The main boat ramp at Wahweap Marina at Lake Powell was unusable in December 2021 due to low water. Lake Powell is set to dip below the target elevation of 3,525 feet between March 11 and 15. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
Despite emergency releases from three upper basin reservoirs last summer and fall aimed at propping up Lake Powell, levels in the reservoir are projected to dip below a critical threshold in the coming days.
The second largest reservoir on the Colorado River is predicted to fall below the target elevation of 3,525 feet between March 11 and 15, according to Becki Bryant, public affairs officer with the U.S. Bureau of Reclamation. The dip is temporary and levels are expected to rise above the threshold again in May when snowpack runoff gets underway. As of March 10, Lake Powell was at 3,525.66 feet.
The 3,525 feet number is important because that was the elevation set in the 2019 Drought Response Operations Agreement (DROA). That number gives water managers a 35-foot buffer in which to take action before water levels reach the minimum level needed to generate hydropower for millions of people in the southwest: 3,490 feet.
“All of us sort of picked 3,525 as a cushion to give us some maneuvering room in case the negotiations took time or the forecasts were off,” said Eric Kuhn, author and former general manager of the Glenwood Springs-based Colorado River Water Conservation District and one of the crafters of the Drought Contingency Plan. “If you’re going to preserve power pool a year from now, you need a number of months to get that job done.”
Last summer and fall the Bureau of Reclamation released 161,000 acre-feet from the upper basin reservoirs to prop up Powell, including 36,000 acre-feet from Blue Mesa Reservoir in Gunnison County, 125,000 acre-feet from Flaming Gorge and 20,000 acre-feet from Navajo Reservoir. The releases were expected to boost Powell by about 3 feet.
Some Colorado water managers criticized the move for what they said was a lack of advanced notice, which cut short the summer recreation season on Blue Mesa. Some also questioned the timing of the releases. Hot, dry weather in late summer and fall means more transit losses because plants and soils will pick up more of the additional water, with fewer acre-feet making it all the way to Lake Powell.
“I think that is a valid criticism,” said Dave Kanzer, an engineer with the River District. “We have concerns about the timing of the release.”
According to Bryant, without the releases — plus a second DROA action of holding back 350,000 acre-feet in Powell to be released later this spring — Powell levels would be 8.5 to 9 feet lower than they are now.
“Those two actions combined have prevented the drop in elevation from being deeper and longer in duration,” she said.
But the releases came at the cost of depleting Blue Mesa, which on March 9 sat at 29% full, down from 48.5% on March 9, 2021. As this angered some in Colorado, and the amount of water is proving to be the proverbial drop in the bucket, questions of the impact of the releases and were they worth it generate debate.
“That’s a difficult question,” said Rebecca Mitchell, director of the Colorado Water Conservation Board. “You have to look at the past few years and what the future will hold for us. So that’s going to be a difficult question.”
Director of the Upper Colorado River Commission Chuck Cullom said criticism of the reservoir releases is fair, but that in the end, they did what they were intended to do: Prop up Powell to give water managers time to hammer out an annual operating plan.
“I think the data supports that the 2021 actions, although imperfect, were beneficial to prop Lake Powell up,” he said.
New framework coming for emergency releases
Representatives from the upper basin states — Colorado, Utah, Wyoming and New Mexico — along with Bureau of Reclamation officials are working on an annual framework for sending water to Powell that would avoid a repeat of 2021’s emergency releases.
“As early as May we will have completed the DROA plan for May through April of 2023 releases with the same intent: to keep Lake Powell above 3,525 if we can, but certainly to keep it above power pool of 3,490,” Cullom said.
Mitchell said water managers coming together to figure out a path forward with annual drought operations, which came about as a result of the federal government stepping in with last year’s emergency releases, is valuable.
“That includes a full analysis of potential options and implications of the various options, so we have an opportunity now to fully consider timing impacts and any other matters,” Mitchell said. “I think that’s going to be helpful.”
Glen Canyon Dam in Page, Ariz., forms Lake Powell. Water levels in Powell are declining and projected to hit a critical threshold in the coming days, just 35 feet above the elevation needed to maintain hydropower production.CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
DROA public comments
Glen Canyon Dam is what’s known as a “cash register” dam. The power it produces is used to repay the cost of building the project and provide power to millions of people in the southwest, including Colorado. Lake Powell is also a strategic bucket for the states of the upper basin — Colorado, New Mexico, Utah and Wyoming — which allows them to meet their water delivery obligations to the lower basin under the Colorado River Compact. Water managers have many good reasons for wanting to preserve this system.
But during the public comment period for the DROA plan framework, which closed on Feb. 17, some questioned the wisdom of trying to preserve Powell at all, especially in the face of the worsening impacts of climate change. William Lipscomb, a climate scientist with the National Center for Atmospheric Research in Boulder, said the DROA draft does not adequately address the long-term challenges posed by climate change. As hotter temperatures and drought continue to rob the river of flows, lakes Powell and Mead are at less than one-third full, their lowest levels since filling.
“Given that Lake Powell is approaching dead pool, I hope you will consider the eventual phasing out of Lake Powell as a reservoir,” he wrote in a comment letter. “Storage could be consolidated in Lake Mead, opening more of Glen Canyon for restoration.”
Sixty-one comments, 55 of them form letters, shared this sentiment, urging federal officials to consolidate storage in Lake Mead or remove Lake Powell.
But the vast majority of comments — 698 — came from people asking Reclamation officials to fill Lake Powell. Nearly all of these were form letters and said the target elevation of 3,525 is too low for recreation. Some recounted fond family boating experiences on the human-made lake. The low water levels have led to the closure of marinas and boat ramps in recent months.
“While maintaining Lake Powell at higher elevation levels will require tradeoffs elsewhere in the Colorado Basin, Lake Powell should be given preferential treatment,” read one form letter from Hannah Cook. “It is a national treasure for outdoor recreation, vitally important for local economies, the reservoir and dam provide clean energy and water certainty for downstream users.”
A single comment from a southern Utah resident and boatman on the Green and Colorado rivers named Phoebe Brown argued that decision makers should value the long-term ecological implications over economic needs or power generation.
“Thinking about my life and my future, the only hope I see in the West is maintaining the ecological integrity of river corridors, and I want to see Lake Powell managed for sedimentation and making sure there is healthy water and a livable future for young Westerners like myself,” she wrote.
Aspen Journalism covers water and rivers in collaboration with The Aspen Times. This story ran in the March 11 edition of the Craig Press, Steamboat Pilot & Today, March 12 edition of The Aspen Times, the March 14 edition of the Vail Daily.
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 lush lawn outside a home in a Thornton, Colo. subdivision. The state legislature is considering a bill that would create a statewide program providing cash incentives for property owners who remove non-native turf and replace it with water-wise, drought-resistant landscaping. CREDIT: BRENT GARDNER-SMITH/ASPEN JOURNALISM
Colorado could soon have a program that would pay property owners to get rid of one of the largest water uses for Western Slope water providers: grass.
A turf replacement bill, which passed unanimously this week out of the House Agriculture, Livestock & Water Committee, would require the state water board to develop a statewide program to provide financial incentives for the voluntary replacement of irrigated turf with water-wise, drought-resistant landscaping. Local entities that already have turf-replacement programs could apply to the Colorado Water Conservation Board for money to help increase the rebate to property owners. In areas where a program doesn’t currently exist, the CWCB would have to hire a contractor to administer a program.
The drafters of House Bill 1151 say it is aimed at efficient water use and would increase communities’ resilience to drought and climate change, reduce the sale of agriculture water rights to meet increased demand in cities, and protect river flows. Sponsors are asking the program to be funded with $4 million from the general fund. The bill’s next stop is the House Appropriations Committee.
Colorado would be following in the footsteps of other states that take water from the dwindling Colorado River by expanding these so-called “cash for grass” programs. Some Colorado municipalities and water providers already have lawn buy-back programs; the bill could increase the incentives they give to customers.
According to bill sponsor Rep. Dylan Roberts, who represents Routt and Eagle counties, nearly 50% of the water used between the municipal and industrial sectors goes to the outdoor watering of non-native turf grasses.
“That’s not the type of activity we should be doing in our state when we are facing such a drought,” he said. “If this bill can help incentivize folks to make the right decision about water conservation in their community, that’s a win.”
The turf on the city of Aspen’s golf course, shown here in July 2017, requires 190-acre feet of water a year to irrigate. Outdoor watering is often the largest use of water for Western Slope municipalities.CREDIT: BRENT GARDNER-SMITH/ASPEN JOURNALISM
Western Slope outdoor water use
If it becomes law, the bill could give a boost to some Western Slope domestic water providers that have focused on reducing outdoor water demand.
On the Western Slope, using less water indoors has only a tiny effect on river flows; roughly 95% of the water that comes out of an indoor tap goes down the drain to a wastewater treatment plant where it is filtered, disinfected and returned back to the river.
In contrast, according to Diane Johnson, communications and public affairs manager with the Eagle River Water & Sanitation District in Vail, an average of only about 25% of outdoor water use in the district returns to the river because the majority of it is consumed by the plants.
Since the onset of the drought that has gripped the region beginning in 2002, the district has focused nearly all its water conservation efforts on outdoor use because that’s where it finds the biggest bang for the buck.
“If what you are concerned about are streamflows and the overall water supply — our higher goal here is taking care of our aquatic environment and the riparian areas and the things we all moved here to enjoy — where do we actually find the most water? It’s in our outdoor use,” Johnson said.
Eagle River Water & Sanitation has a pilot rebate program for turf replacement, which could be expanded with state money, if the bill passes. Rebates could double from about $1 a square foot of lawn replaced to about $2.
The district has developed a tiered rate system that charges more as water use goes up. But even higher prices aren’t always enough to deter wealthy property owners from using lots of water on their lawns.
“People think, ‘Well just bill me for the water; I’ll pay for it,’” Johnson said. “Our point is, we don’t want the money; we want the water. It’s more important to us that you use less. It’s not about the money; it’s about the resource.”
