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Colorado’s oldest water rights get extra protection from state engineer

Coal Creek near Redstone had twenty-seven water rights on the 20111 revised abandonment list.
Twenty-seven water rights on Coal Creek near Redstone, which were associated with the now-defunct Mid-Continent mine, were placed on the 2011 revised abandonment list. By a directive from the state engineer, the state’s oldest water rights are protected from ending up on the 2020 abandonment list, which comes out next month. Photo by Heather Sackett/Aspen Journalism.

By Heather Sackett

For the second time, the state’s top water cop has directed the Western Slope’s oldest and most valuable water rights to be left off the once-a-decade abandonment list. That means hundreds of these mostly irrigation water rights have been granted immunity — even though they are no longer being used — from the threat of “use it or lose it,” further enshrining them in the state’s system of water administration and dealing a blow to the validity of the well-known adage.

Every 10 years, engineers and water commissioners from the Colorado Division of Water Resources review every water right — through diversion records and site visits — to see whether it has been used at some point in the previous decade. If it hasn’t, it could end up on the decennial abandonment list, which is scheduled to come out in July.

But a November 2018 email from state engineer Kevin Rein to all four Western Slope division engineers instructs them to not include pre-compact rights on the abandonment list. That includes all the water rights in the Yampa/White/Green, Colorado, Gunnison and San Juan/Dolores river basins.

“Since the nature of the pre-compact water rights is unique in Colorado when it comes to administration of the Colorado River Compact, and in recognition of the fact that the value of the rights could benefit all water users in Colorado, as opposed to only the owner of the water right, I will ask that you direct your staff to do no further investigation of pre-compact water rights and to not include them in the Division Engineers Proposed Abandonment list for 2020,” the email reads.

A primary job of the state and division engineers is to administer Colorado’s system of prior appropriation, in which the older the water right, the more powerful it is.

Rein said he talked with major water providers and managers along the Front Range and on the Western Slope before making the decision, but he would not say which ones or anything about the nature of those conversations.

Former state engineer Dick Wolfe issued a similar directive regarding the 2010 abandonment list, meaning Colorado’s water rights that date to before June 25, 1929 — when Congress ratified the Colorado River Compact — have enjoyed an extra level of protection from state-led abandonment for two decades.

“We need to allow for the fact that if those water rights are abandoned and taken off the tabulation, then that amount of water is no longer available to Colorado,” Rein said.

But what exactly the value of unused, pre-compact water rights could have to all Colorado water users remains unclear. Post-compact water rights, meaning those after June 25, 1929, are still eligible for the abandonment list.

According to Rein, the decision to include water rights on an abandonment list is administrative one and he has statutory authority to revise the list.

Colorado State Engineer Kevin Rein
Colorado State Engineer Kevin Rein speaks at an event at Colorado Mesa University in Grand Junction. At Rein’s direction, the oldest water rights on the Western Slope will be left off of the 2020 abandonment list. Photo by Brent Gardner-Smith/Aspen Journalism.

Colorado River Compact

A major fear of Colorado water managers is what’s known as a “compact call.” If the upper basin states — Colorado, Utah, Wyoming and New Mexico — don’t deliver the required 75 million acre-feet of water over 10 years as specified in the Colorado River Compact to the lower basin states — California, Nevada and Arizona — it could lead to a compact call. This scenario, which looms larger each year with the increasing effects of drought and climate change on an over-allocated river, could trigger involuntary cutbacks for Colorado water users.

But water rights that had been perfected before the compact was ratified are exempt from these cutbacks. And now the state is adding unused, pre-compact water rights to this exempt category. In Colorado, many of these oldest water rights belong to Western Slope agriculture.

Like moving a pawn early in a chess match, it is unclear exactly how this directive from Rein could help Colorado in the future. Nobody really knows whether or how a compact call (or negotiations among states to avoid one) might play out. Therefore, no one can say exactly what value these pre-compact water rights have to Colorado.

Water experts and managers throughout the upper and lower basin were reluctant to talk about the issue and gave diplomatic responses to questions about the sensitive political issue of interstate compact compliance.

“I don’t know the answer,” Rein said. “I think there’s general agreement that these water rights may have value in a compact-call scenario. I don’t know because of the complexities of it.”

Some water experts say preserving these pre-compact water rights, even though they aren’t being used, could give Colorado stronger footing in potential negotiations with lower basin states by propping up Colorado’s consumptive-use tally on paper.

“I would say it’s a conservative approach and it might help in your negotiations with other states,” said Doug Kemper, executive director of the Colorado Water Congress. “You would be making the argument that we have this portfolio of water rights, these are still on the books. But again, you’re trying to forecast how a negotiation might proceed, and I think to meaningfully comment on that would be almost impossible right now.”

Preserving these irrigation water rights also means they would be available to transfer to other users in the future, such as Front Range water providers — whose water rights are mostly post-1929 and therefore vulnerable to cutbacks under a compact call — as the state continues to urbanize.

In a prepared statement, Denver Water CEO Jim Lochhead said the water provider, which supplies water to 1.4 million people, “is supportive of the state’s efforts to protect Colorado’s pre-compact rights. This approach will benefit and help provide additional security for Colorado River water users on the West Slope and Front Range.”

Reagan Waskom, director of the Colorado Water Center at Colorado State University, agreed that hanging onto those pre-compact water rights could be in the state’s best interest.

“The idea of holding as many of those pre-compact rights in place makes sense from a purely Colorado-centric point of view,” said Waskom. “We still don’t know what a compact call or curtailment would look like, so we are going to stay as conservative and protective as we can.”

The Colorado River Water Conservation District is in favor of Rein’s directive, according to general counsel Peter Fleming. The Glenwood Springs-based River District works to protect water rights on the Western Slope, which often means advocating for agriculture interests.

But Fleming brings up an interesting point: The value of water rights in Colorado is based on them being used. If these water rights still exist on paper but haven’t been used in a decade — in some cases, two decades — what is their value?

“There’s this notion that pre-compact water rights are sacrosanct and very important, and that’s true if they have continued to be used and historically consumed,” Fleming said. “But you don’t just make water available by saying these rights that haven’t been used for X number of years still exist. So, I guess I would say it’s a risk-avoidance strategy, but it’s an unproven strategy.”

Coal Creek, where 27 water rights associated with the now-defunct Mid-Continent mine were placed on the 2011 revised abandonment list, flows into the Crystal River at Redstone. The state engineer has directed that all Western Slope, pre-Colorado River Compact rights are safe from state-led abandonment in 2020. Photo by Heather Sackett/Aspen Journalism.
Coal Creek, where 27 water rights associated with the now-defunct Mid-Continent mine were placed on the 2011 revised abandonment list, flows into the Crystal River at Redstone. The state engineer has directed that all Western Slope, pre-Colorado River Compact rights are safe from state-led abandonment in 2020. Photo by Heather Sackett/Aspen Journalism.

Abandonment

Rein’s directive also helps debunk the adage “use it or lose it.” While the pre-compact rights are not being used, they also are no longer in danger of being lost. The threat of the state taking away a water right has now disappeared for Western Slope pre-compact irrigation rights.

The often-misunderstood tenet “use it or lose it” is embodied by the abandonment process.

Some water users believe that if they don’t divert the full amount they are entitled to — even if they don’t always need that much — the state will take it away and it will be available to another water user. But the concept is much more nuanced than that.

Colorado water law says abandonment is “the termination of a water right in whole or in part as a result of the intent of the owner thereof to discontinue permanently the use of all or a part of the water available.”

Just not using the water will not lead to abandonment; there must be an intent to abandon the right.

For a water user to keep their water right, they must put the water to “beneficial use,” which in the case of irrigation water means growing crops. If the water has not been used for 10 years — meaning there are no diversion records and the local water commissioner does not see evidence of water use on their site visits — division engineers could presume that the water right has been abandoned. They put it on the state’s initial abandonment list, which is updated every 10 years and published in local newspapers.

Water-right holders then have one year to file an objection to their listing in writing with the division engineer.

“We don’t like close calls, so if they diverted the water 11 years ago, we are going think, ‘Eh, I don’t know,’ because we are talking about somebody’s property right,” said Alan Martellaro, Division Engineer for Water Division 5.

After working through the objections with water-right holders, the division engineer publishes the revised abandonment list. If a water-right holder still protests their placement on the list, they can go to water court to argue that they did not intend to abandon the water right.

For the 2010 Division 5 abandonment list, Martellaro said the pre-compact rights comprised easily half the list before Wolfe instructed division engineers to take them off. The 2011 revised Division 5 abandonment list included about 75 water rights, one-third of which were related to the now-defunct Mid-Continent mine on Coal Creek near Redstone where a 1981 explosion killed 15 miners.

The 2020 abandonment list is expected to come out in July.

Aspen Journalism is a local, nonprofit and investigative news organization that covers water and river issues in collaboration with The Aspen Times and other Swift Communications newspapers. This story appeared in the June 22 edition of The Aspen Times and the June 22 edition of Aspen Journalism.

