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Which wetlands should receive federal protection? The Supreme Court revisits a question it has struggled in the past to answer

Wetlands like this one in California’s Morro Bay Estuary shelter fish, animals and plants and help control flooding.
Citizen of the Planet/UCG/Universal Images Group via Getty Images

By Albert C. Lin, University of California, Davis

The U.S. Supreme Court opens its new session on Oct. 3, 2022, with a high-profile case that could fundamentally alter the federal government’s ability to address water pollution. Sackett v. EPA turns on a question that courts and regulators have struggled to answer for several decades: Which wetlands and bodies of water can the federal government regulate under the 1972 Clean Water Act?

Under this keystone environmental law, federal agencies take the lead in regulating water pollution, while state and local governments regulate land use. Wetlands are areas where land is wet for all or part of the year, so they straddle this division of authority.

Swamps, bogs, marshes and other wetlands provide valuable ecological services, such as filtering pollutants and soaking up floodwaters. Landowners must obtain permits to discharge dredged or fill material, such as dirt, sand or rock, in a protected wetland. This can be time-consuming and expensive, which is why the case is of keen interest to developers, farmers and ranchers, along with conservationists and the agencies that administer the Clean Water Act – the Environmental Protection Agency and the U.S. Army Corps of Engineers.

The Supreme Court has already shown a willingness to curb federal regulatory power on environmental issues. From my work as an environmental law scholar, I expect the court’s decision in this case to cut back on the types of wetlands that qualify for federal protection.

 

The U.S. has already lost more than half of its original wetlands, mainly because of development and pollution.

The Sackett case

Idaho residents Chantell and Mike Sackett own a parcel of land located 300 feet from Priest Lake, one of the state’s largest lakes. The parcel once was part of a large wetland complex. Today, even after the Sacketts cleared the lot, it still has some wetland characteristics, such as saturation and ponding in areas where soil was removed. Indeed, it is still hydrologically connected to the lake and neighboring wetlands by water that flows at a shallow depth underground.

In preparation to build a house, the Sacketts had fill material placed on the site without obtaining a Clean Water Act permit. The EPA issued an order in 2007 stating that the land contained wetlands subject to the law and requiring the Sacketts to restore the site. The Sacketts sued, arguing that their property was not a wetland.

In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA’s order and sent the case back to the lower courts. Now, after losing below on the merits, they are back before the Supreme Court. The current issue is whether the Sacketts’ property is federally protected, which in turn raises a broader question: What is the scope of federal regulatory authority under the Clean Water Act?

Graphic showing how far U.S. Army Corps of Engineers jurisdiction over wetlands extends
This graphic shows the U.S. Army Corps of Engineers’ jurisdiction over discharging dredged or fill material into wetlands under Section 404 of the Clean Water Act. Coverage of isolated wetlands without a surface connection to rivers, lakes or harbors is less clear. USACE

What are ‘waters of the United States’?

The Clean Water Act regulates discharges of pollutants into “waters of the United States.” Lawful discharges may occur if a pollution source obtains a permit under either Section 404 of the Act for dredged or fill material, or Section 402 for other pollutants.

The Supreme Court has previously recognized that the “waters of the United States” include not only navigable rivers and lakes, but also wetlands and waterways that are connected to navigable bodies of water. However, many wetlands are not wet year-round, or are not connected at the surface to larger water systems, but can still have important ecological connections to larger water bodies.

In 2006, when the court last took up this issue, no majority was able to agree on how to define “waters of the United States.” Writing for a plurality of four justices in U.S. v. Rapanos, Justice Antonin Scalia defined the term narrowly to include only relatively permanent, standing or continuously flowing bodies of water such as streams, oceans, rivers and lakes. Waters of the U.S., he contended, should not include “ordinarily dry channels through which water occasionally or intermittently flows.”

Acknowledging that wetlands present a tricky line-drawing problem, Scalia proposed that the Clean Water Act should reach “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right.”

In a concurring opinion, Justice Anthony Kennedy took a very different approach. “Waters of the U.S.,” he wrote, should be interpreted in light of the Clean Water Act’s objective of “restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters.”

Accordingly, Kennedy argued, the Clean Water Act should cover wetlands that have a “significant nexus” with navigable waters – “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

Neither Scalia’s nor Kennedy’s opinion attracted a majority, so lower courts have been left to sort out which approach to follow. Most have applied Kennedy’s significant nexus standard, while a few have held that the Clean Water Act applies if either Kennedy’s standard or Scalia’s is satisfied.

Regulators have also struggled with this question. The Obama administration incorporated Kennedy’s “significant nexus” approach into a 2015 rule that followed an extensive rulemaking process and a comprehensive peer-reviewed scientific assessment. The Trump administration then replaced the 2015 rule with a rule of its own that largely adopted the Scalia approach. The Biden administration has proposed a new rule that would deem waters of the United States present if either a significant nexus or continuous surface connection is present.

What’s at stake

The court’s ultimate ruling in Sackett could offer lower courts, regulatory agencies and landowners clear direction on the meaning of “waters of the United States.” And it will likely affect the government’s ability to protect the nation’s waters.

A broad interpretation could include many agricultural ditches and canals, which might obligate some farmers and ranchers to apply for Section 404 permits. It could also ensure oversight of polluters who discharge pollutants upstream of federally protected waters.

The Sacketts assert that the permitting process imposes significant costs, delays and potential restrictions on property use. In response, the Biden administration contends that most landowners can proceed under general permits that impose relatively modest costs and burdens.

In my view, this court’s anti-regulatory bent – and the fact that no other justices joined Kennedy’s concurring Rapanos opinion – suggest that this case will produce a narrow reading of “waters of the United States.” Such an interpretation would undercut clean water protections across the country.

If the court requires a continuous surface connection, federal protection would no longer apply to many areas that critically affect the water quality of U.S. rivers, lakes and oceans – including seasonal streams and wetlands that are near or intermittently connected to larger water bodies. It might also mean that building a road, levee or other barrier separating a wetland from other nearby waters may be enough to remove an area from federal protection.

Congress could clarify what the Clean Water Act means by “waters of the United States,” but past efforts to legislate a definition have fizzled. And today’s closely divided Congress is unlikely to fare any better. The court’s ruling in Sackett could offer the final word on this issue for the foreseeable future.

Albert C. Lin is Professor of Law at University of California, Davis

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Public: New Colorado Water Plan needs more urgency and accountability

Colorado River on the West Slope. Credit: Kevin Maloney
Colorado River on the West Slope. Credit: Kevin Maloney

By Jerd Smith

Coloradans want the state’s top water road map to mandate faster action, be more accountable, require equitable drought responses between the East and West slopes, and include the crisis on the rapidly drying Colorado River in its estimates of future water shortages.

More than 1,300 individuals and agencies submitted public comments on the draft update to the Colorado Water Plan, according to Russ Sands, chief of water supply planning for the Colorado Water Conservation Board (CWCB). Read the comments here.

The public comment period ended Sept. 30. The CWCB is scheduled to finalize revisions to the plan in January 2023. [Editor’s note: The CWCB is a funder of Water Education Colorado, which is a sponsor of Fresh Water News.]

Commenters, including major water utilities, environmental groups, ranchers and farmers, and city and county officials, have asked for numerous changes.

“The plan lacks the language of urgency throughout. It should emphasize the scarcity of time and water to address the life-or-death reality of the drought and the climate crisis that the state of Colorado is facing,” Hispanics Enjoying Camping, Hunting and the Outdoors wrote in their submitted comments.

The CWCB is responsible for drafting and updating the plan and supporting its implementation. Championed by U.S. Senator John Hickenlooper when he served as governor, the state’s first water plan was approved in 2015 after years of public meetings and data gathering.

At the time, it was hailed as a breakthrough in grassroots water planning in the West because of its comprehensive effort to engage the public, analyze existing water use, future shortages, and potential solutions.

Since then, the CWCB has awarded more than $500 million in grants and loans to help communities develop water management plans, projects and other options locals believe are necessary to ensure their water futures.

But the plan was politically difficult to finalize even then because of conflicts between water utilities and environmentalists, pro-dam and anti-dam interests, and agricultural and urban water conflicts.

Regardless, water users across the state say that the water plan has spurred more cooperation than has ever existed before, with public roundtables in each of the state’s eight river basins making decisions and sharing information with one another, using the water plan as a roadmap.

Now, as the CWCB updates the plan and a 22-year megadrought drains the Colorado River system, pressure is building to act quickly.

For example, in their comments several individuals and agencies asked that the updated plan include more measurable goals with deadlines to improve accountability in addressing the state’s looming water shortages and environmental issues.

Business for Water Stewardship (BWS), a nonprofit that seeks to connect corporate funders with environmental initiatives, was among them.

“The water plan lacks specifics and accountability,” BWS wrote. “The plan should include metrics on conservation and storage and guidelines on how we balance competing needs. These metrics are necessary to measure progress on the plan’s goals and objectives.”

