A center pivot irrigates a field in the San Luis Valley, where state regulators are warning that a deadline to shut off wells to help restore flows in the Rio Grande River might be coming sooner than expected. Credit: Jerd Smith
Imposing hefty taxes on speculative water sales, requiring that water rights purchased by investors be held for several years before they can be resold, and requiring special state approval of such sales are three ideas that might help Colorado protect its water resources from speculators.
The ideas were discussed Wednesday at a meeting of a special work group looking at whether Colorado needs to strengthen laws preventing Wall Street investment firms and others from selling water for profit in ways that don’t benefit the state’s farms, cities and streams.
The anti-speculation group was created last year by lawmakers and is charged with reporting back to them this August.
As prices for Colorado’s water have soared and Wall Street firms and others have begun buying up agricultural lands and their associated water rights, concern is rising that the state could lose control of its vast, though heavily used, streams and rivers.
“It’s a tough nut to crack,” said Joe Bernal, a rancher and work group member from the Grand Valley on the West Slope, where hedge funds are actively buying land and water.
Water has always been a scarce resource in Colorado. In the late 1800s, as miners and farmers were moving in, the state developed a system so that no one could hoard water, drive up its price, and profit from its sale. To combat the problem, it was required that water rights be granted only to those who could put them to beneficial use, whether in farm fields or mines, or in people’s homes and businesses.
Under state law, water is considered a public resource. But once obtained, water rights are considered a private property right and can be bought and sold in transactions that, depending on circumstance, may require review and approval from the water courts.
Colorado already has some of the strictest anti-speculation laws in the West.
But the rise in water prices and the purchase of water-rich farms and ranches on the West Slope by deep-pocketed, out-of-state investment firms, as well as in-state efforts to export water from the San Luis Valley, prompted lawmakers in late 2019 to call for more work on the issue.
The work group has yet to make any formal recommendations, but Alex Davis, an attorney for Aurora Water and work group member, said new ideas have to be considered because Colorado’s existing laws were written more than 100 years ago, long before hedge funds existed.
“This idea of appropriating water rights and not using them, we have that covered,” Davis said. “It’s well prevented by the laws that exist. It’s the financial speculation that we’re focused on here. How do you prevent it? It’s a very difficult question.”
Imposing a hefty tax on any profits made in a speculative sale, similar to a capital gains tax, could serve as a disincentive to investors, Davis said.
Still another work group member, Adam Reeves, an attorney with the Denver- and Durango-based firm Maynes, Bradford, Shipps and Sheftel, said forcing certain investors to hold onto water rights for several years before being allowed to sell them again could provide another powerful disincentive.
Still others suggested some kind of state approval by existing water courts or other state authorities could be required, effectively limiting any sales deemed speculative.
But key to any of these tools is defining what is and isn’t speculation.
“What are the criteria by which you determine that ‘x’ investment is speculative and ‘y’ investment is not?” Davis asked. “Any time anyone purchases an asset it’s an investment…when does it become an investment that is problematic or predatory? Is a Colorado billionaire different than a New York billionaire?”
Bernal said any definition of speculation should consider whether transactions in which cities are buying agricultural water with an intent to permanently remove it at some future date to serve a growing population could also be considered speculative and therefore subject to some limitation.
“The concern we all have here is where it might go and who will end up with it. Is it right, is it proper that it go to large municipalities?” Bernal asked. “Why are some of these transactions bad because of who they involve, and what limitations do we put on these transactions, and how does that affect people who’ve owned the water traditionally? Is there something we need to do that doesn’t interfere with private property transactions?”
Work group member Peter Fleming, a water attorney for the Glenwood Springs-based Colorado River District, said the state should be careful not to limit investment in ways that are harmful.
“There is no risk to Coloradans from a non-speculative investment in water,” Fleming said. “We need that to increase productivity and maximum utilization of the state’s water resources.”
The work group has six months to finish its research and craft recommendations for lawmakers to consider later this summer.
The group plans to meet next in March, though a date has not yet been set.
Correction: An earlier version of this article stated that water rights can be bought and sold only after approval by the water courts. In fact, that approval is not always necessary depending on the nature of the transaction.
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.
Sara Kuta contributed to this article.
This article originally appeared on Fresh Water News. 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 Green River at the Gates of Lodore in Dinosaur National Monument. A key goal of the Colorado Water Plan is preserving water for the state’s hallmark rivers and its recreation industry. Sept. 25, 2020. Credit: Mitch Tobin, The Water Desk
In the five years since Colorado’s Water Plan took effect, the state has awarded nearly $500 million in loans and grants for water projects, cities have enacted strict drought plans, communities have written nearly two dozen locally based stream restoration plans, and crews have been hard at work improving irrigation systems and upgrading wastewater treatment plants.
But big challenges lie ahead — drought, population growth, accelerating climate change, budget cuts, wildfires and competing demands for water, among others.
And though the state has made progress on the plan’s ambitious goals and funding needs since November 2015, it hasn’t yet been able to secure the estimated $100 million needed each year through 2050 to fully fund the plan.
Colorado water leaders are optimistic about advances made under the plan thus far. But they acknowledge that this five-year milestone is just the beginning of a long-term effort with no easy path forward. The plan is also undergoing a comprehensive update that will help refine its direction moving forward by incorporating lessons learned and better data.
“Five years in water time is really a blink of an eye,” said Lauren Ris, deputy director for the Colorado Water Conservation Board (CWCB), the statewide water policy agency tasked with administering the plan. “Even though we’re so proud of the progress we’ve made, we’ve got a lot of work in front of us. There’s a lot to celebrate but I also think we can’t rest too much on our laurels here.”
The water plan, explained
The plan provides a framework for ensuring there’s enough good-quality water for all of Colorado’s diverse users, as well as the state’s downstream neighbors. Gov. John Hickenlooper called for the plan’s creation in May 2013, which set in motion 30 months of meetings, public input, writing and reviewing to ultimately create the 567-page plan.
Forecasts show water supplies will not keep pace with demand by 2050 for agricultural (Ag) or municipal and industrial (M & I) needs if Colorado does not find new approaches. Source: 2019 Analysis and Technical Update to the Colorado Water Plan
Colorado has long faced unique water challenges in part because its high-altitude rivers deliver water to 18 other states and Mexico, activity that is carefully governed by legal agreements that include compacts and treaties. Accelerating climate change and rapid population growth have only added more complexity. Colorado’s population is expected to grow as high as 8.1 million by 2050, up from 5.76 million in 2019, with much of that growth occurring on the East Slope. Meanwhile, 70 to 80 percent of the state’s water originates on the West Slope.
Colorado’s population could grow by varying degrees depending on variables like economic growth, with the most significant growth in the South Platte Basin and metro area.
Many Colorado water leaders agree that the plan — and the multi-year processes for creating and updating it — has fostered an authentic spirit of collaboration. Even if they disagree, people have to work together to find common ground because the plan prioritizes projects that achieve multiple benefits, which in turn makes them more likely to receive state funding.