Western Colorado water purchases stir up worries about the future of farming

Farmer Zay Lopez ran his small market farm in the Grand Valley’s far west end for five years, using water from the Colorado River to grow vegetables. In December 2019 he sold his 26-acre farm to Water Asset Management. (Luke Runyon, KUNC)

MACK, Colorado — For five years, Zay Lopez tended vegetables, hayfields and cornfields, chickens, and a small flock of sheep here on the western edge of Colorado’s Grand Valley — farming made possible by water from the Colorado River.

Lopez has a passion for agriculture, and for a while, he carved out a niche with his business, The Produce Peddler, trucking veggies seven hours away to a farmers market in Pinedale, Wyoming.

Lopez also moonlights as a Realtor, with his finger on the pulse of the local real estate market. A few years ago, he noticed a strange new phenomenon. Much of the irrigated agricultural land sold in the valley — such as parcels just down the road from his farm — wasn’t being bought by another farmer. Instead, his new neighbor was Water Asset Management, a New York City-based hedge fund with deep pockets.

When Lopez and his wife Leah grew tired of trying to make ends meet, they decided to pack up and move to southern Colorado to grow hemp. They, too, sold their 26-acre farm to WAM.

“It was hard to make the mortgage payment plus all of our other payments, and I didn’t see — with our current model of what we were doing — how we could get out of that hole,” he said. “Selling the farm wasn’t really a choice. We had to do it.”

Lopez’s recent sale is the continuation of a trend that has made some in the agricultural communities west of Grand Junction nervous; has created a buzz among water managers; and has led state lawmakers to pass a bill looking at strengthening Colorado’s anti-water-speculation law.

Listen: KUNC’s Luke Runyon and Aspen Journalism’s Heather Sackett report from Colorado’s Grand Valley. (4:22)

WAM is buying irrigated land as an investment in the future potential value of the water. Although the company isn’t doing anything illegal, its actions have rekindled deep-seated and long-held fears about water in the West — that it could hasten the death of agricultural communities’ way of life and create an unregulated market for water that would drive up prices and drive out family farms.

Because of these sensitive issues, many people in the Grand Valley are reluctant to talk about WAM and what it is doing. Meetings have erupted in anger, some who have sold have become social pariahs, and top water officials from the valley’s canal companies refuse to talk to reporters on the record. For a while, a local rancher was actively updating a website “wall of shame” for people involved in Grand Valley water deals.

“They are the same concerns that have existed since the 1930s,” said Anne Castle, a senior fellow at the University of Colorado’s Getches-Wilkinson Center. “The east slope municipal diverters or an investment firm — it doesn’t matter who it is — are going to be able to offer more money for water than you could derive from farming or ranching. The concern is that if that becomes a trend, then the whole economy of the Western Slope changes and the agriculture economy will be very different and smaller than it is now.”

The Walton Family Foundation provides funding to KUNC and partial funding for Castle’s work. A member of the Walton family currently provides funding to Aspen Journalism via the Catena Foundation.

The Grand River Diversion Dam, also known as the “Roller Dam”, was built in 1913 to diver water from the Colorado River to the Government Highline Canal that farmers use to irrigate their lands in Grand County. (Luke Runyon/KUNC)

Water Asset Management

Since 2017, WAM has spent $16.6 million buying up 2,222 acres of irrigated agricultural land in the communities of Fruita, Loma and Mack, west of Grand Junction. The company is now the largest landowner in the Grand Valley Water Users Association, the nonprofit canal company that delivers water to many Grand Valley irrigators.

WAM now owns 1,659 acres in the GVWUA delivery area, which according to its website has 23,341 irrigated acres. That means the hedge fund owns about 7% of the land irrigated by the Government Highline Canal.

Interactive: tour purchases by Water Asset Management, a New York City-based hedge fund

Story continues below

Click to open this interactive in a new window

WAM, whose headquarters is on Madison Avenue in Manhattan, says it “seeks to be a leader in managing global water investments that solve water quality and availability issues,” according to its website. WAM is run by co-founder and principal Disque Deane Jr., while Matthew Ketellapper has been doing much of the “boots on the ground” work in the Grand Valley as the company’s Colorado asset manager.

Deane has been involved in water markets in the West for years, buying water and land tied to water rights. He doesn’t give many interviews, but according to a 2016 ProPublica article, “debt, death and divorce” has become his sort of motto, because those circumstances drive people to sell.

WAM are cash buyers — a rare offer in this rural area. In many cases, WAM makes improvements to irrigation infrastructure, such as adding center pivots and lining ditches, and leases the land back to farmers to keep it in agricultural production.

Grand Valley’s farmland is expansive, with views stretching west to Utah, north to the Book Cliffs and south to Colorado National Monument. It is also exceedingly dry. The area where Lopez’s former farm is located was once a community of homesteaders known as New Liberty, who eked out a living by dryland farming before the construction of irrigation infrastructure, a notion at which Lopez marvels.

Not much would grow here without the region’s two main irrigation canals, which draw water from the Colorado River: Government Highline Canal and Grand Valley Irrigation Canal. The bigger of the two, the 55-mile-long Government Highline, snakes through the northern part of the valley and is managed by GVWUA. One hundred and fifty miles of ditches known as laterals bring water from the main canal to individual farms.

In mid-March, before the water began flowing in the canals and bringing the annual green return of irrigated agriculture to this valley, the air was thick with smoke as farmers burned their ditches and the earth was dusty, brown and parched.

What leaves people scratching their heads is this: How does a New York City investment firm plan to make money from marginal desert land in western Colorado?

“Everyone is very cautious about what these guys from New York are doing out here buying up our ground,” Lopez said. “I mean, honestly, it’s still kind of a mystery what their overall vision is.”

The Government Highline Canal flows past Highline State Park. WAM, a New York City-based hedge fund, has been buying up parcels of land that have water rights to the canal. (Bethany Blitz/Aspen Journalism)

‘Temporary, voluntary, compensated’

The key to WAM’s overall vision may lie in demand management, a state program still in the investigation and feasibility stage.

At the heart of such a program envisioned by state officials — and designed to be “temporary, voluntary and compensated” — is the concept of paying irrigators to use less water by fallowing fields. By doing so, there will be more water in the Colorado River flowing downstream to be stored in Lake Powell in an effort to bolster reservoir levels and help Colorado meet its Colorado River Compact obligations.

The future of the demand management feasibility investigation is unclear because the state on May 1 cut its budget by $750,000 due to the COVID-19-caused state financial crisis.

The thing many water managers and users in Colorado fear most is what’s known as a compact call. Under the terms of the 1922 Colorado River Compact, the Upper Basin states (Colorado, Utah, Wyoming and New Mexico) are required to deliver 75 million acre-feet of water over 10 years to the Lower Basin states (California, Nevada and Arizona). If the Upper Basin can’t deliver because of drought, climate change or any other reason, it could lead to a compact call, triggering involuntary cutbacks and an interstate legal quagmire that could drag on for decades.

A new demand management program would allow Colorado to send water to a 500,000-acre-foot pool in Lake Powell that would act as a modest insurance policy to help protect the Upper Basin against a compact call.

The Grand Valley, which takes its name from the “Grand River,” the historical name for the Colorado River, is well-positioned for a demand management program. Water left in the river at this location is almost certain to reach Lake Powell because there are few major diversions between here and the giant reservoir.

And entities in the Grand Valley have rights to a lot of water. With 1912 adjudication dates, Grand Valley irrigation districts are some of the most-senior water rights on the Colorado River and can call about 2,200 cubic feet per second down through the river system.

There is some precedent that a demand management program would work in the Grand Valley, as some irrigators here have participated in two different experimental pay-to-fallow programs undertaken by the Upper Colorado River Commission and the GVWUA. These types of programs have intense interest from many sectors, including municipalities, which often see transferring water from agriculture as a viable way to increase their supplies, as well as from environmental organizations that would like to see more water stay in the river.

Water Asset Management bought this 57-acre parcel as part of a $6 million deal in January. The land is irrigated with water from the Grand Valley Irrigation Company Canal. (Bethany Blitz/Aspen Journalism)

Returns on water

Since 2017, WAM has made investments in Grand Valley agriculture, choosing to make purchases of parcels in batches every few months. But in the past six months, the hedge fund has taken one step that signals what could be a renewed effort to sway Western water rules in its favor.

WAM recently brought onto its team a heavy hitter in the world of Colorado River politicking: Denver-based attorney James Eklund.

Eklund is the former director of the state’s top water policy agency, the Colorado Water Conservation Board, and served as the state’s representative to the Upper Colorado River Commission, another powerful policymaking agency on the river. He was one of the architects of the Drought Contingency Plan, the document that made the case for a demand management program throughout the Upper Basin. Soon after he left these public posts, he began representing WAM as counsel.

Eklund, who comes from a Western Slope ranching family, says WAM’s strategy is to buy irrigated land and then pump money into cutting-edge technology and practices, thereby increasing irrigation efficiency and crop yield. The leftover water could be, in exchange for payment, sent downstream under a demand management program.