Forecasts show water supplies will not keep pace with demand by 2050 for agricultural (Ag) or municipal and industrial (M & I) needs if Colorado does not find new approaches. Source: 2019 Analysis and Technical Update to the Colorado Water Plan. Credit: Chas Chamberlin
Forecasts show water supplies will not keep pace with demand by 2050 for agricultural (Ag) or municipal and industrial (M & I) needs if Colorado does not find new approaches. Source: 2019 Analysis and Technical Update to the Colorado Water Plan. Credit: Chas Chamberlin

Major water diversions between West Slope river basins and Front Range cities were also a topic of concern.

Roughly 80% of the state’s water supplies originate in West Slope mountain snowpacks, while much of that water is moved to the thirsty Front Range in pipelines and canals known as transmountain diversions or TMDs.

The Colorado River District and other West Slope interests want the state to require that when the West Slope is facing ultra-dry conditions and forced to deal with water restrictions and cutbacks, as it often is just because of its geography, urban cities who are using that West Slope water, live under the same rules. The district represents 15 West Slope counties and is responsible for managing the Colorado River within state boundaries.

For years, West Slope communities whose rivers have been subject to severe drying due to drought and climate change, have complained about urban indifference to their plight.

This year, for instance, some West Slope river basins saw runoff that was well below average, while many Front Range communities, thanks to big reservoirs and better runoff from local rivers, saw normal conditions. There were water restrictions to the west, but few if any to the east.

“The river district recommends a stronger stance towards water conservation and a recommendation that communities reliant on TMD supplies tailor conservation needs when any watershed with their source water is undergoing drought conditions. This is particularly important when the end-use basin is undergoing less severe drought conditions than their TMD source watersheds,” the river district wrote.

The CWCB’s Sands said the state has limited ability to act on a request like this one, given that it has no statewide authority to impose drought restrictions.

Still another major topic of concern among several commenters is the ongoing crisis on the Colorado River. The river begins in the Never Summer Mountains in Rocky Mountain National Park and by the time it makes its way west to the Utah state line, it has generated the majority of the entire seven-state river system’s water.

With the river in crisis and lakes Powell and Mead at historic low levels, Arizona, California and Nevada have begun taking cutbacks, a situation that eventually could occur in Colorado, where major metropolitan areas rely on the river for roughly 50% of their supplies.

And while the draft plan acknowledges the impact of climate change and uncertainties regarding future supplies, commenters say it should include more specifics on how the crisis could affect Colorado’s own water future.

The Sierra Club called release of the draft plan premature, because it did not adequately address the Colorado River crisis. Larimer County, the City of Fort Collins and the Colorado Agricultural Water Alliance, also asked that the draft plan include more specifics on the river’s dicey future.

“Adding the Colorado River crisis” to Colorado’s already well known water problems, “is like adding an overactive bull into an already somewhat ramshackle china shop,” the Sierra Club wrote. “Having the draft plan revision out at this time is premature given the likely need to stop about 30% of Colorado’s present use of Colorado River water.”

Here too, Sands said, the plan is focused  on intrastate water issues and isn’t the state’s primary vehicle for dealing with the Colorado River crisis and protecting the state’s water interests outside state boundaries.

The CWCB is scheduled to address which public requests for additions to the water plan will be included in the final draft at its November meeting, Sands said.

In the meantime, several commenters expressed hope that the revised water plan will create the energy and vision the state needs to address its complicated water future.

Said Colorado Springs Utilities, “The water plan is a formative document that outlines meaningful goals and actions for addressing the water supply gap in a time of increasing water scarcity. It will take political courage to ensure this plan has the impact Colorado requires.”

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.

Clarification: The article has updated to reflect that the water plan is not the CWCB’s primary tool for addressing the Colorado River Water Crisis. 

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

How to steer money for drinking water and sewer upgrades to the communities that need it the most

Raw sewage bubbles up in the front yard of a home in Jackson, Mississippi, on Oct. 20, 2021.
Rory Doyle/The Washington Post via Getty Images

By Andrian Lee, University of Wisconsin-Milwaukee and Melissa Scanlan, University of Wisconsin-Milwaukee

When storms like Hurricane Ian strike, many people have to cope afterward with losing water service. Power outages mean that pumps can’t process and treat drinking water or sewage, and heavy stormwater flows can damage water mains.

Ian’s effects echoed a similar disaster in Jackson, Mississippi, where rising river water overwhelmed pumps at the main water treatment plant on Aug. 29, 2022, following record-setting rain. The city had little to no running water for a week, and more than 180,000 residents were forced to find bottled water for drinking and cooking. Even after water pressure returned, many Jackson residents continued to boil their water, questioning whether it was really safe to drink.

Jackson had already been under a boil-water notice for more than a month before the crisis, which arrived like a slow-motion bullet to the city’s long-decaying infrastructure. Now, Jackson and its contractors face lawsuits and a federal investigation.

 

This 2021 episode of ‘60 Minutes’ explores Jackson, Mississippi, residents’ frustration with their city’s long-running water problems.

We study water policy with a focus on providing equitable access to clean water. Our research shows that disadvantaged communities have suffered disproportionately from underinvestment in clean and affordable water.

However, a historic increase in federal water infrastructure funding is coming over the next five years, thanks to the Infrastructure Investment and Jobs Act that was enacted in 2021.

If this funding is managed smartly, we believe it can start to right these wrongs.

A complex funding mix

Water infrastructure has two parts. Drinking water systems bring people clean water that has been purified for drinking and other uses. Wastewater systems carry away sewage and treat it before returning it to rivers, lakes or the ocean.

Money to build and maintain these systems comes from a mix of federal, state and local sources. Over the past 50 years, policymakers have debated how much each level of government should contribute, and what fraction should come from the most prized source: federal money that does not need to be repaid.

The 1972 Clean Water Act created a federal grant program, managed by the Environmental Protection Agency, to help states and municipalities build wastewater treatment plants. Under the program, federal subsidies initially covered 75% of project costs.

Aerial view of water treatment tanks and gas digesters on a peninsula surrounded by ocean
The Deer Island water treatment plant in Boston began operation in 1995. It treats wastewater from towns across greater Boston and discharges cleaned effluent into the Atlantic Ocean.
Doc Searls/Wikipedia, CC BY

In the 1980s, the Reagan Administration challenged this arrangement. Conservatives argued that the grant program’s main purpose – addressing the need for more municipal wastewater treatment – had been fulfilled.

In 1987, Congress replaced wastewater grants with a loan program called the Clean Water State Revolving Fund, which still operates today. The EPA uses the fund to provide seed money to states, which offer low-interest loans to local governments to build and maintain wastewater treatment plants. Congress created a corresponding program, the Drinking Water State Revolving Fund, in 1996 to fund drinking water infrastructure.

As a result, U.S. water infrastructure now is funded by a mix of loans that must be repaid, principal forgiveness awards and grants that do not require repayment, and fees paid by local users. The larger the share that can be shifted into grants and principal forgiveness, the less pressure on local ratepayers to foot the bill for long-term infrastructure investments.

What’s in the infrastructure law

The Infrastructure Investment and Jobs Act authorizes more than US$50 billion for water infrastructure over the next five years. This won’t close the gap in funding needs, which the EPA has estimated at $472.6 billion from 2015 through 2034 just for drinking water systems. But it could support tangible improvements.

When water systems that serve low-income communities borrow money from state programs, even at low interest rates, they have to pay the loans off by raising rates on customers who already struggle to pay their bills. To reduce this burden, federal law allows state programs to provide “disadvantaged communities” additional subsidies in the form of principal forgiveness and grants. However, states have broad discretion in determining who qualifies.

The infrastructure law requires that 49% of federal funding for both drinking water and wastewater infrastructure must be awarded as additional subsidies to disadvantaged communities. In other words, almost half the money that states receive in federal funds must be awarded as principal forgiveness or outright grants to disadvantaged communities.

Who counts as ‘disadvantaged’?

In March 2022, the EPA released a memorandum that calls the infrastructure law a “unique opportunity” to “invest in communities that have too often been left behind – from rural towns to struggling cities.” The agency pledged to work with states, tribes and territories to ensure the promised 49% of supplemental funding reaches communities where the need is greatest.

This is an issue where the devil truly is in the details.

For example, under Mississippi’s definition of “disadvantaged community,” Jackson’s 2021 award for principal forgiveness was capped at 25% of the original principal. In its March 2022 memorandum, the EPA identified such caps as obstacles for under-resourced communities.

Mississippi appears to have responded by using a new standard for funds coming from the infrastructure law. Beginning this year, communities whose median household income is lower than the state median household income – including Jackson – will be awarded 100% principal forgiveness, which makes the funding effectively a grant.

Additionally, the EPA discourages using population as a factor to define “disadvantaged communities.” Communities with smaller populations struggle to cover water systems’ operating costs, so that challenge is important to consider. But using population as a determining factor penalizes larger cities that may otherwise be disadvantaged.

