation Council voted 13-7 to approve it. President Begaye’s office pointed out that if the Navajo Nation is going to push for a legislative package, it must do so before the September Congressional lame duck session.
FromThe Grand Junction Daily Sentinel (Dennis Webb):
Opponents of a proposed nuclear power plant near Green River, Utah, are considering whether to appeal to the state’s high court after the state Court of Appeals upheld a district judge’s ruling approving the plant’s water supply.
A three-judge panel ruled last week in favor of Blue Castle Holdings, the project developer, and two water districts that are seeking changes to existing water rights so Blue Castle can withdraw 53,600 acre-feet a year from the Green River for cooling and steam production at the proposed plant.
The conservation group HEAL Utah challenged the state water engineer’s approval of the proposal, but that approval has now been upheld twice in court.
“In sum, HEAL Utah has not shown that the district court erred in concluding the change applications were filed in good faith and are not speculative or for monopoly of the water,” the appeals court ruled.
HEAL Utah’s challenge had been based partly on concerns about environmental impacts to the watershed, including to endangered fish.
Blue Castle CEO Aaron Tilton said in a news release, “We recognize our responsibility for strong environmental stewardship throughout the lifetime of the project, which includes working diligently to assure protection of the Green River environment and endangered species. Our project has been scrutinized at many levels, including the state engineer, the district court and now the appeals court. We have fully complied and satisfied all the requirements of the law. We can assure the public the high level of scrutiny that has been applied to the process is welcomed.”
Matt Pacenza, HEAL Utah’s executive director, said Monday that despite the setback, “we don’t think the project is moving forward in any legitimately or significant way.”
He said Blue Castle hasn’t attracted interest from utilities for the power it would supply, nor, as far as HEAL Utah can tell, from investors. He said the company hadn’t met with the federal Nuclear Regulatory Commission since 2011…
The appeals court said in its written ruling, “Despite the relatively early stage of the Project, the Applicants offered considerable evidence that the Project is feasible, including a detailed business plan, purchase contracts for land, lease agreements for the Districts’ water rights, and evidence that shows it has had discussions with eighteen utilities expressing an interest in the plant’s power.”
It added that while the project “is a risky venture” and hasn’t yet been licensed through the NRC, “the Applicants presented evidence that the Project is both physically and economically feasible.”
Blue Castle says it has begun the contractor selection process for some $8 billion worth of construction work with an expected start date of 2020.
It projects that construction would require some 2,500 workers over some six or seven years, and the plant would employ about 1,000 people permanently. The 2,200-megawatt plant would increase Utah electricity generation by about 30 percent, the company says.
MEEKER – The mule in a pasture east of Meeker along the White River seemed happy to see Erin Light, a state division engineer, and Shanna Lewis, a water commissioner, when they went to take a look at the amount of water flowing through the Meeker Ditch on July 11.
Lewis, who grew up on a Colorado ranch, praised the mule’s beautiful, deer-like coloring and said they’d become friends on her frequent visits to check the ditch.
But the warm equine reception the two enforcers of Colorado water law received differed from the response they sometimes get from ranchers in Division 6, which encompasses the Yampa, White and North Platte river basins, especially when they are visiting a ditch because they think its operator is diverting more water than they need through their head gate.
“I would say I’m more telling than I am curtailing,” said Light, who has been the division engineer based in Steamboat Springs since 2006. “There have only been a few situations where I’ve actually said, ‘That’s it. We’re curtailing you.’ And they’re very obvious situations where they’ve got a lot of water going down the tail end of their ditch, where you can’t argue that this isn’t waste.
“Where the problem becomes in determining waste is that I can go out to a piece of land and say, ‘Oh my gosh, you’ve got 6 inches of water on this land. There’s ducks swimming around. This is wasteful,’” she continued. “You can go to the landowner or the irrigator and say, ‘This is waste,’ and they’ll stare you right in the face and say, ‘The hell it is.’”