“Collaboration is now the starting point of conversations about water and maybe that wasn’t always true before,” said Russ Sands, water supply planning section chief for the CWCB. “Like any dinner party, you have some strong conversations and it’s hard. But then ultimately, we do come together around these multi-purpose, multi-benefit projects.”
Key to putting the plan to work are the public roundtables in each river basin, whose volunteer members are charged with identifying each region’s needs and the methods and funding to meet those needs.
The plan hasn’t completely eased tensions, but it has given water users a forum for voicing their opinions, popular or unpopular. And, perhaps above all else, it has succeeded in keeping water top of mind.
“The best thing the water plan has done is kept the water problem in everybody’s face,” said Max Schmidt, manager of the Orchard Mesa Irrigation District and Grand Valley Project Power Plant. “Traditionally, we have a dry year and everybody gets all worried. Then the next year’s a wet year and everybody forgets about it. People are now saying, ‘This is a long-term, serious problem.’”
Progress under the plan
Work on the plan is occurring mostly on specific projects in Colorado’s eight river basins, which are often funded by loans and grants administered by the CWCB. Five years in, the plan has provided $63.5 million in grants to 241 projects, and $420 million in loans to 82 projects.
According to the CWCB’s data, 76 percent of the plan’s actions have been initiated or completed, but how this translates to progress on the plan’s eight measurable objectives isn’t clear yet. Those objectives set measurable targets for things like water conservation, new water storage, and water-smart land use, as well as informing the public. When asked about progress toward the objectives, the CWCB said it is no longer calculating specific progress metrics using the objectives but is instead tracking new projects or programs that work toward the goals outlined in the plan.
Since taking office in 2019, Gov. Jared Polis has made water one of his “Wildly Important Goals,” issuing a call to the CWCB and roundtables to create a database of 500 local water projects that are ready or nearly ready to launch and are backed by strong data demonstrating costs and potential outcomes.
While the “water WIG,” as it is known, did not come with any funding attached, the exercise has forced local water leaders to refine, prioritize and provide cost estimates for their most promising ideas.
Though the focus on specific projects has been effective for achieving goals in each river basin, some water leaders feel the plan doesn’t go far enough to address statewide issues.
“We need to think more broadly about water,” said Kathleen Curry, chair of the Gunnison Basin Roundtable on the West Slope, rancher and lobbyist. “Having a project-specific focus is great if you’re the entity pushing the projects, but really, overall forest health, stream measurement, snowpack measurement, some of the overall statewide water supply challenges that are out there, those need to be part of the plan as well. [We need to] make sure the plan isn’t simply a laundry list.”
Funding wins and challenges
Since the Colorado Water Plan’s inception, state funding for implementation has ranged from a low of $5 million in 2016 to $30 million in 2019, far short of the estimated $100 million needed each year through 2050
In 2020, lawmakers appropriated $7.5 million for the water plan, however, that money is expected to be stretched over three years because of declining oil and gas severance tax revenue and the economic consequences of COVID-19 on the state budget. Many other water-related programs are also not expected to receive additional funding in the near future, according to CWCB spokesperson Sara Leonard.
Southwest of Denver, partners used water plan funding to reallocate Chatfield Reservoir’s storage space to make room to store water for farms and cities as well as environmental flows, while maintaining its historical ability to control flooding. Credit: Mitch Tobin, The Water Desk with aerial support provided by LightHawk.
The plan got a new funding source in 2019 when voters approved Proposition DD, which legalized sports betting and directed tax revenue to the water plan.
Sports betting got off to a slow start in the spring of 2020, thanks to the near-total shutdown of sporting events because of the coronavirus pandemic. But activity picked up speed during the second half of the year, generating $3.4 million in taxes between May and December, double the estimated $1.5 million to $1.7 million per year.
Though not an immediate source of cash, the sports betting initiative was a big win in a state where voters have historically balked at statewide funding for water.
“The water plan requires about $100 million a year in sustainable funding to meet many of the goals outlined for 2025, 2030, 2050,” said Alec Garnett, D-Denver, the lead sponsor of the sports betting bill. “We never thought Prop DD was going to achieve that annual goal, but at least it established a reliable critical revenue source.”
Garnett said he always envisioned general fund money, plus the sports betting tax revenue, to help get the water plan closer to $100 million a year, but this year’s state budget challenges showed just how fraught that path forward may be. Since its launch, lawmakers have contributed general funds to the plan just once.
“Our economy and state budget have been turned upside down by the pandemic and we have to move through this period before we can talk about sustainable funding,” Garnett said. “It’s just hard to navigate with the changing environment.”
There were other wins for water funding over the last five years, too. Several local water districts and initiatives found success at the polls, garnering millions of dollars in new taxpayer support for an array of local and regional goals aligned with the plan.
In November 2020, voters approved property tax increases to support water projects in the Glenwood Springs-based Colorado River Water Conservation District and the Longmont-based St. Vrain and Left Hand Water Conservancy District.
“We’re already seeing where [funding is] being piecemealed together so maybe it’s statewide or maybe it’s a local thing,” said Garrett Varra, who chairs the South Platte Basin Roundtable and sits on the board of the St. Vrain and Left Hand Water Conservancy District. “Voters are more apt to trust people they know and be able to sit down and talk with directly than maybe the state Legislature itself or the CWCB or whoever it is. One way or another, whether it’s done region by region or statewide, it will happen at some point.”
Looking ahead
Colorado water leaders are in the middle of a comprehensive water plan update that will conclude in 2022. The update will incorporate five potential supply and demand scenarios for Colorado water in 2050, created by adjusting variables like water availability, climate change and population growth.
“It’s about choices that we make,” said the CWCB’s Ris. “We’re not locked into any future, that we have the ability to make choices in how we deal with everything coming down the pipe, including population growth, funding, climate change.”
Using the various planning scenarios and other data, the CWCB has also developed new tools to help estimate the environmental impacts and costs of water projects, as well as the costs and consequences of doing nothing. The board also created a new “Engage CWCB” website to encourage more community engagement with the plan.
This month, the Interbasin Compact Committee, a statewide board charged with helping shape policy and coordinating among the various river basins, will re-ignite talks about how best to fund the water plan and, ultimately, achieve its goals.
Set against the backdrop of record-setting wildfires, intensifying drought in the Colorado River Basin and other parts of the state, escalating climate change, and fears around potential water speculation, state water leaders say that funding can’t come soon enough.
“There’s a lot of talk about how do we get to that $100 million mark with the ever-increasing challenges that Colorado faces, with climate change happening faster than anyone really thought, even in 2015 when the water plan was created,” said Garnett.
Clarification: An earlier version of this article contained a graphic that incorrectly portrayed Water Supply Reserve Funding support as being separate from the main Water Supply Reserve Fund. The two figures have been combined and equal $74.4 million.
Sarah Kuta is a freelance writer based in Longmont, Colorado. She can be reached at sarahkuta@gmail.com.
Graphics created by Chas Chamberlin, principal with cdcgraphics. He can be reached at chasdcham@gmail.com.
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.
