The call was initiated to satisfy in-stream flow rights below McPhee Dam of 78 cubic feet per second, but local water managers say the water will never get there.
In-stream flow rights are administered by the water board to preserve the natural environment in state rivers to a reasonable degree. They are a priority water right senior to some, but junior to others.
A call is made to maintain a water right’s priority in the Colorado system of prior appropriation, commonly referred to as “first in line, first in right.”
Because of the call initiated this month, a man-made ditch diverting water from Little Fish creek and Clear creek to Groundhog was shut off, allowing the creeks to flow naturally into the Dolores River via the West Fork.
Marty Robbins, District 32 water commissioner for the Department of Natural Resources, said the call caused water administrators to enforce Groundhog’s one-time fill system that legally allows the reservoir to only fill from Nov. 1 to May 1. Groundhog Reservoir, owned by the Montezuma Valley Irrigation Co., typically diverts the streams into the reservoir year-round.
“Just because it has been done before, does not mean it can when there is a call,” Robbins said. “These calls may happen more regularly.”
On Nov. 1, the reservoir will go back on priority for filling, and the diversion ditch will be reopened, officials said.
The administrative call sends the creek water into the upper Dolores River and McPhee Reservoir, managed by the Dolores Water Conservancy District.
But Dolores Water Conservation District general manager Mike Preston says the extra water will stay in the reservoir and not flow through the dam to the lower Dolores River.
“McPhee’s water rights are senior to that in-stream flow right, and we have a storage right that allows for refill,” he said.
The in-stream flow water right on the Lower Dolores River is intended to preserve habitat for native fish, including the round-tail chub, bluehead sucker, and flannelmouth sucker. Federal and state biologists have reported that an increase in flows below the dam is needed to improve native fish habitat.
But the unexpected call by the state for delivery of in-stream water rights had an unintended consequence of threatening trout elsewhere, said Montezuma County Commissioner Larry Don Suckla.
The diversion ditch from Clear Creek to Groundhog Reservoir supports trout population, he said, but they became doomed when the water was cut off.
“Explain to me how water can be diverted for native fish, but is allowed to hurt trout?” he said.
Brandon Johnson, manager for the Montezuma Valley Irrigation Co., said the Colorado Water Conservation Board’s administrative “call presents issues at Groundhog we were not anticipating.”
The Colorado Water Conservation Board also made administrative calls for in-stream flows rights on other rivers in the state to establish that the rights exist and to reveal if any water users are out of priority, officials said. The calls were made after irrigation season so they would be the least disruptive.
The additional water flowing into McPhee as a result of the call will be divided among allocation holders in 2017, Dolores Water Conservation District officials said.
Although the liquid that attorneys argue about evaporates quickly, legal battles around water do not.
Rio Grande Water Conservation District Attorney David Robbins, who has been on the forefront of many of those battles over the years, updated the water district board this week on several ongoing cases of water litigation.
One of the most significant cases revolves around the groundwater rules promulgated by the state engineer about a year ago. About 30 responses were filed to the rules, some for them and some objecting to portions of the rules.
The Division of Water Resources staff has been trying to work with objectors to resolve their concerns short of trial. However, if the objections cannot be resolved, they will go to trial in January of 2018.
Colorado Division of Water Resources Division 3 Engineer Craig Cotten said, “We have met with all of the objectors at least once, most multiple times. We are working out stipulated agreements, getting closer on some of those. We will be continuing to work with those people and see if we can come up with agreements.”
Cotten said the goal is not to need the eight-week trial presently scheduled for early 2018. Robbins said the judge asked parties objecting to the rules to file notices stating specifically what they objected to, such as the model or data the rules rely upon. The parties have done that, he said, and now the state has the opportunity to respond.
Robbins said some objectors are working out stipulated agreements with the state, which will resolve their concerns short of trial. For example, water users with wells in the confined aquifer system in the Alamosa-La Jara and Conejos Response Areas, who objected to the sustainability criteria in the rules, are working out a stipulated agreement with the state. Robbins said he did not think the RGWCD would have any reason to object to the stipulation but he has asked for the documentation.
“The groundwater rules/regulations case is moving along. Judge Swift is doing a good job herding the cats. The state continues to work hard to try to resolve some of the objections so they can winnow it down to people who have concerns they want to pursue before the court,” Robbins said.