Division and state engineers working for Colorado’s Division of Water Resources, as Light does, are the only officials who have the authority to determine if waste is occurring on an irrigation system. And their primary response is to curtail wasteful flows at the head gate.
But determining if there is waste in a ditch is a case-by-case exercise. It’s site specific and time sensitive, and it can take time to understand how someone manages their ditch.
There’s no state definition of waste or written guidelines, but in the end it’s a fact-based analysis focused on how much water is needed to irrigate so many acres.
An allowance is also made for customary inefficiencies on a ditch system. Water leaking out of an old ditch, for example, is not considered waste. But beyond inefficiency, which is often a physical issue, there is waste, which is usually a water-management issue.
And waste is a much bigger issue on the Western Slope than on the state’s drier eastern plains, where irrigators have long watched for anyone wasting water.
Free river, or not
In 2014, Light served the Meeker Ditch with a written curtailment order, and she also told the big Maybell Canal on the Yampa River that they had to stop wasting water.
And she did so even though neither river was “under administration,” the term for the body of water being called out by senior downstream diverters, so both were considered in a “free river” condition.
Nor was there another water right that was being injured by either ditch’s diversions.
Just in the past 10 days, Light’s office has informed rancher Doug Monger that water is being wasted in the irrigation system he manages on his Yampa River Ranch three miles east of Hayden.
Monger is a Routt County commissioner, a member of the Yampa-White Roundtable, and a director on the Colorado River Water Conservancy District’s board.
When asked Tuesday, during a break in a daylong strategic retreat at the River District, about Light’s belief that he was wasting water, he responded in a way that she has heard before.
“I don’t know what the hell difference it makes if I’m wasting water or not, it’s going back in the river,” Monger said. “Who the hell cares, if it’s a free river.”
“I know he is wasting water,” Light said Monday of Monger. “And he should be the poster child of what should be done, not what shouldn’t be done.
“About 10 days or so ago, our water commissioner approached a bunch of water users in the ditch system,” she explained. “There are several ditches that combine and co-mingle there.
“They were immediately going, ‘That’s Doug Monger’s responsibility, Doug’s the one controlling that,’ which I take as Doug is the one controlling the head gates,” Light said. “One of our water commissioners, Brian Romig, went to Doug and said, ‘We’ve got a problem here. You’re diverting too much water.’ From what Brian told me, Doug somewhat recognized it. He concurred that he needed to reduce his diversions.”
But Tuesday, Monger was not willing to go that far, saying he understood from the water commissioner only that he was still figuring out how Monger’s ditch works.
“I won’t acknowledge it,” Monger said of the allegation that he was diverting more water than he needs. “And if they start coming up with some scenario on it, we can always get our attorney. “
That was the same initial response that David Smith, the primary shareholder on the Meeker Ditch, had when Light curtailed his ditch in 2014.
But since then, and after spending $40,000 in legal and engineering fees, Smith has come around to see Light’s point.
“I would tell you that Erin and I started out on opposite ends on this thing, but both of us have kind of tried to work our way towards middle ground that we can both agree on,” he said.
Smith was busy this week bringing in hay on his well-tended fields along the White River just west of Meeker — the same fields his grandfather irrigated.
“I’ve had some disagreements with her, but Erin is an intelligent gal,” he said of Light, who has a master’s degree in civil engineering from Colorado State University with an emphasis in hydraulics and hydrology. “We’ve worked with her, and we’ve worked with the people that she has here, and at the end of the day it’s helped all of us, and I think we’re all better educated because of it.”
Laying down the law
The Meeker Ditch has a water right dating back to 1883 to divert 20 cubic feet per second (cfs) of water and two other later and smaller rights that allow it to divert 25.95 cfs in all.
The ditch diverts water from the White River just east of Meeker, runs it through Meeker proper, and then to fields west of town. (See map).