This pond is in Red Rock Canyon Open Space in Colorado Springs. State water engineers are beginning an evaluation of ponds without legal water rights throughout the Arkansas River basin. Credit: Colorado Division of Natural Resources
State engineers in the Arkansas River basin are beginning to crack down on more than 10,000 ponds without legal water rights, which they say are harming senior rights holders.
Last month, Colorado’s Division of Water Resources in Division 2 rolled out a new pond-management plan, which they say will help relieve pressure in the over-appropriated basin by restoring water to senior rights holders. The first step was mailing on Jan. 14 informational brochures to 317 pond owners.
Even though the ponds targeted in this effort may have existed for many decades, they don’t have a legal right on the books to divert and store the water. The main concern with these ponds is water loss through evaporation. According to the brochure, for every acre of pond surface area, up to 1 million gallons of water — which is just over 3 acre-feet — is lost to evaporation each year. Division 2 Engineer Bill Tyner said, “Tens of thousands of acre-feet over time would be maintained in the Arkansas River system with a pond-management system in place.”
Although the cumulative water loss could threaten Colorado’s ability to meet its obligations to deliver water to Kansas under the Arkansas River Compact, the main issue is injury to senior water users. Added together, these ponds without a water right could deplete enough water that it makes it hard for these senior water rights holders to get the full amount to which they are entitled.
“Once we put the data together and we could look at the images of ponds and get a count of the number and relative sizes on average of those ponds, it did make us just very sure that this was a problem that could have some very negative consequences for the basin if we didn’t get more aggressive about the way that we took it on,” Tyner said.
Front Range water users divert water from the headwaters of the Roaring Fork and Fryingpan rivers into the Arkansas Basin, but the new pond-management plan probably won’t affect those transmountain diversions, Tyner said.
According to Colorado water law, anyone is allowed to divert water from a stream simply by putting it to beneficial use as long as it does not harm senior water-rights holders. To protect their ability to keep using the water and save their place in line, most users make their water right official by getting a decree through water court. This enshrines the water right in Colorado’s system of prior appropriation in which older water rights have first use of the river.
Because these undecreed ponds don’t have an official water right, they are taking water out of priority, which amounts to stealing water from senior users.
Matt Heimerich, the consumptive-use representative on the Arkansas River Basin Roundtable, said that over the past two decades the Arkansas River system has been under incredible pressure because of erratic and below-average flows. He described the shifting baseline of what constitutes a severe drought.
“It seems to me we just keep moving the bar lower,” he said. “How bad can the river get? We are always looking for the next threshold.”
Drought and warming temperatures fueled by climate change comprise the backdrop for the implementation of the pond-management plan.
This pond in Chaffee County near Salida is one of thousands in the Arkansas River Basin that is being evaluated by the Division 2 engineer’s office as part of a new pond management program. Engineers say ponds without decreed water rights could injure senior water rights holders. Credit: Colorado Division of Natural Resources
This pond in Chaffee County near Salida is one of thousands in the Arkansas River Basin that is being evaluated by the Division 2 engineer’s office as part of a new pond management program. Engineers say ponds without decreed water rights could injure senior water rights holders.
Augmentation plans
In order to be allowed to keep water in a pond, pond owners must replace the water loss to the system, usually through what’s known as an augmentation plan.
In some areas in Division 2, pond owners can purchase water to replace their depletions through a conservancy district. Salida-based Upper Arkansas Water Conservancy District offers this replacement water, but manager Ralph “Terry” Scanga doesn’t believe there is enough water to fully augment all the ponds in the already over-appropriated basin.
“That’s a concern of mine because that’s a lot of water,” Scanga said. “I don’t think it’s being overstated what the impact could be.”
Scanga, who also serves on the Arkansas River Basin Roundtable, said it may be time to prioritize certain water uses over others. Having domestic water for use in homes may be more essential than ponds for aesthetic purposes, he said.
“You may want that pond and you may have enough money to purchase that augmentation plan from the district, but is that a wise use of that resource?” Scanga said. “Those are the real hard questions that need to be asked.”
Un-decreed ponds can be found throughout the state, including in the Roaring Fork watershed. Last fall, Division 5 engineers issued five cease-and-desist orders for ponds without water rights that they said were out of priority and depleting the Colorado River system.
So far, state engineers are focusing their pond-management plan on just the Arkansas River basin; it’s not yet a statewide program. Still, Tyner said it’s a big undertaking for his division. It could take five years for engineers and water commissioners to work their way through all the ponds.
“How do you eat an elephant? It’s one bite at a time,” Tyner said. “Our approach is to be systematic about it and fair as we go.”
Aspen Journalism covers water and rivers in collaboration with Swift Communications newspapers. Its water desk is supported by Sam Walton via the Catena Foundation. This story ran in the Feb. 1 edition of The Aspen Times.
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.
An excavator works in the bed of the Roaring Fork River near Basalt below a temporary dam. Boulders were being arranged to create one of two grade-control structures that will smooth out a section of river previously home to a steep drop created by a weir that channeled water to a diversion ditch. Credit: Curtis Wackerle/Aspen Journalism
By Curtis Wackerle
Work currently underway in the Roaring Fork River between old town Basalt and Willits will make for a smoother ride for boaters beginning this spring.
The project, with an estimated price tag of $935,000, requires a temporary cofferdam during construction across much of the river’s channel, with heavy machinery in the exposed river bed. It will create two new “grade-control” structures to replace a weir that was used to channel water toward a diversion for the Robinson Ditch. That weir created a difficult passage for boaters that was often referred to as Anderson Falls.
Instead of that steep drop with no clear passage around or through, the project has been designed by Carbondale-based River Restoration to create a gradual riffle drop between the grade-control structures. The Robinson Ditch diversion structure, which delivers raw water for outdoor irrigation from April through October to customers in the Mid Valley Metropolitan District, will also be rebuilt as part of the project.
An excavator arranges boulders to create one of two grade-control structures in the Roaring Fork River, part of a $935,000 project to smooth out a section of river previously home to a steep drop. Credit: Curtis Wackerle/Aspen Journalism
Work on the project, which was approved for funding in March by Pitkin County’s Healthy Rivers and Streams board of directors, began in December and is permitted to take place through March 15, said Quinn Donnelly, an engineer with River Restoration.
The weir, he said, created “probably one of the bigger navigation hazards” on the Roaring Fork, resulting in many boaters avoiding that stretch, which is just above a boat ramp near the FedEx facility off of Willits Lane. “We are trying to make a natural riffle here” that meets the needs of boaters, Donnelly said. Making that stretch of the middle Roaring Fork more accessible might also have the added benefit of taking pressure off other stretches of river and more crowded boat ramps farther downvalley, he said.
The project should also improve fish habitat as water scours the riverbed around the newly placed boulders.
The cofferdam is blocking the river across most of the channel, funneling the Roaring Fork’s winter flow into a series of culverts on river right. On Thursday morning, an excavator was picking up 3- to 6-foot-diameter boulders and arranging them in a line to form the upper grade-control structure. The site is visible from the bike path connecting Willits Lane to Emma Spur.