For example, in 2021, when determining principal forgiveness, Wisconsin awarded a higher financial need score to communities with populations below 10,000. This penalized Milwaukee, the state’s largest city, with almost a quarter of its people experiencing poverty.

In September 2022, Wisconsin updated its definition to consider additional factors, such as county unemployment rate and family poverty percentage. With these changes, Milwaukee now qualifies for the maximum principal forgiveness.

Mississippi and Wisconsin previously relied on factors too narrow to reach many disadvantaged communities. We hope the steps they have taken to update their programs will inspire similar actions from other states.

Getting the word out

In our view, the Infrastructure Investment and Jobs Act is a once-in-a-generation opportunity to correct decades of underinvestment in disadvantaged communities, especially with the EPA pushing the states to do so.

Historically under-resourced communities may not be aware of these state program funds, or know how to apply for them, or carry out infrastructure improvements. We believe the EPA should direct states that receive federal funds to help under-resourced communities apply for and use the money.

Recent events in Jackson and Florida show how natural disasters can overwhelm water systems, especially older networks that have been declining for years. As climate change amplifies storms and flooding, we see investing in water systems as a priority for public health and environmental justice across the U.S.

Andrian Lee is Water Policy Specialist, University of Wisconsin-Milwaukee and Melissa Scanlan is Professor and Director of the Center for Water Policy, School of Freshwater Sciences, University of Wisconsin-Milwaukee

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Water Desk supports journalists covering the Colorado River Basin

The Colorado River in Marble Canyon in northern Arizona. Photo by Ted Wood/The Water Desk

The Water Desk is excited to announce the recipients of new grants to support water journalism connected to the Colorado River Basin.

The grantees will be reporting on a range of critical water issues facing the region, including climate change, pollution, growth, biodiversity, agriculture, energy and water rights. Many of the journalists will be exploring equity issues in the water sector.

The 17 awards, up to $10,000 each, are being funded thanks to the support of the Walton Family Foundation. A total of $90,969 has been approved in this round of grantmaking.

The recipients of The Water Desk’s 2022 Colorado River grants (in alphabetical order):

Jake Bittle, Grist

Christi Bode, independent

Grant Burningham, Leia Larsen, Zak Podmore, Brian Maffly, Bethany Baker, Christopher Cherrington and Rick Egan at The Salt Lake Tribune

Angela Chen, KESQ-TV, Palm Springs, Calif.

Delaney Dryfoos, Inside Climate News

MacKenzie Elmer, Voice of San Diego

Jordan Gass-Poore’, independent

Jillian Kestler-D’Amours and Megan O’Toole at Al Jazeera English

Irene McKisson, Dianna M. Náñez, Becky Pallack and John Washington at Arizona Luminaria

Lourdes Medrano, independent

Jane Palmer, independent

Laura Paskus, New Mexico PBS

Fletcher Reveley, independent

RJ Sangosti, The Denver Post

Julia Simon, National Public Radio

Morgan Sjogren, Sierra Magazine

Jerd Smith, Fresh Water News

The Water Desk maintains strict editorial independence from its funders and the University of Colorado. Funders of The Water Desk have no right to review or to otherwise influence stories or other journalistic content that is produced with the support of these grants. For more about our editorial independence, please see our funding page.

Congratulations and best of luck to our grantees. We look forward to seeing the water journalism they produce!

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Stream restoration projects focused on beavers present ‘unsettled’ issue

This beaver dam analogue, with posts across the creek and soft, woody material woven across, was built by environmental restoration group EcoMetrics, keeps water on the landscape by mimicking beaver activity. Some water rights holders worry that these types of projects could negatively impact them. CREDIT: JACKIE CORDAY
This beaver dam analogue, with posts across the creek and soft, woody material woven across, was built by environmental restoration group EcoMetrics, keeps water on the landscape by mimicking beaver activity. Some water rights holders worry that these types of projects could negatively impact them. CREDIT: JACKIE CORDAY

By Heather Sackett

State officials are working to address a tension that has arisen alongside the growing popularity of stream restoration projects that aim to keep water on the landscape by mimicking beaver activity.

There’s no doubt that North America’s largest rodent is good for riparian ecosystems. By building dams that pool water, beavers can transform channelized streams into sprawling, soggy floodplains that recharge groundwater, improve water quality and create areas resistant to wildfires and climate change. Beavers create natural storage ponds in the headwaters which slows the rate that water is released and can help boost late-summer base flows and prevent downstream flash flooding. Basically, beavers rehydrate a dry sponge.

The engineers of the forest are so good at what they do that environmental groups sometimes copy beaver activity in stream restoration projects, building what are called beaver dam analogues. These temporary wood structures usually consist of posts driven into the streambed with willows and other soft materials woven across the channel between the posts. The idea is that by creating appealing habitat in areas that historically had beavers, the animals will recolonize and continue maintaining the health of the stream.

These types of low-tech, process-based restoration projects have been growing more popular in recent years in part because they are relatively cheap and because beavers — which were once hunted almost to extinction — are having a moment as more people recognize their many benefits to an ecosystem. But there is a growing concern that these projects, which often take place on small, headwaters streams, could negatively impact downstream irrigators.

Under Colorado water law, older water rights have first use of the river, and if these stream restoration projects prevent them from getting their full amount, it could be problematic. Some are concerned that if the projects create numerous ponds in the headwaters, it could slow the rate of peak spring runoff or create more surface area for evaporation, which could negatively affect downstream water users.

According to Kelly Romero-Heaney, assistant director of water policy for the Colorado Department of Natural Resources, some water rights holders are concerned that projects that mimic beaver activity could be considered an out-of-priority diversion of water.

“If that’s a diversion, then it would potentially need a water right or a plan of augmentation,” Romero-Heaney said. “I would say both the water rights community and river health community are collectively unsettled over the issue.”

This concept, taken to its logical extreme, raises the question: Could beavers need a water right?

This stream restoration project on Trail Creek, in the headwaters of the Gunnison River, mimics beaver activity. Some worry that projects like this have the potential to negatively impact downstream water rights.
CREDIT: JACKIE CORDAY
This stream restoration project on Trail Creek, in the headwaters of the Gunnison River, mimics beaver activity. Some worry that projects like this have the potential to negatively impact downstream water rights.CREDIT: JACKIE CORDAY

Reducing barriers, protecting water rights

The issue cropped up at the Colorado Water Congress summer conference in Steamboat Springs in August during the meeting of the Interim Water Resources Committee, part of the Colorado state legislature. Terry Scanga, general manager of the Upper Arkansas Water Conservancy District, presented an overview of the issue to lawmakers. His district is home to a pilot project that aims to explore the risks of these stream restoration efforts to water rights holders.

“One of the big concerns is that in these types of stream restoration projects, as important as they are to the habitat and so forth, they can still cause impacts to water rights that are negative and actually depleting water to downstream users,” he said.

Sen. Jeff Bridges, who represents Arapahoe County, called the presentation strange and surreal.

“Who are we taking to water court in these cases if beavers move in?” he asked. “It seems to me beavers would probably have the most senior water rights of anyone in the state.”

DNR is currently working on a solution — which could take the form of legislation — to address the issue. The goal would be to reduce barriers to stream restoration projects while still being protective of water rights. If project proponents were required to spend years in water court securing a water right and spend money on an expensive augmentation plan, in which water is released to replace depletions caused by the project, it could have a major chilling effect on projects that nearly everyone agrees are beneficial to the environment.

“I think DNR’s concern is that if stream restoration projects end up routinely needing a plan of augmentation, that could be an insurmountable barrier, particularly for the low budget, low tech projects that are high in the watershed far from diversions downstream,” Romero-Heaney said.

Under current guidelines from the state Department of Water Resources, division engineers could issue orders to discontinue a diversion, release water that has been stored or clear streams of dams that restrict the flow of water if a project is causing injury to water rights.

A beaver dam on Maroon Creek near Aspen. The state of Colorado is working on a solution to resolve tension between stream restoration projects that mimic beaver activity and downstream water rights holders.
CREDIT: BRENT GARDNER-SMITH/ASPEN JOURNALISM
A beaver dam on Maroon Creek near Aspen. The state of Colorado is working on a solution to resolve tension between stream restoration projects that mimic beaver activity and downstream water rights holders.CREDIT: BRENT GARDNER-SMITH/ASPEN JOURNALISM

No measurable harm

Jackie Corday, a natural resources consultant and former head of water resources for Colorado Parks and Wildlife, has been working on a study to engage West Slope agriculture in headwaters restoration. The study, commissioned by environmental group American Rivers, was funded in 2021 by a Colorado Water Conservation Board Water Plan grant.

According to a draft of a white paper Corday wrote as part of the study, her research did not find any documented cases where process-based restoration projects resulted in measurable harm to water rights from increased evaporation or riparian vegetation sucking up the water.

