Who gave up what ground in the feud about ski areas and water rights? — The Mountain Town News

Photo via Bob Berwyn
Photo via Bob Berwyn

From The Mountain Town News (Allen Best):

In late December, the U.S. Forest Service announced a compromise with the ski industry in their feud over water rights. Both sides gave ground, but just as interesting was who didn’t get deeply involved.

The environmental community mostly stayed on the sidelines, unwilling to hurl spears on behalf of the Forest Service. U.S. Rep. Scott Tipton, a Republican who represents much of Western Colorado, was triumphant if still warning of federal overreach. He called the Forest Service policy an “onerous attempt to hijack private water rights.”

In this king-sized bed of political alliances, there was some unusual spooning going on. Tipton, elected with Tea Party support and a predictable critic of the Environmental Protection Agency, in this case shared covers with the Aspen Skiing Co., which had even dispatched a top official to testify in Congress against federal involvement in water administration.

This matter of who-is-calling-the-shots on water, states or feds, is also part of the discussion in the Colorado Legislature this winter. Boulder-based water attorney Glenn Porzak, who represents the Eagle River Water Authority and other interests, brokered meetings in recent months around a bill now introduced as HB 16-1109, called the Colorado Water Rights Protection Act.

The bill has sponsors from legislators who rarely agree on anything: from Sen. Jerry Sonnenberg, a Republican from the farm country of Northeastern Colorado, to Rep. KC Becker, a Democrat from reliably liberal Boulder. Other co-sponsors are Rep. Diane Mitsch Busch, a Democrat from Steamboat Springs, and Sen. Kerry Donovan, a Democrat from Edwards.

The bill very fundamentally seeks to discourage federal efforts to claim jurisdiction over water rights on federal lands in some cases. Major environmental groups—including Western Resource Advocates, Conservation Colorado, and Trout Unlimited—have agreed to remain neutral.

Water has always been seen as an essential part of the Forest Service mission. That concern is what drove withdrawal of the forest tracts from the general domain beginning with the White River Reserve of northwest Colorado in 1881. Those withdrawals were driven, in part, because of concerns about water quality from timbering and other land uses. States, just as zealously, have been protective of their authority over water allocation. But water quality and water quantity are inextricably linked, and hence tension.

This tension has played out frequently over the decades on a variety of fronts. In the case of ski areas, the Forest Service in the 1980s developed a policy that said any water developed and used on the national forest in an area permitted for a ski area should be in the name of the United States. The federal agency, however, applied this policy inconsistently to ski areas. There are 122 ski areas on Forest Service land across the nation, mostly in the West.

Ski areas never liked this requirement and questioned the validity. Still, 65 water rights were given to the U.S. government, and they remain in the name of the U.S. government.

In 2004, the Forest Service created something called joint tenancy, whereby the ski areas and the U.S. government would together hold water rights. The Forest Service saw itself as being the landlord and the ski area being a tenant and the plumbing (and tap fee) for the house belonging to the landlord. This was applied to a handful of adjudications of water originating on ski areas. Many states, however, do not recognize this concept.

In 2011, the Forest Service issued a new policy. The ski industry objected to the new clause, which required that ski area operators developing new water sources within their permit areas to give the title to the water to the U.S. government.

This new policy was applied to the Powderhorn Mountain Resort, located on Grand Mesa near Grand Junction, Colo. With partners, long-time ski industry executive Andy Daly had purchased the ski area in 2011. As a condition of transferring the permit for use of Forest Service land, says Daly, he and the other new owners were required to transfer the water rights to the Forest Service.

“They said they would not approve the permanent transfer of the permit (from the former owner) unless we agreed to the language,” he says.

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

That water portfolio for Powderhorn is 15 pages long and includes a wide variety of sources, from springs to access to a ditch drawing water from Mesa Creek, many rights filed in the 1980s but some predating the creation of the ski area.

At the time, Daly thought the Forest Service had over-stepped.

“In my mind, it was always considered a taking, from the perspective that the Forest Service was taking the water right of the ski area and not guaranteeing that those water rights could be used in perpetuity for what they were being used at the ski area.”

That same year, the National Ski Areas Association sued. The judge agreed, striking the Forest Service requirement—but on procedural grounds, not substantive grounds.

Adhering to the elaborate set of procedures and requirements yielded a new directive that the Forest Service announced in late December. The Ski Area Water Clause entered in the Federal Register clearly constitutes a compromise, if some dissatisfaction remains.