Donnelly said that most of the boulders that were being placed this week will be buried by alluvium below “scour depth,” with more rocks placed on top. The project has been designed to keep the ditch headgate clear of sediment and debris carried downstream.
Once the grade-control structures are completed, the current cofferdam will be removed. A second temporary cofferdam will be installed at river right to allow for the new headgate to be built. That, too, will be removed before the project is complete and the river flows unimpeded through the section.
As of last year, project planners had secured $256,200 in grants, including a $171,216 Colorado Water Plan grant and a $45,000 Water Supply Reserve Fund grant from the Colorado Water Conservation Board, as well as a $40,000 Fishing Is Fun grant from Colorado Parks and Wildlife.
Pitkin County’s Healthy Rivers fund, supported by a 0.1% sales tax, will cover the difference when all grants have been applied, said Lisa MacDonald, who works in the Pitkin County Attorney’s Office and provides staff support for the Healthy Rivers program.
MacDonald and Donnelly credited the Roaring Fork Conservancy and the Roaring Fork Fishing Guide Alliance for supporting the project. Donnelly noted that in any river project, there are myriad interests in play involving water users, riparian habitat and recreation. It is a balancing act, he said, but a successful model involves bringing stakeholders together and that has been the goal here.
The Roaring Fork River flows through culverts while being channeled around a temporary dam put in place to allow contractors to work on a project to smooth out a section of river previously home to a steep drop. Anderson Falls, which was created by a weir that funneled water into a diversion ditch, will be gone this spring. Credit: Curtis Wackerle/Aspen Journalism
Robinson Ditch Co. president Bill Reynolds, who is also the director of the Mid Valley Metropolitan District, said he’s happy to see the project making progress and believes it will enhance the experience for river users.
The ditch company paid for the engineering and design of its diversion infrastructure, he said. That infrastructure makes it possible for users in a wide swath of the midvalley to irrigate using raw water, as opposed to more-expensive treated potable water, which the district also provides via a series of wells, he said.
Ditch companies typically rely on government grants to make infrastructure improvements, he said, expressing gratitude for Pitkin County’s model of supporting river projects.
“Pitkin County and the funding mechanisms they’ve been using have been a blessing,” Reynolds said.
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 Lady Luck Casino in Central City. Sports betting, after a slow start, is generating more tax revenue than early Covid-related estimates indicated. Credit: Jerd Smith
By Sarah Kuta
Coloradans legally bet more than $1.1 billion on sports in 2020, exceeding expectations and funneling some cash to the Colorado Water Plan sooner than anticipated.
Colorado collected more than $3.4 million in sports betting taxes in 2020, with operators running from May through December. Voters agreed to legalize and tax sports betting in November 2019 with the passage of Proposition DD, which also directed much of the tax revenue to the Colorado Water Plan, a comprehensive vision for the state’s water future created in 2015.
Colorado’s fiscal year runs from July 1 to June 30, which makes the sports betting numbers even more promising, since December was only the halfway mark for the current fiscal year. From July to December 2020 — the first half of the current 2020-21 fiscal year — Colorado collected $3.1 million in sports betting tax revenue.
Even with six months remaining in the fiscal year — a span that includes big-time sporting events like the Super Bowl, March Madness, the Kentucky Derby and more — that $3.1 million is already double the gaming division’s initial projections of $1.5 million to $1.8 million for the full 2020-21 fiscal year. That means the Colorado Water Plan could see sports betting funds as soon as this fall, a year earlier than initially projected.
“We took a very conservative approach based on how fast the market would pick up, how fast people would embrace it, what effect we were going to have on moving people from the black market to the regular market, and we’ve just really blown all of those things out of the water — no pun intended for the water front,” said Dan Hartman, director of the Colorado Division of Gaming. “We really moved a lot of needles a lot further, a lot faster that we thought we were going to. We’re optimistic and really excited about where sports betting is and, ultimately, that there’s going to be better-than-projected amounts going to the water plan.”
Based on tax revenue collected in the first half of the current fiscal year, and factoring in the other ways sports betting tax revenue must be spent under the new law, the water plan so far stands to gain a little more than $1 million — and counting.
That’s still well short of the $100 million officials estimate they need each year in new funding to accomplish the water plan’s goals by 2050, but sports betting was never expected to fully fund the water plan — and every little bit counts, said Alec Garnett, D-Denver, the lead sponsor of the sports betting bill.
“We’ve always known that Coloradans love sports. We always knew that there was a black market and that people were already doing this,” Garnett said. “From a regulatory standpoint, I feel very strong and good about what these numbers mean for the market we created.”
If these early numbers are any indication, the sports betting program is likely to continue to grow in future years as the market matures and sports calendars get back to normal.
Though he has not created an official updated projection based on 2020’s wagers and tax revenue, Hartman said he believes annual sports betting tax revenue could double by next year.
“I’m comfortable in projecting that we’re probably on pace to do twice as much next year as we did this year,” Hartman said.
Sports betting got off to a slow start in Colorado, since it launched in the middle of the coronavirus pandemic when many sporting events were canceled. But as the sports betting program got underway and more live sporting events were held (often without fans in the seats), the tax revenue started growing.
Even so, before any of that money goes to the Colorado Water Plan, the gaming division must first pay back the $1.7 million lawmakers allocated from the state’s general fund to start the new sports betting program, which will likely happen at the beginning of March, Hartman said. The program’s ongoing operating costs are paid for with fees from licensed sports betting operators in the state, which now number 17.
The gaming division must also set aside 6 percent of tax revenue for a hold-harmless fund, provide $130,000 per year to the Colorado Department of Human Services’ Office of Behavioral Health, and give $30,000 per year to Rocky Mountain Crisis Partners to operate a gambling hotline.
Any remaining tax revenue can then go to the Water Plan Implementation Cash Fund, pending the approval of the Colorado Limited Gaming Control Commission, according to Suzi Karrer, a spokesperson for the Colorado Division of Revenue.
“The gaming commission will take that up in one of their meetings in the fall,” Hartman said. “Legislatively, it’s been turned over to the commission to follow the formula and give [the funds] to the beneficiaries.”
The early sports betting numbers were also a small bright spot for the Colorado Water Conservation Board (CWCB), the state agency tasked with administering the water plan, which expects to be rationing much of its current funding over the next two years.
CWCB hasn’t received any of the sports betting tax revenue yet and, since it’s difficult to predict how much Coloradans will wager in future years, the agency hasn’t yet made plans for spending it.
“Based on what has been collected so far, sports betting revenue does look promising as an additional — and more permanent — funding source for the water plan and important water projects, but again, it is still new, and we really don’t know yet what the revenue generation capacity will be,” said Sara Leonard, CWCB spokesperson.
As of right now, the CWCB is not planning to ask the Colorado Legislature to allocate funding to the Colorado Water Plan for the next two years and will instead rely on the 2020-21 allocation of $7.5 million, according to Leonard and state budget officials speaking at recent CWCB meetings.
The approval of the new sports betting tax, which created a dedicated funding source for the Colorado Water Plan, was an accomplishment in a state where voters have historically rejected statewide water funding efforts. But it’s still not enough to meet the ambitious goals outlined in the plan.