For the city of Aspen, outdoor water use makes up roughly 70% of annual water use, according to Utilities Director Tyler Christoff. Although the city has a strict outdoor landscaping ordinance, rebate programs like turf replacement are still in their infancy. But turf replacement will probably be one of the areas the city looks at as it explores enhanced conservation measures, which are outlined in the city’s recently adopted integrated water resource plan.
“These types of state programs are how we as Coloradans are going to solve our long-term conservation issues and goals,” Christoff said.
The bill has received support from Colorado Cattlemen’s Association, Front Range municipalities and water providers and environmental groups. Several people testified in support of the bill at Monday’s committee hearing, including Zane Kessler, director of government relations for the Glenwood Springs-based Colorado River Water Conservation District. The River District’s board, which is charged with protecting and developing Western Slope water, unanimously supported the bill at its February meeting.
“One thing we know is that in a hotter, drier future, we are going to have to use less water,” Kessler said. “So promoting the efficient use of Colorado’s water resources by decreasing areas of non-essential irrigated turf is an easy way that we can take pressure off West Slope agriculture. It’s also a way that we can reduce pressures on our rivers that drive our economies on both sides of the Continental Divide.”
Last year, in recognition of the exceptional thirstiness of grass, Nevada lawmakers passed a bill outlawing “non-functional turf,” meaning grass that lines street medians and office parks for purely aesthetic reasons.
“This is an opportunity for Colorado to do some things that have been done in the deserts,” said Montrose Republican and bill sponsor Marc Catlin. “Las Vegas, places like that have had very much success with this.”
Aspen Journalism covers water and rivers in collaboration with The Aspen Times. This story ran in the March 4 edition of The Aspen Times and 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.
The East Troublesome Fire in Grand County burned down to the shore of Willow Creek Reservoir, one of the reservoirs in Northern Water’s collection system in Grand County. Dec. 13, 2020. Credit: Jerd Smith
As forecasters call for a warm summer ahead in Colorado, threatening to further weaken the state’s water supplies, water and fire officials plan a major two-day confab later this month in Grand Junction, in hopes of bringing more people together to understand and plan how best to protect the state’s vital mountain watersheds.
Like other Western states, Colorado derives the majority of its water for cities, farms and industry from mountain snowmelt, a resource that is coming under increasing pressure due to drought and climate change.
“Before the Fire: Protecting the Water Towers of the West,” is designed “to frame the issue around challenges, and demonstrate the impacts of unhealthy watersheds and inaction,” said Christian Reece, executive director of Grand Junction-based Club 20, an economic development group that is sponsoring the conference.
Representatives of the U.S. Forest Service, the Colorado State Forest Service, and other experts will be presenting at the conference, slated for March 24 and 25.
The summit comes as Colorado and other Western states prepare for what may become another rough wildfire season.
Colorado’s snowpack is resting at average for this time of year, and whether traditional spring snows will materialize to boost it above average remains unclear.
Peter Goble, a climate specialist with the Colorado Climate Center at Colorado State University, said the weather outlook for the spring could go either way, but warm summer temperatures could leave the state under fire threat again.
“There is not as clear a picture as we would like,” Goble said. And though the near-term forecasts for March indicate the state could receive good snow, the runoff forecasts for the spring and summer are likely to be lower than average.
“The way temperatures are trending, we’re more likely to have a warmer summer and we need to factor that in,” he said.
The seven-state Colorado River Basin, suffering under what is considered to be the worst drought in 1,200 years, will need several back-to-back years of mega snowpacks in order to recover, according to the Colorado Climate Center.
“The 1,200-year drought is not good news,” Reece said. “But it helps make the case for why watershed work is so critical.”
After the catastrophic Marshall Fire burned 25 miles north of Denver on Dec. 30, the state has been on edge, unnerved by the emergence of urban wildfires and a winter fire season.
“Here in Colorado, after our 2020 fire season and now the Marshall Fire, I truly believe we have to change how we tackle wildfires,” said Dan Gibbs, executive director of the Colorado Department of Natural Resources, via email. Gibbs will be presenting at the conference.
Among the topics on tap is how to utilize tens of millions of dollars in federal and state funding that is being set aside to reduce fuel loads in mountain watersheds and to help restore the water systems that lie within the burn areas.
“We’ll try to break down the silos and elevate the importance of watersheds,” Reece said. “We hope we inspire people so much that they leave the summit and decide that they want to take on watershed protection work when they get home.”
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.
The Fetcher Ranch in northwest Colorado was started by John Fetcher in 1949. His son, Jay, says his dad was passionate about water issues. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
CLARK — Northern Colorado rancher Jay Fetcher looked out over the snowy fields of his family’s sprawling ranch 20 miles north of Steamboat Springs.
Cows grazed on hay on a bright, frigid February morning in the tiny settlement of Clark. Fetcher has been ranching the 1,400 acres of hay meadows and pastures in view of the Mountain Zirkel Wilderness for most of his life.
Fetcher’s late father, John, was a legend in the Steamboat area, who moved there to ranch in 1949. A founder of the Steamboat Ski Resort, he was also on the board of the Upper Yampa Water Conservancy District and a director of the Colorado Water Conservation Board.
“He was crazy passionate about water,” Fetcher said.
One of his legacies was putting the family ranch under a conservation easement, meaning the land would never be developed.
“If we chose to develop it, we could put 70 homesites, but now, it will stay open space forever,” Fetcher said. “It feels good knowing there won’t be golf courses out here.”
The land also has ample water rights. The ranch is flood-irrigated by a system of ditches that pull water from Sand Creek, McPhee Creek, Cottonwood Creek and the Elk River. But Fetcher is facing a complicated situation regarding one of the smaller, more junior rights in the portfolio that state officials believe has been “abandoned.”
Abandonment is the official term for one of Colorado’s best-known water adages and concepts: “use it or lose it.” Every 10 years, engineers and water commissioners from the Colorado Division of Water Resources review every water right — through diversion records and site visits — to see whether it has been used at some point in the previous decade. If they don’t see evidence of use, they could place the water right on the abandonment list and a water court could make it official.
Abandonment means the right to use the water is essentially canceled and ceases to exist. The water right goes back to the stream where another user can file an application to claim it and put it to beneficial use.
Fetcher’s water right that is in jeopardy is 2.5 cubic feet per second from the Hoover Jacques Ditch that dates to 1972. This ditch pulls water from the Elk River and flood-irrigates a pasture. In a letter to Fetcher, officials from the Colorado Division of Water Resources say that aerial imagery and their data suggest that the land has not been irrigated in quite some time.
Fetcher admits that it has been challenging to get water from the diversion point to the pasture five miles away through an unlined ditch, and the 40-acre pasture that it irrigates doesn’t produce much hay anyway. Fetcher often couldn’t take his full amount because the water just wasn’t available, but he hesitated to place a call because it didn’t seem worth it, he said.
Water users who aren’t receiving their total share can place what’s known as a call, which forces upstream junior users to cut back so the senior water right can get its full amount. Older water rights get first use of the river.
“It was really hard to get water through all our neighbors to actually use it,” he said. “By the time water gets there, it’s a trickle. And we just didn’t have time to run up there and irrigate a little bit of pasture.”
The Fetcher property has eight different ditches, and a huge amount of work is necessary to maintain them, he said.
“We want to make sure we don’t fall on the abandonment list with these other ditches,” he said. “We try to limit the labor on the ranch to make it profitable, so how does someone taking care of 800 cows have time to run around and make all of them work?”
Still, Fetcher isn’t sure walking away from the water right and letting it become abandoned is in his best interest. He filed an objection in April 2021 to the initial abandonment listing. His situation is complicated by the fact that the easement on the property, with the Colorado Cattlemen’s Agricultural Land Trust, has a provision that says the landowner shall not abandon or otherwise separate the water from the property.
According to attorney David Kueter, Cattlemen’s has filed objections to the abandonment listings of almost 50 water rights statewide that are on properties with conservation easements, including the Fetcher Ranch.
“It goes back to the idea of preservation of working agriculture lands and in cases where land has been hayed through the years, the water rights are going to be crucial to that and if you take the water off the property, some of those historic uses can’t be accomplished anymore,” Kueter said.
Extremely friendly and curious cows show no fear of humans on the Fetcher Ranch. Officials at the state Division of Water Resources have listed one of the ranch’s water rights on the 2020 abandonment list.CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
Abandonment process
Under Colorado’s abandonment process, once a water right ends up on the abandonment list, the water-rights holder can object. They have up to one year to file an objection with the division engineer.
In Division 6, which encompasses the Yampa, White, Green and North Platte river basins in the northwest corner of the state, there were initially more than 700 water rights on the most recent initial abandonment list, which came out in July 2020, according to Division 6 Water Resources Engineer Erin Light.
After working through all the objections and, for the most part, giving the benefit of the doubt to water rights holders — for example removing those water rights that had new owners who hadn’t been able to use the water yet — Light whittled the revised list down to 302. It was filed with the water court in December.
Water rights holders still have another opportunity to protest their inclusion on the revised abandonment list, and Light expects at least 30 people will do that by the June 30 deadline. It’s common for people to fight to keep their water right, she said.
“I hate to use a word so strongly as ‘fight,’ but they are going to protect their water right,” Light said. “This is their property right, and whether they can use it or need it, they are still going to try.”
Light’s comments point to an interesting and unresolved question for Colorado water users: What is the value of a water right that is not being used?
Jay Fetcher stands outside a barn on the Fetcher Ranch in northwest Colorado. Fetcher has decided to protest the listing of one of the ranch’s water rights on the state’s 10-year abandonment list.CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
Value of water
Under Colorado water law, one must put water to “beneficial use,” meaning use the water for what a water court has decreed it. And only the amount of water that is actually used — not the amount granted by the decree — is what matters. Sometimes, those two numbers match up; other times, they don’t.
Some irrigators may divert the entire amount in their decree in an effort to prevent ending up on the abandonment list, whether they can actually use or need the entire amount of water. They “use it” to avoid “losing it.” But a bigger water right isn’t necessarily worth more if all of it can’t be put to beneficial use.