Giving ground

Ski areas give up their autonomy about water rights. They cannot just sell their water rights on the open market. They agree—even if they don’t necessarily believe—that the Forest Service should have some say-so over how much water is needed to run a ski area.

If an operator sells the ski area, the water rights must be included in the assets. If the buyer declines to buy the water, the Forest Service gets the first right of refusal. The Forest Service could decide the water isn’t needed, in which case the ski area would be allowed to sell the water rights to a buyer of its choosing.

Going forward, ski areas can continue to own all the water rights they develop on the ski areas, whether through wells, dams, or diversions. They do not need to transfer them to the U.S. government. However, the directive leaves intact prior water rights filings, including some that were ceded to the U.S. government.

The Forest Service requires ski areas to document sufficient water to support their operations in snowmaking and other uses for on-mountain operations.

The agency does not claim rights to water that originates off the ski permit area. In the context of Colorado, for example, both Vail and Beaver Creek use from the Eagle River, pumping it onto the ski mountains to make snow. Another example is augmentation water, such as that held in Green Mountain Reservoir and released as needed to meet senior water rights downstream by more senior users downstream on the Colorado River.

Jim Bedwell, the director of recreation in the Rocky Mountain region, calls it a good compromise but maintains that the Forest Service has a legitimate need.

“Ski areas do change hands,” he says, “and there is significant consolidation going on in the industry right now. Our real desire is that the public doesn’t see any difference, regardless of changes, and there will be some of the same opportunities for the public to ski, with the same quality of experience—but the water rights will be tied to the forest. That was our interest all along.”

Geraldine Link, director of public policy for the National Ski Areas Association, sees little reason ski areas would get rid of water rights. “Why would you sell the water rights if it wasn’t absolutely crucial?” she says. “That diminishes the value of your ski area.”

NSAA chose not to battle the Forest Service further for a number of reasons, she said: The restrictions apply to a limited class of water rights; litigation is expensive, and the outcome of a lawsuit uncertain.

But the new language gives ski area operators assurances that the value of their investments will be protected. “That’s a big deal for the ski areas.”

She also struck a diplomatic tone, describing ski areas and the U.S. Forest Service as partners for more than 75 years in providing the public with a concentrated outdoor experience, first in snow and now as four-season resorts.

“We have a lot going on. Our partnership is much greater than just water. That is the context for how we look at this new clause and say, ‘This will work for us.’”

Government overreach?

But Tipton proclaimed it a rebuff of Forest Service overreach. “Western water users are right to be wary of any action on water rights by this Administration, which has been dead set on slowly expanding federal control over water in the Western U.S,” he said in a Dec. 30 statement.

Tipton cited support from a number of familiar allies, but some unusual teammates, too, including the Gunnison County commissioners, which trend toward Democratic policies.

Chris Treese, director of internal affairs for the Colorado River Water Conservation District, also questions Forest Service authority. Water use, he argues, should be strictly within the domain of state water courts. Too, he harbors doubts whether the Forest Service should have any say-so in determining how much water is needed to operate a ski area.

“I appreciate the fact that they are no longer requiring ski areas to assign ownership to deed title over to the federal government. That is significant. But I question whether they have the true expertise to determine sufficiency of quantity for water. Exactly how are they going to measure that?” he asks. “There are implications for the private property nature of Western water rights.”

Treese does commend the Forest Service for recognizing in its final rule the fundamental difference between the prior appropriation laws of Western state and the riparian laws of the East.

Bypass flows different

Bypass flows are a related, but different issue—as environmental groups were careful to point out.

In the case of bypass flows, the Forest Service requires that water from dams and other such uses of the national forests lands let a certain amount of water continue to flow downstream, to achieve biological purposes of streams and rivers. After a 2004 federal decision upheld the Forest Service in a case involving a reservoir on the Arapahoe-Roosevelt National Forest, Colorado Trout Unlimited issued a statement that the ruling should “silence those who have asserted that the Forest Service does not have the authority to protect rivers on National Forest lands.”

But while environmental groups strongly support bypass flow requirements, at least some of them suggested—if they were willing to talk at all—that the Forest Service had sharp elbows in the ski area case.

“The best analogy I can make is that if you are a tenant in a building, your landlord can tell you not to play the radio loud after 10 p.m., that’s essentially what a bypass flow is,” explains Rob Harris of Western Resource Advocates.