The goal of process-based restoration projects is to return conditions in the headwaters to what they were before waterways were harmed by mining, cattle grazing, road building and other human activities that may have confined the river to a narrow channel and disconnected it from its floodplain.

There are ways to ensure a project is done right and won’t harm downstream water users, Corday said. These include using aerial photography to make sure a project stays within the floodplain’s historic footprint and doesn’t create new wetlands; doing projects only on the upper reaches of small tributaries; making sure the structures are porous and will allow water to still flow through them; and creating transparency around the project by including local stakeholders and addressing their concerns.

“All indications thus far are that if properly done and in the right location, with the right design, no it does not decrease the streamflow to a degree that you could measure it at the stream gauge downstream of the project,” Corday said.

For now, DNR staff is continuing to gather information from stakeholders who have expressed interest in the topic, like environmental groups and Front Range cities, and deciding how to move forward. It’s very unlikely Colorado will see a beaver in water court. But there is a sense of urgency to resolve the issue, Romero-Heaney said.

Water managers are starting to see worsening impacts of climate change and wildfires on watersheds and water supplies, and how restoration projects can lessen those impacts. The western U.S. is also poised to receive money dedicated to headwaters restoration work from the federal infrastructure bill and the Inflation Reduction Act.

“That funding won’t be around forever,” Romero-Heaney said. “That’s where we have that sense of urgency of managing the barriers to stream restoration work in Colorado.”

This story ran in The Aspen TimesVail DailySummit Daily News and Longmont Leader.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

$500M in new federal funds to give thousands of Coloradans freedom from lead, PFAS tainted drinking water

Denver Water crews replacing a lead service line at 1657 Vine Street. Jan. 12, 2021. Credit: Jerd Smith
Denver Water crews replacing a lead service line at 1657 Vine Street. Jan. 12, 2021. Credit: Jerd Smith

By Jerd Smith

Hundreds of thousands of Coloradans exposed to drinking water tainted by lead from aging, corroded city pipes or so-called “forever chemicals,” will see clean water faster thanks to a historic infusion of $500 million from the federal government.

The money, largely from the new Bipartisan Infrastructure Law, is being funneled through the Colorado Department of Public Health and Environment over a five-year period and will allow miles of lead water delivery pipes to be replaced in towns across the state much faster than cities with little access to cash could achieve.

It will also be used to remove a set of chemicals known as PFAS, or poly and perfluoroalkyl substances, that are present in household and industrial products, such as Teflon and fire-fighting foam. The substances have been unregulated to date, although states and the federal government are writing new regulations to address the contaminants.

CDPHE officials said the money will double the agency’s capacity to fund its water quality safety work.

“The federal money is big,” said Nicole Rowan, director of the CDPHE’s Water Quality Control Division. “It’s a once in a generation opportunity to improve our infrastructure here in Colorado.”

To date, 67 Colorado water districts and communities, including the Academy Water and Sanitation District north of Colorado Springs, Limon, Louisville and Grand Junction, have expressed an interest in and are eligible for the funds, according to documents on file at the CDPHE.

Denver Water has been awarded $76 million to fast-track its lead pipe replacement program. The infusion will allow Denver to shave 1.5 years off the 15-year program, according to spokesman Jose Salas.

The City of Englewood also plans to apply, and will ask for $79 million to replace 8,000 lead service lines, according to Sarah Stone, deputy director of business solutions for Englewood Utilities.

Stone said the federal infrastructure funding will provide a critical boost to its efforts to remove lead from Englewood’s drinking water delivery system, if the city’s application is approved.

“We were extremely worried,” Stone said. “This means we can fund the program.”

Cities across the country, including Denver, Flint, Mich., Pittsburgh, Penn., Newark, N.J., and Washington, D.C., have been dogged by an increase in lead contamination as service lines age and corrode, allowing the lead to comingle with drinking water supplies, eventually reaching taps.

Denver Water, which is Colorado’s largest municipal water utility, has known lead was present at the tap in some of its customers’ homes since it appeared in routine sampling in 2013. The levels exceeded the benchmarks set under the Safe Drinking Water Act.

For several years, the utility ran pilot tests and negotiated with CDPHE and EPA over how best to eradicate the harmful metal. Though the amounts of lead found in Denver’s tap water samples varied, no amount of lead is considered safe to ingest, especially for young children.

The CDPHE issued an order in 2018 requiring Denver to begin adding phosphorous to its water, one of the most effective ways to reduce corrosion in pipes. But phosphorous is also a pollutant and causes problematic algae blooms in lakes and rivers. Adding it to the municipal drinking water supply would also make it harder for wastewater treatment operators to meet their own obligations to keep phosphorous out of rivers and streams.

Due to those concerns, Aurora, Metro Water Recovery, The Greenway Foundation, and eventually Denver, sued the CDPHE in 2018 to stop the order from taking effect.

The dispute was settled after Denver was able to obtain a rare variance under the Safe Drinking Water Act in exchange for agreeing to invest some $68 million over 15 years to replace lead service lines, offer free water filters to residents as they wait for the new lines to be installed, conduct community education programs, and increase the pH of the water supply to also help reduce corrosion in pipes.

Several cities and water districts are hoping the federal funding will allow them to mitigate their ongoing issues with PFAS contamination.

Roy Heald manages the Town of Security’s water utility. The town has been hard-hit by PFAS contamination attributed to Peterson Air Force Base. The PFAS chemicals from fire-fighting foam contaminated its groundwater.

Though the military facility has built a remediation plant for Security, it is considered a temporary facility, Heald said. With $450,000 in federal money from the American Rescue Plan Act approved earlier this year, Security is converting the plant to a permanent facility, one capable of operating for the decades it will likely take to clean up the groundwater.

“We’re happy to get it,” Heald said. “This work has to be done, and it’s $450,000 our ratepayers won’t have to pay.”

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

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

In New Mexico, Partners Collaborate to End Siege from Megafires

A dust cloud silhouettes a horse in pastures along the Rio Grande, in Sandoval County, New Mexico. Drought and climate change have created a tinderbox in the American West for destructive wildfires. Water sources like the Rio Grande have become vulnerable. Last year, a bosque fire burned 113 acres in this area. Photo © Pablo Unzueta for Circle of Blue

This story was originally published by Circle of Blue on October 12, 2022.

By Brett Walton, Circle of Blue

Photographs by Pablo Unzueta

Water Desk Grantee Publication

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

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EL RITO, New Mexico – The drying American West needs all the high-quality water it can get. It also needs adequate funds to protect its forests, the wellsprings of the region’s rivers. 

But massively destructive, high-intensity megafires that now burn millions of acres and inundate the West’s rivers with ash and debris are punishing the beneficial relationship between forests and watersheds. 

Here in the mountains surrounding this tiny community in northern New Mexico’s Rio Grande basin, fresh approaches to water management, fire, forest health, and project funding have converged to present an effective solution. 

One of the West’s iconic waterways, the Rio Grande stretches nearly 1,900 miles from Colorado to the Gulf of Mexico. But the river stopped flowing for five miles through Albuquerque in July, the first time it ran dry in that reach in four decades. 

Forest health is part of the reason, experts say. National forests are only 19 percent of the region’s land area but they supply 46 percent of its surface water while also filtering pollutants. Federal and state foresters now recognize what Indigenous land managers have long known: that forests in the Southwest — stands of ponderosa pine, white pine, Douglas fir — need low-intensity fire to rejuvenate. Several generations of fire suppression, together with a warming climate, have instead produced the conditions for catastrophic combustion that harms water supply. 

In January, the U.S. Forest Service acknowledged its past mistakes and charted a new course for correcting the dire circumstances its forebears helped create. The agency issued a new wildfire strategy that aims to accelerate and expand the area for “prescribed burning” at four times the current rate. That means deliberately setting managed fires on an additional 20 million acres of U.S. Forest Service land over the next 10 years. The strategy anticipates treatments on another 30 million acres of other federal, state, tribal, and private lands. Central to this work is managing the “fireshed” — forest and rangeland units of roughly 250,000 acres that, if wildfire erupted, could damage homes, watersheds, water supplies, utility lines, and other critical infrastructure.

The U.S. Forest Service will soon have more resources to pay for the work. The Bipartisan Infrastructure Law, signed last November, provided $3.5 billion for programs to prepare communities for wildfire and to reduce surplus trees, brush, and understory. The Inflation Reduction Act, signed in August, added $1.8 billion more. 

It’s an important step by Congress and the Biden administration to correct a century of wrongs in forest fire management. But it’s still not enough to pay sufficient numbers of workers needed to manage millions of acres of the West’s perilously dry forests. The government needs partners. 