“I definitely think that if there’s a program that pays farmers, (WAM is) interested in it — and for good reason,” Eklund said. “They want to make sure their investment is generating the types of returns that their investors expect.”

That strategy doesn’t sit well with Andy Mueller, general manager of the Colorado River Water Conservation District. His organization’s mission is to protect water interests on the Western Slope, which often means protecting agricultural interests. He worries that WAM’s land buys are being done with the intent to separate the water from the land and that the private equity fund does not have the community’s best interest at heart.

“I think a charitable view would be that they are engaging in the acquisition of private property in a capitalistic society, and they have the right to do that,” Mueller said. “And that might be as charitable as I could get with them.”

So far, WAM has been keeping the land in agricultural production, much the same as it had been with previous owners. According to Colorado water law, to retain its agricultural water rights, the company must continue to put the water to “beneficial use,” or, in other words, utilize the water to keep growing crops.

And Mueller’s fear of separating water from land isn’t currently possible under the rules of GVWUA, where three-quarters of the land purchased by WAM sits. Under that organization’s rules, the water cannot be sold separately from the land; you must own the land to get the associated water.

Without access to GVWUA records, it is difficult, if not impossible, to figure out exactly how much water WAM has the rights to. Class 1 land irrigated by GVWUA comes with 4 acre-feet of water per acre each irrigation season.

There is not a way to tell from publicly available property records how much of the land WAM has purchased is irrigated Class 1 land. But if all the land WAM has purchased is Class 1, then it would have at least 6,636 acre-feet of water.

Eklund said the amount of water held by WAM is akin to financial information, which the hedge fund, per its policy, won’t disclose. GVWUA director Mark Harris and the organization’s counsel, Kirsten Kurath have both repeatedly declined to be interviewed on the record for this story. However, Kurath, said in an email that GVWUA is aware of and monitoring activities within its district.

Another lingering, hard-to-answer question is how much WAM’s water is worth. Under the System Conservation Pilot Program, run by the Upper Colorado River Commission, Grand Valley farmers were paid $200 for every acre-foot of water they left in the river. Using this number as a benchmark, WAM’s 6,636 acre-feet of water could currently be worth more than $1.3 million. But that price the program paid to farmers was to lease it for only one year, which could bring the true value of the transferred water to tens of millions of dollars, experts say. How much it could be worth in a hotter, drier future is unknown.

“A lot of the crops we grow are not very profitable, so I think they are projecting, hey, this water is going to be more valuable than even the crops they are growing with it,” Lopez said.

Mark Harris, General Manager of the Grand Valley Water Users Association, checks on the entrance to Tunnel 3, where water in the Government Highline Canal goes through the mountain to Palisade, continuing to Grand County. (Bethany Blitz/Aspen Journalism)

Preventing speculation

WAM’s land buys have not escaped the attention of Colorado lawmakers, who say what the company is doing is legally dubious. State Sen. Kerry Donovan is a rancher who represents District 5, a stretch of rural mountains, agricultural valleys and ski towns on the Western Slope.

In the 2020 legislative session, before the coronavirus pandemic slowed legislative activity, she sponsored Senate Bill 48, which Gov. Jared Polis recently signed into law. The new legislation directs Colorado’s Department of Natural Resources to convene a workgroup to explore ways to strengthen the state’s anti-speculation law.

“I also hope (this bill) sends a message to people that might be looking to Colorado to make a quick buck that we’re not interested in that type of behavior in our state,” Donovan said. “If you’re just coming up here to buy up water to turn into a profit in the years to come for your clients, like, ‘No, thank you.’”

Colorado’s current anti-speculation doctrine is based on case law that says those seeking a water right must have a vested interest in the lands to be served by the water and must have a specific plan to put the water to beneficial use.

“(WAM’s) goal is to buy assets, to make money — and as much money as they can,” Donovan said. “I don’t want that type of player in the prior appropriation system, just full stop.”

WAM attorney Eklund says the investment firm’s directors are not speculators; they are farmers.

“The characterization of any farming or ranching operation that is putting water to a beneficial use as a speculator, that’s just plain-and-simple wrong,” he said. “In light of Colorado water law, this is not accurate as a description that they’re speculating here.”

Eklund sees a bigger role for WAM and other similar players in a potential future water market. He would like to see Colorado fill up that insurance pool in Lake Powell as quickly as possible and said WAM can help the state do that.

“(WAM is) looking at how they can move water down to Lake Powell to avert a crisis,” Eklund said. “And they’re trying to make sure that we’re becoming more resilient in the agricultural economy in the Grand Valley by strategically planning for how that water gets into the account in Lake Powell.”

Since 2017 Water Asset Management has bought 1,659 acres of land in the delivery area of the Grand Valley Water Users Association. Their most recent purchase was of land irrigated by the Grand Valley Irrigation Company Canal. (Map by Caitlin Ketel, parcel data from Mesa County)

A shift?

The type of land purchase that WAM usually pursues has recently shifted. All of the Grand Valley land that the company bought up until this year had been irrigated with water from the Government Highline Canal, where the right to water depends on how much irrigated acreage someone has and where water is tied to the land.

But WAM’s most recent purchase in January was a $6 million deal on 541 acres in Fruita and irrigated by the Grand Valley Irrigation Company Canal, the other big player in Grand Valley agriculture. In its delivery system, shares of water can be bought and sold, and the amount of water is not tied to the land. It marks a departure from the company’s previous purchases, even as Eklund maintains it’s not a change in WAM’s strategy.

“I would say it’s very significant,” Mueller said. “Land that is irrigated under a private water right like the GVIC, that becomes more challenging and more threatening from a permanent-dry-up perspective.”

But even as suspicion and skepticism run high, some Grand Valley farmers, including Lopez, say WAM has been a good neighbor so far.

“Absolutely, they are committed to the future of agriculture in the Grand Valley. They are fronting a lot of money to do these irrigation projects and leasing the ground back to the farmers who had farmed it already,” Lopez said. “Now, is that just to look good to the community and their investors? I have no idea.”


Editor’s note: This story has been updated with additional context about the potential value of Water Asset Management’s Grand Valley investments.

This story is part of a series on water investment in the West, produced by KUNC in Greeley, KJZZ in Arizona, The Nevada Independent and Aspen Journalism.

Aspen Journalism is a local, nonprofit and investigative news organization that covers water and river issues.

KUNC’s Colorado River reporting project is supported by a grant from the Walton Family Foundation. KUNC is solely responsible for its editorial content.

Republished with permission from Aspen Journalism, which originally ran this story on May 29, 2020.

City of Aspen banks on creative thinking for ATM water project

Other than Aspen’s golf course, these fields just up valley from Woody Creek are some of the only areas classified by the state database as irrigated land in the upper Roaring Fork River valley. The City of Aspen is studying opportunities for an Alternative Transfer Method, or ATM, to increase the city’s water supplies by temporarily transferring water from agricultural use. Photo by Heather Sackett/Aspen Journalism.

By Heather Sackett

ASPEN — The city of Aspen is moving ahead on a project aimed at increasing the reliability of its water supply and environmental flows through what’s known as an “alternative transfer method,” or ATM.

But water managers will have to think outside the box since the usual process of an ATM is transferring water from agricultural to municipal use, and there isn’t much irrigated agriculture in the upper Roaring Fork River basin.

In Colorado, most water rights are held by irrigators. So when towns and cities want to increase their water supplies, they often turn to agriculture to secure extra acre-feet. Permanent water-transfer agreements, often derided as “buy and dry,” can harm agricultural communities and economies, and ATMs are seen as a way to reallocate water more fairly and sustainably from agriculture to municipalities.

These voluntary water-sharing agreements would allow local irrigators to temporarily loan their water to Aspen and get paid for doing so. The most straightforward way for this to happen would be for water-rights holders above the city’s diversions on Castle and Maroon creeks to loan their water to the city.

But according to Colorado’s Decision Support System, which is the state database that tracks irrigated land, there is no irrigated land above Aspen.

“Certainly, the easiest way to meet the most goals is to find water above the city,” said Jason Brothers, principal at Summit Water Engineers, the engineer on the project. “If that’s not available, we will have to look at creative ideas.”

Most of the irrigated acreage in the upper Roaring Fork River valley is grass pasture in the Woody Creek area.

Aspen’s ATM project is funded with a $183,356 grant from the Colorado Water Conservation Board, plus $15,000 each from the city and Western Resource Advocates. It would be the first program designed for a Western Slope headwaters municipality.

In addition to increasing city water supplies, a secondary goal of the project is to improve river flows for the benefit of the environment, especially in the reach of the Roaring Fork through downtown Aspen. In dry years, flows can fall short of the 32 cubic feet per second of water required by the CWCB’s junior instream flow right, which is meant to protect the river environment “to a reasonable degree.”

The 2015 Colorado Water Plan sets a goal of 50,000 acre-feet of water transfers through ATMs by 2030.

“I think that backdrop (of buy and dry) really kind of set the stage for more of a state focus on how do we meet our continuing water-supply needs and can we do that in a way that minimizes harm to ag,” said Alex Funk, agricultural water resources specialist for the CWCB.