“It just puts a limit on the exercise of your property right, which you agreed to by agreeing to the privilege of leasing or renting the apartment—or by leasing the federal land. By contrast, this ski area clause said give me your radio. I will not renew your lease unless you give me your radio. That’s fundamentally the difference.”

The bill in the Colorado Legislature very specifically remains neutral about bypass flows while otherwise arguing strongly that water rights are a matter under Colorado’s jurisdiction.

Porzak, who drafted the language, says the bill is “totally disconnected” from bills introduced by Tipton and by U.S. Sen. Cory Gardner.

Environmental groups, however, remain wary of Tipton’s legislation. They think it would swing the pendulum too far. In the words of Harris, versions of Tipton’s bill “have in fact threatened a lot of the natural values in public lands.”

View from enviro sidelines

An informed sidelines opinion comes from Ken Neubecker, who has been affiliated with several water-related environmental water organizations in Colorado, currently American Rivers. He also knows Colorado water law intimately. “Tempest in a teapot, and it just got blown completely out of whack,” he says. It shouldn’t have taken nearly so long to work out, he says. “It’s damned turf battles. Sometimes you do need to defend turf, but other times you do it simply because you can.”

Neubecker says the Forest Service should not be made into “some sort of retrograde exile in their own land,” as he thinks some would prefer. On the other hand, “you don’t get along by throwing bombs at your neighbors,” which is how he saw the Forest Service demand.

“They have a responsibility to the American public to manage these lands properly, and in the West, that means having some sort of administrative authority over what happens with water. That being said, it has to be done within the context of state water law. They can’t just sort of imperially say that federal agencies law supersedes states law, because when it comes to water, it doesn’t. They have to respect the legitimate rights of water rights owners.”

Long-standing tension

This latest conflict can be seen as part of a long-standing tension between state governments, private interests, and the federal government.

The lion’s share of these forests—including the Holy Cross, Montezuma, Cochetopa, and Uncompahgre in Colorado, the Shasta in California, the Sawtooth and Weiser reserves in Idaho, and the Dixie in Utah—were withdrawn from the general domain, made unavailable for homesteading, in 1905 by the order of President Theodore Roosevelt. In Colorado, many people were plenty unhappy.

Gifford Pinchot portrait via the Forest History Society
Gifford Pinchot portrait via the Forest History Society

In 1909, Gifford Pinchot, the first leader of the U.S. Forest Service, arrived in Denver to meet with angry stockmen, lumbermen, and miners, who accused the federal government of over-reach. Elias Ammons, a future governor, told Pinchot that there were men living on the reservations “who were living in a state of fear.” Pinchot, according to the Scientific and Mining Press, replied that if it were not for the Forest Service, there would be no small stockmen at all.

Pinchot won the argument that day, but the argument has never been completely settled, as witnessed by these periodic Sagebrush rebellions, of which the Bundy family of Nevada and Oregon are only the most militant, extreme actors. Of course, we’re still arguing about the Civil War, too. Until last year, a Confederate flag flew over the grounds of the state capitol in Charleston, S.C.

Basalt water case could 
affect state’s pot industry

A view of the High Valley Farms grow facility, just east of the town of Basalt.
A view of the High Valley Farms grow facility, just east of the town of Basalt.

By Brent Gardner-Smith, Aspen Journalism

BASALT – Can Colorado ‘lawfully’ grant a new water right to grow its marijuana?

If officials in Division 5 water court in Glenwood Springs rule it’s illegal to grant a water right to grow marijuana, it could shut down the pot industry in Colorado, an attorney for High Valley Farms, a Basalt-based marijuana growing facility, has told the court.

“If this court were to determine that, contrary to the findings of the state engineer, the use of water for marijuana facilities is not a beneficial use, the entire industry, which reportedly employs almost 16,000 residents, would be shut down,” wrote Rhonda J. Bazil, an attorney in Aspen for High Valley Farms LLC.

High Valley Farms supplies marijuana to the Silverpeak store in Aspen. The grow site and the retail store are commonly owned and Jordan Lewis is CEO of both Silverpeak and High Valley Farms.

High Valley Farms applied in August 2014 for water rights to grow 2,000 to 3,000 pot plants in a 25,000-square-foot facility between the Roaring Fork River and Highway 82, across from Holland Hills and next to the Roaring Fork Club.