That’s the entry point for an ambitious eight-year-old forest restoration initiative called the Rio Grande Water Fund. Inspired by the principles of collaborative resource management and catalyzed by a wildfire in 2011 that shut down Albuquerque’s use of the Rio Grande for drinking water for more than two months, the Rio Grande Water Fund channels public and private dollars into forest restoration projects in southern Colorado and northern New Mexico that reduce the risk of catastrophic fires in the state’s largest and most essential watershed. 

Those risk-reduction principles were on display this summer on a hot, windy day in Carson National Forest, just north of El Rito. 

The high-severity Midnight fire, ignited by lightning on June 9, was sprinting through stands of handsome but tightly packed ponderosa pine in a mountainous area an hour north of Santa Fe. The weather that afternoon was “nightmarish,” Mary Steuver recalled: a blustery red flag day with single-digit humidity — the sort of hair dryer conditions that set a forester’s nerves on edge. Moderating rains from the Southwest monsoon, which sweeps through the region in July and August, had yet to arrive. New Mexico was coming off its sixth driest spring in the last 128 years. The forest, overgrown and dehydrated, was primed to burn.

Cheerful and forthright, Stuever is the Chama District Ranger for the New Mexico Forestry Division. Fresh on her mind was the Hermits Peak/Calf Canyon fire, which had ignited two months earlier but was still smoldering in Santa Fe National Forest, east of Santa Fe. Hermits Peak/Calf Canyon ended up burning 341,314 acres, in the process becoming the largest fire in state history. Monsoon rains then added to the misery, flushing ash and debris from burn scars into the Gallinas River watershed, wrecking the water filtration system for the city of Las Vegas, where residents have spent months using bottled water. Mayor Louie Trujillo told the New York Times that building a new system, if it comes to that, would cost $100 million.

Stuever and colleagues from local, state, and federal agencies worried that the Midnight fire had the potential to do similar damage in Carson National Forest. “I didn’t believe we’d get it under control,” she said while standing at the edge of the fire line on a bluebird day in September.

And yet, despite the adverse weather, the Midnight fire was corralled by the end of June, and less than 5,000 acres had burned. This result was not just a stroke of luck. Fire crews were able to wrangle the Midnight fire because of foresight and planning. Prescribed fires and a carefully managed natural fire in recent years helped to halt the Midnight fire before it could morph into a land-wrecking colossus.

The landscape, in other words, was prepared. The Midnight fire burned in a northeasterly direction, right into the path of an earlier lightning ignition, the Francisquito fire. The U.S. Forest Service had allowed it to burn in 2019 because conditions at the time were favorable for letting fire do what fire naturally does in ponderosa forests: clear out surplus trees and allow the forest to rejuvenate.  The U.S. Forest Service, in turn, let the Francisquito fire burn because it bordered an area where crews had purposefully used prescribed burns enabled by the Rio Grande Water Fund in 2018.

The Midnight fire burned through this section of Carson National Forest near El Rito, New Mexico, in June 2022. Foresters feared that the fire would blaze through more acres of ponderosa pine and mixed conifer, but previous natural and prescribed fires in the area helped crews slow and control the Midnight fire. Photo © Pablo Unzueta

Twin Crises of Fire and Water

The outcome validated the objectives of the Rio Grande Water Fund, a Nature Conservancy project that bundles money from governments, businesses, and utilities and directs it to forest restoration in the headwaters of the Rio Grande and San Juan-Chama basins. Collectively those rivers provide drinking water to a million people in the state and support endangered species like the silvery minnow.

Though it is neither the largest nor first of its kind, what distinguishes the Rio Grande Water Fund is the breadth of its partnerships — from pueblos and federal agencies to private landowners, soil districts, and city water utilities. At a time of deep drought, increasing aridity, and severe disruptions to water supply in the American West, 100 organizations in New Mexico have pledged support for the fund. 

From its launch in 2014 through 2021, the Rio Grande Water Fund has shepherded $52.8 million in public funding, not only from the U.S. Forest Service, but also from the Albuquerque Bernalillo County Water Utility Authority, the Middle Rio Grande Conservancy District, and other agencies. It has combined that with $5.2 million in private dollars. Those funds have supported thinning and prescribed burns on 148,905 acres in the watershed.

“It is the seminal water fund in the sense of having the public-private partnership at scale,” said Cal Joyner, who was the head of the U.S. Forest Service’s southwestern region from 2013 to 2020 and served on the fund’s executive committee.

By thinning and burning dense stands of ponderosa pine and mixed conifer and restoring the water-storage capacity of floodplains, the goal of the collaborative venture is to reduce fire risk on 600,000 acres of forest over 20 years.

“What is the water fund?” said Matt Piccarello, who now manages the project for The Nature Conservancy. “In one way it’s downstream users paying for the upstream treatments because that’s where the faucet is.”

The Midnight fire was ignited by lightning on June 9, 2022, just eight miles northeast of El Rito, New Mexico. Crews believed that weeks of hot, dry, and windy conditions would cause more damaged in the region. However, previous natural and prescribed fires in the area helped crews to control the Midnight fire, which was declared contained on July 1. Photo © Pablo Unzueta for Circle of Blue

An Idea Is Planted

Thanks to his U.S. Forest Service role, Joyner had a front-row seat to watch the Rio Grande Water Fund develop. The fund’s architect is Laura McCarthy, a former wildland firefighter who is director of the New Mexico Forestry Division. At the time she started the fund McCarthy worked on government relations for The Nature Conservancy out of its Santa Fe office.  

McCarthy drew her inspiration from Conservancy’s work abroad. She read an article in the organization’s magazine about an ambitious conservation finance model in Ecuador. Established in 2000, the Fund for the Protection of Water aimed to protect the high-altitude watersheds that supply 2.6 million people in Quito with drinking water.

FONAG, as it is known in Spanish, was also distinguished by the diversity of its partners and its watershed approach. As non-governmental organizations, the Nature Conservancy and the Antisana Foundation were cornerstones of the project. So were the Swiss Agency for Development and Cooperation and the U.S. Agency for International Development. They were joined by local utilities — the Quito Electrical Company and the Municipal Drinking Water and Sewerage Company of Quito — that raised money from user fees. The basic idea was watershed unity. Since water flows downstream, money to protect it should move the opposite direction.

Though it took several years to build capital before it could initiate projects, FONAG has evolved into an influential financial model for conservation and restoration of water-producing wetlands, forests, and grasslands at risk of degradation from urban growth, grazing, and fire.

McCarthy recognized a model that could be transplanted to the Southwest. Santa Fe, she thought, would be an ideal test bed. The municipal watershed was relatively small and contained mostly lands managed by the U.S. Forest Service. Plus, the city owned the water utility and it already had an environmental impact statement in place for forest thinning.

In 2011, the first year of a four-year contract, Santa Fe spent $700,000 in a fifty-fifty cost share with the U.S. Forest Service for restoration work in the Santa Fe watershed. Proof of concept in hand, McCarthy knew she had a winning idea. The contract has been renewed ever since.

“It’s been a hugely successful project,” said Alan Hook, Santa Fe’s water resources coordinator and manager of the municipal watershed program. He added: “It’s the fire-water relationship in the Southwest. With low-intensity fire you are getting a healthier forest and better water quality.”

But a piecemeal approach targeting small watersheds would not remedy a statewide forest crisis. The window had to widen. “The problems that we’re solving today you have to have a systems approach or you’re not going to solve anything,” McCarthy said. “You’re just going to whack down one mole only for another one to pop up.”

The Rio Grande watershed was an obvious choice for expansion. Cleaving the state lengthwise, the river and its tributaries provide drinking water to half of New Mexico’s people, including residents of Albuquerque and Santa Fe. Big, high-intensity fires in the watershed produce smoke, spew carbon emission, destroy houses, and take lives. They also fundamentally change how the watershed functions.

Academic work confirms McCarthy’s concerns. A group of notable researchers in climate, hydrology, and forest ecology recently investigated the consequences of large-scale wildfires in the western United States. Published in February, the study measured changes in river flow in forested basins after big fires. Though the basins they analyzed were mostly small, the results were striking, showing that more fires are “unhinging” post-fire watersheds from their historical behavior. 

Water runoff increased by 30 percent in severely burned forests where more than 20 percent of the basin was torched. This was the case for roughly six years after the fire. Why the change? Trees that cycled moisture from ground to air were dead, their biophysical rhythms eliminated. Canopies that used to intercept water were gone. Soils that had absorbed moisture and released it slowly into rivers now repelled it. 

From one angle, this outcome could be perceived as a benefit: more water in a parched region means fuller reservoirs. But the drawbacks of a radically altered hydrology are just as prominent, not only for physical assets like roads and drinking water infrastructure but also for ecosystems. As in Las Vegas, New Mexico after the Hermits Peak/Calf Canyon fire, turbid, high-volume runoff laden with debris and sediment has damaged water intakes, clogged reservoirs and road culverts, triggered harmful algal blooms, increased landslide risk, and compromised the water treatment process. 