Robbins is also monitoring other ongoing cases such as:
• Bureau of Land Management augmentation plan for wells at the Blanca Habitat Area, which could potentially impact flows on the Rio Grande and Conejos Rivers and for which BLM must identify replacement sources for those impacts;
• A Saguache Creek area individual augmentation plan for which Robbins questions the sufficiency of replacements for depletions;
• The City of Alamosa change of water rights case related to the golf course, which is pending information review;
• A case south of the Rio Grande and west of Alamosa revolving around the question of whether recharge replacement can carry over from year to year;
• The Santa Maria Reservoir change case to provide reservoir water for replacement for plans of water management such as those set up in the RGWCD’s subdistricts , and for which a trial is scheduled in April 2017, with James Werner the sole objector remaining;
• Three cases proposing to move water around to provide replacements for well depletions , including one for the City of Alamosa;
• The Texas vs. New Mexico /Colorado compact compliance case, which is being overseen by a special master who has indicated he will deny a motion to dismiss the case;
• Center for Biodiversity’s suit against the U.S. Fish and Wildlife Service to list the Rio Grande Cutthroat Trout as endangered, a case in which the RGWCD has not become involved but is considering whether it should, favoring the opinion of the Fish and Wildlife Service that the trout is not endangered.
RGWCD Board Member Bill McClure cautioned against the district spending dollars and time on cases that were already well represented by other agencies. Robbins agreed and said that is why he had not recommended that the district become directly involved in the Rio Grande Cutthroat Trout suit, as the US Fish and Wildlife Services is already handling it.
Colorado will end the year with a credit in Rio Grande Compact accounting.
Colorado Division of Water Resources Division 3 Engineer Craig Cotten told the Rio Grande Water Conservation District board on Tuesday it appears both the Rio Grande and Conejos River systems will end 2016 on the plus side, with the Rio Grande reflecting about 7,000 acre feet credit at this point and the Conejos River system less than 1,000 acre feet credit.
“We try to over deliver just slightly so there’s no issue with downstream states,” Cotten said.
Colorado must deliver water to New Mexico and Texas according to the Rio Grande Compact. Cotten explained that the annual flow on the Rio Grande this year will be about 670,000 acre feet, which is not a bad water year, especially considering some of the previous dry years in the Rio Grande Basin.
He said that of the 670,000 acre feet, the Rio Grande would owe 190,800 acres feet or about 28 percent, to its downstream neighbors through the Rio Grande Compact . The river has met that obligation and then some, Cotten added. At this point, it appears the Rio Grande will have over-delivered about 7,000 acre feet.
There are currently zero curtailments on Rio Grande users and slight if any curtailments since the beginning of September.
The Conejos River system came closer to its obligation without sending too much extra downstream, according to Cotten.
The annual index flow on the Conejos system will be about 280,000 acre feet, of which about a third, or 95,400 acre feet, was obligated to downstream states.
“We will be close on the Compact delivery, within 1,000 acre feet,” Cotten told the Rio Grande Water Conservation District board on Tuesday. “We are close to where we want to be on the Conejos.”
Southern San Luis Valley water users took charge of their future on Tuesday as they became the third group to form a water management sub-district of the Rio Grande Water Conservation District.
The sponsoring district board unanimously accepted petitions for its latest subdistrict, which encompasses 141 wells covering 170 parcels of land in Conejos County.
The sub-districts are designed to provide an alternative to individual well regulation by grouping wells in geographic or hydrological areas of the San Luis Valley (Rio Grande Basin), which as a group replaces its injurious depletions to surface water rights. Sub-districts are also beginning to repair long-term depletions to the Valley’s aquifer system caused by well pumping.
Sub-district participants pay fees, which are used to buy water and/or provide incentives to reduce pumping. In the sub-district presented on Tuesday, participants will be assessed fees per well and per acre foot of water.
Rio Grande Water Conservation District (RGWCD) Program Manager Amber Pacheco presented to the sponsoring district board on Tuesday petitions representing 141 of a potential 198 wells in Sub-district #3. Nathan Coombs and LeRoy Salazar, who were part of the group that formed the subdistrict, were also present for the petition presentation to the RGWCD board.
Pacheco told the board staff and working group members had been working on this third sub-district for many months. Once they had information from the groundwater model, which determines depletions, the group was able to move forward.
Pacheco said the group was very successful in persuading well owners to join the sub-district , which is an “opt-in” sub-district. People had to choose to join. The first sub-district, on the other hand, was drawn up to cover a specific geographical area in the Valley’s closed basin region, and the work group then had to gather petitions from at least 51 percent of the landowners and 51 percent of the land.
Pacheco said efforts were made to contact every well owner in the Conejos subdistrict to give them the opportunity to join the subdistrict. Only one well owner, whose address was in Florida, did not respond at all, and another did not want to be involved. Both of those wells had not been used in a while.