“What actual value do you lose if you never needed that amount in the first place?” said Peter Fleming, general counsel with the Colorado River Water Conservation District. “On paper, it looks just as valuable as the portion of the right you are actually using, but if you went into court to try and capitalize on that value, you might find you get cut back and you never really had the value anyway.”
In Colorado, a water right is a property right that can be bought and sold and generally increases the value of land. So some water rights holders may be reluctant to pare back the amount of their right, even if they can’t use all the water to which their decree entitles them on paper.
“Most water users see there is value in simply having the right,” Light said. “If they go to sell their ranch, they feel their ranch is going to be worth more with a 10 cfs water right, even though seven is all they can divert and beneficially use.”
That leads water users to fight to keep the extra 3 cfs off the abandonment list. But Light said the perception of the value of water may be slowly evolving to match what the law actually says. She said ranchers, real estate agents and attorneys now often call and ask for records of water use on pieces of property for sale.
“That’s a change,” Light said. “We are seeing a swing in the pendulum. It’s not just about the 10 cfs water right — it’s about you only use 7.”
Light said that in many instances, an abandonment listing is a case of over-adjudication. This means that years ago someone filed for a water right without much proof that they actually needed that amount and the court approved it. But the full amount may have never been used. In some cases, more water may have been awarded than the ditch can physically hold.
Light’s office’s placing a partial water right on the abandonment list is an attempt at ground truthing and resolving the difference between the amount in the original water court decree and the amount that is actually needed.
This map shows the number of abandoned water rights by region on the 2020 revised list the state filed with the water court. For the past two decades, pre-1929 water rights in the four Western Slope basins (divisions 4, 5, 6 and 7) have been exempt from abandonment.CREDIT: LAURINE LASSALLE/ASPEN JOURNALISM
Pre-compact rights protected
This question about the value of unused water rights is one that rises to a statewide level. For the past two decades, Colorado’s top water engineer at the Department of Water Resources has instructed his division engineers and water commissioners to leave the Western Slope’s oldest water rights — most of which are agricultural — off the abandonment list. That means water rights that date to before the Colorado River Compact became effective in 1929 enjoy an extra level of protection from abandonment, whether they are being used or not.
It’s still unclear exactly what political benefit there may be to inflating Colorado’s consumptive-use tally with water rights that only exist on paper.
“It doesn’t add water,” Fleming said. “It’s not like you make molecules by claiming something is precompact when it’s never been used anyway. You still have the current level of use within the state.”
Since pre-compact rights on the Western Slope are exempt from abandonment, Fetcher says perhaps properties with conservation easements should be also, in an effort to keep water rights tied to the land. According to Kueter, there is an existing statute, which protects from abandonment water rights used on land enrolled in federal land conservation programs, which may include conservation easements.
“We are in the process of researching and assessing how to make that argument in this protest period,” Kueter said.
Fetcher is now grappling with questions about the value of his water right and considering the lengths to which he should go to try to preserve it. Getting water from the ditch has sometimes proved more trouble than it’s worth. But a future landowner may be able to put the 2.5 cfs from the Hoover Jacques Ditch to beneficial use.
For now, Fetcher plans on filing a protest with the water court, aiming to stop his water right from being abandoned.
“(Abandonment) is not the end of the world,” he said. “It’s more of a philosophy thing and a real value to the ranch.”
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.
The South Adams County Water and Sanitation district is one of several water providers around the state now treating to remove PFAS from its drinking water supplies. Nov. 23, 2021. Credit: Jerd Smith
The Colorado health department is investigating a contaminated underground plume issuing from land next to the Denver Fire Training Academy to determine whether it is responsible for high levels of so-called “forever chemicals” in the raw water supply of an Adams County water district that serves more than 65,000 people in the north metro area.
The contamination was discovered in 2018, and since then, officials said, the City of Denver’s fire training center has stopped using the fire-fighting foam containing hazardous PFAS, or poly- and per-fluoroalkyl substances. The compounds have long lifespans and have been linked to certain cancers. Contained in such common substances as Teflon and Scotchguard, they are also widely used to fight fires.
A spokesperson for the fire academy declined to comment on the investigation and referred media inquiries to the Denver Department of Public Health and Environment, which said via email that it was working with the state to address the problem. It declined an interview request.
Jennifer Talbert, a hazardous materials expert overseeing the investigation for the Colorado Department of Public Health and Environment (CDPHE), said she expects the investigation to be done later this year, at which time decisions on how to clean up the contaminants will be made.
“They did discover PFAS within a certain region of the [fire academy] site, but we need to do more sampling and investigation. We’re developing the plume boundary now,” Talbert said.
The four contaminated wells owned by the South Adams County Water and Sanitation District were shut down quickly in 2018 after testing showed extraordinarily high PFAS levels, 2400 parts per trillion (ppt), in the raw water, according to Kipp Scott, manager of water systems at the district.
The U.S. Environmental Protection Agency’s health advisory standard for PFAS says levels should be no higher than 70 ppt.
Since then the state and the Tri-County Health Department have issued alerts to private well owners in the area, notifying them not to drink the contaminated water. Other residents in the region are served by the South Adams County district, whose water is being treated to reduce PFAS levels to 35 ppt, a level that is considered safe under the existing voluntary federal guideline.
Anyone concerned about potential contaminants in their drinking water can have free testing done.
The CDPHE’s Talbert said it hasn’t determined who is responsible for the contamination and won’t be able to do so until its investigation is finished.
But Scott said no other PFAS sources within the district have been identified other than those found at the fire academy, whose site is less than a half mile from the contaminated wells.
“We infer that that is the largest source in the area that is affecting our groundwater supply,” Scott said. “There are no other sources identified.”
Little was known about the unregulated PFAS chemicals in Colorado until 2015 when national news began appearing about their links to cancer, their prevalence in fire-fighting foam used at military bases and fire-fighting centers, and their presence in groundwater.
Two years ago, as more testing revealed more contaminated sites, the CDPHE vowed to boost its oversight. Since then the Colorado Legislature has provided the health department with more authority and money to combat the problem. CDPHE’s approach has included conducting surveys to identify contaminated sites and affected drinking water systems, spending as much as $8 million to buy contaminated firefighting foam and store it, and helping communities whose water has been tainted by the compounds with testing support and grants to help cover treatment costs.
Dozens of fire departments, military facilities, water utilities, and commercial properties as diverse as hotels and apartment complexes are now monitoring and testing for the substances.
As Colorado ramped up its oversight, last year the EPA announced it would begin work on a regulation that will, for the first time, set an official limit on PFAS compounds in drinking water. It is set to be available for public review this fall and would be finalized by the fall of 2023.
In the meantime, Scott said the South Adams County Water and Sanitation District has spent $5 million to build a sophisticated testing and monitoring lab, and to strengthen its treatment program enough to comply with the 70 ppt federal health advisory limit.
But that won’t be enough long-term to ensure its customers have access to safe drinking water, Scott said, so the district is preparing to install an advanced $70 million treatment system to reduce PFAS levels even further. That price tag is almost three times the size of the district’s annual $26 million budget.
“If the health advisory number should go lower, and we think it will, we don’t have enough capacity to go to a lower number,” Scott said. “And we need that raw water from the wells we shut down to meet future demand.”
Who will pay to correct the situation isn’t clear yet, but Scott said the cost should not fall on his district. “We’ve spent around $5 million treating for this contaminant that is in our water supply, and we did not put it there. But that $5 million cost is being paid by each one of our residents through higher rates and fees.”
CDPHE’s Talbert said cleaning up the contamination near the fire training facility and other sites will likely be complicated because the chemicals have never been regulated and, as a result, methods and technologies for clean-up are still being developed. But she said most residents in the region have access to treated drinking water through their water utilities.
“The science is new,” Talbert said,” and we don’t know the extent of the contamination. If we find that people have an exposure we will get them on bottled water and/or a reverse osmosis system.”
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.
For more than 20 years, Tanya Trujillo has been immersed in the many challenges of the Colorado River, the drought-stressed lifeline for 40 million people from Denver to Los Angeles and the source of irrigation water for more than 5 million acres of winter lettuce, supermarket melons and other crops.
Trujillo has experience working in both the Upper and Lower Basins of the Colorado River, basins that split the river’s water evenly but are sometimes at odds with each other. She was a lawyer for the state of New Mexico, one of four states in the Upper Colorado River Basin, when key operating guidelines for sharing shortages on the river were negotiated in 2007. She later worked as executive director for the Colorado River Board of California, exposing her to the different perspectives and challenges facing California and the other states in the river’s Lower Basin.
Now, she’ll have a chance to draw upon those different perspectives as Assistant Secretary of the Interior for Water and Science, where she oversees the U.S. Geological Survey and – more important for the Colorado River and federal water projects in California – the Bureau of Reclamation.
Trujillo has ample challenges ahead of her. For two decades, drought – fueled in no small part by climate change – has gripped the Colorado River Basin, starving the huge reservoirs of Lake Powell and Lake Mead of runoff. Drought plans in place since 2019 failed to stop the decline of these critical reservoirs. New operating guidelines for the river are now being discussed and the Basin’s 30 tribes, which have substantial rights to the river’s waters, want to make sure they get a seat at the negotiating table.
The Department of Interior faces still other water challenges: For example, in southeastern desert of California, the ecologically troubled Salton Sea has nearly upended past Colorado River negotiations involving drought contingency planning.
Trujillo talked with Western Water news about how her experience on the Colorado River will play into her new job, the impacts from the drought and how the river’s history of innovation should help.
WESTERN WATER:You’ve worked on Colorado River issues for years, both in the Upper Basin (as a member of New Mexico’s Interstate Stream Commission) and Lower Basin (as executive director of the Colorado River Board of California). How is that informing your work now on Colorado River Basin issues?