According to the grant application, city officials say there are 2,800 irrigated acres in the upper Roaring Fork valley and tributary basins, which the team could explore for compatibility with an ATM program, and that if a third or a quarter of these irrigated lands were in such a program, it could yield 1,000 acre-feet of water.

City officials won’t clarify exactly where those irrigated acres are. The project is still in its infancy and officials don’t have many answers yet, said Steve Hunter, utilities resource manager for Aspen’s water department.

“We just kicked this off,” Hunter said. “I don’t see answers coming for months, if not the latter end of a year into the project.”

Front Range cities take water from the Roaring Fork River basin in a transmountain diversion through the Twin Lakes Tunnel. The city of Aspen is studying the potential for an Alternative Transfer Method, or ATM, to increase its water supplies, which could include approaching transmountain diverters about participating in a water-sharing agreement. Photo by Elizabeth Stewart-Severy/Aspen Journalism

Transmountain diverters

One of those creative opportunities Brothers mentioned could involve participation by Front Range water providers that divert water from the headwaters of the Roaring Fork River. The cities of Colorado Springs, Aurora and Pueblo divert water from the upper Roaring Fork through the Independence Pass Transmountain Diversion System via the Twin Lakes Tunnel.

“We are not just looking at in-basin ATMs, but exploring the concept of ATMs on the east slope and if entities would be willing to forego their diversions from the West Slope,” said Todd Doherty, president of Western Water Partnerships. “We are seeing if there’s a willingness between the stakeholders to even consider that.”

Transmountain ATM opportunities are still conceptual at this point, and a water transfer from a transmountain diverter to Aspen would be a break from the way ATMs are typically conducted. However, Funk said the CWCB would be supportive of a municipal-to-municipal transfer of water under the ATM program.

Doherty’s organization is based in Denver and is a Colorado Public Benefit Corporation. The city has contracted with WWP for $213,356 to complete Phase 1 of the ATM investigation, which will entail examining all the water rights that could potentially be available to participate in an ATM program and approaching the holders of those water rights to see whether they are interested. No water-sharing agreement will happen unless the irrigators think it’s a better deal than what they are growing, Doherty said.

“I think it will be a success if we can get a few, hopefully a few larger ones, that will help demonstrate to the other irrigators in the basin that maybe this deal is worth looking at,” Doherty said.

Aspen Journalism is a local, nonprofit and investigative news organization that collaborates with The Aspen Times and other Swift Communications newspapers on coverage of water and rivers. This story ran in the May 29 edition of The Aspen Times and the May 29 edition of Aspen Journalism.

Courtroom battle could lead to limits on fluoridation of drinking water

Source: Adobe Stock

By Dan Ross, Fair Warning

A federal court trial underway in San Francisco could spell the beginning of the end of water fluoridation in America, potentially affecting drinking water for hundreds of millions of people across the U.S.

Although fluoride can occur naturally in water, many water utilities add the chemical with the goal of improving dental health. But an alliance of groups led by Food & Water Watch, a government accountability nonprofit, have sued the Environmental Protection Agency to force it to limit or ban adding fluoride altogether. They contend that the chemical presents an “unreasonable risk’’ of causing neurological damage, especially to young children and babies in the womb.

In opening statements today, plaintiffs lawyer Michael Connett said it ”will be undisputed in this case that babies who are bottle-fed with fluoridated water receive the highest doses of fluoride of any age group.” At the time of “their greatest vulnerability, we are exposing infants, often from the poorest, most disadvantage communities, to a very high burden of fluoride,” Connett said.

But James Do, a Justice Department lawyer representing the EPA, said there are too many ”uncertainties and inconsistencies” in the evidence. “Let’s be one hundred percent clear here,” Do said. ”If EPA could conclude that there was an unreasonable risk from water fluoridation, EPA would regulate.”

As reported by FairWarning, water agencies first began adding fluoride in the 1940s, and today nearly 75 percent of Americans on public water systems are served fluoridated water. Fluoridation has been a lightning rod for crackpot conspiracy theories, including that it is part of a government plot to achieve mind control. Despite the outlandish nature of these fever dreams, fluoride is far from a benign chemical, health experts say.

As things stands, the Centers for Disease Control and Prevention (CDC) has set an advisory limit of 0.7 parts of fluoride per million parts of water as the optimum level to help prevent tooth decay while avoiding other problems associated with excessive fluoride exposure. These include dental fluorosis—which can lead to severe staining of the teeth, enamel erosion and pitting—and at much higher exposure levels skeletal fluorosis, a disease associated with joint pain, fractures and the bone disorder osteosclerosis.

But the EPA, which regulates drinking water quality, has not acted to limit the amount of fluoride that can be added. It requires that when fluoride concentrations exceed 2 parts per million parts that customers be alerted, and sets a maximum level of 4 ppm—an allowance for water systems with high levels of naturally occurring fluoride.

According to the CDC, of approximately 275 million Americans on public water systems, more than 200 million are served water with fluoride added. An analysis by the Environmental Working Group, a research and advocacy organization, found that about 30 million people receive tap water with fluoride levels higher than the CDC recommendation.

Medical and dental authorities say that a small dose of the chemical is beneficial for dental health. The CDC claims that  fluoridation reduces cavities by about 25% in children and adults. Still, a growing body of evidence suggests that Americans are routinely exposed to more fluoride than is good for them.

Experts point out that people already receive a daily dose of fluoride in toothpaste and mouthwash, and in many bottled drinks and processed foods. A key focus of the federal trial is a growing stack of scientific literature showing potential neurological harm from even low levels of fluoride.

In 2016, a 13-year study conducted in Mexico found that higher prenatal exposures to fluoride were associated with lower intelligence test scores for children later on. Between 2018 and 2019, several studies from Canada found similar effects, including that more fluoride in the urine of expectant mothers corresponded with an IQ loss in male children, and that youths from areas with fluoridated water had a higher prevalence of ADHD.

The EPA has asserted that there isn’t enough evidence showing neurological damage from low levels of fluoride, and that the benefits of fluoridation outweigh the risks.

The case before U.S. District Judge Edward Chen began its slow road to trial in 2016, when the plaintiffs petitioned the EPA to begin the process of banning fluoridation. A court subsequently denied the EPA’s motion to dismiss the petition, setting the stage for the legal showdown. In the months leading up to the trial, judge Edward Chen made several rulings that carry the potential to shape its outcome, including one that bars the EPA from providing evidence of fluoride’s health benefits.

The case, being tried without a jury, was filed under the federal Toxic Substances Control Act, and this is the first time a citizen’s petition under that law has made it to the trial stage, Robert Sussman, a former EPA deputy administrator, told FairWarning. “This is very much a precedent setting case which is going down a road nobody’s traveled down before,” Sussman said.

If the plaintiffs are successful, the case won’t necessarily signal the end to water fluoridation, but could cause the EPA to limit how much fluoride can be added. Any new rules could take years to implement.

“This is a good public health exercise,” said Mike Keegan, regulatory analyst for the National Rural Water Association, which represents officials of small community water systems. “You want to make sure this is an asset you’re putting into the water supply.”

This story was produced by FairWarning (www.fairwarning.org), a nonprofit news organization based in Southern California that focuses on public health, consumer, labor and environmental issues.

The delicate dance of Dillon Reservoir during spring runoff

Dillon Reservoir in Summit County is the largest reservoir in the Denver Water system, holding more than 257,000 acre-feet of water when it’s full. With two outlets — the Blue River and Roberts Tunnel — Denver Water officials say it’s complicated to operate. Photo credit: Denver Water
Dillon Reservoir in Summit County is the largest reservoir in the Denver Water system, holding more than 257,000 acre-feet of water when it’s full. With two outlets — the Blue River and Roberts Tunnel — Denver Water officials say it’s complicated to operate. Photo credit: Denver Water

By David O. Williams

DILLON — Denver Water officials increased the release of water from Dillon Reservoir into the Blue River to about 400 cubic feet per second in the first week of May as inflow held steady at about 500 cfs through Monday, May 11. The latter number is expected to steadily rise as spring runoff picks up.

The current forecast from the National Oceanic and Atmospheric Administration’s Colorado River Basin Forecast Center estimates as of May 11 that there is 146,000 acre-feet of water — in the form of snowmelt — that will flow into Dillon Reservoir through July 31. There’s currently 17,500 acre-feet of space in the reservoir, according to Denver Water, so about 128,500 acre-feet will flow out of the reservoir either to the Blue River or Roberts Tunnel by July 31, with an estimated 13,000 acre-feet through the tunnel.

All of these complex calculations are the first steps in a delicate dance Denver Water performs each spring to balance public safety with Denver’s water needs, recreation, hydroelectric demands and obligations to downstream senior water-rights holders.

“Dillon is our biggest reservoir and one of our more complicated to operate,” said Nathan Elder, water resources manager for Denver Water. “Most of our other reservoirs only have one outlet, but Dillon’s got both the outlet to the Blue and the outlet to the Roberts Tunnel, which provides water to the East Slope and down the North Fork (of the South Platte River) to Strontia Springs Reservoir and then to our customers.”