(Since the original application was filed, it has been amended, and High Valley’s request is now best reflected in a proposed decree dated Nov. 13, 2015).

In response to both the original and amended High Valley Farms applications, a water court referee who initially reviews applications asked High Valley to answer the question of whether a water right to grow marijuana in Colorado can be “lawfully” granted when the plant is illegal under federal law.

Other marijuana-growing operations in Colorado have typically gotten their water by using existing water rights, and not by applying for new rights specifically to grow pot, as High Valley Farms has done.

For example, a grower might have bought land that came with water rights, or may have leased water from a district or city with existing water rights.

Whether the High Valley Farms case implodes the pot industry or not, the case is on track to set legal precedent.

“Because this is reportedly the first case of its type in Colorado, the court has asked that High Valley address whether marijuana cultivation is a beneficial use under under” state law, Bazil wrote in her answer, filed in November.

“This is a critical issue to the entire industry,” she told the court. “If marijuana cultivation is considered to be an unlawful use of water under state law, the constitutional amendment would essentially be invalidated.”

The passage of Amendment 64 in 2012 changed the state constitution and allowed for the legal production and sale of marijuana in Colorado.

The provision of state law that the court and Bazil are now parsing is CRS 37.92-103(4), a core tenant of Colorado water law.

“‘Beneficial use’ means the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made,” the statute reads.

It’s the word “lawfully” that is in question in the case.

As in, can an appropriation of water in Colorado to grow pot be “lawfully made” given it’s still illegal under federal law to grow weed?

The answer matters, because if it’s not a “lawfully” made appropriation, it’s not a “beneficial use” of water.

Bazil told the court that imposing the federal Controlled Substances Act “onto the beneficial use statute in relation to Amendment 64 would result in every marijuana cultivation facility in this state being operated illegally whether they are providing their own water supply or are operating with water from a municipality.

“To follow this argument to its logical conclusion, the state of Colorado would have to suspend all marijuana retail, cultivation, testing and manufacturing facility licenses because there would not be any water available from any source,” Bazil wrote. “This would be an absurd result.”

But Bazil also told the court, “Fortunately, there are regulations, case law and statutes that support the position that marijuana cultivation is a beneficial use of water in Colorado.”

Bazil makes three main arguments:The state water engineer has said it’s okay to use water to grow pot plants; The federal Bureau of Reclamation has also said it’s okay to water pot plants in Colorado, as long as you don’t use water taken directly from a federal facility; the federal government has ceded general management of water rights to the states.

The High Valley Farms facility sits between the Roaring Fork River and Hwy 82, across from Holland Hills, just upvalley from Basalt. It seeks to use water from the Fork and a well in a potentially precedent-setting case.
The High Valley Farms facility sits between the Roaring Fork River and Hwy 82, across from Holland Hills, just upvalley from Basalt. It seeks to use water from the Fork and a well in a potentially precedent-setting case.

Ref’s question

In response to High Valley’s application, the court’s water referee, Holly Kirsner Strablizky, posed the “lawfully made” question as part of a “summary of consultation” report from the division engineer.

In such reports, the division engineer typically describes their own concerns and also those of the water court referee, if they have any, without disclosing who has which concerns.

So while the marijuana question has technically been raised in a report from the division engineer, it’s understood by those close to the High Valley Farms case that the referee has posed the question.

“The applicant must explain how the claim for these conditional water rights can be granted in light of the definition of beneficial use as defined in C.R.S. § 37-92-103(4),” report states. “Specifically, beneficial use means ‘the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’ (emphasis added).”

Krisner Strablizky does not discuss court cases before her. And Bazil did not return several requests for comment.

There has been one statement of opposition filed in the water court case, by the Roaring Fork Club, which is just downstream of the High Valley Farms facility.

Attorney Scott Miller of Patrick, Miller, & Noto in Basalt, who represents the club, said their interest in the case is not about the marijuana question but only in the relatively straightforward request to physically use water.

High Valley Farms seeks a right to use 0.5 cubic feet per second of water from the Roaring Fork River in the grow facility, the right to store .61 acre-feet of water in underground tanks, and the right to use up to 7.56 acre-feet of water a year in its operations from an onsite well.

The operation would use 5.82 acre-feet of water a year at the facility’s current size and up to 7.56 acre-feet if expanded to 37,500 square feet.