TRUJILLO: I’m very appreciative of having had several different positions that have allowed me to work on Colorado River issues from different perspectives. As the general counsel of the New Mexico Interstate Stream Commission, we were finalizing the 2007 Interim Guideline process [for the Colorado River] and I very much had an Upper Basin hat on at that time. That was also right in the middle of our work in New Mexico on negotiating the Indian water rights settlements with the Navajo Nation. Both the Guidelines and the Navajo settlement work really expanded the notion of flexibility in the Basin with respect to the existing statutes and the existing regulations.
“I’m very appreciative of having had several different positions that have allowed me to work on Colorado River issues from different perspectives.” ~Tanya Trujillo, Assistant Secretary of the Interior for Water & Science
I had a Lower Basin perspective when I was working for the state of California on Colorado River issues with the Colorado River Board of California although I was working with a lot of the same people and there were a lot of familiar legal and operational questions. But for the other half of the job, I was brand new to California and was having to learn the whole Lower Basin perspective from scratch.… It was great just to learn the perspective of the Lower Basin and because there are quite a few challenges just within the Lower Basin that are independent of what’s going on in the Upper Basin.
WW:It’s pretty clear the Colorado River Basin is in trouble – too little snowpack and runoff, too little water left in Lakes Powell and Mead. Are we headed toward a Compact call? Or are there still enough opportunities to protect Powell and Mead and meet obligations to the Lower Basin and Mexico without draining upstream reservoirs?
TRUJILLO: I think in some respects it’s the wrong way to think about this question…. A better approach is to focus on the strategies the Upper Basin develop to continue to protect the water resources and communities and economies that rely on that water. There’s a lot to build off of. Going back to the ‘07 guidelines, we were thinking about building off of the existing regulations that described the operating criteria. We were thinking about how to protect those resources in the Upper Basin, even when there is a drought, even when there is less water that’s naturally occurring in the system on a continual basis.
But that translates into concerns about how to protect the system in the context of the lower reservoir levels, including the impact on hydropower generation. Each of the Upper Basin states is carefully watching that not only from a power supply perspective, but because if there’s less [hydropower] production, there’s less funding coming in and the funding supports programs that are very important and beneficial to the Upper Basin, like the salinity control program and the [endangered] species recovery programs in the San Juan Basin and the Colorado Basin.
So I know those are concerns that the states have, to protect the elevations at Lake Powell. And another important concern that we specifically agree on is the need to be very careful with respect to the infrastructure and the structural integrity of the [Glen Canyon] dam itself. We may have to operate the facilities at levels that we haven’t experienced before. So we have no operational experience with how the turbines are going to function – and not only the turbines but also how the structures are going to function if we have to use the jet tubes if the turbines are not available.
WW: So there’s concern about how the structures function in terms of getting water from one side of the dam to the other? Or in terms of the physical structure itself?
TRUJILLO: I’m a lawyer and not going to be opining on the actual engineering situation. But we have lots of people who are working in the Upper Basin and Denver Technical Center who are dam safety engineers and they have not had experience in working at this facility under those low water levels. And so that’s where there’s uncertainty. We don’t know how the structures will function under those conditions and that means that people are concerned about that uncertainty because that’s such a critical piece of the infrastructure. [That is] additional motivation among the Upper Basin states for trying to think proactively about how to make sure that the supply and the flows that extend down to Glen Canyon Dam can be maintained.
WW: Given how drought and climate change have left far less water in the Colorado River than the 1922 Compact assumes, is it time to rethink that Compact? Or do you think the Compact and the rest of the Law of the River has the flexibility to accommodate the current realities? And how?
TRUJILLO: I might take the liberty of quarreling a bit with the context of the question because I think the focus should be a forward-looking focus as opposed to rethinking the situation that existed 100 years ago. Even just looking at the past 20 years, we’ve been able to be very innovative and very focused on continued efforts to improve the [weather] prediction capabilities and continued efforts to make sure we have additional flexibility, additional tools, and additional conservation options that can help us work at a multi-faceted level. There are multiple layers of innovations and flexibilities that we have been able to successfully pull together, and my expectation and hope is that will be the same kind of approach that we will continue to work through.
WW: In July, you toured portions of western Colorado to discuss drought and water challenges across the Upper Colorado River Basin. What did you hear? What did you tell them?
TRUJILLO: That was a great trip. The basis of that trip was a listening session that was co-hosted with the governor of Colorado and our Interior Secretary, Deb Haaland. It was an opportunity to hear updates and perspectives from a wide variety of water users in Colorado…. I personally was able to visit quite a few communities in the West Slope, starting in Grand Junction, and see some of the innovative agreements that are coming together in that area with respect to some upgraded hydropower facilities. So it’s great to have the aging infrastructure issues being addressed in that area.
There is obviously a lot of strong, productive agricultural communities that are clearly watching with respect to any drought developments. I was also able to visit the Colorado River District board meeting and heard a discussion about the different perspectives relating to support for additional infrastructure and funding different infrastructure projects. There was a USGS proposal that was being approved by the River District, and they were able to really showcase the tremendous contribution that USGS is able to provide to some of their cooperative investigations. I also met with representatives from Northern Water and the Arkansas Valley Conduit Project, so it was a great opportunity to get an overview of the many important projects that are underway in Colorado.
WW:Did they tell you anything that surprised you?
TRUJILLO: No, I don’t think so. I have a pretty good base of background with some of the challenges that exist in that area. Maybe one way to sum up that that week of visits is that the broad variety of examples there in Colorado can be replicated in other states as well. It was great to just see a diversity of projects that are that are in place there. I would go back there in a second. It was the first trip for me in my tenure as assistant secretary and it was very informative.
WW: As you know, the Salton Sea has been a festering environmental problem for years, and it threatened to upend California’s participation in the 2019 Lower Basin Drought Contingency Plan when Imperial Irrigation District insisted that the sea’s ills needed to be addressed as part of the DCP. What can — or should — Interior and the Bureau of Reclamation do to help find a sustainable solution for the Salton Sea?
TRUJILLO: The Salton Sea has had a long history over the past century and is a dynamic and changing terminal lake. For decades there has been a recognition that the changing conditions at the Salton Sea needed to be addressed. The Bureau of Reclamation, other entities within the Department of the Interior and other federal agencies have been involved in the Salton Sea for many decades.
There are various types of federal lands surrounding the Salton Sea, the Sonny Bono National Wildlife Refuge provides a sanctuary and breeding ground for migrating birds, and Reclamation plays an important role as a partner with respect to ongoing habitat and air quality projects in support of the state of California’s Salton Sea Management Program and the Dust Suppression Action Plan. Reclamation also works in partnership with Imperial Irrigation District to implement the Salton Sea Air Quality dust control plan. Since 2016, for example, Reclamation has provided approximately $14 million for Salton Sea projects, technical assistance and program management. Reclamation and its federal partners participate in a number of state-led committees and processes, providing technical expertise on activities related to the long-term restoration of the sea.
Tanya Trujillo
Education: Bachelor’s degree from Stanford University, law degree from the University of Iowa College of Law.
Current job: Assistant Secretary for Water and Science at the U.S Department of Interior, confirmed by the Senate on June 17, 2021.
Previous jobs: Member, New Mexico Interstate Stream Commission; Project director with the Colorado River Sustainability Campaign; executive director of the Colorado River Board of California; senior counsel to the U.S. Senate Energy and Natural Resources Committee; counsel to the Interior Department’s Assistant Secretary for Water and Science; general counsel, New Mexico Interstate Stream Commission.
Fun Fact: Trujillo notes that she is a proud native of Las Vegas – the other Las Vegas, in northeastern New Mexico.
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.
The Morrisania Mesa Ditch runs through agricultural land south of Battlement Mesa. The ditch was part of a ditch inventory in western Colorado paid for, in part, with state grant money. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
Inventories of irrigation ditches across the Western Slope have become common in recent years and water managers say they have merit.
But there is no requirement that the individual studies — which look at things such as efficiency and opportunities for repairs and upgrades — be made public, even though they are often paid for with public money. This doesn’t sit well with some who say the public has a right to know exactly how taxpayer dollars are being spent and how one of the West’s most precious and dwindling resources is being used.
“(Agriculture) is where 80% to 90% of the water gets used, and if we were more efficient, we could leave more water in the river — that’s the bottom line,” said Ken Ransford, recreation representative to the Colorado Basin Roundtable and who also acts as Aspen Journalism’s legal adviser. “If you can’t see how 80% to 90% of the water is being used, then you will never be able to say whether you’re using water efficiently or not.”
Ditch-inventory projects have the support of many water-user groups and, in recent years, have been done in several Western Slope river basins and sub-basins: the Yampa, the Eagle and the Colorado. Agricultural groups say they are necessary to assess the needs of irrigators and connect them with resources should they want to improve and upgrade their infrastructure. Environmental organizations say they have value because the more improvements there are to irrigation efficiency, the more water that can be left in the stream to the benefit of the ecosystem.
In some ways, the issue boils down to whether one sees water as a private property right or a public resource. In Colorado, it’s both. The right to use water is treated as a private property right. People can buy and sell water rights as part of a real estate transaction and change what the water is allowed to be used for, as long as a water court approves. And to maintain a water right’s value, the water must be put to use.
But the right to use water isn’t the same as owning the resource itself, which belongs to the people of Colorado. Ransford said there’s an obligation for water users to use it responsibly and efficiently.
“To say nobody has a right to see how it’s being used when it’s a public resource, there’s a conflict there,” he said. “We all own the water. It’s a public good.”
The Bookcliff, South Side and Mount Sopris conservation districts, took part in a project to inventory some of the ditches in their boundaries. Because they are not available to the public, it’s unclear exactly which ditches were included. CREDIT: LAURINE LASSALLE/ASPEN JOURNALISM
Middle Colorado ditch inventories
In 2018, the Colorado Basin Roundtable recommended approval of a $100,000 funding request from the Book Cliff, Southside and Mount Sopris conservation districts for an agricultural water plan for Garfield County. It was part of a larger stream-management plan, undertaken by the Middle Colorado Watershed Council. The 2015 Colorado Water Plan calls for developing stream-management plans on 80% of rivers in the state.