In her August 2014 curtailment order, Light said the historic water rights held by the Meeker Ditch represent enough water to irrigate about 1,000 acres, but today only 153 acres are actively being irrigated. And engineers at Resource Engineering Inc. calculated that the Meeker Ditch only needed 6 cfs to irrigate the fields still served by the ditch.
Attorney Kevin Patrick of Patrick, Miller and Noto, a water law firm with offices in Aspen and Basalt, had hired Resource Engineering to analyze the irrigation ditch on behalf of a client who owned commercial property under the ditch.
Since 2004, the property had been intermittently subject to flooding by water leaking from the ditch.
Patrick sent the engineering report and a letter to Light. “The ditch is diverting unnecessary water which is merely being spilled” and “the excessive running of water, over that reasonably required for the reasonable application of water to beneficial use for the decreed purposes and lands, is forbidden” under state law, the letter says.
After investigating the matter, Light found the ditch had been consistently diverting about 20 cfs at its head gate, but was then sending much of the water out of the ditch and down Curtis Creek, Sulphur Creek or Fairfield Gulch, back toward the White River.
Light then curtailed diversions at the Meeker Ditch head gate, which she has the authority to do. And when asked to do so by Smith, she put the curtailment order in writing.
“Colorado statute clearly prohibits the running of water not needed for beneficial use,” Light wrote in her order, dated Aug. 15, 2014.
Light cited a Colorado statute that reads “it shall not be lawful for any person to run through an irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his land, it being the intent and meaning of this section to prevent the wasting and useless discharge and running away of water.”
And she addressed the issue of water being released from the ditch and back to the river.
“Generally when water is being wasted off the end of the irrigated acreage, through waste gates, or at the tail end of the ditch, the head gate should be turned down to eliminate that waste of water,” Light wrote. “In this case it appears that water is being diverted at too great a rate for the lands that are being irrigated, and the rate of diversion is not being reduced to eliminate waste.”
Light’s stance on enforcing waste has the backing of her boss, State Engineer Dick Wolfe.
Use it or lose it?
Both Wolfe and Light served recently on a committee, convened by the Colorado Water Institute at Colorado Springs University, that issued a report in February on the widely brandished piece of advice to irrigators to “use it or lose it.”
The report is called “How diversion and beneficial use of water affect the value and measure of a water right” and is subtitled “Is ‘use it or lose it’ an absolute?”
The 11-page report ends with several declarative statements about waste that give further backing to Light’s approach, and that she might well wish to see chained to every head gate on the Western Slope.
“Water that is diverted above the amount necessary for application to a beneficial use (including necessary for transit loss) is considered waste,” states the report.
“Increased diversions for the sole purpose of maintaining a record of a larger diversion are considered waste,” it says, referring to the practice of diverting toward the full amount of a decree in order to bolster the future potential value of a water right.
And, “Wasteful diversions will either be curtailed, or will not be considered as part of the water right’s beneficial use.”
Wolfe, who recently gave a presentation to the Colorado Ag Water Alliance on the “use it or lose it” report, said that Light is not being overzealous in her enforcement of waste.
“She is not going out and as a division engineer purposely looking and being more assertive or aggressive about trying to find where waste is going on,” Wolfe said. “These are ones that just came to our attention.”
Alan Martellaro, the division engineer for Division 5, has not taken the same approach as Light when it comes to curtailing waste.
“To actually actively go look for waste is not something that’s historically been done unless there’s a call on the stream,” said Martellaro, who is based in Glenwood Springs and whose jurisdiction includes the Colorado, the Roaring Fork, and the Crystal river basins. “It just hasn’t been the mode we’ve ever been in.”
Kevin Rein, the deputy state engineer who also served on the “use it or lose it” committee, said issues vary from division to division.
“In Division 6, in the Yampa-White, we’ve had periods of free river without administration for a long time, because it hasn’t been over-appropriated,” Rein said. “That means not being water short. So very often people were just diverting whatever they wanted because, why not? But she’s really directing herself to getting people to measure their diversions and pay attention to duty of water. I think you choose what’s important in your division. That’s important in her division.”