Four other well owners opted out, not because they were against the sub-district but because they had other plans for their properties, and 21 wells belonging to governments such as towns or school districts indicated they would like to contract with the sub-district but could not participate directly, Pacheco explained.
She added a number of well owners decided to move their wells to exempt status so they would not fall under the groundwater rule process, for example downgrading them to stock or domestic wells, and a couple of well owners planned to seek abandonment of their wells.
All of the irrigation wells in the third sub-district are included, however, Pacheco said.
After receiving the petitions, RGWCD staff verified ownership and legal descriptions before presenting them to the board.
“It’s a massive undertaking,” said RGWCD General Manager Cleave Simpson who commended the staff who completed that process. He also commended the residents who have been working on this for some time.
“The people have been great to work with,” Pacheco added.
RGWCD Attorney David Robbins said the process now is to file the petitions with the district court in Conejos County (because that is where the land lies in this subdistrict) and seek the court’s approval for the sub-district’s formation. The court must hold a hearing no less than 60 days and no more than 90 days after receiving the petitions , he added. Individuals with questions or challenges against the sub-district formation may express those to the court.
“With our participation basically 100 percent, we would hope we wouldn’t see much of a protest to the formation of the sub-district ,” Pacheco said.
If there are no challenges, the court will enter an order forming the sub-district , and a board of managers can then be appointed and a plan of management prepared, Robbins explained.
That plan will be submitted to the state engineer’s officer for approval.
The first sub-district , which is one of the largest and most complicated, has been in operation for a few years now, and the second sub-district in the alluvium of the Rio Grande was officially formed in March of this year and is currently working on its plan of water management.
Pacheco said progress is also being made in sub-districts in the San Luis Creek, Saguache and Alamosa/La Jara areas. She said the goal is to have the remainder of the sub-districts in front of the court by early next year.
RGWCD staff has been meeting with entities such as the towns of La Jara and Saguache and the East Alamosa Water & Sanitation District to discuss their options for contracting with sub-districts. Discussions are also occurring with federal agencies.
A new proposal for storage in John Martin Reservoir will benefit both Kansas and Colorado, said Lower Arkansas Valley Water Conservancy District Manager Jay Winner on Wednesday
A new proposal for storage in John Martin Reservoir will benefit both Kansas and Colorado, said Lower Arkansas Valley Water Conservancy District Manager Jay Winner on Wednesday. This proposal is in line with the Colorado Water Plan. The plan was presented by LAVWCD Engineer Mike Weber. Phase I is paid for by a Water Supply Reserve Account grant supplied by the Colorado Water Conservation Board. Research by LAVWCD has determined water users which could potentially use the John Martin Reservoir Account. LAVWCD has also determined the types of water available to those entities that would be suitable for storage at JMR. Those entities include Kansas and Colorado District 67 Ditches (Fort Bent, Keesee, Amity, Lamar, Hyde, Manvel, X-Y Graham, Buffalo and Sisson-Stubbs). Amity is largest user at 49.5 percent of Colorado’s share. This would be in Phase II, if the plan is accepted at the meeting of the 2016 Colorado Kansas Arkansas River Compact. Down the line and several years in the future, other potential users of the storage in JMR might include Catlin Augmentation Association, City of La Junta, City of Lamar, Colorado Water Protection and Development Association, and water conservancy districts such as LAVWCD.
A permanent pool of 10,000 acre-feet is to be maintained at JMR and is to remain there as authorized by the 1976 resolution, for the purposes of recreation and not subject to a tax.
Several other projects were presented by Winner and commented upon by the Board of Directors, all of whom were present except Legal Director Melissa Esquibel. The North La Junta Water Conservancy District Project, Phase 2, will go before the Otero County Commissioners on Oct. 24, having passed the Otero County Planning Commission. A request has been made to negotiate the contract with the Pueblo Reservoir for 25 years rather than year by year. A commercial building in McClave has been purchased by the LAVWCD to locate some of its offices, notably the engineering having to do with Rule 10, nearer the location of the sites. Agreement with Water Quality through the Department of Agriculture is being sought. Another project had to do with sealing the irrigation ponds and testing for selenium in the ground.
The City of Fountain is contributing $24,000 more than their original $50,000 to the fund for cleaning up Fountain Creek. The other $200,000 is divided equally between the City of Pueblo and the LAVWCD. The money for the project is coming from the Aurora refund, said Winter.
You may have heard some discussion about the phrase Use It or Lose It lately. First, about how it is a guiding principle when using water under Colorado’s prior appropriation system. Then, more recently, about how it can be a misleading cliché.
It’s true that in certain straightforward situations, failure to use a water right for its decreed use will result in the loss of some or all of the water right. However, from there, it gets more complicated.