The funding for the agricultural portion — part of an overall $330,000 budget for the plan — was approved by the Colorado Water Conservation Board, the state entity charged with protecting and developing Colorado’s water.
As part of the agricultural water plan, the conservation districts hired Rifle-based Colorado River Engineering to conduct ditch inventories, which provide water rights owners with an overall assessment of their diversion infrastructure, measuring devices and conveyance channel. The study focused on ditches that have old and large water rights — prior to the 1922 Colorado River Compact — and carry more than 10 cubic feet of water per second. The goal is for owners to use the inventory as a tool to prioritize projects on the ditches and aid in securing funding for future ditch improvement projects.
In October, the conservation districts submitted to the CWCB a final report, which includes a broad overview of the project. The 59 individual inventories completed were not included in the information submitted to the state, although each water rights owner got a copy of their own inventory. It is not clear which ditches across the three conservation districts were inventoried as part of the project.
Aspen Journalism began making inquiries about seeing the completed inventories in March, and the conservation districts made one inventory available: the study of the Schatz Ditch on Dry Hollow Creek near Silt, which irrigates 69 acres of grass pasture. The ditch has two water rights, which date to 1965, and are decreed for 2.5 cfs each.
The 44-page inventory includes information about the water rights associated with the ditch, publicly available diversion records from the state Division of Water Resources database, and many pages of historic decrees and documents associated with the ditch. It does not include names of ditch owners, water rights owners or water users.
It lists main concerns as a lack of current diversion records after 2001, overgrowth of vegetation and unstable soils near the end of the ditch. Potential treatment includes removing overgrowth, routine maintenance, lining or piping the ditch, and self-reporting diversions to the Division 5 Water Resources office.
The inventories are a good way to maintain institutional knowledge and keep track of historic ditch information when there is a change in ownership, said Emily Schwaller, manager of the conservation districts. She said the districts made the Schatz inventory available because the owner or owners gave permission for the information to be public, but she declined to disclose who the owners are.
“Our hope is that these binders are living documents that get updated and maintained by the ditch companies and owners,” Schwaller said in an email. “These inventories give the (ditch owners) a baseline of the condition of the ditch and are a start of the background of the ditch that will be used by future generations and ditch owners.”
The Schatz Ditch irrigates nearly 70 acres of land south of Silt, according to a ditch inventory by Colorado River Engineering. The ditch is one of 59 inventoried in the Middle Colorado region of western Colorado. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
CORA request denied
But neither the CWCB nor the Colorado Basin Roundtable has a policy that allows the public to have access to the inventories, even when public money is used to fund their creation.
In May, Aspen Journalism submitted a Colorado Open Records Act request to see the rest of the 59 inventories. The conservation districts denied the request, saying a federal law supersedes the state’s sunshine laws. Because the conservation districts partnered with the National Resources Conservation Service on the inventories and a federal law protects personal and geospatial information of property owners who work with NRCS, the districts said they would have to review what information could be released and redact any private information.
CORA lets the public inspect records of state and local government entities — unless inspection is prohibited by a state law or a federal statute or regulation. The 2008 Farm Bill may prohibit the release of information regarding agriculture practices.
“It’s not clear what information in the ditch inventories can and cannot be provided to the public under the 2008 Farm Bill,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, a nonprofit group that works to ensure the transparency of state and local governments by promoting freedom of the press and open access to government records. “The conservation districts should explain this in more detail, and the best way to do that is with an example ditch inventory and a log that describes why each redaction is required by federal law.”
After working with the boards to get a cost estimate for redacting, Schwaller on Dec. 13 provided a cost estimate of nearly $2,200 for redacting the engineering reports and almost $16,400 for the engineering reports and records. Aspen Journalism has asked Schwaller for a cost estimate for redacting the Schatz Ditch inventory to see an example of what information would be left after redacting and whether it would be worth it to pay for the rest of the documents with redactions. Schwaller had not replied to multiple requests as of press time.
Sara Leonard, director of CWCB marketing and communications, said that it would be inappropriate for the state to ask for a ditch owner’s personal information and that the state and roundtables support property rights and landowner privacy.
“The state’s role here is to provide funding and help identify the best projects, as supported by the basin roundtables,” Leonard said in an email. “We look for collective results and analysis of individual data to show the success of a project, but we don’t require individual data points as they are not needed by the state (in this case, individual ditch inventories).”
Dylan Roberts, who represents Eagle and Routt counties in the Colorado legislature and sits on the Water Resources Review Committee, said it sounds like the inventories have incredible merit and could be useful. If the state has decided to put money behind them, then the public should have access to them, he said.
“As a matter of principle, if public money is being used, there absolutely should be some level of transparency and public access to any data or information that is generated from these surveys,” he said.
An irrigation expert with NRCS talks with water users about the irrigation infrastructure on the Morrisania Mesa Ditch. Conservancy districts hope ditch inventories, which have become increasingly common in recent years, will result in improvement projects for irrigation infrastructure. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
Summary outlines ditch problems
According to the final report from the three Colorado conservation districts submitted to the CWCB in October, 59 ditches were inventoried on the section of the Colorado River and tributaries from Glenwood Canyon to De Beque. The individual inventories include a summary of the water rights, diversion records, irrigated acreage, a list of concerns, potential treatments and funding opportunities to address those concerns. This information is withheld from public view.
The report listed main areas of concern, including erosion prevention; seepage; aging infrastructure; routine maintenance; diversion/lateral structural improvements; phreatophytes, which are sometimes-invasive, water-sucking vegetation with deep roots; and bank stabilization.
According to a report produced last year as part of the Middle Colorado Integrated Water Plan on agricultural water use, engineers recommended phreatophyte removal for 71% of the inventoried structures; piping or lining ditches for 55% of them; and bank stabilization for 51%. Improvements to measuring devices were recommended for 35% of the ditches inventoried.
Though broad generalizations, these findings in the summary report and the Middle Colorado plan hint at widespread issues with the region’s irrigation ditches, headgates and canals.
“We have a huge issue with aging infrastructure here on the Western Slope,” said Jason Turner, chair of the Colorado Basin Roundtable and senior counsel with the Colorado River Water Conservation District. “There are billions of dollars’ worth of projects in the Colorado basin alone, and I bet that doesn’t even scratch the surface.”
Privacy maintained
These types of inventories have a history of being shielded from public view, even though they are paid for with state grant money.
In 2016, the Eagle County Conservation District conducted what it called an irrigation-asset inventory of 25 ditches within the district’s boundaries. It was funded with a $54,000 grant from the CWCB. Although a summary report of the findings was made public, the 25 individual binders with information specific to each ditch went to the ditch owners and were not, despite a request from Aspen Journalism under CORA. The summary said irrigators in the district were dealing with problems such as rusted, leaking and clogged culverts, unstable headgates, sinkholes and erosion.
Proponents say the promise of privacy is often key to getting irrigators to participate in these studies. Maintaining privacy is important for irrigators because they may not want to invite what they feel is unfair scrutiny — and, perhaps, criticism — of their operations.
“I think the only way these guys are going to participate in these kinds of things is if they feel like their information is not going to be shared everywhere,” Turner said. “They recognize that they own and use the lion’s share of water in Colorado, and it just seems like they feel heavily scrutinized for what they feel is their best ranching practices for their piece of property.”
The report from the inventories in the Book Cliff, Southside and Mount Sopris conservation districts said this culture of privacy is a challenge. Earning the trust of water rights owners so that they would give their permission to do the ditch inventories took additional time and was a larger factor than originally anticipated.
“Another noteworthy obstacle was obtaining permission from water and landowners to walk the ditch and develop the inventories,” the report reads. “This ranged from not having up-to-date records of owners, neighbor conflict and a general distrust in allowing outside eyes on the properties.”
This Parshall flume measuring device is being installed on a ditch on Morrisania Mesa. Ditch inventories, funded in part with state grant money, are becoming popular in western Colorado. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
Yampa River assessments
On the Yampa River, environmental organizations have acknowledged the potentially problematic lack of transparency that comes from paying for private inventories with taxpayer money and have taken steps to skirt the issue by directly funding the studies themselves. Trout Unlimited and The Nature Conservancy paid nearly $68,000 to do an assessment of diversion infrastructure on the Yampa with the goal of identifying places for multibenefit projects.
“We were aware of the Eagle River situation, but there are a bunch of reasons (that environmental groups) took the lead on the assessment,” said Brian Hodge, northwest Colorado director for Trout Unlimited and the environmental representative to the Yampa/White/Green Basin Roundtable.
Of 45 irrigation structure owners who participated in the study, 36 opted to make those reports public. The other nine chose to keep their reports confidential, citing disagreement with the structure assessment or discomfort with the process. A few structure owners did not respond to outreach after their report was delivered.
In a final report, produced by Wilson Water Group and JUB Engineering, the structures were scored based on the opportunities for improvements for four categories: current use, fish passage, recreational boating and river health. Each category had a maximum score of 5 for a total possible structure score of 20. The higher the score, the greater the opportunity for a multibenefit improvement project. The Lower Yampa reach of the river had the most room for improvement overall, with a total score of nearly 8.
Dry Hollow Creek winds its way through fields near Silt. The Schatz Ditch pulls water from Dry Hollow Creek. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
Improvement projects not publicly tracked
It is also not always clear whether these studies actually result in improvements to irrigation infrastructure, which is listed as an end goal. In some cases, neither the conservation districts nor the funding organizations keep track of how many subsequent projects come about as a direct result of the inventories.
And unless the ditch owner comes back to a granting organization, such as the roundtable, with a request for funding, there is no way to know whether ditch owners actually use the inventories to improve their operations, especially if they pay for upgrades out of their own pocket.
Turner said the roundtable would have no way of knowing unless an irrigator referenced the inventory in a subsequent grant application.
Leonard, the CWCB spokesperson, said she is not aware of anyone tracking projects that come out of the inventories.
“Again, potential projects that will likely come out of the inventory assessment will hopefully lead to multipurpose/multibenefit projects that can be supported by CWCB funding, but we don’t mandate projects as a result of investigations we fund,” she said in an email.