To that end, state and local water leaders plan to re-start conversations about water funding this month. Those talks will begin at the Feb. 23 meeting of the Interbasin Compact Committee (IBCC), according to the committee’s director Russell George. The IBCC, created in 2005, is a statewide public board that helps set policy and coordinate talks between river basins.
“We’re going to re-ignite that large discussion and see where we can go,” said George during his Jan. 25 update to the CWCB. “I don’t have to tell you the need for an input, an infusion of capital, in all of the things that we’re trying to do…It’ll just be the beginning of a conversation that I think’s going to go on until we’ve succeeded.”
Garnett said he wasn’t aware of any upcoming legislation related to new funding sources for the water plan, but said he was happy that funding for Colorado’s water future remains in the public eye.
“There’s just a lot of focus on this area because of the pressures that are being put on our most precious natural resource,” he said. “It’s always hard to find dedicated revenue streams in Colorado and it was certainly a hard process to get Proposition DD passed. I’m sure everyone has their eyes wide open about the challenges.”
Sarah Kuta is a freelance writer based in Longmont, Colorado. She can be reached at sarahkuta@gmail.com.
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 dam that forms Windy Gap Reservoir on the Colorado River, just below its confluence with the Fraser River in Grand County. The River District board approved $1 million toward a project to build a connectivity channel aimed at improving deteriorated conditions caused by the dam and reservoir. Photo by Brent Gardner-Smith/Aspen Journalism.
By Lindsay Fendt
The Colorado River Water Conservation District at a board meeting Tuesday voted to give $1 million of their taxpayer-raised funds to help construct the Colorado River Connectivity Channel, which will improve deteriorated conditions at the headwaters of the Colorado River.
“When I look at this, it has benefits that are assisting our communities in the damage caused by transmountain diversions,” River District General Manager Andy Mueller said during the meeting.
The district’s vote is the first step in a final push to fund and build the long-awaited channel, which has been in the works since the early 2000s. The connectivity channel is the first project to which River District board members have allocated money as part of the organization’s new Project Partnership Funding Program.
If built, the channel would mitigate much of the damage to the Colorado and Fraser rivers that has been caused by the Windy Gap reservoir in Grand County. While the channel itself has broad support, its fate is tangled in that of a more controversial project that will draw additional water from the Colorado River system.
The Berthoud-based Northern Colorado Water Conservancy District constructed the original Windy Gap Project in the 1980s to divert water from the Colorado River to customers across the Continental Divide.
“It’s an unchanneled reservoir, meaning that it’s just plopped right in the middle of the Colorado River,” said Mely Whiting, the legal counsel for Trout Unlimited. “It basically blocks the river all the way across, and that has serious consequences.”
The project cut off the river’s flow and led to large stretches of river that went dry. It caused sediment buildup and a documented decline in biodiversity below the reservoir, including a 38% loss of its aquatic insect species and declines in fish populations.
The connectivity channel, which is designed to undo some of this damage, would reconnect the Upper Colorado and Fraser rivers to the main stem of the Colorado by routing the river around the dam of the Windy Gap Reservoir, creating a path for fish, water and sediment to flow down the river.
Since the release of its original conceptual design in the early 2000s, the connectivity channel has seen its estimated costs grow from about $10 million to $23.5 million. The River District money would help close the remaining $7 million funding gap — but not completely. According to Mueller, the River District voted to give the money in hopes that it would entice other groups to do the same.
The project has been lauded as a rare example of collaboration in the world of water management. It carries support from an unusual coalition of environmental groups, local government and water-management groups on both sides of the Continental Divide. The River District is just one of 10 of the project’s financial backers, which include Northern Water, Grand County and the Natural Resources Conservation Service.
But the channel’s construction does come at a cost. Much of the funding for the project depends on the construction of the Windy Gap Firming Project — an expansion of the Windy Gap Project that would result in the construction of a 90,000-acre-foot reservoir in Larimer County.
To date, the Windy Gap’s junior water right has meant that the project’s managers have not been able to divert water in dry years and have not had a place to store water for their customers during wet years. The reservoir would give the project’s customers a consistent supply — or “firm yield,” as it’s called — of 30,000 acre-feet annually.
Drawing additional water from the beleaguered Colorado River was controversial, so to win support for their plan, Northern Water signed on with a battery of agreements with environmental groups and Western Slope municipalities and water managers.
Included in these agreements was $5 million for the connectivity channel, a guarantee to maintain a minimum streamflow below the dam, construction of water storage for Western Slope communities and a promise to open negotiations over other water rights that impact the Western Slope.
This graphic from Northern Water shows the lay out of the Windy Gap Firming Project. The River District has voted to spend $1 million on the Colorado River Connectivity Channel, an aspect of the project meant to mitigate impacts from the dam and reservoir.
Environmental mitigation
For many groups that traditionally oppose moving water from the Western Slope to the Front Range, the benefits from the project were enough to win them over. Additional supporters and sponsors of the project include Trout Unlimited and the Grand Board of County Commissioners.
“We have to look at this in a realistic light,” Mueller said of the compromise. “This won’t fix the original sin of placing the Windy Gap Reservoir right in the middle of the Colorado River channel, but it does mitigate it.”
Trout Unlimited has used the funds from Northern Water as leverage for attracting other funding and grants for the connectivity channel and other projects to improve the habitat quality on the river. These include plans to protect the river from some of the effects of climate change by narrowing parts of the river channel to lower stream temperatures and adding fire protection.
“Everything that we’re doing is to make the river more resilient,” Whiting said. “It’s not going to be what it would be naturally in terms of size and volume and flows, but it will function naturally and it will function as good habitat in spite of all those limitations.”
But while many have heralded the Windy Gap Firming Project as the beginning of a new era of cooperation in water management, not everyone agrees that mitigating environmental damage to the river is enough.
“We are past the point where we can do work around the margins,” said Jen Pelz, the Wild Rivers Program Director for the environmental group WildEarth Guardians. “There is a climate crisis, there’s a water crisis. These things are real, and they are not going away by us mitigating them around the edges.”
WildEarth Guardians is one of six environmental groups, including the Sierra Club and Save the Colorado, that filed a lawsuit against the Windy Gap Firming Project. The 2017 suit against the U.S. Bureau of Reclamation and U.S. Army Corps of Engineers alleged that the agencies violated the National Environmental Protection Act and the Clean Water Act by approving the permits for the Windy Gap Firming Project. Northern Water was not a defendant in the case.
In the lawsuit, the environmental groups argued that the agencies did not consider conserving water instead of building a diversion project as an alternative for providing water to Front Range communities.
The call for conservation came as a surprise to Northern Water, which used the state’s water-demand projections to justify the need for their project. Those projections already assume that municipalities will adopt a certain level of conservation measures.
“We’ve been pretty confident with our project that we addressed all the issues in our environmental work that they had questions about,” said Jeff Drager, Northern Water’s director of engineering. “And part of the reason they take so long is because the federal agencies are nervous about getting sued like this, and they want to make sure they check all their boxes and get things done.”