In 2015, a group of Colorado water professionals representing interests from around the state collaborated to explore Use It or Lose It’s application to water use. The discussion was initiated by the Colorado Water Institute. The Water Institute approached the concept by first identifying five areas where water users have concerns about losing their water rights.
The first three areas of concern are Maintaining a Conditional Water Right, the Continued Use of an Absolute Water Right and Abandonment of a Water Right. In Colorado a water user may obtain a conditional water right based on a non-speculative plan to use the water. If that person does not apply the water to its decreed use within a period of time, or at least maintain a diligent effort to develop the water right, it may be terminated by the water court. The water right is lost due to lack of use.
When the owner of a water right considers the risk of abandonment of some portion of a water right or the possibility of changing a water right to a different beneficial use (the fourth area of concern), the owner of the water right may consider it advantageous to divert as much water as possible — more than is needed for the applied use. The unintended consequences of doing that can range from unnecessarily taking water that could be used by water rights immediately downstream, to impacting sensitive fish and wildlife habitat, to increasing the water right owner’s own return flow obligation if the use is changed. Further, the water court doesn’t consider water diverted but not consumed as water that may be applied to a new use. So the practice of diverting more water than is needed, which is called “waste” in water administration, can actually be detrimental.
A fifth area of concern is the effect that Conservation and Sustainability Efforts can have on the value of a water right. To understand more about that area of concern and the rest of this issue, read Special Report No. 25: “Is ‘Use It or Lose It’ an absolute?” available on the Colorado Water Institute home page.
Kevin G. Rein is the deputy state engineer for Colorado Division of Water Resources.
Here’s the synopsis from Special Report No. 25 (Reagan Waskom, Kevin Rein, Dick Wolfe, MaryLou Smith):
Colorado water law is complicated and can easily be misunderstood. In particular, the component of a water right that requires it be put to a beneficial use without waste can create confusion.
It is a fact that wasteful water diversions and practices are not permissible under the state’s water law. Unfortunately, this has led to the adoption of the misleading adage “Use It or Lose It.”
This document clarifies how the use or nonuse of a water right affects its value.
Here’s the release from Colorado State University (Jim Beers):
Learning more about the complexities and inner-workings of western water law is the purpose behind the 2016 Interdisciplinary Water Resources Seminar series. The series will discuss topics including the history and evolution of western water law; state compacts and federal water law; hybrid water law systems; water quality law; groundwater law; and environmental law. The seminar series will provide attendees the opportunity for in-depth discussion about water-related court cases and interaction with prominent water resource professionals.
Each seminar is held Monday at 4 p.m. in the Behavioral Sciences Building, Room 103. All faculty, students, off-campus water professionals, and members of the Fort Collins community who are interested in water and western water law are invited to attend.
For individuals unable to attend, the seminars will be recorded and uploaded online. The full semester schedule is accessible here. Or there’s more information regarding all of the Interdisciplinary Water Resources Seminars.
Linda Bassi’s talk
Linda Bassi, chief of the Colorado Water Conservation Board’s Stream and Lake Protection Section, will speak on Monday, Oct. 24. Her lecture will be “Evolution of the Law Governing Colorado’s Instream Flow and Natural Lake Level Program.” Bassi will trace the laws and court opinions that have shaped the Instream Flow and Natural Lake Level Program to address policy issues and meet evolving needs related to protecting valuable natural resources.
Bassi is responsible for all facets of the Colorado Water Conservation Board’s Stream and Lake Protection Section including: legal protection; monitoring enforcement of the Board’s new and old instream flow water rights; acquisitions of instream flow by the Board; and development of legislation, policies, and rules related to the program. Prior to working for the Board, Bassi worked in the Colorado Attorney General’s Office representing the Division of Water Resources and the Colorado Water Conservation Board on various water rights issues.
From the Green Fire Times (Miguel Santistevan) via the Taos Acequia Organization:
Acequia irrigation originated in the highlands of Central Asia more than 10,000 years ago and traveled to places such as India and the Middle East. As acequias were established in different areas from the Old World to the New, crops from those areas were incorporated into the diet and practice of acequia culture. By the time the acequia system arrived in the Americas in the 16th century, it carried with it an entourage of crops and animals that represented its origins: apple trees and chickens from Asia, cattle and sorghum from Africa, sheep and many legumes from the Near East, to name a few.
The Old World acequia tradition was matched by incredible agricultural development of indigenous populations in the Americas. Indigenous peoples were practicing many kinds of agricultural production that relied on intensive management of the landscape, including dryland agriculture, floating gardens, agri-forestry, terracing and flood irrigation, among others. The acequia concept came northward with Spanish and Mexican settlers and later included the crops and practices of Puebloan cultures as it took root in what would become New Mexico.