Just look at Carson National Forest: weeks after the Midnight fire, the area was pelted by heavy monsoon rains. Debris plugged culverts and forest roads were washed out. The evidence — uprooted sagebrush and mudflows drying by the roadside — was still present a month later. “This ground wants to move,” Davidson said.

Basic assumptions about how the watershed functions — things like flood risk and bridge design standards — come undone after a big fire. Coupled with an altered climate, the past is no longer a guiding light.

“When the whole watershed goes, that’s when you end up with dramatic, almost overnight hydrological changes,” McCarthy said. “Because you’ve got vast areas that cannot hold water anymore.”

Cochiti Dam located in Sandoval County, New Mexico, and along the boundaries of the Pueblo de Cochiti Nation, is one of the four Army Corps of Engineers projects for flood and sediment control on the Rio Grande. Approximately 50 miles upstream from Albuquerque, the dam’s reservoir was inundated with ash in 2011 following the Las Conchas fire. Photo © Pablo Unzueta for Circle of Blue

The Catalyst

On a warm, Sunday afternoon in early September, the East Fork of the Jemez River is teeming with leisure. On the day before Labor Day, families picnic along grassy streambanks shaded by rock pinnacles. Halfway up the pinnacles, rock climbers test their strength and flexibility.

The scene was much less benign in June 2011. Just over the ridge to the south, the Las Conchas fire ignited on the southwest flanks of Valles Caldera, a remnant volcano that is now a national preserve. The fire burned 156,593 acres, with one-quarter of the damage done in the first 24 hours. At the time, it was the largest wildfire in state history. Now it ranks fourth.

That August the monsoon arrived, uncorking floods on the newly denuded slopes. Black water poured into Cochiti Reservoir and the Rio Grande. Albuquerque Bernalillo County Water Utility Authority shut down its drinking water intake from the river for 64 days, relying instead on groundwater. 

The aftermath of Las Conchas, in retrospect, was the push that Laura McCarthy needed for the Rio Grande Water Fund. 

“It was the precipitating event for these conversations,” observed Kimery Wiltshire, the executive director of Confluence West, a nonprofit that works to solve complex environmental challenges in the western states. The organization held a convening in 2014 that brought together many of the water fund’s initial partners.

Albuquerque Bernalillo County Water Utility Authority provides $200,000 dollars a year to the water fund. The authority’s board recently signed an agreement to commit to that funding level for the next decade.

The water utility’s funds are earmarked for forest restoration work in the headwaters of the San Juan River, a watershed in southern Colorado from which there is a diversion to the Rio Grande. Before that diversion Albuquerque relied on a shrinking aquifer for its water supply. Now it has a surface water source that it wants to protect.

“There’s needs all up and down the river, but we’ve chosen to prioritize those areas, because that’s where all our surface water comes from,” said Mark Kelly, the utility’s water resources division manager. “It’s really important that we be able to use this surface water treatment plant. It’s bad enough that we have climate change altering how much we can use it. If we can prevent fires and have the healthiest watershed up there, then that’s what we want to do, too.”

Beyond dollars, acres, and signatories, environmental outcomes from the fund’s projects are meticulously tracked. Fuel loads are monitored, along with changes in water quality. Aerial photos before and after a fire show where crown fires dropped to the ground, becoming less severe. The Nature Conservancy is in the process of compiling these data into an assessment report.

But even with successes there are challenges.

The U.S. Forest Service has never been completely trusted in the region, especially among Hispanic and native groups who chafe at restrictive policies that can hinder their traditional use of forests for collecting wood for home heating, construction, and fence building. Smoke from prescribed burns can also irritate a public that is not adequately prepared for them.

Luis Torres, who has worked in forests in northern New Mexico for more than 50 years, said that the agency needs to improve its community outreach. Ernie Atencio, who planned projects for the Rio Grande Water Fund in 2015-16, said that conservation organizations need to continue their shift away from transactional relationships with local groups and move toward “true reciprocal collaboration” that goes beyond a single project.

Terrible missteps by the U.S. Forest Service this spring may have widened the rift. The Hermits Peak fire was sparked by an agency prescribed burn in April that grew out of control. Randy Moore, the U.S. Forest Service chief, paused prescribed burns in national forests nationwide while reviewing the incident. Agency guidance released in September allows prescribed burns to resume, but under stricter regulation. 

Even seemingly insignificant bureaucratic details can be a hurdle when incorporating agencies from multiple levels of government. Simple things like mismatched fiscal years. New Mexico turns the page on its accounting calendar on July 1 each year. The federal government does so three months later, on October 1. The misalignment means that federal agencies are closing out their projects while state agencies are ramping up. There is the risk that work stops in the interim and contractors leave for other work.

Private funds, in this case, provide a source of much needed flexibility to bridge the calendars and keep workers on the job. It’s “plug the gap money,” McCarthy said.

Other schedules are out of whack, too. October is typically prime time for prescribed fire work in New Mexico. Temperatures have started to drop, and the monsoon has just ended, moistening the landscape. That month also happens to be prime firefighting season in the rest of the West. The result: the U.S. Forest Service often does not have the budget or the workers to do both. Firefighting takes priority.

The Rio Grande Water Fund uses its relationships to fill that gap. The All Hands All Lands team, which assisted with the prescribed burn in Carson National Forest that calmed the Midnight fire, is a project of the Forest Stewards Guild, which is financially supported by the Rio Grande Water Fund. An agreement facilitated by The Nature Conservancy also allows the All Hands All Lands team to work with the U.S. Forest Service on prescribed burns.

“It’s become apparent it’s necessary to work on a landscape scale,” said Esmé Cadiente, the Southwest regional director for the Forest Stewards Guild. “The partners share the same objective. With the mechanisms now in place it’s easier to collaborate.”

Building a coalition is one task. Maintaining it is another. McCarthy said her approach followed a simple mantra: “don’t be boring.” In meetings she would use a timer or cut people off if the pace lagged. Presenters were told to bring slides and McCarthy would proof them beforehand. “I think the water fund came to be known as a place to show up, because you are going to benefit from it personally,” she said. “You are going to learn stuff, you are going to meet interesting people, and you are going to get to advance your own work.”

The pandemic has been hard, said McCarthy, who also serves on the water fund’s executive committee, which is in charge of selecting projects for funding. “You can’t sustain that kind of energy without having some face-to-face time.”

Coalition maintenance and growth is now the task of Matt Piccarello, who took on the role at The Nature Conservancy in May. Piccarello came to the position from the Forest Stewards Guild, where he was the Southwest regional director and worked with many of the water fund partners.

Piccarello said the fund has reached a point where the partners have a sense of each other’s capabilities. They are more comfortable asking for assistance. When the U.S. Forest Service calls us, he said, “That’s success.”

The Rio Grande Water Fund is just one network in an assemblage of land management partnerships within the waters and forests of New Mexico and its greater watersheds. There are U.S. Forest Service restoration programs in the Rio Chama and Jemez River watersheds, as well as the 2-3-2 Partnership, which extends into the forests of Colorado. Local forest councils are part of the mix, too.

It’s all part of an American West that is evolving in response to imposing environmental change. Politicians like to promote dams, canals, and machinery to remove salt from sea water as solutions to the region’s water problems. Those may have their place. But just as important is the social infrastructure that builds relationships. The Rio Grande Water Fund channels dollars to forest restoration. It also connects people.

In Cal Joyner’s mind, that lesson ought to be broadcast to the region’s water and land managers. As with the wildfire crisis, problems like the shrinking Colorado River cannot be managed from spheres of isolation. 

“You’re starting to link together the cities,” he said, “the farmers, the ranchers, everybody’s coming together, saying, ‘If we collectively work on this, none of us has to suffer too much. If we don’t collectively work on it, we’re all going to suffer some and some people are really going to be flat out of luck.’”

This article was supported by The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Maybell project addresses problems for irrigators, boaters, fish

The Maybell Ditch headgate in the lower left pulls water from the Yampa River for irrigation. A major reconstruction project will fix the diversion structure to create better passage for fish and boats. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
The Maybell Ditch headgate in the lower left pulls water from the Yampa River for irrigation. A major reconstruction project will fix the diversion structure to create better passage for fish and boats. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM

By Heather Sackett

The Maybell Ditch is the largest diversion on the Yampa River and irrigates about 2,500 acres of grass and alfalfa in northwest Colorado. But the remote and antiquated headgate, along with a hazardous diversion structure and 18 miles of nearly flat canal, create problems for irrigators, boaters and endangered fish alike.

Now the Maybell Irrigation District and The Nature Conservancy are working together on an ambitious project to rehabilitate and modernize the historic structure with the goal of improving conditions for all the water users on this stretch of river. So far, TNC has secured about $3.5 million in funds for the project, which it hopes can begin next summer.

The Yampa River flows from the Flat Tops Wilderness, through the city of Steamboat Springs, then turns west and eventually joins with the Green River in Dinosaur National Monument. Along the way it turns the semi-arid landscape of Routt and Moffat counties into a ribbon of green, irrigated meadows.