The report from the Book Cliff, Southside and Mount Sopris conservation districts said ditches with completed inventories have applied for funding from several different sources: the Colorado River Water Conservation District, the state of Colorado, National Resources Conservation Service, and the conservation districts’ cost-share program. Water rights owners have also hired engineering firms to complete the recommendations in the inventories and used the inventories while requesting letters of support from county commissioners, according to the districts. But conservation district representatives did not have a count of exactly how many projects have come about as a direct result of the inventories.
Eagle County Conservation District also does not have a count of projects that resulted from their 2016 inventories, but there is at least one. The Highland Meadow Estates at Castle Peak Ranch Homeowners Association in Eagle County received $25,000 in state money to improve the Olesen Ditch by installing a pipeline.
Mount Sopris Conservation District board member Cassie Cerise owns a ranch outside of Carbondale. She did not participate in the ditch inventory project, but she thinks the inventories were useful for ditch owners and she expects resulting projects to trickle out over the next few years.
“First, the issues can be identified, and second, they can find out about all the different programs that are offered as far as cost share and all the things that could help implement a fix,” she said.
The Schatz Ditch irrigates nearly 70 acres of land south of Silt, according to a ditch inventory by Colorado River Engineering. The ditch is one of 59 inventoried in the Middle Colorado region of western Colorado. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
Privacy was a roundtable topic
The issue of privacy for landowners when it comes to these ditch inventories was a topic of discussion at the Colorado Basin Roundtable meeting in October. Some said the public may be critical of how ditches are operated.
“There may be reasons why a landowner may not want the public looking at a ditch on their property,” said Carlyle Currier, a rancher in Molina who is president of the Colorado Farm Bureau and has a seat on the roundtable. “It certainly opens the door to some mischief.”
Ransford, the recreation representative to the Colorado Basin Roundtable, said that since water is a public good, there should be a public means of funding irrigation-improvement projects.
“I’ve long thought what we should do is pass a special-district kind of a tax to pay to modernize irrigation structures,” he said. “I don’t think the irrigators should have to do it. It’s expensive. But if we had a public source of funds dedicated to this, to me, that is the bigger picture.”
Some say the end justifies the means. Richard Van Gytenbeek is the environmental representative to the Colorado Basin Roundtable. In his work as Colorado River basin outreach coordinator for Trout Unlimited, one of his goals is to work on collaborative efforts with the agricultural community to keep more water in rivers. He said if the inventories can help do that by facilitating irrigation-efficiency projects, then he doesn’t have a problem with the information remaining private. Trout Unlimited often works with irrigators on projects that benefit the landowner as well as fish and stream health.
“I’ve seen some ditches that are just horrendous, and if we were able to get in there and fix them, people wouldn’t have to take out nearly as much water,” he said. “We are trying to think of ways to have (water) never leave the channel in the first place. Getting people to collaborate and cooperate, it’s the linchpin.”
Aspen Journalism collaborates with The Aspen Times on coverage of water and rivers. This story ran in the Feb. 6 edition of The Aspen Times and the Feb. 7 edition of the Vail Daily.
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.
This report is based on the work of the nine media outlets, Fresh Water News, and the Colorado News Collaborative, undertaken as part of a water news training program for journalists. The journalists are: Trevor Reid, The Greeley Tribune; Michael Elizabeth Sakas, Colorado Public Radio; Zack Newman, 9News; Kate Perdoni, Rocky Mountain PBS; Jim Mimiaga, The Cortez Journal; Philip Poston, the Aurora Sentinel; Olivia Emmer, The Sopris Sun; Priscilla Waggoner, the Valley Courier; and Tara Flanagan, the Ark Valley Voice. This program was made possible by a grant from the Colorado Media Project and the Denver-based Gates Family Foundation.
In Evans, Colo., four miles south of Greeley, houses are shooting up.
Once a quiet farm town, Evans is scrambling to come up with enough water to slake the thirst of hundreds of new homeowners, drawn here by comparatively affordable housing.
“We have enough water in our water portfolio to meet the needs of our existing population,” he said.
But future water needs will have to be met by developers, who are required to buy water and bring it to the city for use. It’s an expensive process that can often mean nearby irrigated farmland with old, high value water rights is bought and then dried up so the water can be transferred to cities.
While large northern Colorado cities like Loveland, Greeley and Fort Collins have older water rights, and have been able to buy extra water over the years, small cities like Evans haven’t had enough money to do so, Becklenberg said.
Water from the Acequias, a shared collection of gravity fed irrigation ditches have been a historic part of irrigation in the San Luis Valley from the Acequias (PBS Photo)
Gold, silver, land
In Colorado, acquiring water is a complicated undertaking due in part to Colorado’s hallmark “first-in-time, first-in-right” water law, known as the prior appropriation doctrine.
The doctrine dates back 150 years to when Colorado was a territory rich in gold, silver and land, but not water. It evolved to ensure no one could hoard water and deprive others of its use. Any farmer, miner or homesteader could claim water on a stream, divert that water, and put it to use, establishing a place in the priority system of water rights. It was a common person’s dream and had a certain fairness to it, ensuring that whoever got in line at the drinking fountain first, as University of Denver law professor Tom Romero puts it, gets to drink first. Everyone else takes their turn later.
But the doctrine is coming under increasing scrutiny as the state’s rivers and reservoirs dry out and tens of thousands of people continue moving here every year. Is prior appropriation up to the task of divvying up the state’s water in an era of increasingly frequent and severe drought conditions? It depends on whom you ask.
David Robbins, a water attorney who represents water districts in some of the state’s most water-strapped regions, such as the Rio Grande and Lower Arkansas basins, says the prior appropriation system is a sturdy, legally tested allocation system.
“To people who want water and don’t have water, the system doesn’t feel fair because they can’t have what they want. But that would be true under any system,” Robbins said. “Somebody has to make decisions and water has to be allocated. It doesn’t and can’t satisfy everybody’s desires because water is inherently finite.”
In Colorado, a water right is a private property right that can be bought and sold, with certain conditions. Older, more senior water rights, because they are entitled to water first during dry times, are more valuable because they are more reliable.
Water rights are officially entered in the system only after they’ve gone through the state’s special water courts, where the law requires that diversion histories are certified, that diversion amounts are quantified, that times of use are established, and that other water systems on the same stream are not injured by a new water claim. The law also requires that water only be applied toward a list of legally defined “beneficial uses,” including farming, mining, drinking water, and environmental flows, among others.
Benchmarks fall
Pressure on the system is rising as water supplies hit record lows. The Colorado River, for instance, may see a crucial water benchmark fall as the river’s flows continue to decline. The river system supplies Colorado communities and growers all across the state. In as little five years, according to climate researcher Brad Udall, the Upper Colorado River Basin states of Colorado, Wyoming, Utah and New Mexico, may not be able to deliver the 7.5 million acre-feet of water they are required to annually to Arizona, California and Nevada under the terms of the 1922 Colorado River Compact.
If that happens, many Colorado communities with water rights junior to 1922 could see their water supplies slashed so that the state can meet its legal obligations.
And a movement known as the Rights of Nature for Rivers is suggesting that Colorado’s rapidly drying streams need better protection under the prior appropriation system, such as giving first dibs on streamflows to rivers to protect their ecological value instead of to whomever has the oldest right to pull that water out.
“The movement would claim that keeping the water in the river is beneficial itself and to the non-human species and the ecosystem,” said Gary Wockner, one of the movement’s founders. “It is an expansion of prior appropriation’s law that recognizes the original user of the river was the river itself, and the river has the right to be in the discussion and in court.”
Thousands of water rights
Colorado has more than 164,000 water rights on file, according to data analyzed by 9News.
Agriculture uses roughly 86% of Colorado’s water and the state’s oldest, most historical water rights are found in a small, communal farm community that includes San Francisco and San Luis in the Rio Grande Basin’s San Luis Valley.
Here, water use dates back to the 1600s, but those water rights weren’t brought into the state’s prior appropriation system until the mid-1800s when water officials still rode on horseback to check diversion structures and irrigation ditches.
To the families of the San Luis Valley, the acequias, as their ditches are known, are a liquid thread feeding a farming culture that existed long before Colorado became a state.
And many of the ranchers here, including Charlie Quintana, believe the prior appropriation doctrine, known informally as the priority system, has stood the test of time.
In his pocket is a list of the water rights and their dates for the area’s acequias. “The acequias are the priority system,” he says.
List of priority acequia water users dating back to 1905. (PBS Photo)
Rights on paper
Native American Tribes too hold some of the oldest water rights. And prior appropriation has profoundly affected the way those tribes’ have developed.
In Southwestern Colorado, just miles from the New Mexico state line, the Ute Mountain Utes, like dozens of Native American tribes, have valuable, very old water rights that were granted as part of the Winters Doctrine, a landmark 1908 U.S. Supreme Court decision that gave tribes enough water to fulfill the needs of their reservations. That decision backdated tribal water right priority dates to the date the reservation was established. Theirs dated back to 1868. But for more than a half-century, the tribe never had the money or the expertise to claim the water formally in Colorado’s water courts and to develop the measuring devices, dams and ditches required to put it to beneficial use, as the prior appropriation system requires.
As a result, in a 1988 water rights settlement, the tribe traded its 1868 paper water rights on the Mancos River in exchange for more junior wet water rights in the Dolores Project, a federal storage system on the Dolores River that stores water in McPhee Reservoir, said Mike Preston, a water consultant for the tribe.
Now one of the tribe’s largest employers, the Ute Mountain Ute Tribe Farm and Ranch Enterprise, has a water right that is much younger and therefore less valuable.
This year, it received just 10% of its water, as did other farmers in the Dolores Project. If it had been able to put its 1868 water rights to beneficial use 150 years ago, it would have still been affected by the drought, but it would have had more water.
Now, as the drought continues, the tribe is redoubling its efforts to study and claim all of its water rights, including on the San Juan River, said Ute Mountain Ute Chairman Manuel Heart.