A federal judge dismissed the lawsuit in December. In his ruling, the judge did not analyze water conservation as an alternative. Instead, he noted that the agencies followed the procedural laid out in the law and that he was required to give deference to the agencies’ decisions.
While the plaintiffs weigh whether to appeal the case, Northern Water and the other supporters of the Windy Gap Firming Project have begun taking small steps toward constructing their projects. Barring another legal challenge, they will begin construction on the project’s reservoir as soon as this summer and on the connectivity channel in the fall.
For now, the supporters of the firming project are excited about what they see as a paradigm shift in water management: a move toward cooperation over competition for water resources. Those against the project also are hoping for an eventual shift, but their idea of what that looks like is something more dramatic.
“This just highlights for me that federal environmental laws aren’t really working anymore. When you have deference to the agency, it’s hard for someone else to come in and say that here are other ways that this can be done,” Pelz said. “I think one of the things that needs to happen, which is a radical thing, is that we need to actually live within the river means.”
Aspen Journalism covers water and rivers in collaboration with Swift Communications newspapers. Its water desk is supported by Sam Walton via the Catena Foundation. AJ was supported by the Walton Family Foundation from 2016 to 2018, and the foundation has also supported Trout Unlimited. This story ran in the Jan. 20 editions of The Aspen Times and 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.
As drought conditions intensify across Colorado, at least 14 cities in the Denver metro area say they will join forces to warn residents of looming water shortages and the need to cut back use this spring.
Denver Water’s Jason Finehout said a metro drought coordination effort would help ensure a consistent message on reducing water use in what is shaping up to be another alarmingly dry year.
“Right now 14 cities have signed up, but I expect that number to grow,” Finehout said.
Finehout said Denver Water would likely not decide until March whether to impose tough watering restrictions, but other participating communities, such as Thornton, are likely to move ahead.
Thornton’s John Orr said the city planned to implement restrictions sooner rather than later in order to prepare for what is likely to be a water-short year.
“Our team recommends that we treat this as a start to a multi-year drought,” Orr said. “We’re trying to be cautious.”
Orr’s comments came at the Jan. 21 meeting of the state Drought and Water Availability Task Force.
Last year was the state’s second-driest calendar year on record, according to the Colorado Climate Center, leaving soils ultra dry. That is worrisome to weather trackers and water utilities, because the soil is likely to absorb much of the water coming out of this year’s snowpack.
Right now snowpack statewide is at 78 percent of normal, according to the Natural Resources Conservation Service, and stored water supplies are also below average. Last year reservoirs stood at 107 percent of average at this time, but are now at just 82 percent of average.
“2020 was a doozy of a year,” said Peter Goble, climate specialist at the Colorado Climate Center. “And we just continue to fall farther and farther behind,”
In November the state announced it would activate a statewide emergency municipal drought response plan for only the second time in its history, citing the deteriorating water forecasts. The agricultural portion of the plan had already been activated over the summer.
According to the U.S. Drought Monitor, the state is now blanketed in drought, with more than two-thirds of its terrain classified as being in extreme or exceptional drought, the worst condition.
Colorado has experienced four severe droughts since 2000, but the trend has intensified with the drought of 2018 barely lifting before 2020 brought searing temperatures and dry weather again.
Few expect this year to be any different. “My personal demeanor has gone from cautious to concerned,” said Swithin Dick with the Centennial Water and Sanitation District, which serves Highlands Ranch and which is a member of the new drought group. The district’s water reservoirs stand at 55 percent of capacity, a benchmark that is 25 percent lower than normal for this time of year, he said.
Denver Water will partner with Aurora Water to lead the coordinated drought communications response effort, Finehout said, with the first meeting tentatively scheduled for early February.
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.
Drivers between Granby and Walden will encounter many scenes of hillsides where only snags remain from the 193,000-acre East Troublesome Fire in October. Water managers say the worst impacts of the fire may be felt with summer rains. Photo by Allen Best/Aspen Journalism
By Allen Best
KREMMLING — For some ranchers in Troublesome Valley, the worst impacts of the wildfire that began near there in October might not arrive until summer — or even summers beyond.
Experts say the greatest danger of sedimentation from the East Troublesome Fire will occur during and after a hard rain, especially of an inch or more. That is when the severe soil damage from the fire will cause sediment to wash into the east fork of Troublesome Creek and into a diversion ditch used to irrigate 10,000 acres of hay.
“It’s a real concern for us,” said Kent Whitmer, one of seven ranch owners who get water from the ditch owned by the East Troublesome Mutual Irrigation Co.
Whitmer said he most fears sediment filling the ditch so badly that it overflows.
“That would be disastrous,” he said.
Agricultural and municipal water users will see broad, lingering effects of the 193,812-acre fire.
The East Troublesome Fire, which had been burning east of Colorado Highway 125, exploded on the afternoon of Oct. 21, driven by 70 mph winds. In all, the fire grew 100,000 acres in 24 hours, eventually becoming the second-largest wildfire in the state’s recorded history. The fire was formally designated as contained Nov. 30, although small plumes of smoke could be seen in the golf course area as recently as Christmas Day. All but about 5,000 acres of the fire burned in Grand County.
Denver Water may offer lessons useful to water managers, who will be dealing with impacts from the East Troublesome Fire for years, perhaps decades. Denver Water has struggled with sediment and debris clogging its two major reservoirs in the foothills southwest of Denver. The fires that caused problems for those reservoirs — Buffalo Creek in 1996 and Hayman in 2002 — fried soils, removing their ability to absorb moisture. Sediment has been washed up to 11 miles into Strontia Springs and Cheesman reservoirs, pushed by water during summer cloudbursts.
Denver Water has spent $28 million in reservoir dredging, facilities repair and landscape-restoration projects. It discovered that debris and sediment can travel downstream to cause problems in critical water infrastructure. At Strontia Springs, Denver Water dredged for sediment as recently as five years ago but may need to do so again this year.
“Dredging is very costly,” Denver Water watershed scientist Christina Burri said during the recent post-fire water impacts webinar. Retrieving sediment and debris can be challenging, and then there’s the issue of what to do with the debris. “Do you pile it? Do you burn it? Where can you take it?” Burri said.
The East Troublesome Fire might produce fewer problems. A fire assessment called burned-area emergency response was conducted by U.S. Forest Service land managers and shows mostly low to moderate soil burn severity, suggesting lesser impacts to water quality.
But water managers still expect significant challenges come spring, when melting snow produces debris and sediment that can clog bridges, culverts and reservoirs.
This house north of Windy Gap Reservoir was among the 589 private structures burned in the East Troublesome Creek Fire. Water managers worry soil damage by the fire will cause sediment to clog irrigation ditches and municipal water infrastructure alike. Photo by Allen Best/Aspen Journalism
Assessing the damage
The fire came through in October “so quickly that it didn’t have a chance to do long-term scarring of the soil,” said Jeff Stahla, public information officer for the Northern Colorado Water Conservancy District. “However, this is still a sobering assessment because it really lays out the challenge we have going forward.”