What appears to be an underground water tank, yet to be buried, next to the High Valley Farms grow facility in Basalt. High Valley Farms LLC has applied for the right to store water in an underground tank.
What appears to be an underground water tank, yet to be buried, next to the High Valley Farms grow facility in Basalt. High Valley Farms LLC has applied for the right to store water in an underground tank.

Whose call?

Now that Bazil has made High Valley Farms’ case, the water court referee has several options.

She could accept the arguments from High Valley Farms and the matter could end there.

She could, without making a ruling, refer the case to Judge James Boyd, who presides over Div 5 water court.

Or she could reject the legal argument, and then High Valley Farms could appeal to Boyd.

If the judge eventually rules against it, High Valley Farms could appeal directly to the Colorado Supreme Court.

A case management memo filed by Kirsner Strablizky after a Jan. 28 status conference with Bazil and Jason Groves, another attorney for the Roaring Fork Club, tees up the next step in the case.

“Applicant (Bazil) stated that she and opposer (the club) are working together to finalize details regarding the proposed ruling,” Kirsner Strablizky wrote, suggesting the physical water issues in the case may be relatively straightforward.

The court asked whether, once stipulated, does the applicant desire for the referee or judge to determine whether the application is for a beneficial use,” Kirsner Strablizky also wrote, which means Bazil was asked if she preferred whether the referee or the judge rules on her argument.

“The applicant stated that the referee should process it as she feels fit,” Kirsner Strablizky wrote.

The Roaring Fork River, looking downstream, with two men standing on an irrigation headgate, river left, at the Roaring Fork Club. The High Valley Farms facility is just upstream, river right, and not in the photo.
The Roaring Fork River, looking downstream, with two men standing on an irrigation headgate, river left, at the Roaring Fork Club. The High Valley Farms facility is just upstream, river right, and not in the photo.

The argument

In her answer to the court’s question, Bazil was upfront that High Valley Farms filed its application “to provide water for commercial and irrigation uses inside a greenhouse in which marijuana is grown.”

“Like most other commercial agricultural products grown in Colorado, marijuana cultivation requires supplemental irrigation,” she notes.

Then Bazil describes various green lights, if you will, along the road of her argument.

First, she points out the state water engineer’s office does not object to using water to grow pot instead of, say, strawberries.

Bazil cites a fact sheet issued in October 2014 by the state engineer called “Well and Water Use in Regards to Amendment 64 and Cultivation of Marijuana” in which “the state engineer is treating marijuana like any other cultivated plant.”

Then she directs the court to the Colorado Retail Marijuana Code developed by the state Dept. of Revenue.

“In addition to the regulations confirming the appropriateness of the use of water in marijuana facilities, the regulations specifically require that an adequate supply of water he provided to marijuana facilities,” Bazil writes, adding it’s important to note that two state agencies have now issued rules for using water in grow facilities.

In terms of federal policy, Bazil cited a policy adopted by the Bureau of Reclamation, which she says “reinforces Colorado’s right to use water for marijuana cultivation.”

The bureau’s policy, Bazil writes, ”prohibits the use of reclamation facilities or water in a manner that is inconsistent with the Controlled Substances Act, but the policy specifically excludes “non-contract water commingled with contract water in non-federal facilities.’

“In other words, water may be used under state law for marijuana cultivation as long as the water is not stored in a federal reservoir and the water is not a Bureau of Reclamation water right,” Bazil explains.

High Valley Farms is seeking water rights for exchange and augmentation from two water districts, to better protect its access to water rights in times of drought.

It seeks the right to 2.3 acre feet of water from the Basalt Water and Conservancy District’s Troy and Edith Ditch, and not from Ruedi Reservoir directly, and .9 acre-feet from the Colorado River District’s Wolford Reservoir.

Both sources of augmentation water are from non-federal sources of water, and so are consistent with the Bureau policy, Bazil notes.

She also cites a 1952 federal law, the McCarran Amendment, by which the federal government ceded authority to manage water rights to the states.

“In short, state law governs the adjudication of water rights,” Bazil wrote.

Editor’s note: Aspen Journalism, Aspen Daily News and Coyote Gulch are collaborating on coverage of rivers and water. More at Aspen Journalism.org.