“Duty of water” is essentially how much water someone needs to grow crops on a certain amount of land, without waste. In the Yampa and White river basins, the duty of water is generally held to be that it takes 1 cfs to adequately irrigate 40 acres of land.
After giving a presentation at a water workshop in Gunnison in June about the “use it or lose it” report, Rein was asked why the state doesn’t go around and curtail people who are over-diverting.
“We do, as resources allow,” Rein said. “It’s simply a matter of looking at our water districts where we, maybe, have one water commissioner and maybe a deputy. Maybe if they each had two or three more deputies, then we could do that.”
Light sounds like she could use some help.
“When it comes down to obvious waste,” she said, “I would say we have a tremendous problem with it. I had a long-standing water commissioner — he was with us for 40 years and grew up a rancher — tell me one day, ‘The problem with irrigators today is they don’t go out and move their sets. They just open the head gate wider.’”
“Sets” refers to how irrigators have set various control points, such as check dams and internal head gates, along their ditches.
“That just blew me away,” Light said. “Here’s a longtime rancher living in the community of Meeker his entire life who is more or less telling me that his co-irrigators … just open up their head gate and don’t move sets anymore. To me, that’s where the inefficiency is. Go out, divert less water, and move your damn sets.”
After receiving Light’s written curtailment order in August 2014 on the Meeker Ditch, Smith appealed it to an administrative hearing officer, which was a rare move.
Wolfe said the appeal, which was addressed to him, “is the only curtailment order that I am aware of that has been appealed since I have been state engineer.” He’s been state engineer since since 2007 and has been with the Division of Water Resources since 1993.
An attorney for the Meeker Townsite Ditch Co., which owns the Meeker Ditch, told the state that Light was “attempting to restrict the diversion of water down the Meeker Ditch at a time when the White River is not under an administrative call and at a time when no other water rights owner is affected by the diversion.”
At that point, the state stepped in to defend Light’s curtailment order, and Philip Lopez, an assistant attorney general, prepared an answer to Smith’s appeal.
In his answer, Lopez cited a relatively straightforward statute that reads: “During the summer season it shall not be lawful for any person to run through his irrigating ditch any greater quantity of water than is absolutely necessary for irrigating his land, and for domestic and stock purposes, it being the intent and meaning of this section to prevent the wasting and useless discharge and running away of water.”
And he quoted the Colorado Supreme Court in Fellhauer v. People, where it said, “The right to water does not give the right to waste it.”
As to the matter of Light, or any other division engineer, not being able to curtail waste if there is not a call on the river, Lopez wrote “the division engineer has the authority to curtail [the Meeker Ditch’s] wasteful diversions at any time pursuant to [state law], regardless of whether or not the White River is under administration.”
Lopez did concede, though, that the water rights held by the Meeker Ditch still allowed it to divert water, as long as they did so “without waste.”
That’s an important distinction for Smith, who insists that he wasn’t technically curtailed, only that he can’t waste water when diverting.
“She hasn’t curtailed me to the amount of water that I can use,” Smith said. “All that Erin tells me is that whatever amount of water I have in the ditch, that she doesn’t want us wasting any water.”
Light has a different take.
“We curtailed them,” Light said. “We issued an order to stop wasting. They hired an attorney. They hired an engineer. It went to the hearing officer. They don’t waste anymore.”
The hearing officer in the case denied the ditch’s appeal, indicating it was a matter for water court. But Smith declined to go there.
“We kind of came to a working agreement that we were going to try to work with it, but as far as the laws, there was never a test case,” Smith said.
That may be, but on July 11, when Light and Lewis measured the flow in the Meeker Ditch, it was running at 6 cfs, not 20 cfs as it often used to.
The Maybell Canal
Light has also curtailed another irrigation ditch in Division 6, the Maybell Canal on the Yampa River near Maybell, which she found was similarly diverting more water than it needed.