The Roberts Tunnel, finished in 1962 about the same time the old town of Dillon was relocated to its current spot and the Dillon Dam was built, is a 23-mile concrete conduit that diverts water from the Blue River basin on the Western Slope to the South Platte Basin on the Front Range to supply more than 1.4 million Denver Water customers.

This system is what’s known as a transmountain diversion — one of many that bring water from the Colorado River basin on the west side of the Continental Divide to the state’s population center on the Front Range. What it’s not, Elder said, is a way to avoid dangerous spring-runoff flooding.

“We can’t use Roberts Tunnel as a flood-control option,” he said. “So we’re very careful about the amount of water we take from the West Slope over to the East Slope. And when we use the Roberts Tunnel, we can only take it over to the East Slope if it’s put towards the demand. We can’t just dump it over there to prevent flooding or high flows below Dillon.”

The 2014 Colorado River Cooperative Agreement places a 400,000 acre-foot limit on Blue River water stored in existing or future Denver Water storage facilities on the Front Range.

There are more than 1,000 properties in regulatory floodplains in Summit County, according to the Federal Emergency Management Agency, and quite a few of them are along the Blue as it makes its way northwest through Silverthorne and toward its confluence with the Colorado River near Kremmling.

The Blue River travels north-northwest through Dillon Reservoir to its confluence with the Colorado River near Kremmling. Each spring Denver Water performs a delicate balancing act to accommodate flows from snowpack runoff. Photo credit: Denver Water
The Blue River travels north-northwest through Dillon Reservoir to its confluence with the Colorado River near Kremmling. Each spring Denver Water performs a delicate balancing act to accommodate flows from snowpack runoff. Photo credit: Denver Water

Snowpack melting

This time of year, as snowpack begins to melt into local tributaries — the Blue, Snake River and Tenmile Creek all feed Dillon Reservoir from the south — Elder and his team closely monitor snowmelt forecasts and weather reports to coordinate with local officials to prevent flooding.

“Denver Water has worked with the town over the years to release water from Dillon Reservoir at rates between 50 cfs and 1,800 cfs,” said Tom Daugherty, Silverthorne’s director of public works. “They have done a very good job of doing that. Denver Water attends our local meetings concerning snowmelt runoff and inform us of what they expect.”

FEMA designates 2,500 cfs as a 10-year flood level just below Dillon Dam, while 3,350 cfs there would be a 100-year flood level. The amount of runoff pouring into the reservoir varies widely, depending on weather conditions and snowpack, from a low inflow of 410 cfs in the drought year of 2012 to a high of 3,408 cfs in 1995.

The amount of snowpack on the Front Range and rate of melting due to high temperatures or rain events also impacts when Denver Water turns on the Roberts Tunnel and how much water it takes out of Dillon Reservoir. The Blue River Decree dictates that Denver Water needs to keep as much water on the Western Slope as possible and can take water only to meet demand.

“Last year was a good example of that,” Denver Water spokesman Todd Hartman said. “We had so much snowpack on the Front Range that we just didn’t need the Roberts Tunnel water and couldn’t take it because of that demand issue.”

That resulted in higher flows on the Blue below the dam last runoff season.

“It got up to around 1,900 cfs, and we didn’t actually turn on the Roberts Tunnel until the second week in August last year,” Elder said. “That’s after everything on the East Slope filled, and we started dipping into that storage and streamflow dropped off on the East Slope.”

This year, there’s a similarly healthy snowpack above the reservoir and also decent snowpack on the Front Range, but temperatures have been higher and the spring runoff season hasn’t been nearly as wet and cool as last year.

“We have a Snotel (snow telemetry) site on top of Hoosier Pass, which is extremely important for monitoring that basin and for forecasting, and it’s still at 121% of normal right now,” Natural Resources Conservation Service hydrologist Karl Wetlaufer said in early May. “It looks like it did actually have a net accumulation through April and is just really just starting to turn around and melt out now over the last few days with this warm weather.”

The Natural Resources Conservation Service produces snowmelt forecasts used by Denver Water, which also taps into the National Oceanic and Atmospheric Administration forecast center.

Based on information from Snotel sites, snowpack above Dillon Reservoir peaked at 127% of normal. The forecast center’s inflow outlook for Dillon Reservoir is 104% of average, and the forecast from the Natural Resources Conservation Service was 107% of average.

The first priority for Denver Water is to fill the reservoir to meet customer needs, but it also tries to minimize high flows out of the reservoir via the Blue River and maintain water levels so that the Frisco and Dillon marinas can operate from June through Labor Day. Elder said the minimum operating level for both Dillon and Frisco marinas is 9,012 feet in elevation.

The goal, Elder said, is to get the reservoir to that level or higher by June 12. On May 11, the surface level of the water in the reservoir was at 9,010 feet. The reservoir is full when the elevation of the water, as measured on the dam, is 9,017 feet, which is 257,304 acre-feet of water. At 9,010 feet, the reservoir is holding about 236,232 acre-feet of water.

Release too much and too early — to avoid high flows and flooding downstream — and Denver Water runs the risk of missing the chance to fill Dillon for use by its customers later in the summer season as well as keep the reservoir full for a long boating season. And then there are the downstream hydroelectric factors and calls by senior water-rights holders.

An inspection team leaving the 23-mile Roberts Tunnel east portal in Park County in 2016. The tunnel, which diverts water from the Blue River to the Front Range is inspected every five years. Photo credit: Denver Water
An inspection team leaving the 23-mile Roberts Tunnel east portal in Park County in 2016. The tunnel, which diverts water from the Blue River to the Front Range is inspected every five years. Photo credit: Denver Water

Senior water rights

While the Blue River Decree does not have a volumetric limit on how much water Denver Water can take out of Dillon Reservoir through the Roberts Tunnel to meet its customer needs, the Roberts Tunnel right is from 1946 and is junior to Green Mountain Reservoir and Shoshone Power Plant rights, which limit the ability of Denver Water to divert. The Roberts Tunnel right is for 788 cfs, which is not a storage right but instead a direct-flow right.

So if Green Mountain gets toward the end of its fill season and hasn’t filled and Dillon has diverted, then Denver Water owes water to Green Mountain. Green Mountain Reservoir, located on the Blue River in northern Summit County, was created specifically to compensate the Western Slope for diversions to the Front Range as part of the Colorado-Big Thompson Project.

Then on the Colorado River in Glenwood Canyon, well downstream from where the Blue feeds the Colorado at Kremmling, there’s Xcel Energy’s Shoshone Generating Station hydroelectric plant — which has one of the most senior water rights on the main stem of the Colorado River. A 1902 right draws 1,250 cfs of water downstream to meet the plant’s needs. During dry times of the year, such as late summer, the power plant often places a “call” on the river, meaning junior diverters upstream — including Denver Water — must stop diverting so that Shoshone can get its full allocation of water.

Elder said Denver Water wants to fill Dillon Reservoir quickly enough each spring before any potential Shoshone call. If a call came before Dillon was full, Denver Water would have to release water from Williams Fork Reservoir in order to keep water in Dillon Reservoir. However, Williams Fork can hold only 96,000 acre-feet of water.

“We want (both reservoirs) to fill quick enough that we fill both before that Shoshone power plant call comes on and before the senior call comes on the river, but not too quick that we fill before peak runoff where we get in those high-flow situations,” Elder said. “So it’s a real balancing act there. You’re balancing elevations for marinas, downstream water rights, filling the reservoir safely and then also any potential releases you may need to make from Roberts Tunnel.”

Aspen Journalism, a 501(c)(3) nonprofit organization supported by its donors and funders, covers water and rivers in collaboration with the Summit Daily News and other Swift Communications newspapers. This story ran in the May 17 edition of the Summit Daily and the May 18 edition of Aspen Journalism.

Chatfield Reservoir’s $171M redo complete, with new storage for Front Range cities, farmers

A Colorado Parks and Wildlife officer heads out on patrol at Chatfield Reservoir. A $171 million redesign at the popular lake is now complete, providing more water storage for Front Range cities and farmers. But environmental concerns remain about the project's impact on hundreds of bird species. June 8, 2020 Credit: Jerd Smith
A Colorado Parks and Wildlife officer heads out on patrol at Chatfield Reservoir. A $171 million redesign at the popular lake is now complete, providing more water storage for Front Range cities and farmers. But environmental concerns remain about the project’s impact on hundreds of bird species. June 8, 2020 Credit: Jerd Smith

By Jerd Smith

Chatfield Reservoir, one of the largest liquid playgrounds in the Denver metro area, will take on a new role this year, storing water under an innovative $171 million deal completed last month between the state, water providers, environmental groups and the federal government.

For millions of boaters, campers, cyclists, runners and bird watchers, the 350,000 acre-foot reservoir that sits southwest of the city is a year-round recreational hot spot, with 1.6 million annual visitors.