#ColoradoRiver: Many eyes are on the Shoshone Hydroelectric water right

From The Grand Junction Daily Sentinel (Dennis Webb):

The Colorado River District is asking Western Slope governments and water entities for more funding for continued study into ways to ensure the permanent preservation of a large, priority water right on the Colorado River.

The district and other contributors already have spent more than $200,000 looking into options to preserve the rights associated with the Shoshone Generating Station hydroelectric plant in Glenwood Canyon east of Glenwood Springs.

The district is now seeking to spend another $200,000 for the effort. It is shouldering half of the cost of the study.

The Shoshone plant has water rights dating to shortly after 1900. Its right to 1,250 cubic feet per second is senior to rights including those of Front Range municipal transmountain diverters.

As a result, the right ensures at least that level of flow both above and below the dam that serves the plant.

“The importance of that in the recreation and rafting industry frankly can’t be overstated. It’s huge,” Lee Leavenworth, an attorney advising Garfield County commissioners, told them Monday.

The small, 15-megawatt plant is owned by Xcel Energy. Western Slope interests long have feared that Xcel might sell the plant to a Front Range entity interested in buying and retiring the water right to allow more diversions under junior rights.

Xcel has said the plant’s not for sale and is important to Xcel’s power system reliability and stability.

But the Western Slope organizations aren’t taking chances, with the study exploring options including Western Slope acquisition of the plant and its water right should the plant go up for sale.

A 2013 agreement between Denver Water and 17 Western Slope water providers and governments included formalization of a protocol for generally continuing flows required by the plant even when there are plant outages. Denver Water also agreed to support possible Western Slope purchase of the plant.

Garfield commissioners on Monday agreed to commit up to $4,300 to the continuation of the study as part of a cost-sharing arrangement that would include entities from the Colorado River headwaters to the Utah state line.

“If that power plant is for sale we need to be first in line, the Western Slope,” Garfield Commissioner Tom Jankovsky said Monday.

He also voiced confidence in the ability of Western Slope entities to come up with what would be needed to buy the plant if that possibility arises.

“I think you would find that the money is there if we need to buy that,” he said.

“Why should I suffer for their sprawl?” — Bill Trampe


From ProPublic.org (Abrahm Lustgarten):

A vestige of 139-year-old water law pushes ranchers to use as much water as they possibly can, even during a drought. “Use it or lose it” clauses, as they are known, are common in state laws throughout the Colorado River basin and give the farmers, ranchers and governments holding water rights a powerful incentive to use more water than they need. Under the provisions of these measures, people who use less water than they are legally entitled to risk seeing their allotment slashed.

There are few starker examples of how man’s missteps and policies are contributing to the water shortage currently afflicting the western United States. In a series of reports, ProPublica is examining how decisions on water management and growth have exacerbated more than a decade of drought, bringing the West to the point of crisis. The Colorado River is the most important source of water for nearly 40 million people across California, Arizona, Nevada, New Mexico, Wyoming, Utah and Colorado, and supports some 15 percent of the nation’s food crops.

But the river is in trouble, and water laws are one significant cause. Legal water rights and state allocations have been issued for more water than the river, in an average year, can provide. Meanwhile its annual flow has been steadily decreasing as the climate changes and drought grips the region. And so, for more than a decade, states and the federal government have tried to wring more supply out of the Colorado and spread it further, in part by persuading the farmers and ranchers who use the vast majority of the river’s water and have the largest water rights to conserve it.

But in many ways it’s the vast body of often-antiquated law governing western water rights, officials acknowledge, that actively undermines conservation, making waste — or at least heavy use — entirely rational.

“Water is money,” said Eugene Backhaus, a state resource conservationist for the U.S. Department of Agriculture’s Natural Resources Conservation Service, which works to help ranchers use water more efficiently. “The way the current water law structure is, if they don’t use it for the assigned use, they could lose the water right.”


“The whole system is designed towards preserving the status quo,” said Jim Lochhead, the chief executive of the urban utility Denver Water, who formerly represented Colorado on interstate water negotiations. The most pragmatic approach, he thinks, is to build off existing water law while reforming its worst parts. But in a perfect world, he said, “I would abolish Colorado water rights law and start all over again with a clean slate.”

None of the antiquated parts of what across the entire basin is referred to loosely as “water law” play as much a role in stressing the water system — or seem as fixable — as the one known as “use it or lose it.”