David Pettigrew, with the Ute Mountain Ute Bow & Arrow Brand cornmeal mill, fills a bag with ground corn at the mill near Towaoc, Colo., on Oct. 20, 2021. (Jerry McBride/Durango Herald)
Like other junior water rights holders, the fast-growing City of Aurora, Colo., has worked hard to secure a seat at the water table, spending millions of dollars buying older water rights when it can find them, and developing new junior water supplies when it can.
“Aurora got into the water game late,” said Greg Baker, Aurora Water’s manager of public relations.
Aurora was wholly served by the city and county of Denver until 1954 when Denver Water put into place a “blue line” no longer granting permits for new taps in the ever-growing metropolitan area, leaving parts of Aurora out of Denver’s service region.
The completion of phase one of the Homestake Reservoir, which the city shares with Colorado Springs, was in 1967 and, with that, Aurora was able to become completely self-reliant when it came to supplying water to its residents.
Though Aurora has been aggressive in buying water rights and building storage, 10% of its supplies come from reusable water developed through its $637 million Prairie Waters Project. Completed in 2010 the large-scale reuse system captures Aurora’s wastewater after it is released into the South Platte River, then filters it through a system of wells and sand and gravel pits, treating it and mixing it with fresh water before it is delivered to residents.
Without its large tax base, Aurora would have had a much harder time developing a reliable water system in modern times when most of the state’s oldest water rights are already taken.
Pretty smug
Even communities with older rights, though, are seeing supplies dry up as climate change and drought sap stream systems where water once was plentiful.
Bill Fales has been raising cattle on Cold Mountain Ranch in Carbondale, Colo., since he moved here in 1973. In his 48 years working the approximately 600-acre mosaic of pastures, of which around 250 are irrigated, Fales has experienced some tough years, when the Crystal River ran low, but largely felt confident about having the water he needed.
That confidence has been eroding.
“2018 was really bad, 2020 was really bad, 2021 was pretty terrible. I used to be pretty smug and think, ‘Well, hell, my right’s 1883. I’ll still be standing out here with my shovel, irrigating my alfalfa, and the guys in Denver will turn on the faucet to brush their teeth and nothing will come out,” Fales said.
But these days he’s worried that little will help farm and urban users with water shortages that are beginning to appear.
Other subdivisions in the Crystal River Valley have long relied on wells next to the river. But in the drought of 2018, the subdivisions’ taps ran dry. They scrambled to drill a new well under their 1971 water right. But that would not be enough. Soon they learned that their water use, for the first time ever, was harming a senior 1902 water right holder farther down the river system.
Now the homeowners are buying water to offset their own water use under a state-required plan to prevent any more harm to the senior water right holders on the stream.
Planting rye after potatoes on Nissen Farms in the San Luis Valley’s Mosca, Colo., with the Great Sand Dunes in background on Oct. 21, 2021. (Erin Nissen)
Taxing itself to survive
Far to the southeast, in the San Luis Valley, water too is in short supply. Here, in what is the second-largest potato growing economy in the nation, farmers are under orders to reduce groundwater pumping to protect the Rio Grande River and ensure Colorado can meet its legal obligation to deliver millions of gallons of water to New Mexico and Texas.
More than a decade ago, farmers voted to tax themselves to solve the looming legal water crisis, using the revenue to buy irrigated farmland and dry it up, so that unused water could remain in the aquifer that supplies the river. But the relentless series of droughts the state has endured since 2002 have wiped out much of the farmers’ work to restore the aquifer. If the situation doesn’t improve soon, the state could shut off thousands of irrigation wells.
To prevent that from happening, farmers will vote next year on whether to dramatically raise penalties for over-pumping from $150 per acre-foot to $500, an increase long-time farmer Don Shawcroft believes will provide the necessary jolt to convince valley farmers to change their irrigation strategies.
“This valley relies on agriculture, and agriculture relies on water. If that water is shut off or worse – used up – none of these towns will survive,” he said. (Editor’s note: Shawcroft sits on the board of trustees for Water Education Colorado, which sponsors Fresh Water News.)
The challenge will come
Whether prior appropriation will weather the coming dry years remains to be seen.
“What prior appropriation does really well is provide certainty. It’s a sophisticated system, but in principal and theory it’s simple,” says DU’s Romero. “We know that when there is not enough water those at the front of the line get their water. That creates predictability and certainty. Historically, it has also provided opportunity,” he said.
But the challenge will come, he said, “when you envision uses that aren’t prescribed, or if you need access to the water and need to reallocate it. Running it through our water court system is pricey. It requires expertise and investment…who is in the best position to cover those costs?
“It’s either big private water developers and the state, or water utilities like Denver Water and Aurora Water. They are in the best position to cover those costs, which raises a big question: Is this market scheme going to serve the public interest?”
Ask someone on the ground
Tara Flanagan is secretary of the Bowen Ditch Company in the Upper Arkansas River Basin. Keeping this 140-year old ditch functioning requires backbreaking labor, pre-dawn emails between neighbors, and faith that each spring the snow will fall, melt, and flow down to the handful of families still relying on it for water.
Flanagan, who is also a reporter for the Ark Valley Voice, describes the prior appropriation system as her “frenemy.”
“In a perfect world, nobody would need to care one iota about the words prior appropriation, which at first glance is an eye-glazing term that has spent entirely too much time living in the heads of politicians and water lawyers – as well as the tattered log book for the Bowen Ditch Company that sits under my desk.
“But people have died over prior appropriation, so there’s that.
“Prior appropriation means this,” she continues. “The date when your water rights were officially filed with the State of Colorado has everything to do with you getting water on your fields and how long you are able to have it. Unlike birth certificates and things stored in your refrigerator, the earlier your date, the better.”
Bowen Ditch Company secretary Tara Flanagan at the corner of her land, where the channel crosses to the south. (Tara Flanagan)
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 journalists are: Trevor Reid, The Greeley Tribune, treid@greeleytribune.com; Michael Elizabeth Sakas, Colorado Public Radio, msakas@cpr.org; Zack Newman, 9News, zack.newman@9news.com; Kate Perdoni, Rocky Mountain PBS, kateperdoni@rmpbs.org; Jim Mimiaga, The Cortez Journal, jmimiaga@the-journal.com; Philip Poston, the Aurora Sentinel, pposton@sentinelcolorado.com; Olivia Emmer, the Mt. Sopris Sun, olivia@soprissun.com; Priscilla Waggoner, the Valley Courier, pwaggoner@alamosanews.com; and Tara Flanagan, the Ark Valley Voice, tara@arkvalleyvoice.com.
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.
The 96-degree heat has barely broken early on a September evening near Fruita, Colo. As the sun prepares to set, the ailing Colorado River moves thick and quiet next to Interstate 70, crawling across the Utah state line as it prepares to deliver billions of gallons of water to Lake Powell, 320 miles south.
This summer the river has been badly depleted—again—by a drought year whose spring runoff was so meager it left water managers here in Western Colorado stunned. As a result Lake Powell is just one-third full and its hydropower plants could cease operating as soon as July of 2022, according to the U.S. Bureau of Reclamation.
“We’re looking at a very serious situation from Denver all the way to California and the Sea of Cortez,” said Ken Neubecker, an environmental consultant who has been working on the river’s issues for some 30 years. “I’ve never seen it in a worse state.”
The Colorado River Basin is made up of seven states. Colorado, Wyoming, Utah and New Mexico comprise the upper basin and are responsible for keeping Lake Powell full.
Arizona, California and Nevada comprise the lower basin and rely on Powell’s larger, downstream sister reservoir, Lake Mead, just outside Las Vegas, to store water for delivery to Las Vegas, Phoenix, Los Angeles and more than 1 million acres of farmland.
These are two of the largest reservoirs in the United States. Few believed Mead, built in the 1930s, and Powell, built in the 1960s when the American West had just begun a 50-year growth spurt, would face a future where they were in seeming freefall. The two reservoirs were last full in 2000. Two years ago they dropped to 50% of capacity. Now they are operating at just over one-third their original 51 million-acre-foot combined capacity.
First-ever drought accord
Two years ago, this unprecedented megadrought prompted all seven states to agree, for the first time, to a dual drought contingency plan—one for the upper basin and one for the lower. In the lower basin, a specific set of water cutbacks, all tied to reservoir levels in Mead, were put in place. As levels falls, water cutbacks rise.
Those cutbacks began this year in Arizona.
But in the upper basin, though the states agreed to their own drought contingency plan, they still haven’t agreed on the biggest, most controversial of the plan’s elements: setting aside up to 500,000 acre-feet of water in a special, protected drought pool in Lake Powell. Under the terms of the agreement, the water would not have to be released to lower basin states under existing rules for balancing the contents of Powell and Mead, but would remain in Powell, helping to keep hydropower operations going and protecting the upper basin from losing access to river water if they fail to meet their obligations to Arizona, Nevada and California.
Rancher Bryan Bernal irrigates a field that depends on Colorado River water near Loma, Colo. Credit: William Woody
The pool was considered a political breakthrough when it was approved, something to which the lower basin states had never previously agreed.
“It was a complete reversal by the lower basin,” said Melinda Kassen, a retired water attorney who formerly monitored Colorado River issues for the Theodore Roosevelt Conservation Partnership.
But the idea was controversial among some powerful upper basin agricultural interests. Ranchers, who use some 80% of the river’s water, feared they would lose too much control of their own water supplies.
Seeking volunteers
As proposed, the drought pool would be filled voluntarily, largely by farmers and ranchers, who would be paid to temporarily dry up their hay meadows and corn fields, allowing the saved water to flow down to Powell.
Two years ago, when the drought contingency plan was approved, the four upper basin states thought they would have several years to create the new pool if they chose to.
But Powell’s plunging water levels have dramatically shortened timelines. With a price tag likely in the hundreds of millions of dollars, confusion over whether saved farm water can be safely conveyed to Powell without being picked up by other users, and concerns over whether there is enough time to get it done, major water players are questioning whether the pool is a good idea.