But for thirsty Front Range communities and farmers nearby and downstream, including Highlands Ranch, Castle Rock, the Greeley-based Central Colorado Water Conservancy District and six other water providers, Chatfield represents a rare opportunity to transform a reservoir once designed strictly for flood protection into a much-needed water storage vessel, a key goal of the Colorado Water Plan.

Thanks to the redesign, the reservoir will be able to hold an additional 20,600 acre-feet of water, an amount sufficient to serve more than 40,000 new homes or irrigate roughly 10,000 acres of farm land, while maintaining its ability to protect the metro area from flooding, according to the U.S. Army Corps of Engineers.

“It is cool to see it done,” said Randy Ray, manager of the Central Colorado Water Conservancy District and president of the Chatfield Reservoir Mitigation Company, Inc., which oversees the project. “It will be better when it fills up with water.”

Originally built by the Army Corps in 1975 to help control the South Platte River during floods, by the 1990s water agencies and others began looking at ways to actually store water there.

It wasn’t easy. To raise the shore level, hundreds of acres of land along the reservoir’s banks were revegetated to replace low-lying areas that will be inundated as water is stored. The cove that houses the marina was dredged, new boat ramps were built, and new habitat for birds was created downstream in Douglas County.

A 2,100 acre-foot pool of water for environmental purposes was also set aside. It will be used to provide water for recreation and improve flows for the South Platte River through Denver, Ray said.

Though the project has been praised for its multi-purpose nature, it also triggered a long-running battle with the Denver chapter of the Audubon Society, which feared the construction damage to bird habitat would not be adequately repaired in the reservoir’s new design.

The society’s lawsuit to stop the project ultimately failed. But Polly Reetz, the chapter’s conservation chair, said they plan to closely monitor how habitat and birds respond.

“We’re still not convinced it’s going to work,” Reetz said. “They’ve done some good work out there. Plum Creek is much better. But we plan to watch it very carefully and see what happens.”

The project’s $171 million price tag was paid by the cities and farmers who will store water there, with additional funds provided by the Colorado Water Conservation Board and the federal government.

“This project is a great example of federal, state and local authorities working together to address vital water supply issues along the Front Range,” said Army Corps Omaha District Commander Col. John Hudson in a statement.

That the reservoir is a highly valued part of the outdoor recreation scene in metro Denver was clear Monday morning. More than two dozen cars waited patiently to enter the park, campgrounds were brimming with visitors, and paddle boaters and sailors were already gliding across the lake.

Elizabeth Jorde and her son Jeremiah were waiting at the marina, hoping to reserve a slip for their family pontoon boat on Father’s Day.

Jorde said she’s looking forward to seeing what a fuller reservoir will look like on the many days she and her family come out to relax. But she also said the $171 million price tag seemed steep for the amount of water the project will store.

“I was flabbergasted,” she said. “It will be interesting to see if it is worth it.”

For Randy Ray the project will provided 4,274 acre-feet of critical new storage space for the farmers in his district, who anteed up $20 million to help get the deal done.

And he said it is proof that collaborative solutions to Colorado’s looming water shortages can be found.

“We rolled up our sleeves, put our differences aside and got this thing built,” Ray said.

Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.

Fresh Water News is an independent, nonpartisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Our editorial policy and donor list can be viewed at wateredco.org

This story originally appeared on Fresh Water News on June 10, 2020.

Colorado AG, top water quality regulator vow to challenge new Clean Water Act rule

Many of Colorado's rivers and streams are intermittent and ephemeral, making their classification under the Clean Water Act difficult. Credit: Jerd Smith
Many of Colorado’s rivers and streams are intermittent and ephemeral, making their classification under the Clean Water Act difficult. Credit: Jerd Smith

By Jerd Smith

Colorado and other Western states will be hard pressed to shield their rivers and streams under a new federal Clean Water Act rule finalized last month, largely because hundreds of shallow Western rivers are no longer protected, and writing new state laws and finding the cash to fill the regulatory gap will likely take years to accomplish, officials said.

Though many agricultural interests and water utilities support the new Waters of the U.S. (WOTUS) rule, as it is known, Colorado Attorney General Phil Weiser and Patrick Pfaltzgraff, director of the state’s Water Quality Control Division, said they will take legal action to protect streams that are no longer subject to federal oversight.

“We are pleased the final rule protects important agriculture exemptions and provides continued assurance that states retain authority and primary responsibility over land and water resources…However, the federal government’s decision to remove from federal oversight ephemeral waters, certain intermittent streams, and many wetlands is based on flawed legal reasoning and lacks a scientific basis,” Weiser said in a statement.

Legal strategy?

Whether Colorado will seek an injunction to stop the new rule from being enforced and whether it will join other Western states in a legal challenge isn’t clear. Weiser and Pfaltzgraff declined to discuss their legal strategy, other than vowing to take action.

The Colorado Water Congress, which represents hundreds of water agencies and agricultural interests, had been largely supportive of the new rule before it was finalized. But Executive Director Doug Kemper said the group hasn’t finished its analysis of the final version.

Formally adopted by the U.S. Environmental Protection Agency April 21, the move to significantly revise the WOTUS rule began after President Trump took office and vowed to reverse policies established under the Obama Administration.

The new rule has already triggered a handful of lawsuits seeking to stop the EPA from enforcing them. One was filed by cattle growers in New Mexico alleging that the rule is still too onerous, and at least two others have been filed by environmental interests in South Carolina and Massachusetts, who say the rule leaves too many streams unprotected.

And more are expected.

The Clean Water Act (CWA) has been legally hamstrung for years over murky definitions about which waterways fall under its jurisdiction, which wetlands must be regulated, what kinds of dredge-and-fill work in waterways should be permitted, what authority the CWA has over activities on farms and Western irrigation ditches, and what is allowable for industries and wastewater treatment plants to discharge into streams.

One rule never fits all

Administered by the U.S. Army Corps of Engineers and the EPA, the CWA, now nearly 50 years old, is credited with making U.S. waters some of the cleanest in the world. But it has also been, at times, fiendishly difficult to administer, in part because of the nation’s widely different geographies.

Go to the East or Midwest, and massive rivers, such as the Ohio and Missouri, are filled with barge and shipping traffic and are clearly “navigable.” That was the term early courts used to determine how water would be regulated. If a stream was considered navigable, it was subject to federal law.

But Colorado and other Western states rely on shallow streams that don’t carry traditional commercial traffic. The U.S. Geological Survey estimates 44 percent of Colorado’s streams are intermittent, meaning they are sometimes dry, and 24 percent are ephemeral, meaning they can be dry for months or years and appear only after extraordinary rain or snow. Just 32 percent of Colorado streams are classified as being perennial, meaning they flow year round.

Under the new rule, only perennial and intermittent streams, or those deemed navigable, will be regulated, meaning that thousands of miles of streams in Colorado and other Western states would no longer be protected under the law.

A financial quandary

And that worries state water quality officials who are responsible for protecting Colorado’s streams.

They warn that writing state rules and finding millions of dollars in new cash to enforce water quality protections will be difficult, especially as the COVID-19 budget crisis unfolds. Officials of the Colorado Department of Public Health and Environment (CDPHE), which includes the Water Quality Control Division, say that until state rules are in place, new housing developments and other projects could be stopped because there is no mechanism yet to issue the permits that were once issued by the federal government.

“While the specific impacts of this rule still are being determined, there’s no question this rollback removes huge swaths of Colorado’s waters from federal jurisdiction—the most of any administration since the passage of the Clean Water Act in 1972. The state will need to put in significant resources to determine how to continue to protect these waters and to determine how this rule will be implemented as the rule is unclear as written,” the CDPHE said in an email.

“Specific construction projects and associated permitting processes that were originally covered…won’t be able to move forward without doing so illegally and harming the environment,” the CDPHE said.

Potential dysfunction

Melinda Kassen, general counsel for the Theodore Roosevelt Conservation Partnership, said it would make sense to pursue an injunction to give the state time to set up its own regulations and find a way to fund them.

“If you read the economic analysis that accompanies the rule, there are assumptions that the states will step up and take this over. The potential is for it to be really dysfunctional. We’ve got to get something set up,” Kassen said.

EPA officials have said they don’t expect federal funding to enforce the Clean Water Act will be reduced, even though the new WOTUS rule is smaller in scope and governs fewer waterways.

Still the CDPHE and most opponents of the new rule believe millions of dollars will be needed to fill in any regulatory gap.

How far Colorado will go to challenge the new rule isn’t clear. The CDPHE’s Pfaltzgraff said his agency is still analyzing its next steps.

“It is now up to the state to provide the necessary protection of both Colorado’s economy and the environment,” Pfaltzgraff said in a statement. “We are going to do everything we can, while also addressing the impacts from COVID-19, to ensure Coloradans live in the healthy state they deserve.”

Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.

Fresh Water News is an independent, nonpartisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Our editorial policy and donor list can be viewed at wateredco.org.