Originally devised in part to keep speculators from hoarding water to build wealth and power, the intent of “use it” laws was to make sure the people who held rights to water exercised them. They could keep those rights indefinitely, passing them on through generations or selling them…at great profit, as long as they constantly put the water to what most Western water laws refer to as “beneficial use.”


Denver and other eastern Colorado cities already take 154 billion gallons of water across the Continental Divide from western Colorado each year. Schemes to build more tunnels to divert more water from rural western areas like Gunnison are a constant concern. And last July the utilities and groups that represent the lower river states’ biggest urban areas — including Las Vegas, Denver and Los Angeles — proposed a pilot program to find additional water supplies in the agriculturally rich parts of Colorado, in part by paying people like Trampe to fallow fields, be more water-efficient or perhaps lease or sell their water rights.

“The cities continue to grow and grow and grow … and they expect me — or us as an industry — to give up water,” Trampe said. “Why should I suffer for their sprawl?”


“Do we want to fix it in a way that sends more water to Arizona?” asked [John McClow], the water attorney. “We’re still parochial about that. If we save some water, I think we want to use it ourselves.”

Fort Lyon Canal board postpones well augmentation dry up hearing

From The Pueblo Chieftain (Chris Woodka):

A hearing next week on a plan to dry up about 6,700 acres on the Fort Lyon Canal has been canceled because some shareholders have complained about potential conflicts of interest.

The Fort Lyon board made the decision Tuesday night after about 10 percent of the shareholders filed a petition alleging conflicts with the canal company’s attorney and engineer. The move cancels the Feb. 11-12 hearings that were planned in Las Animas.

The hearing is for Arkansas River Farms, which bought 14,600 acres of Fort Lyon farms for $53 million last year and announced plans to dry up some of the ground at the annual meeting in December. Fort Lyon shareholders agreed to a public hearing to resolve some issues before a change of use application is filed in water court.

John Lefferdink, the attorney for the Fort Lyon Canal Co., is related by marriage to Bill Grasmick, who is working with Karl Nyquist for Arkansas River Farms.

Duane Helton, the engineer for Arkansas River Farms, was the Fort Lyon Canal’s engineer for 35 years. Tom Williamsen, the canal’s engineer, was Helton’s partner before Helton went into business for himself.

“I didn’t feel there was a conflict of interest,” said Dale Mauch, a board member of the Fort Lyon Canal. “If anything, John (Lefferdink) would be even more conservative in dealing with this.”

But the Fort Lyon board has decided to seek an outside attorney and engineer because of the potential that any decision made by the shareholders at next week’s meeting would not stand in court, Mauch said.

“We felt like we didn’t have a choice,” Mauch said. “Why go through the proceedings if they are going to be challenged?”

The hearing could be rescheduled as soon as April, or as far off as July. The board does not want to schedule it in May or June, when farmers will be busiest in the fields.

Arkansas River Farms, an affiliate of C&A Companies and Resource Land Holdings wanted to move ahead with its plans to use water from the dried-up farms as part of wellaugmentation plans this year. The water would replace depletions from wells further downstream, and a plan has to be filed with the state engineer by March 1.

C&A is the parent company of GP Resources, which announced a plan in 2011 to pipe treated water from the Lamar Canal to the Front Range. That plan has been put on hold in favor of new plans for a large dairy in Prowers County.

The farms on the Fort Lyon Canal were purchased from Pure Cycle Corp., which bought them from High Plains A& M. Those companies once planned to move the water off the farms to Front Range communities.

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

New Forest Service policy leaves control of water rights to ski resorts — The High Country News

Photo via Bob Berwyn
Photo via Bob Berwyn

From The High Country News (Paige Blankenbuehler):

…the Forest Service abandoned a water transfer clause and issued a new directive that will go into effect January 29. It requires ski areas applying for new permits or modifying existing ones to demonstrate that they have sufficient water to sustain operations for the permit’s duration and allows them to remain at the helm of their water management. In 2011, the agency’s culture leaned toward federal transfer, or co-ownership, of water, says Joe Meade, director of recreation for the U.S. Forest Service based in Washington D.C. “That way we knew the water would always be available in the National Forest Service System.”


Ultimately, after the court ruled against the agency, Forest Service officials realized that it didn’t matter so much who owned the water as how sustainably water was being used on public lands. “We’re asking now that water needs be documented,” Meade says. “If we issue a permit, we want to know that the operations under that permit can be sustained.”