Over time, a unique and integrated food system developed that can only be found in New Mexico. A mixture Old and New World foods, crops and traditions developed into a regional food system that was mostly sustained by acequias. Communities relied on each other to provide staples that could be produced abundantly in their respective environments. What could not be grown in particular areas was obtained through barter with other communities. For example, chile produced in villages of lower elevations could be traded for potatoes that came from higher elevations.
New Mexico eventually experienced significant changes of modernization, many of which interrupted agricultural practices and our relationship to local food and acequias. Some lands shifted to pasture and alfalfa production, feeding our desire for dairy and meat products. Today, acequia use can be measured in the production of bulk commodities and smaller-scale specialties that feed farmers’ markets, as well as the continuation of traditional agriculture and food traditions. Many foods from acequia systems continue to be the cornerstone of local culture and regional cuisine, with specialty foods like chicos (dried horno-roasted corn stew), tamales, posole, and of course, chile, making appearances at least for holidays. Many others regularly consume atole and chaquegüe (blue and white cornmeal porridge), crops that were grown in or originated from an acequia landscape.
As a person looks to reconnect with local food, the best place to start is with what has worked in the past. The acequia tradition offers practicality and sustainability for food production in our environment, which can be characterized by alkaline soils, limited water and potential weather extremes. Over generations of agricultural refinement, acequia culture offers examples for the expansion of our regional food system in terms of community organization, resiliency in practice and its relationship with incidental food production in the landscape.
The term acequia not only refers to the physical irrigation channel but to all the members who belong to it and help manage it. Local knowledge contained within the community and the organizational structure that keeps people connected to the tradition will be important for strengthening our regional food system. Acequia communities manage resources like water and land together for mutual benefits in agricultural production. These relationships result in people coming together to continue the practices necessary to the production of food such as cleaning acequias, picking up bales, or butchering animals (matanzas).
The acequia agricultural tradition can be described by the use of diverse crop and animal types and land-use techniques in the watershed. Production takes on a seasonal character with different activities meeting each season. Root crops and certain grains can be planted in the late fall; certain frost-tolerant legumes, roots and other grains can be planted in the late winter/early spring; and most grains, legumes, fruits and vegetables can be planted in the late spring and early summer. Working with various crops at different times of the year can allow the grower to take advantage of the potential qualities of each season, such as temperatures and moisture, and can create the conditions for more sustainable yields over the long term.
Acequia culture also carries with it the concept of jardín de riso and gathering the landscape, components of a regional food system likely to gain importance as we increasingly feel the effects of a deteriorating industrial food system and climate change. The jardín de riso is the collection of wild plants that serve as food and medicine that happen to self-propagate in the irrigated landscape as “weeds.” Several varieties of wild spinach (quelites) and purslane (verdolagas) flourish among crops in acequia-irrigated fields. The relationship acequias have with the extended landscape provides a connection to additional food resources such as piñón, chimaja (wild parsley) and other food and medicinal plants. In this tradition, gathering from the landscape can strengthen our regional food system by making use of wild plants such as four-wing saltbush and Indian ricegrass. These food sources that thrive in our landscape were an important part of the diet of indigenous people of the region prior to European contact.
It is inevitable that there will be some challenges to our food security in the future. But these challenges can be met by innovations in our relationship to food if they are based on what has worked in the past and developed in a manner that is respectful to the environment and the cultures from which they came. Acequia agriculture has been a cornerstone in the organization of the community and the actualization of food security and can (and should) continue to play a fundamental role into our future. Then our regional food system not only will serve the food needs of our population, but will allow the continuation of longstanding agricultural traditions in New Mexico. The acequia landscape has changed, but every square foot of land connected to the acequia now represents a great part and potential of our regional food system and its ability to feed our communities.
Miguel Santistevan is dedicated to the conservation of traditional agricultural practices, seeds and acequia systems. He maintains a small acequia-irrigated Permaculture farm in Taos with his wife and two daughters. More information about Santistevan’s various activities can be found at http://solfelizfarm.wordpress.com
Our ever-popular, one-day annual water seminar was attended by nearly 200, and, for the first time, broadcast live via our Facebook page. For those that participated – thank you!
Special gratitude goes to our excellent speakers. Your contributions are greatly appreciated.
For those unable to attend in person or via live feed, or those wanting to relive the awesome experience – please visit our seminar webpage to access the presentations or view the footage of the entire seminar.
Next year’s event is scheduled for Friday, September 15, 2017 at Two Rivers Convention Center, Grand Junction, Colorado. Mark your calendar and plan on joining us.