This story was first published by Fresh Water News on May 6, 2020

Colorado River Econ 101

The white-water rafting industry depends on reliable flows from the Colorado River through Canyonlands National Park. (Patrick Cone, National Parks Traveler)

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From the high country in Rocky Mountain National Park a muddy flush of water rushes downstream, through western Colorado. It turns left, going south through Utah, and then takes a hard right as it enters Grand Canyon National Park in Arizona.

Along the way, the Colorado River brings promise and excitement; the promise of water for irrigation and the thrill of rapids that tantalize white-water cowboys, as it plunges deep into the earth.

The river flows past Moab, Utah, and Page, Arizona, providing an economic pulse that lures recreationists to those two towns. It fills their tourist economy coffers, similar to other towns which are gateways to national parks. And as the river goes, so go the local economies.

“On average, communities that have national parks nearby tend to get a lot of benefits from those national parks from visitors coming through there. From staying in hotels, from hiring guide services, and sort of the traditional tourism model of economic development,” said Megan Lawson, an economist with Headwaters Economics, a Bozeman, Montana, firm that specializes in rural economics.

“But then what we’re also seeing is that people might visit national parks and their gateway communities as tourists fall in love with the area, and figure out a way to move there,” she adds. “So we’re also seeing that particularly since the last recession, places with those outdoor recreation economies, like national park gateway towns, have grown faster than places without those kinds of natural amenities.”

While new residents come to Moab, they don’t always generate the same economic benefits other gateway towns enjoy, according to research conducted by Headwaters. That very likely is due to the jobs those new residents are coming to fill.

“In Grand County, the folks moving in do not have higher income than people who are already living there. In most recreation counties we’re seeing faster growth in earnings per job. But we’re also not seeing that in Grand County,” Lawson said.

“It’s not entirely clear exactly why that is happening. I think part of it might be related to the types of folks who are moving in. We know that over that similar time period, the main growth in population for Grand County has been in retirees. But also kind of a younger working age folks, kind of in that 18 to mid-30s range.”


This series on the health of the Colorado River and its impacts on Canyonlands and Glen Canyon has been supported by a grant from The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.

National Parks Traveler, a 501(c)(3) nonprofit media organization, depends on reader and listener support to produce stories such as this one and other coverage of national parks and protected areas. Please donate today to ensure this coverage continues.

Climate change reducing Colorado River runoff

As climate warming shrinks the Colorado River Basin’s snowpack, runoff into the river will decrease by 9.5% per 1 degree C (Patrick Cone, National Parks Traveler)

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By mid-century, annual runoff into the Colorado River could be reduced by nearly a third as declining snowpack leads to greater evaporation of snowmelt, according to a new U.S. Geological Survey study.

That’s because as snowpack in the 100,000-square-mile river basin shrinks, it increasingly loses the ability to reflect solar radiation back into space, said Christopher Milly.

“We estimated that the warming effect alone (ignoring changes in precipitation) would, by the year 2050, reduce the flow by something in the range 14-31 percent, relative to historical 1913-2017 flows,” said Milly, who works in USGS’s Integrated Modeling and Prediction Division. “The loss would tend toward the higher end of this range for higher levels of greenhouse gases and toward the lower end for lower levels.”

The National Park Service is doing what it can but control is out of their hands. Rob Billerbeck is the NPS Colorado River Coordinator, and says their job is to “prevent unacceptable impacts to natural and cultural resources, and maintain natural processes. It’s really tough to answer questions of ecosystem health, and the condition of the park resources.”

But it now seems certain that there will be major deficits in Colorado River flows in the future, with unintended consequences to downstream users, hydroelectric power, recreation, fish, wildlife, water quality, flood control and all water-dependent ecological systems along the entire river. It all depends on whether the weather and the climate continue to change as predicted. And that’s a problem for everyone.


This series on the health of the Colorado River and its impacts on Canyonlands and Glen Canyon has been supported by a grant from The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.

National Parks Traveler, a 501(c)(3) nonprofit media organization, depends on reader and listener support to produce stories such as this one and other coverage of national parks and protected areas. Please donate today to ensure this coverage continues.

Not enough water and too many invasives at Glen Canyon National Recreation Area

Image by David Mark from Pixabay

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This story was supported by the Water Desk’s grant programs.

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Water is big business, bigger in the Southwest than perhaps anywhere else in the United States, and so where the Colorado River flows, economics and politics closely follow. More than 40 million people downstream depend upon its waters for agriculture, cities and businesses. At Glen Canyon National Recreation Area in southern Utah and northern Arizona, that reality rises in the 710-foot tall Glen Canyon Dam and shimmers in the reservoir that it has formed, Lake Powell.

But years of drought, upstream diversions and impoundments, and an overly optimistic forecast of Colorado River flows, have sapped the river once literally called Grand. Invasions of non-native species, and growing crowds of visitors, are contributing to the insults the river has struggled to bear, insults that only figure to worsen as climate change continues to squeeze the river from its headwaters in Rocky Mountain National Park down to the Gulf of California.

Lake Powell today holds barely half of what it was designed for, and downstream, Lake Mead is less than 40 percent full. Glen Canyon National Recreation Area’s future as storehouse for water, and a summer place to play, are threatened. It’s a conundrum for the two federal agencies — the U.S. Bureau of Reclamation (BOR) and National Park Service (NPS) — that manage these two lakes with two decidedly differing missions.

“Recreation is an important benefit, but it’s a side-benefit,” says Marlon Duke, a spokesman for the Bureau of Reclamation that operates the dams on Lake Powell and Lake Mead. But the primary purpose of the dam, part of the Colorado River Storage Project (CRSP), is not recreation or even hydroelectric power. “The primary purpose of the dam,” he says, “is to store water and hold it.”

The National Park Service, however, is responsible for preserving and protecting the natural and cultural resources, unimpaired, for future generations, but has no authority on the management of the dam, or water levels in the lake and river. With few tools to battle climate change, the NPS is studying the changes that have already occurred, while planning for a different climate and future.

Video: long-time residents and scientists agree that the climate is changing at Lake Powell

Video by Patrick Cone, National Parks Traveler

The data is in, the science has been done, and the results of global climate change are very evident along the Colorado River, and specifically at Lake Powell. Dozens of studies by hundreds of scientists and many published reports attest to the fact that the climate is definitely becoming warmer, and drier, at Lake Powell. Less water and higher temperatures are threatening the animals, plants, and, in fact, the entire ecosystem. And, it’s going to get a lot worse, researchers say. 

The numbers don’t lie. Climate scientist Brad Udall writes of the Colorado River, “Between 2000 and 2014 annual river flows averaged 19% below the 1906-1999 average.  It’s the worst 15-year drought on record. One-third of flow loss is due to high temperatures.” By his calculations, river flows will be reduced by 20 percent mid-century, and 35 percent less at the end of the century. Meanwhile, temperatures have risen nearly one degree Celsius from 2000 through 2014. That’s a big change in a short amount of time.

But what can be done to mitigate this diminishing resource, which provides water to so many people? What sort of climatic conditions will we see in the future on the Colorado Plateau? How can we predict these changes and react to them? How will this warmer and drier climate affect the entire environment and ecosystem, the animals and plants that live there? 

The Southwest has been locked in a long-term drought/NOAA via EcoWest

Glen Canyon Dam was put into service in 1964, creating Lake Powell and changing the river ecosystem forever, both above and below the dam. Lake Powell is the second-largest reservoir in the United States, next to Lake Mead downstream. The concrete, double-arch dam is sandwiched between the narrow canyon walls of Navajo sandstone, and the lake took 18 years to fill. It covers more than 1.25 million acres when at full pool. The Colorado River feeds the lake from its headwaters in the Rocky Mountains of Colorado, and takes in what the Green (which flows out of the Wind River Range in Wyoming), San Juan, Dirty Devil, and Escalante rivers will give it.

Contributing to the stress on the Colorado River are 15 large dams on the river’s main stem; all are part of the massive CRSP, created in the 20th Century. The river water supports a $5 billion agricultural industry along its 1,450 miles, with 80 percent of the water dedicated to crops. Just 10 percent goes to downstream cities.

In 1922, 15 million acre-feet of Colorado River water was divided equally by the Colorado River Compact into a Lower Basin and Upper Basin, whose border is 15 miles downstream of the Glen Canyon Dam at Lees Ferry. But that was 1.2 million acre-feet over the apportionment.

When Colorado River flows were calculated during the 1950s, it was based on just 18 years of streamflow measurements. But now scientists realize how optimistic these numbers were. During planning for the Glen Canyon Dam, Raymond Hill, a hydrologic engineer for the BOR, said that there was 6 million acre-feet less water.

“The discharge of the Colorado River at Lees Ferry has averaged only 11.7 million acre-feet since 1930,” he said.

Randy Riter with the BOR concurred in 1965, when he said, “There is not enough water in the Colorado River to permit the Upper Basin to fully use its apportionment of 7.5 million acre-feet and still meet compact obligations to deliver water at Lees Ferry.”

So, there is less water to go around, and a changing climate means even drier conditions. That’s what managers are up against now.