The canal diverts water from the Yampa into a head gate located in a canyon on the edge of Little Juniper Mountain, about 30 miles west of Craig. (See map).
The Maybell Canal has a senior water right for 42.2 cfs that was adjudicated in 1923 and appropriated in 1899. It also has a junior right for 86.8 cfs that was adjudicated in 1972 and was appropriated in 1946.
The waste on the Maybell Canal was brought to Light’s attention by one of her water commissioners who’d visited the ditch. Light then verbally instructed the canal’s manager to stop wasting water. Mike Camblin, manager of the Maybell Irrigation District, wasn’t happy when he got the curtailment order from Light, but he’s now working to secure funding to make $197,000 worth of improvements to the irrigation system.
On July 13, the Yampa-White-Green basin roundtable approved a $108,000 grant of state funds to help fix several issues on the ditch system. One of those improvements is a modern, automated “waste gate” a mile below the head gate.
Camblin said such a remote-controlled system won’t work at the head gate, which is higher up in the canyon without cell phone service and prone to being washed out by high water.
But he is willing to use the automated gate to reduce sending more water than necessary out the bottom of the ditch, where the water returns to the Yampa River.
The arrangement for the new gate does not entirely please Light, however. She insisted that Camblin agree to send someone up to the head gate within three days after receiving information from the new automated gate that they are over-diverting.
An agreement to that end has been worked out and is poised for adoption, both Light and Camblin said.
“The whole goal is to not only help Erin out but to make us better at what we do,” Camblin told his fellow roundtable members on July 13.
In an interview this week, Camblin said, “At times we were probably taking more water than we need, but that’s what this whole process is about, to cut that down.” He said he is forging a productive working relationship with Light.
“I think it all comes down to communication, especially with Erin and the water commissioners,” he said. “If they get to know us and how our ditch can run better, and we allow them to do that, and we communicate, we can solve a lot of problems.”
Watch that stick
Dan Birch, the deputy general manager at the Colorado River Conservation District and a member of the Yampa-White basin roundtable, is supportive of the improvements that Camblin is trying make on the Maybell Canal.
“I think Mike’s really trying to do the right thing, and I think he wants to take a look at ways he can manage his diversions better,” Birch said. “I certainly don’t think he’s diverting just for the sake of diverting.”
Birch also cautioned against using a stick to beat back waste.
“You can’t go into a situation and say, ‘Hey, you guys are wasting water, I want you to reduce your diversions,’” Birch said. “You really have to be prepared to go into that situation and say, ‘Hey, look, here’s something that we’re seeing here. Let’s have a conversation. I’m interested in exploring what we might do to improve flow in the river.’”
But Light feels the Maybell Canal needed to be prodded into action.
“What has partially pushed the Maybell Canal to go the direction they have is us really putting our foot down that we’re not going to allow this waste to continue,” she said. “Again, the waste is so blatant. They were diverting about 54 cfs at the head gate, and we estimated about 18 cfs going out the tail end. It’s like, ‘No, you can’t do that.’”
Birch was asked directly if he thought the Maybell Canal would be making its proposed improvements without Light’s enforcement actions.
“That’s a fair question, and my immediate response is probably not,” he said.
While Light has been able to work with both Smith and Camblin, she knows she’s raising the hackles of ranchers in the Yampa and White river basins.
“I don’t think the irrigation community wants to be told they’re wasting,” she said. “I’d love to do more as far as waste, but I do have to tread lightly.”
Editor’s note: Aspen Journalism, the Aspen Daily News and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published this story on Sunday, July 24, 2016
Click here to read Kara Godbehere’s post. Here’s an excerpt:
The standard Colorado Real Estate Commission form “Contract to Buy and Sell Real Estate” covers water rights under Paragraph 2.7 (“Water Rights, Well Rights, Water and Sewer Taps”). It’s important for real estate attorneys and brokers to understand what these provisions mean, and when the advice of a water attorney could be helpful (and maybe even save some time and money).