“It was probably a good idea at the time and it’s still worth studying,” said Jim Lochhead, CEO of Denver Water, the largest water utility in Colorado. “But it can’t be implemented in the short term. We don’t have the tools, we don’t have the money to pay for it, and we don’t have the water.”
Neubecker has similar concerns. “I fear it’s going to be Band-Aid on an endlessly bleeding problem…we need to do more.”
Since 2019 the State of Colorado has spent $800,000 holding public meetings and analyzing the legal, economic and water supply issues that would come with such a major change in Colorado River management.
Still no decisions have been made.
A call to act
Becky Mitchell is director of the Colorado Water Conservation Board, which is overseeing the analysis.
Aware of frustration with the state’s progress on studying the drought pool’s feasibility, formally known as its demand management investigation, Mitchell said the work done to date will help the state better manage the river in a drier future with or without the drought pool.
“We’re still ahead of the game in terms of what we’ve done with the study. The other states are looking at feasibility investigations but ours has been incredibly robust,” Mitchell said. “If we’re going to do it we have to do it right and factor all these things in. Otherwise we’re going to be moving backward.”
One example of a step forward is that new tools to measure water saved from fallowing agricultural land are now being developed.
A large-scale experiment in a swath of high-altitude hayfields near Kremmling has demonstrated that ranchers can successfully dry their fields and deliver Colorado River water to the stream in a measurable way, and the data is considered strong enough that it could be used to quantify water contributions to the drought pool.
Ranchers Joe Bernal, left, and his son Bryan inspect a feed corn field that depends on Colorado River water near Loma, Colo. Credit: William Woody
But other regulatory and physical barriers remain.
Under Colorado’s water regulations, rivers are only regulated where they cross state boundaries when water is scarce and the state would otherwise be unable to meet the terms of agreements with downstream states. But this is not yet the case on the Colorado River and its tributaries, so rules for determining who would get what in the event of cutbacks haven’t been developed.
In addition, because there has never been a so-called “call” on the Colorado River, the state has yet to require that all those who have diversion structures pulling from the Colorado River system measure their water use.
The situation is changing fast, though, with the 20-year drought and the storage crisis at Powell and Mead increasing pressure on state regulators to take action.
Now the state is taking steps to better monitor the river and its tributaries, moving to require that all diversion structures have measuring devices so it has the data it needs to enforce its legal obligations to the lower basin. If, for instance, some water users had to be cut off to meet the terms of the 1922 Colorado River Compact, the state could manage those cutbacks based on the water right decrees users hold that specify amount and priority date of use.
Such data would also be needed to administer a mass-fallowing program to help fill the Lake Powell drought pool.
Kevin Rein, Colorado’s State Engineer and top water regulator, said what’s known as the mainstem of the Colorado River is fairly well monitored but major tributaries, such as the Yampa and Gunnison, are not.
“A lot of tributaries don’t have the devices,” Rein said, adding that the state doesn’t know the extent of the problem. “But in important areas a lot of commissioners know there is a significant lack of measurement devices and that makes water administration difficult.”
Joe Bernal is a West Slope rancher whose family has been farming near Fruita since 1920. He has water rights that date back to 1898 and, like others in this rich agricultural region, he and his family have abundant water.
Bernal was an early supporter of the drought pool. He and his family participated in an experimental fallowing program in 2016, where they were paid to dry up their fields. He’s confident the problems can be solved.
But he’s also worried that the 500,000 acre-foot pool may not hold enough water to stabilize the river system and that it may not be done fast enough.
“We want to be sure the solution does some good, but the clock is ticking,” he said. “We don’t want to change the culture of this valley or our ability to produce food. But I think things need to move faster. We are taking too long implementing these solutions.”
Checking the averages
As Powell and Mead continue to drop—they were roughly half full just two years ago— Mitchell and Rein are quick to point out that Colorado remains in compliance with the 1922 Compact, which requires the upper basin to ensure 7.5 million acre-feet of water reaches the lower basin at Lee Ferry, Ariz., based on a 10-year rolling average. Right now the average is at roughly 9.2 million acre-feet, although it too is declining as the upper basin’s supplies continue to erode due to drought and climate change.
The Colorado River flows past fruit orchards near Palisade, Colo. Credit: William Woody
Climate scientist and researcher Brad Udall has estimated that the upper basin may not be able to deliver the base 7.5 million acre-feet in a year as soon as 2025. But the upper basin would remain in compliance with the 1922 Compact even then because the rolling average remains healthy.
Still, if the reservoirs continue to plummet as quickly as they have in the past two years, when they dropped from 50% to 30% full, the upper basin could face a compact crisis faster than anyone ever anticipated.
Major water users in the state, such as Denver Water, Northern Water and Pueblo Water, have water rights that post-date, or are junior to, the 1922 water compact, meaning their water supplies are at risk of being slashed to help meet lower basin demands.
The big dry out
Many river advocates hope the drought pool is approved because they believe it is an opportunity to test how the river and its reservoirs will work as the region continues to dry out.
“What we knew in 2018 [when the drought pool was conceived] is that we have more to do,” said Kassen. The drought pool, she said, “was a big win and offers a way of testing what the upper basin can do. It’s squandered if they don’t use it.”
Neubecker and others say it’s becoming increasingly clear that the river’s management needs to be re-aligned with the reality of this new era of climate change and multi-year drought cycles.
And that means that water users in the lower basin and upper basin will need to learn to live with how much water the river can produce, rather than how much a century-old water decree says they’re legally entitled too.
“We’re facing a 21st Century situation that was totally unforeseen by anyone,” Neubecker said, “and we no longer have the luxury of time.”
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.
A kayaker runs the 6-foot drop of Slaughterhouse Falls on the Roaring Fork River in June 2021. River recreation and conservation groups are pushing a bill that aims to establish a recreational in-channel values reach designation, which would create a legal mechanism to lease water for river recreation. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
By giving up the push for a legal mechanism to secure a water right, some in Colorado’s recreation community are hoping proposed legislation will result in more water in streams for the benefit of boaters.
A new bill would allow certain public entities to create a “recreation in-channel values reach” (RIVR), a stretch of river up to 400 yards long, which is important to boaters, anglers and waders. Holders of this RIVR segment could then lease water, which would be sent downstream to boost flows in the segment.
“We are seeing it as a tool to move water to a place where it’s going to benefit the community and it provides the tool to be able to legally do that,” said Hattie Johnson, the southern Rockies stewardship director at American Whitewater.
The proposal is an attempt to carve out a spot for — and recognize the importance of — Colorado’s outdoor-recreation economy in the hierarchy of water uses, which prioritizes the oldest water rights, usually belonging to agriculture and cities.
The new bill would allow a municipality — for example, Steamboat Springs, where officials have in recent years closed a stretch of the Yampa River through town when summer temperatures are too high and flows too low — to buy and release upstream water to boost the troubled reach. It could allow communities to avoid fishing closures during late summer or to make sure flows are adequate for a boating festival.
“We see it as a way that rural communities that are looking at river-based recreation as an economic development strategy to have a tool and security to back up that investment,” said Alex Funk, director of water resources and senior counsel at the Theodore Roosevelt Conservation Partnership. “We see it as a flexible way for communities to utilize their river corridors in a creative way and support a burgeoning outdoor-recreation economy in Colorado.”
Heavy machinery in the Roaring Fork River in Basalt in February, 2018, working on the second effort to sculpt surf waves in a whitewater park, just above the Fork’s confluence with the Fryingpan River. A new bill aims to secure water for designated recreational stretches of river without having to get a water right. CREDIT: BRENT GARDNER-SMITH/ASPEN JOURNALISM
Evolution from RICD water right
The RIVR proposal evolved from one that river-recreation groups were working on last year, which would have allowed natural river features such as a wave or a rapid to get a water right. The plan was opposed by some, including Front Range water providers, who did not want to lock up water in the river and prevent its future development.
The Pitkin County Healthy Rivers board wrote the lone letter in support of last year’s proposal and said it will probably support the RIVR bill as well. The board listened to a presentation from Johnson at Thursday’s monthly board meeting.
“It makes sense, the concept that you don’t have to build a structure,” said Healthy Rivers chair Chris Lemons.
The new proposed legislation without a secured water right is something of a concession to opponents.
“Having a legal right to the water, that’s huge,” Johnson said. “That’s how our whole system works, and it gives you standing on par with all the traditional water users, and we did give that up.”
But proponents say the new, innovative strategy has the potential to be even more effective than last year’s proposal at ensuring that there is enough water for recreation. Under Colorado water law, older water rights have first use of the river.
“Under the traditional water-right process, these would have been extremely junior in terms of their priority date, so rarely, if ever, could have called out water to meet this need,” Funk said. “With the older model, you have the security of a water right, but it was always going to be low on the tier.”
Environmental and recreation interests typically have taken a backseat to traditional water users such as agriculture and cities, even as Colorado’s economy is increasingly fueled by outdoor recreation and tourism. The recognition of recreation as a “beneficial use” of water happened only two decades ago with the creation of a recreational in-channel diversion (RICD) water right.
Several communities around the state have RICDs, which give a water right to a specific river feature. But these must be human-made, such as the kayak waves that Pitkin County built on the Roaring Fork River in Basalt. Last year’s effort, which was scrapped in favor of the new RIVR legislation, attempted to give RICD water rights to a naturally occurring feature.
Josh Kuhn, water advocate with Conservation Colorado, said the problem is that the RICD statute has not kept up with the different kinds of river recreation, such as fly-fishing and stand-up paddle boarding, the latter of which has exploded in popularity in recent years. A RICD is tailored primarily to kayakers who like playboating.
“The problem remains that Colorado water law is just not keeping up with the increased demands on rivers and streams,” Kuhn said. “(The RIVR proposal) provides greater flexibility with the way we manage our water resources and the communities that are dependent upon it.”
So far, Front Range water providers, who were opposed to last year’s proposal, have not weighed in on the new RIVR legislation. The bill has not yet been introduced in the general assembly but is expected to be sponsored by state Rep. Dylan Roberts, who represents District 26 in Eagle and Routt counties.
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.