“We operate Glen Canyon and Hoover Dam at Lake Mead, and operate those two reservoirs together,” says BuRec’s Duke. “We balance the contents of the reservoirs. We operate based upon the hydrology we see, and then we use those models to determine how to operate in a given year.” 

But right now, that means trouble. “We’re 19 years into the one of the worst droughts in recorded history,” adds Duke. “We’ve gotten 19 years into this drought, but we can’t just continue the status quo. We have to take major steps to protect the water supply.”

There has not been a big shortage declaration either for the 40 million users downstream, but that could change. And that is why the Compact and is now being renegotiated.

Dr. Jack Schmidt is professor of Watershed Sciences at Utah State University, and heads the Center for Colorado River Studies. Politics, he says, are making negotiations over the Compact difficult.

“The political agreement is about how to share the pain of drought. The renegotiation of that pain is supposed to begin sometime in 2020, and has to be concluded by 2025. The game that is played is that we have a hierarchy of treaties, laws, compacts, and rules, collectively called the Law of the River,” he explains. “The treaty we work off of is the 1944 treaty. We have changed the treaty 300 plus times. It’s called the Interim Shortage Guidelines negotiated in 2007. Those pending negotiations will carry the fate of Glen Canyon National Recreation Area, and reservoir recreation is going to be the furthest thing from anyone’s mind… It’s pretty much an irrelevancy.”

There are plenty of climate models being developed to predict water supplies in the future. The Colorado River Simulation System (CRSS) looks at 12 reservoirs and 29 headwater tributaries, and is used by the BOR and other stakeholders. There’s the aforementioned 2007 Colorado River Interim Guidelines for Lower Basin Shortages and coordinated operations for Lake Powell and Lake Mead, the 2012 Colorado River Basin Water Supply and Demand Study and the 2015 Glen Canyon Dam Long-Term Experimental and Management Plan.

Models developed by James Prairie, a hydrologic engineer for the Bureau of Reclamation, look out in the near term, from 1-2 years, the mid-term, from 1-5 years, and long term, from 1 to 50 years in the future, utilizing historic data and paleo information going back thousands of years. “But,” he says, “none of us know what dataset is right for the future.”

Figuring out how to operate two large dams under these conditions, BuRec’s Duke says, is a monumental challenge, just as building the Glen Canyon Dam was.

“Modelers are looking at historic hydrology, looking at future forecasts, at likelihoods of how the climate is going to change. (This data) is plugged into the models and kicks out a likelihood of certain river flows. It’s a 24-month study, and that’s kind of short, but it’s really difficult to forecast accurately next week, let alone two years or five years down the road. It tells us what the model thinks is going to happen as far as inflows into the reservoirs, but we update that every month.” 

Dr. Schmidt is not very optimistic.

Video: “there is a strong correlation between a warming climate and decreased runoff” – Dr. Jack Schmidt, Utah State University

Video by Patrick Cone, National Parks Traveler

“The thing that we know is that the climate is warming. There is a strong correlation between a warming climate and decreased runoff in the Colorado River,” he said. “What we know is that there will be an ever-decreasing amount of water flowing into Lake Powell from the Colorado River, the Green River and from the San Juan River. We also know it will be highly variable, there will be more drought years than big water years. Every once in a while, it’ll be a big winter. They will be fewer, but they will still come.

“The most important point is that the fate of the reservoir is contingent partly on climate change, and partly to society’s response to climate change,” he went on. “The thing we are trying to understand with Powell and climate change, if it is the case that there is not enough runoff to sustain both reservoirs, and it’s inevitable that Powell will get really warm, then are we are on a fool’s errand to be trying to manage Grand Canyon to be a cold place, when it fact it’s impossible to maintain forever.

“Perhaps we are better off to robustly anticipate the future but when Powell gets really low, it’ll get really different. So, we better develop a new ecosystem plan. But what happens to Lake Powell is not only about decreasing runoff, it’s about how society makes decisions about what to do with that water.”

Schmidt has proposed letting Lake Mead fill first, with Lake Powell as a backup pool.

“So, what do you do when you have less runoff in the system? You could preferentially store your water, though less water, in Lake Powell. Therefore, Lake Powell would be full,” he explained. “Or you could store it in Lake Mead and Lake Powell would be empty most of the time. Now we keep the contents of Powell and Mead approximately equal, and they both go up and down. You have the two of the largest reservoirs in the United States, and operate them as one. The political decision is that we keep them both half full.” 

But what comes next, and what impact will it have on the river, the canyons, the environment and the species that live there? 

Scott Vanderkooi is the chief of the Grand Canyon Monitoring and Research Center for the USGS in Flagstaff, Arizona, and is seeing rising water temperatures. 

“Changes have been really rapid. We’ve had a long-term drought in the Southwest, since 2000. There’s a lot less water coming into the reservoirs, particularly Lake Powell, and that’s affected water quality released from the dam,” he said.  “Previously when the reservoir was full the temperatures would peak at 10 to 11 degrees Celsius (around 50 degrees Fahrenheit). This year dam releases peaked at 16 degrees Celsius. Water temperatures control all biological processes in rivers. It’s the new abnormal, not just a 20-year drought. It has huge consequence on ecosystem and the creatures that depend upon them.”

Long-time Page, Arizona, resident Ada Hatch has certainly seen the change in climate during her 51 years teaching school there. “Of course, the climate is definitely getting warmer. When I first got here, we had snow in the winter. Now if we get snow it only lasts three or four hours and it’s gone. For sure it’s drier, and definitely the climate is warming up.”

And summer monsoons during the summer of 2019 were nearly nonexistent. “That moisture is very important to Arizona, New Mexico, the Grand Canyon and Utah,” observes John Weisheit, the Colorado River Keeper, one of 300 in the Living Rivers network globally.  “It’s important to our highlands and high deserts. And that’s going away. They’re not as frequent, and when they do come it’s not as much volume.” 

Video: “We’re using more than the river provides” – Taylor Hawes, The Nature Conservancy

Video by Patrick Cone, National Parks Traveler

Ken Hyde is the chief of Science and Resource Management at Glen Canyon National Recreation Area for the National Park Service, and says, “Our temperature patterns are beginning to accelerate; 2018 was the second driest ever. We’re going in completely uncharted territory, faster than scientists thought 20 years ago. We’re watching some of our plant communities fading into the sunset. Our climate (at Lake Powell) will be about like Lees Ferry, which is 1,200 feet lower, in about 30 years, and more like Las Vegas by the end of the century.”

Hyde, and Assistant Chief John Spence, are seeing impacts of the changing climate on many different species.

“This monsoon period there was no recharge of the waterpockets, so desert bighorns are coming down to lake level. But there’s no water up in the high country,” says Spence. “Our biggest concern is leopard frogs They require wetlands, and clean and clear water. We are the only place in southern Utah that they exist. They are rare, and probably declining. The numbers of canyon wrens have dropped off. We can tie some other species moving north due to climate change. We’ve had several species becoming more common in the last 20 years.”

Some species are being stressed by the drought and heat, and are already in trouble. Across the Colorado Plateau the Pinyon trees are dying off, possibly due to the drought. Without these trees, the biological soil crusts and grass cover beneath them are threatened. They hold moisture, and secure the soil and without them, we could be in trouble. “We need something to stabilize the soil or we’ll end up being a big sand dune,” says Hyde. “And, what do we do when we start seeing natives of the Sonoran and Mojave Desert? Do we consider creosote bush a weed?”

Lake Powell is already stressed and in crisis due to one invasive species: Quagga mussels. Since 2012 they have spread throughout the lake, clogged boat motors and impeded operations at Glen Canyon Dam, according to Clem Wasicek, a technician with the Utah Division of Wildlife. Decontamination stations last year cleaned and inspected about 120,000 water craft leaving the lake. “We are on the lookout for other invasive plants,” he says. “Eurasian watermilfoil and water hyacinth haven’t taken over our lake yet, and possibly New Zealand mud snails and crayfish, another invasive. It’s a very big mosh pit of things going on.”

Video: Quagga mussel infestation in Lake Powell

Video by Patrick Cone, National Parks Traveler

Dr. Schmidt believes climate change will make way for other invasive species. “The most obvious invasives, that are a direct function of climate change and water supply management, are nonnative fish. There are two kinds: cold water, mainly trout, and warm water, mainly small mouth bass, gizzard chad (Dorosoma). As things get warmer nonnative reservoir fish might come up and swamp the system.”

The National Park Service is doing what it can but control is out of their hands. Rob Billerbeck is the NPS Colorado River Coordinator, and says their job is to “prevent unacceptable impacts to natural and cultural resources, and maintain natural processes. It’s really tough to answer questions of ecosystem health, and the condition of the park resources.”

But it now seems certain that there will be major deficits in Colorado River flows in the future, with unintended consequences to downstream users, hydroelectric power, recreation, fish, wildlife, water quality, flood control and all water-dependent ecological systems along the entire river. It all depends on whether the weather and the climate continue to change as predicted. And that’s a problem for everyone.

This series on the health of the Colorado River and its impacts on Canyonlands and Glen Canyon has been supported by a grant from The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.

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