In recent years the Yampa has started experiencing issues that have long been a part of other river basins like over-appropriation, calls and water shortages.

“That reach has seen declines in water levels over time with drought and long-term climate impacts,” said Jennifer Wellman, TNC project manager. “(The Maybell Ditch project) was one of those that rose to the surface where we could hopefully work with the water users to have a greater impact in that basin … . That whole reach is really special, and it warrants more water if it’s available, especially during the low flow periods.”

This map shows the 18 miles of the Maybell Ditch, which irrigates land with water from the Yampa River. The Nature Conservancy is planning an overhaul and modernization of the headgate and diversion structure.
CREDIT: THE NATURE CONSERVANCY
This map shows the 18 miles of the Maybell Ditch, which irrigates land with water from the Yampa River. The Nature Conservancy is planning an overhaul and modernization of the headgate and diversion structure.CREDIT: THE NATURE CONSERVANCY

Challenges for irrigators, boaters, fish

Maybell Irrigation District manager Mike Camblin said historically some ranchers couldn’t get their full amount of water unless the ditch, which was constructed in the 1890s, was running full blast.

“We had one field where if the ditch wasn’t full, they couldn’t get it wet because there wasn’t enough elevation to it,” he said. “It was too flat.”

That meant more water was being sent through the ditch as “push water” to make sure flows make it to dry fields. It also meant more water was flowing back into the Yampa River at the end of the approximately 18-mile-long ditch, known as tailwater. If there’s too much tailwater, that can mean a ditch is taking more out of the river than it is able to use, a no-no according to the state Division of Water Resources.

A first round of improvements to the ditch added a liner to reduce seepage and check structures, which slow the flow of water. Those measures only partially addressed the issues.

The project that is now being proposed is much more extensive and involves reconstructing the diversion and modernizing the headgate, which controls the flow of water from the river into the ditch. By fixing a grade control structure — essentially arranging boulders in mid-stream that push up the water in the river upstream of the headgate — it creates more elevation to allow gravity to move water into the ditch, which should reduce the need to push water. It will also smooth out a passage for both fish and boats.

The twin, circular headgates of the Maybell Ditch are rusted, antiquated and must be open and closed manually. A modernization project includes plans to make it possible to operate the headgate remotely.
CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
The twin, circular headgates of the Maybell Ditch are rusted, antiquated and must be open and closed manually. A modernization project includes plans to make it possible to operate the headgate remotely.CREDIT: HEATHER SACKETT/ASPEN JOURNALISM

Remote location

The twin, circular, century-old headgates are rusted and hard to operate.

“There’s no way those things are easy to adjust,” said Erin Light, Division 6 engineer at the state Division of Water Resources. “Quite frankly, if the water commissioner had to adjust it, I don’t think he or she could. We would have to rely on (the irrigation district) to do that, which is not preferred.”

The remote location of the headgate — a three-mile round trip hike down the rugged Juniper Canyon off an already-remote dirt road — is a challenge for the district. When all the headgates on the ditch are opening and closing according to the differing schedules and water needs of the irrigators, it can be hard to coordinate the manual operation of the main headgate. The new headgate will be automated and controlled remotely.

“That’s a four- or five-hour deal by the time you drive up there, walk up there, adjust it and drive home,” Camblin said. “The automation on that will be huge. As far as management, it will be our biggest tool.”

But construction won’t be easy. Heavy equipment can’t make it down to the river along the ditch and will have to access the diversion using newly constructed roads on Bureau of Land Management land. The BLM considers the ditch a cultural resource and project proponents will have to be careful to avoid impacts to it.

Western Colorado Area Manager for JUB Engineers Luke Gingerich explained the complexities of the project on a site visit in July.

“They are going to have to create a couple miles of nice road to get in,” Gingerich said. “It will be a large disturbance and we’ve got to come back and make sure we return this as close as we can to the condition it was in before.”

According to Camblin, it was the federal Upper Colorado River Endangered Fish Recovery Program that first pushed the district to take a look at where it could manage its water better. That stretch of river is designated critical habitat for species of endangered fish. Water is released out of the upstream Elkhead Reservoir for the fish, and the new automated headgate will allow the Maybell Ditch to more easily let that water flow past it, to get to where it’s needed.

The Maybell Ditch diversion, located in Juniper Canyon in northwest Colorado, takes water from the Yampa River to irrigate hay fields. The Nature Conservancy is fundraising for a project that would overhaul and modernize the diversion structure and headgate.
CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
The Maybell Ditch diversion, located in Juniper Canyon in northwest Colorado, takes water from the Yampa River to irrigate hay fields. The Nature Conservancy is fundraising for a project that would overhaul and modernize the diversion structure and headgate.CREDIT: HEATHER SACKETT/ASPEN JOURNALISM

Boon for boaters

The diversion reconstruction project will also be a boon for boaters. River advocacy nonprofit Friends of the Yampa said in a letter of support for the project that the Maybell Diversion is the most significant barrier for safe, passable recreation along a 200-mile stretch of the Yampa River. Boaters often have to get out to portage the rapid formed by the diversion structure. The new diversion will create a boat passage, connecting two sections of boatable river.

At July’s site visit, recreation and education coordinator for Friends of the Yampa Kent Vertrees said he’s grateful for the collaboration between the agriculture, recreation and environmental water users.

“As a recreation person, I’ve said all along we get the dregs of all the other water users,” Vertrees said. “We rely on agriculture more than anyone to make sure there’s water in the river. It’s really great, our partnerships in northwest Colorado.”

But that partnership was a bit of a hard sell at first, Camblin said. Some Maybell Ditch irrigators were skeptical about a project spearheaded by an environmental group. Tensions can sometimes run high between irrigators, who take water out of rivers, and environmental groups, who want to leave water in rivers. Camblin said the district held several meetings between irrigators and TNC to assure water users their water rights or how they manage their ranch wouldn’t be threatened.

“One of our goals we talked about when we started this was, we wanted to show people the agriculture community can work with groups they don’t normally work with,” Camblin said. “We are hoping other ag communities say, ‘Hey, you know what? Some of this stuff is possible. I might have to reach across the table to make it work but this will be a beneficial project to so many people.’”

The headgate and diversion reconstruction could come with a hefty price tag and TNC is still fundraising for what could end up costing more than originally thought due to supply chain interruptions and inflation. The project has secured almost $3.5 million so far, nearly $2 million of which comes from a Bureau of Reclamation WaterSMART grant. The Colorado Water Conservation Board has contributed about $1 million so far; the Colorado River Water Conservation District will give $500,000; $40,000 will come from the Yampa River Fund and the irrigation district is also contributing money and in-kind resources. However, the total final price tag remains unknown and is likely to be higher than what’s already been secured. Wellman said some of the additional funding needed will also come from the National Resources Conservation Service.

Aspen Journalism covers water and rivers in collaboration with The Aspen Times. This story appeared in the Sept. 11 edition of The Aspen Timesthe Sept. 13 edition of the Craig Press.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Does the Western Megadrought Mean the End of Cheap Cheese and Ice Cream?

Jack Seiler and Cynthia Graber stand in front of a flooded field. Photo by Nicola Twilley.

Water Desk Grantee Publication

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Water Desk grantees Cynthia Graber and Nicola Twilley of the Gastropod podcast recently explored the importance of alfalfa to Western water issues and dairy products.

Graber and Twilley “talked to farmers, economists, plant experts, journalists, and exporters about where this surprisingly important plant fits in to a warming world—and how we can prevent a future lacking in lactose without also drying up the West.” Below you can listen to the episode, which was originally published on September 27, 2022.

This episode was supported by a grant from The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

A Colorado River veteran moves upstream and plunges into the drought-stressed river’s mounting woes

Chuck Cullom, executive director of the Upper Colorado River Commission. (Source: Upper Colorado River Commission)
With 25 years of experience working on the Colorado River, Chuck Cullom is used to responding to myriad challenges that arise on the vital lifeline that seven states, more than two dozen tribes and the country of Mexico depend on for water. But this summer problems on the drought-stressed river are piling up at a dizzying pace: Reservoirs plummeting to record low levels, whether Hoover Dam and Glen Canyon Dam can continue to release water and produce hydropower, unprecedented water cuts and predatory smallmouth bass threatening native fish species in the Grand Canyon.
Chuck Cullom, executive director of the Upper Colorado River Commission. (Source: Upper Colorado River Commission)

By Nick Cahill

With 25 years of experience working on the Colorado River, Chuck Cullom is used to responding to myriad challenges that arise on the vital lifeline that seven states, more than two dozen tribes and the country of Mexico depend on for water. But this summer problems on the drought-stressed river are piling up at a dizzying pace: Reservoirs plummeting to record low levels, whether Hoover Dam and Glen Canyon Dam can continue to release water and produce hydropower, unprecedented water cuts and predatory smallmouth bass threatening native fish species in the Grand Canyon. 