A water right is a conveyance in real property, generally conveyed in the same manner (see CRS 38-30-102). However, water rights records in my experience are notoriously unreliable. Title insurance companies DO NOT INSURE water rights, so the conveyancing documents are up to the seller or their attorney, and are often not specific. Sometimes they aren’t recorded at all, and often they contain vague language such as “any and all water rights.” It can be difficult to know what you are getting based on the language in a real estate contract or even the seller’s deed.
So what do attorneys and brokers need to be aware of in a typical real estate transaction? Let’s start with Paragraph 2.7.1, “Deeded Water Rights.” I advise broker clients to call me if they see deeded water rights, especially ditch company rights (all of the following information/recommendations regarding Paragraph 2.7.1 are equally applicable to paragraph 2.7.4, “Water Stock Certificates”). For deeded water rights you want to verify title in the seller with the ditch company’s records (or records of the managing entity – irrigation district, water company, etc.) and the county clerk and recorder’s records. Remember, ditch stock conveyances do not have to be recorded, and because they aren’t insured, they will not be included in your title commitment – nor will they be insured by your title policy! I have had remorseful buyers and even agents tell me, “but this water issue didn’t show up in the title commitment! How could we have known!” and the answer is, you should have performed your own due diligence or hired an attorney to do it for you. Always independently verify title to deeded water rights and investigate any decrees associated with the rights. You’ll also want to review the bylaws/rules/regulations of any ditch company or special district that may have administrative authority over the rights, and make sure any requirements of those entities are met during the conveyancing process.
FromThe Texas Tribune (Jim Malewitz) via The Midland Reporter-Herald:
More than three years after Texas filed a complaint in the U.S. Supreme Court alleging that New Mexican farmers were slurping up too much water along the river — illegally curbing the flow downstream into Texas — the justices appear likely to take up the challenge.
That’s after Gregory Grimsal, a court-appointed special master, issued a draft report recommending that the court deny New Mexico’s motion to dismiss the complaint, a major development in the high-stakes dispute.
“This is a big victory for the state of Texas,” said Russell Johnson, a water rights lawyer who is not involved in the case. “The special master has in essence swept aside the impediments to Texas pursuing a claim.”
If Texas ultimately prevails, it could receive more than just extra water. New Mexico could be forced to fork over hundreds of millions of dollars in damages, experts say.
Like most interstate water skirmishes, this one is complicated and has deep historical roots. Grimsal’s report, currently in draft form, spans 273 pages.
Here are five things you should know about the battle.
— The Rio Grande holds some of the most studied and squabbled-over waters in North America. And it’s drying up.
The river is lifeblood for folks in three U.S. states and Mexico. It’s an international border. It’s ravaged by drought. The river begins about 12,000 feet above sea level in Colorado and flows southeast after cutting through New Mexico. It forms the Texas-Mexico border between Chihuahua State and El Paso, where it flows through a concrete channel.
Before reaching Texas, the Rio Grande collects at New Mexico’s Elephant Butte Reservoir, which is currently just 13 percent full.
Of the American West’s four iconic river basins, the Rio Grande is “facing the largest climate-change water-supply deficits,” according to a December 2015 report in the journal Ecological Applications.
— The three-state Rio Grande Compact prevents states from claiming more than their fair share of the water. Except when it doesn’t.
In the 1910 Rio Grande Project, the federal government established an irrigation system aimed at helping agriculture and industry in the states the river flows through. But that project, which also upheld a 1906 treaty that promises Mexico 60,000 acre-feet of water annually, didn’t specifically address state-by-state allocation. Historically, Texas has received 43 percent of the water, with New Mexico getting 57 percent.
Congress approved the Rio Grande Compact in 1938, which determined how much water folks in Texas — the most downstream state — should get before those upstream sucked it up. Or so Texas argues.
Now, the states are fighting over whether the compact actually requires New Mexico to cede a certain amount of water to Texas.
— Both states’ arguments have quirks.