Northern Water operates the Colorado-Big Thompson diversion project, which employs Willow Creek, Granby and Shadow Mountain reservoirs as well as Grand Lake to deliver water to more than a million people and 615,000 irrigated acres along the northern Front Range and in northeastern Colorado.
The district estimates the fire burned as much as 94% of the Willow Creek watershed, 90% of the area drained by Stillwater Creek, 29% of the Colorado River drainage above Shadow Mountain Reservoir and 42% of the North Inlet watershed. A more detailed assessment will be needed in the spring after snow has melted, Strahla said.
“It’s not as bad as Hayman, but that doesn’t mean it’s not bad,” Stahla said, referring to the 138,000-acre fire in 2002 that was the largest forest fire in Colorado’s recorded history until last year. In size, Hayman was eclipsed by the three Colorado fires in 2020: East Troublesome, Cameron Peak and Pine Gulch.
In assessing the damages caused by the East Troublesome Fire, resource specialists estimated 5% of the soil suffered high severity, 48% of it moderate severity and 37% of it low severity burns. Within the fire perimeter, 10% of the land was unburned.
The mapping for the 22,668 acres of the East Troublesome Fire within Rocky Mountain National Park has not yet been released.
Soil in severely burned areas has lost its structure, as the fire burned the forest litter and duff, weakening the roots of trees and other material that hold soil together.
Areas of severe damage include the basin drained by the east fork of Troublesome Creek, where the fire was first reported Oct. 14. There, the fire hunkered down, moving slowly but burning most everything. Other notable severe burn areas are near Willow Creek Pass, between Granby and Walden, and a gulch immediately north of Windy Gap Reservoir. Some areas near Grand Lake burned with surprising severity.
Erosion in high or moderate soil burn areas depends on the specific characteristics, such as the slope and soil texture, of each area, according to the burn report.
Little that was live remained standing in this area along Colorado Highway 25, north of Windy Gap Reservoir, after the East Troublesome Fire. Agricultural and municipal water users will see broad, lingering effects of the fire. Photo by Allen Best/Aspen Journalism.
Watching the water
Impacts to drinking water in Grand County will vary. Well owners generally should have no problems with the debris.
“These folks will want to make sure that wellheads and components are not damaged, to test for coliform bacteria before drinking the water post-fire and to treat it if necessary,” said Katherine Morris, water-quality specialist for Grand County. “If a well is located in an area known to be down-gradient from an area where homes burned, it may be prudent to ensure that your water treatment is adequate.”
At Grand Lake, the town draws water from 80-foot wells.
“We have not seen anything yet,” said Dave Johnson, the water superintendent for Grand Lake. He said he doesn’t expect problems but that the water will continue to be monitored, as it has been.
But Grand Lake’s microhydro plant could have problems. Located on Tonohutu Creek, the small plant constantly generates 5 kilowatts of electricity used in treating the town’s domestic water.
“We can only filter out so much debris before we have to close the intake,” Johnson said.
In that case, the water treatment plant will be operated solely by electricity from Mountain Parks Electric.
Hot Sulphur Springs, which draws water from wells that tap the river aquifer, will be the only town in Grand County with municipal water supplies directly impacted by the fire. Kremmling also can tap the Colorado River, but it does so only in emergencies.
Hot Sulphur Springs Mayor Bob McVay said his town expects challenges when the snow melts this spring, producing ash-laden water and debris. The town already has set out to take precautions, but it’s not yet clear what will be required.
Upgrading of the filters in the town’s water treatment plant, a project that began a year ago, probably will be completed in January, providing duplicate filtering systems. But that might not be enough. Secondary wells in the groundwater along the river remain an option.
In Troublesome Valley, Whitmer hopes to consult the expertise of the Natural Resources Conservation Service about how to mitigate effects of the fire on the irrigation ditch. He also wonders whether beaver dams in the East Fork will trap at least some sediment.
For Northern Water, this was just one of several fires affecting its operations in 2020. It was impacted by fires on both sides of the Continental Divide, including the Cameron Peak Fire, the state’s largest wildfire, which affected the Poudre River and other creeks and drainages.
Stahla said managers attempt to prepare for wildfire and other contingencies, but they did not prepare for such a severe wildfire season.
“If you had come to us with a scenario that there is wildfire burning above Grand Lake, above Estes Park and throughout the Poudre River Basin, we probably would have pushed back, thinking that’s a little too over the top,” he said.
Aspen Journalism’s water desk is funded in part by the Catena Foundation. This story ran in the Jan. 16 edition of the Summit Daily News and the Jan. 15 edition of Sky-Hi News.
Editor’s note: A previous version of this story misspelled the name of Northern Water’s public information officer. It is Jeff Stahla, not Strahla.
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 Crystal River flows through the town of Marble just after its confluence with Yule Creek. Gunnison County, Pitkin County and local environmental groups want to see a marble mining company mitigate its illegal relocation of a creek by improving downstream riparian habitat. Photo: Heather Sackett/Aspen Journalism
MARBLE — The U.S. Army Corps of Engineers has denied local groups’ request for a public hearing in the case of a marble quarry that violated the Clean Water Act.
In a Dec. 28 letter to Pitkin County and others, Benjamin Wilson, project manager for the Army Corps’ Colorado West Section, said the agency does not intend to conduct a hearing or public meeting.
“We do not believe there would be a valid interest served or that we would receive any substantial new information we would not otherwise obtain through the public notice comment and review process we are currently engaged in,” the letter reads.
In separate comments submitted to the Army Corps, Pitkin and Gunnison counties, the Crystal River Caucus, the Roaring Fork Conservancy and the Crystal Valley Environmental Protection Association (CVEPA) had asked for monitoring, restoration, mitigation and a chance for the public to weigh in about the situation at the Pride of America Mine, which sits above the town of Marble.
“We are definitely not going to accept this,” said John Armstrong, director of CVEPA. “To not even offer to hear what the public has to say in a public hearing is kind of shocking to me.”
In the fall of 2018, mine operator Colorado Stone Quarries (CSQ) diverted a roughly 1,500-foot section of Yule Creek from its natural channel on the west side of Franklin Ridge, a rock outcropping, to the east side of the ridge so that it could build a road. Operators piled the streambed with 97,000 cubic yards of fill material, including marble blocks.
In March, the Army Corps determined that these actions, which were done without the proper permit, violated the Clean Water Act. CSQ is now retroactively applying for that permit, known as a 404 individual permit. Under Section 404 of the Clean Water Act, a project requires a permit from the Army Corps if it includes the discharge of dredged or fill materials into waters such as rivers, streams and wetlands.
In its permit application, CSQ proposed making the creek relocation permanent by leaving it where it is on the east side of the ridge. The company says this is the most efficient and environmentally sound option, and it results in the closest return to pre-diversion stream conditions.
Wilson said the Army Corps received more than a dozen comments, which have been forwarded to the mining company, along with additional questions from the Army Corps. Wilson said mining company officials must address these comments and propose a plan to mitigate the damage caused by the creek relocation. The deadline for the quarry to respond is Jan. 23, but Wilson said it will probably take the company longer than that to come up with a mitigation plan.