“Holy buckets, Batman!,” said Cullom, executive director of the Upper Colorado River Commission. “I mean, it’s just on and on and on.”

Cullom is keeping tabs on the river’s rapidly growing list of issues while guiding the Upper Basin states of Colorado, Wyoming, Utah and New Mexico in talks with other water users on how to save a river system that is crashing under the weight of drought and climate change. Demand continues to greatly outstrip supply and now state officials, water users and tribes are hurrying to craft a new drought plan and avoid intervention from the federal government.  

The Upper Basin has proposed a plan built around paying users to reduce water consumption. Though it doesn’t include mandatory cuts for water users, Cullom and the commission have made it a focal point of their negotiations with the Lower Basin.

Cullom spent the last two decades viewing issues on the river through a Lower Basin lens, managing drought strategies and mitigation plans for the Central Arizona Project. Now, in his first year at the commission, Cullom has the chance to use his dual-basin perspective to help the seven states and 30 federally recognized tribes hash out ways to divide the river, which continues to shrink swiftly.  

In an interview with Western Water, Cullom explains the importance of communicating effectively on the river, why the Upper Basin’s five-point plan doesn’t require mandatory water cuts or offer potential savings amounts and the push to make the Lower Basin responsible for evaporation losses at Lake Mead.

WESTERN WATER: How has your previous experience in the Lower Basin prepared you for your current position as you switch your focus to the significant challenges facing the Upper Basin?

CHUCK CULLOM: One of the things that I learned over the course of my experience in the Lower Basin was that while we may want to isolate issues or challenges in one basin or another, we are tied together. So that was very important as I transitioned from Lower Basin to Upper Basin, recognizing that while we may want to isolate the issues between Upper and Lower, they cascade in both directions.

I understood early on that the Lower Basin perspective on how the system operates is different and unique from the Upper Basin. Water uses and management in the Upper Basin reflect and are driven by annual hydrologic circumstances, meaning that the hydrology and inflows that occur influence water management decisions year over year. Whereas the Lower Basin relies principally on storage in Lake Powell and Lake Mead. When your perspective is so distinct and different, you have to be very careful about what you say and how you say it.

Seven states and 30 tribes in the Colorado River Basin are brainstorming ways to trim water use and buoy levels at Lake Powell and Lake Mead. (Source: U.S. Geological Survey)
I understood early on that the Lower Basin perspective on how the system operates is different and unique from the Upper Basin. Water uses and management in the Upper Basin reflect and are driven by annual hydrologic circumstances, meaning that the hydrology and inflows that occur influence water management decisions year over year. Whereas the Lower Basin relies principally on storage in Lake Powell and Lake Mead. When your perspective is so distinct and different, you have to be very careful about what you say and how you say it.

WW: Can you expound on the difficulty of communicating on such a large river system? 
CULLOM: I had an experience in the early days of the system conservation pilot program in Arizona. The words we were using to describe how we
Seven states and 30 tribes in the Colorado River Basin are brainstorming ways to trim water use and buoy levels at Lake Powell and Lake Mead. (Source: U.S. Geological Survey)
WW: Can you expound on the difficulty of communicating on such a large river system? 

CULLOM: I had an experience in the early days of the system conservation pilot program in Arizona. The words we were using to describe how we were managing our uses, while useful and appropriate for what we were doing internally to Arizona, was offensive and inappropriate for the Upper Basin because it implied things that weren’t true. And the Upper Basin folks thoughtfully reached out and communicated directly … and then we figured out how we were going to work together. When you experience the world differently because you’re upstream or downstream of Glen Canyon Dam, communication becomes very important.

And it’s the same with tribal engagement. … The Upper Division [Basin] commissioners met with the tribal leaders for the six Upper Basin tribes and had a very thoughtful, frank and open discussion about the importance of working collaboratively on interstate Colorado River issues and what is helpful and unhelpful in that context. And it was a very useful conversation. 

WW: In moving from the Lower Basin to the Upper Basin, has anything involving the Colorado River surprised you? How has your perspective changed?

CULLOM: One thing that surprised me is that the technical capacity in the Upper Basin is on par and in some instances higher than what I anticipated; it exceeds some of the capacity in the Lower Basin. Folks up here are super smart, super talented and lots of modeling expertise is engaged every day.

WW: In June, Reclamation Commissioner Camille Calimlim Touton called on the seven Basin states to devise a plan to reduce use of the river to protect Lake Powell and Lake Mead. She also indicated that all users will have to take cuts. Are Upper Basin states preparing to take cuts? And how might these cuts play out?

CULLOM: I don’t think the question is about are we prepared, it’s how effective our actions will be. The magnitude of contributions in the Upper Basin is limited by the tools we have, the hydrologic and geographic circumstances and what happens in the Lower Basin. So, for the five-point plan to be effective, it needs significant actions in the Lower Basin. But we are moving forward with our plan with the expectation that everyone will contribute in a meaningful way.

Lake Powell's decline is seen in these photos of Glen Canyon Dam taken a decade apart. On the left, the water level in 2010; on the right, the water level in 2021. (Source: Bureau of Reclamation)
Lake Powell’s decline is seen in these photos of Glen Canyon Dam taken a decade apart. On the left, the water level in 2010; on the right, the water level in 2021. (Source: Bureau of Reclamation)
WWWhat is the goal of the Upper Basin’s five-point plan and what has been the response from Reclamation or the Lower Basin?

CULLOM: The plan includes tools that lead to additional conservation in the Upper Basin on top of what is inflicted by hydrology in dry years, plus contributions that have been made through the 2019 Drought Response Operating Agreement.

The one criticism that we’ve received is “why didn’t you quantify your system conservation program?” We didn’t know if we would have funding and support from Reclamation and we didn’t know what the appetite of water users would be to take on even more reductions. So we didn’t think it would be appropriate to speculate on what we might achieve as an aspiration; we’re focused on delivering results rather than projecting what might be. 

Two of the Lower Basin states (California & Arizona) have questions, Nevada is supportive and Reclamation has expressed support and provided resources to help us implement the plan.

WW: The five-point plan talked about reviving work on a demand management plan that was supposed to be part of the 2019 Drought Contingency Plan (DCP). Earlier this year, the Colorado Water Conservation Board halted work on such a plan because, it said, Colorado was much further ahead on investigating the concept than the other Upper Basin states (New Mexico, Utah and Wyoming). Is demand management a viable concept for the Upper Basin and what’s been done?

CULLOM: Colorado’s so-called pause on demand management is not that. The interstate work through the commission is continuing and will be completed in the fall and it will provide a report by the end of the year. I think Colorado was indicating that they had enough information and didn’t need any additional consultants or studies as they complete their own homework.

WW: How can Congress and the federal government help in facilitating a plan to keep the river system from crashing?

CULLOM: Congress has been very helpful. They passed the DCP and they passed the Inflation Reduction Act funding. We’re appreciative and trying to put that funding to very good use.

For the long-term perspective, Commissioner Touton identified tools that she is going to explore and develop and potentially implement in the Lower Basin, including appropriate accounting for evaporation and [transmission] losses. There’s about 1.2 million acre-feet of water that is unaccounted for in the Lower Basin that contributes to the imbalance between supply and demand. And the impact of that imbalance is higher releases from Glen Canyon Dam at a time when Glen Canyon Dam is in jeopardy. We support her efforts to try and bring the Lower Basin system into balance just like the way the Upper Basin accounts for evaporation and transmission losses. We think the secretary has significant authority to do that.

WW: With aridification shrinking the river supply and the disparity in use between the two basins, do you think re-apportioning the river is a serious possibility in the future?

CULLOM: I don’t think it’s warranted or helpful.

WW: In the short term or it’s just a concept that’s just absolutely not in play?

CULLOM: Well, folks can want to talk about it but trying to reconfigure [river apportionments] right now seems like you would create more uncertainty than you’re trying to resolve. In addition, there are the folks who would be most at risk from that conversation in underserved communities and tribes. There are significant tribal water rights that are confirmed but undeveloped.

I think there is significant room for flexibility to adapt to the ongoing drought and for aridification, climate change or whatever you want to call a hotter, drier future. And we need to work within the within the regulatory framework we have because otherwise it becomes a discussion about brute political force rather than what the system needs collectively.

WW: Looking ahead to the renegotiation of the 2007 Interim Guidelines, what are some of the main priorities for the Upper Basin?

CULLOM: We absolutely need a new set of rules. Extending rules that are under stress is not, I don’t believe, a viable option. A significant goal for the next set of rules is to bring the Colorado River uses into balance. By uses I mean including evaporation and losses. We need to bring the system depletions into balance with the available supply every year and rebuild the resiliency in the system by replacing the depleted storage. I think that’s the framework that the Upper Basin is seeking to explore.

This story was originally published by Western Water on September 16, 2022.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

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