Texas claims New Mexico is siphoning off more water than the compact allows by drawing too much from the river itself and pumping too much groundwater from wells nearby.
The groundwater argument “is probably what makes New Mexico go batshit crazy,” said Johnson, the water rights attorney.
That’s because Texas law does not recognize the nexus between groundwater and surface water — that over-pumping can lower river levels. Since New Mexico’s law does make the connection, however, Texas argues that it has the responsibility to ensure its wells are not curbing the river’s flow.
New Mexico points out that the compact does not explicitly state that it must deliver 43 percent of water to the state line. Rather, the agreement aims only to ensure enough water flows into the Elephant Butte Reservoir and is properly stored, the state claims. Previous agreements, in fact, had split the water between the two states.
That line of defense may be “ignoring reality,” Johnson said. “That seems to fly in the face of what the compact was intended to do — apportion the water between the states.”
— This time, the feds are siding with Texas
Despite Texas’ often-testy relationship with the federal government, the Obama administration actually supports the state’s position here.
In 2014, the U.S. solicitor general filed a motion to intervene on the Lone Star State’s side, arguing that the 43 percent figure of water New Mexico must send into Texas was “frozen” by the time the compact took effect.
The federal government also believes it has a stake in the outcome because of its international duties to provide Rio Grande water to Mexico, as detailed in the 1906 treaty.
But the federal government might not get the chance to make those arguments before the justices. That’s because Grimsal, the special master, recommended that the court dismiss the federal motion “to the extent that it fails to state a claim” under the compact.
New Mexico officials have focused on that partial victory in their public statements.
“We applaud the Special Master’s suggestion to limit the claims of the United States, and we will continue to work diligently in protecting the interests of all New Mexicans and our water,” Attorney General Hector Balderas, a Democrat, said in a statement this week.
— Resolving this case could still take years and plenty of taxpayer money.
It’s not clear when the Supreme Court will decide whether to accept the case. And if the challenge moves forward, that will take some time.
Though Grimsal’s report was filled with plenty of facts for the justices to evaluate, his job could be just beginning. If the case continues, he would oversee a full-fledged trial — complete with extensive discovery — before the justices ever heard oral arguments.
Together, the states and federal government have already been charged nearly $400,000 for Grimsal’s services, according to court documents. That tab will likely grow.
Meanwhile, the office of Texas Attorney General Ken Paxton has spent nearly $116,000 litigating the case, its records show.
Paxton declined to comment on the case.
A spokesman for the Texas Commission on Environmental Quality said that agency agrees with Grimsal’s recommendation. “We believe we have a strong case and the draft opinion validates the need to litigate Texas’ concerns,” Terry Clawson said in an email.
Each party has until Aug. 1 to comment on the report. Grimsal can still make changes before submitting his final recommendations.
“Water is the new gold,” said Scott Shuman, a partner in Hall and Hall, the auction house that will sell 411 acres of the Reynolds Farm and 13.75 shares in the Highland Ditch, along with the big-ticket item: 276 units of Colorado-Big Thompson water.
As Colorado’s population has grown, so has demand for water. Shuman said he expects farmers, cities and developers to try to get a piece of the Reynolds Farm portfolio…
High demand means prices are already high. C-BT shares have sold for between $25,000 and $28,000 each, according to the Northern Colorado Water Conservancy District, the agency that manages the C-BT system — which conveys water from the headwaters of the Colorado River to the Front Range and plains.
This means the C-BT water alone could bring in $6.9 million to $7.7 million, compared with the auction house’s estimate for the land of $5,000 to $15,000 per acre, or $2 million to $6.2 million…
These particular water rights are especially attractive because they can be used for multiple purposes — agriculture, development and industrial processes, including fracking — and can be easily traded as long as they stay within C-BT boundaries, said Reagan Waskom, director of Colorado State University’s Colorado Water Institute…
The Reynolds farmland, which is northeast of the intersection of Interstate 25 and Colorado 66, is bounded by Weld County roads 9 1/2, 32 and 13, and another property.