In the previous (and controversial) water directive, the Forest Service took the long view on water management — will public lands have the water it needs 100 years into the future? The new directive gives the ski resorts a bigger role in defining that future, which is not without the risk of industry interests infringing on the agency’s responsibility to long-term management of the resource. “I believe we’ve found a place in policy that’s good for industry, good for the skier and upholds our responsibility to public lands,” Meade says. “As the climate changes, we know we’re all in this together.”

#ColoradoRiver: Navajo Nation Could Settle Years-Long Water Rights Issue — KJZZ

Navajo Nation map via NavajoApparel.com
Navajo Nation map via NavajoApparel.com

From KJZZ (Stina Sieg):

An agreement to settle water rights claims by the Navajo Nation is going before tribal lawmakers this week, and it’s been a long time coming.

The Navajo Nation’s proposed settlement for claims to water from the upper Colorado River Basin in Utah has been in the works since 2003. The plan would give the tribe more than 80,000 acre-feet of water per year that could be drawn from aquifers, Lake Powell and the San Juan River. It would also mean the Navajo Nation would waive any future claims to water from the basin.

The settlement calls for the federal government to set aside $200 million to develop water infrastructure. Utah has agreed to chip in $8 million. The Navajo Nation’s water would come from Utah’s unused share of the Colorado River under a multi-state compact that left tribes out.

From the Associated Press via the Scottsbluff Star-Herald:

The bill passed 13-7 Tuesday without any debate and with few people in attendance at the Navajo Nation Council chambers in Window Rock. Lawmakers debated the settlement in executive session Monday and held a work session last week.

The settlement would give the tribe 81,500 acre-feet annually of Utah’s unused share of water. The Navajo Nation could draw the water from aquifers, and the San Juan River and its tributaries. It also could divert water from Lake Powell, although it has no plans to do so.

The Navajo communities in Utah currently use only a fraction of the water allocated in the settlement. But the agreement will allow for economic development and leasing of water to entities off the reservation, and the tribe wouldn’t lose any water it did not put to use, according to the settlement.

The bill now goes to tribal President Russell Begaye. It also needs approval from the Utah Legislature, which has passed a resolution in favor of the settlement, and the U.S. Interior Department. It would not take effect until Congress appropriates about $200 million for water infrastructure projects, including wells, pipelines, and water treatment plants.

“If the amount of water allocated is finalized, then we would support the general idea,” Begaye said earlier Tuesday. “We do not intend to only utilize the water for drinking or housing purposes. We would also like to see it benefit business startups, tribal offices, schools and other programs on the Navajo Nation.”

American Indian water rights settlements nationwide have cost the federal government $4.3 billion, the Interior Department said. Congress enacted most of the 31 settlements, while the others came about through federal agencies or court order. Four are pending in Congress for tribes in Montana, Oregon and California, the Interior Department said.

The Navajo Nation settlement would resolve one of the largest outstanding water rights claims in Utah, officials said.

Navajos living on the Utah portion of the reservation are served by a mix of groundwater and surface water. But tribal officials say it’s not good quality. Much of the groundwater is contaminated with arsenic, and it’s costly to treat water from the San Juan River, said Jason John, principal hydrologist with the tribe’s Department of Water Resources.

For Utah, the settlement provides certainty in planning for future water uses, said Boyd Clayton, deputy director of the Utah Division of Water Rights. The settlement’s share for the Navajo Nation is not being used by the state and is flowing down the river, he said.

“We feel like we gave up a fair share of water,” Clayton said. “We’re putting some money in the settlement to actually develop projects so they can physically get drinking water.”

Utah agreed to chip in $8 million, some of which already has been set aside.

The pact faced little opposition publicly, a stark difference between water rights negotiations in Arizona and New Mexico. Navajo efforts to secure water from the lower Colorado River basin in Arizona and the Little Colorado River through settlements have failed. Navajo lawmakers who represent communities in the lower Colorado River basin in Arizona were among those who voted against the Utah settlement Tuesday.

A massive pipeline project in New Mexico that would draw from the San Juan River is moving forward under a settlement, although non-Indian water users have an appeal pending in the state Court of Appeals.

The Navajo Nation’s alternative to settling in Utah would have been to take its case to court.
“People will say, ‘Let’s wait, things will get better,'” said John, the tribal hydrologist. “That’s one opinion, but the facts right now show there will be more demand on these water supplies in the future.”