It is not annexed into a town, although it is in Mead’s growth area. Town manager Mike Segrest said he assumes it will be annexed in the future…
“The price of water is out of reach and the price of land is out of reach.” Waskom said. “Those are development prices.”
He said a farmer would need to have deep pockets and be willing to work the land without making much profit. He added that a young farmer could buy the land and the ditch rights and not the C-BT shares, shifting to dryland farming of crops such as wheat. But that’s a difficult transition and profits would be minimal, especially compared with an irrigated farm.
“Bankers are not going to go there with him,” Waskom said.
It’s more likely that a developer will buy the land, Waskom said. A developer could build on the land or transfer the water rights to a water provider that supplies an area where it has a project.
“I feel like it is inevitable,” Waskom said about the possibility that the water will be separated from the land. “I wish we could plan it better so that our best agricultural lands could stay in working lands. To me, it’s all being driven by the market, which I’m not saying is bad, but it may not end up with the kind of Front Range Colorado we want in 10 to 20 years.”
Here’s part one of a recap of the meeting in Brush yesterday from Stephanie Alderton writing for The Fort Morgan Times:
The Colorado Ag Water Alliance, along with the Colorado Cattlemen’s Association and the Colorado Water Institute, hosted a three-hour workshop for producers to help explain the new Water Plan’s application to agriculture. Speakers with various roles in water and agriculture talked about the new state plan’s emphasis on alternative transfer methods (ATMs) to conserve water, how the plan will be implemented in the South Platte Basin in particular and how farmers can increase water efficiency. People came from all over the state to hear and discuss details in the plan.
“A good Colorado plan needs a good South Platte plan,” Joe Frank, of the South Platte Basin Roundtable, said. “Nine out of the top 10 ag producing counties are in this basin.”
During his talk, the first of the day, he explained that the area has an increasing water supply gap as the population grows, which the Water Plan seeks to address. Frank’s group is in charge of implementing the plan in South Platte by coming up with a balanced, pragmatic program for farmers that is consistent with Colorado law. He said that program will focus on maximizing the use of existing water, encouraging farmers and other organizations to use ATMs in order to share water more effectively and promoting multi-purpose water storage projects, among other things.
Mike Applegate, of the Northern Water Board, talked about the status of current storage projects all over the state, while MaryLou Smith of Colorado State University gave a list of reasons why producers should want to use their water differently in an effort to conserve more. Phil Brink, of the CCA, reported the results of a survey on farmers’ opinions of ag water leasing, while Dick Wolfe, an engineer with the Colorado Division of Water Resources, explained the problems with the “use it or lose it” mentality farmers tend to have toward their water rights. John Schweizer, a producer from the Arkansas Basin, talked about the success of the Super Ditch near his hometown, an ATM project that recently started seeing results. After a final panel made up of people involved in various ATM projects, including Morgan County dairy farmer Chris Kraft, the audience spent more than an hour trading questions and comments with the speakers.
The purpose of the workshop, according to a CAWA press release put out beforehand, was to bring people together to discuss the “opportunities and barriers” the Water Plan presents. The speakers in the second half of the day presented many opportunities in the form of ATMs and other projects. For example, Schweizer said the Super Ditch, though it’s taken many years to be completed, has the potential to help many farmers conserve water without new legislation or complicated water rights battles.
“We’ve had a lot of people say this wouldn’t work,” he said. “We’re starting to prove them wrong…I see nothing but a glorious future for this project.”
But it was clear that many people at the workshop saw many remaining obstacles to water efficiency. During the question and answer session at the end, several people pointed out that, while ATMs can make it easier for farmers and other organizations to share water, they can’t solve the problem of water shortages by themselves.
“We are concerned that the state Water Plan talks so much about these ATMs, and a lot of policy makers around the state are counting on them,” Smith said while moderating the discussion. “Part of what we want to do is get the message of what you guys are saying back to some of those policy makers.”