The Filoha Meadows area of the Crystal River is one of the places that could benefit from riparian revegetation to improve water quality. Pitkin County would like a mining company to undertake mitigation projects in the Crystal River valley to compensate for damage caused when the company relocated a high-country creek. Photo: Heather Sackett/Aspen Journalism
Pitkin County wants the mining company to restore the riparian habitat, conduct water-quality monitoring at multiple sites in the basin and compensate for any damage by doing restoration projects in other areas. County representatives identified eight projects that could provide compensatory mitigation in the Crystal River basin, including restoration of Filoha Meadows streambanks, Thompson Creek riparian restoration and Crystal River streambank stabilization.
Carbondale-based Wilderness Workshop agrees. The conservation organization is also getting involved in the issue, signing on to the comments provided by CVEPA.
“It is a shocking issue,” said Peter Hart, conservation analyst and staff attorney for Wilderness Workshop. “Obviously, the damage is done, but I think that we’d like to see fines for violations imposed and see those funds actually utilized for restoration projects in the Crystal River valley.”
CSQ senior consultant Katie Todt, who is with Lewicki & Associates, said the company is evaluating potential mitigation options, including improvements to the current stream channel within the quarry’s permit area, which should stabilize the creek bank and promote vegetation growth. The company will more fully set out mitigation options in its expected Jan. 22 response to the Army Corps.
Wilson said that even though there won’t be another opportunity for the public to formally provide comments, the Army Corps is still obligated to consider any new information that comes to light.
Assistant Pitkin County Attorney Laura Makar said it was disappointing that the Army Corps decided not to hold a public hearing, especially since this is an atypical, retroactive permit application, submitted after the work needing a permit was already complete. There was significant information that could have been shared in a public hearing, she said.
“It would have been a good opportunity to ensure the record was complete,” Makar said.
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.
Nathan Coombs, a burly alfalfa farmer in the San Luis Valley, never imagined he would trust an environmentalist, much less partner with one to improve habitat for fish in the region’s rivers and streams. As manager of the Conejos Water Conservancy District, Coombs cares first and foremost about supporting the livelihoods of agricultural water users in the upper Rio Grande Basin. As such, he had figured that more water for fish meant less water for farmers and ranchers.
And that was unthinkable.
But things took a surprising turn about seven years ago when Coombs met Kevin Terry, a fish biologist at Trout Unlimited. Terry, who manages the organization’s efforts in the Rio Grande Basin, approached Coombs with what seemed like an outlandish idea, if only because it had never been suggested before, at least not here: shift the timing of some water deliveries from storage reservoirs to provide enough water for trout to survive the winter, while still meeting the requirements of the Rio Grande Compact. Even a small boost in streamflows can be enough to significantly help trout and other fish hang on until the late-spring snowmelt naturally improves their ability to reproduce.
For decades reservoirs in the basin have only released water for agricultural, the basin’s primary water users, during the April-through-October irrigation season. As a result, many streams and ditches run dry or slow to a trickle in the winter.
What kept Coombs, whose district operates the Platoro Reservoir on the Conejos River, from rejecting Terry as just another antagonizing environmentalist or silver-spoon fly-fisherman, as he might have previously, was that Terry didn’t pontificate or try to persuade. Rather, he asked Coombs and other board members and residents what they needed to support their farms and ranches.
Re-timing releases
Terry then suggested a way to help them: Pay irrigators to re-time reservoir releases, providing them with cash, while giving native and wild fish a leg up.
Over the course of many discussions with Terry and heated debates among district board members, Coombs became convinced that this did not need to be a zero-sum proposition. About two years later, in 2015, he joined Terry in creating the Rio Grande Winter Flow Program. That same year the district board voted unanimously to change a longstanding rule to allow for the re-timing of water released from reservoirs.
The program works like this: Trout Unlimited pays participating water users to shift the release of a portion of their water allocation from the growing season to the winter months. Those landowners then pay a fraction of what they receive from TU to their local water conservancy district to release that amount of water from their storage reservoir, and they can keep the difference.
Dennis Moeller, for instance, owns a 2,000-acre ranch near the town of Antonito that stretches to the Conejos River in the southern San Luis Valley. Some 80 head of cattle roam the ranch in the winter, and another 400 graze on public land in the mountains. Now, the Conejos district releases a portion of Moeller’s allocated water from Platoro Reservoir into his ditch through the winter. Not only does this help the trout upstream of Moeller’s ranch, but he no longer needs to truck in winter water for his cattle. Trout Unlimited pays him $10 per acre-foot. Moeller pays the Conejos district $4.50 per acre-foot and pockets the $5.50 difference. For a total of about 84 acre-feet, he netted $462. Hardly a 401(k) plan, but it’s easy money. He said he still comes out net positive even if he needs to buy extra water to irrigate his meadow grass and alfalfa hay during the growing season.
And the collaboration is paying off across the valley.
“I promise you, I was considered the most anti-environmentalist in the room a few years ago,” said Coombs. “And the attitude of the board in the beginning was ‘no and hell no.’ But we realized that the [winter flow] program could benefit operators in the district, and that fish were a footnote. And we came to recognize that it also helps fisheries and tourism broadly in the region. The genius of this [program] is getting enough people in the room who understand what the common goal is, and enough trust.”
A voluntary approach
Five storage reservoirs in the basin participate in the program: Platoro, Continental, Terrace, Beaver Creek and Rio Grande. They operate on the Conejos, Rio Grande and Alamosa rivers.
For the voluntary program with an annual budget of about $80,000, Trout Unlimited does not set firm goals, but Terry noted that any additional water in the winter helps fish and their habitat. “The more the better, but we consider the program a success if we get any additional acre-feet of water for instream flows,” he said.
Last year was Colorado’s second-driest year on record, making precious little water available for additional instream flows.
The situation is also made more complicated by the Rio Grande Compact. Under this agreement, formalized in 1938, water users in the valley must make sure that certain amounts of water are delivered across the state border en route to New Mexico and Texas every year.
And the winter flow program, which works cooperatively with the water users, is able to work within the constraints of the compact.
Although Terry said Trout Unlimited’s goal to raise streamflows in the basin is not specific, the Conejos district set a goal of adding at least three cubic feet per second (cfs) per day, a 43 percent increase from its minimum required release of 7 cfs, in the non-irrigation season, amounting to roughly 900 acre-feet total to the program.
Last winter the Conejos far exceeded its goal—releasing an additional 4,345 acre-feet during the winter months. Overall, the winter flow program generated more than 5,000 acre-feet, according to Terry. And although it was not the most productive year, it was a pleasant surprise.
“The message is that we made a small portion of the [Rio Grande] Compact water do more work while it was still in Colorado, by re-timing some of it so that Colorado’s streams benefitted and we still paid the bill,” Terry said.
Estevan Vigil is an aquatic biologist with Colorado Parks and Wildlife who has been researching fish populations and their habitat in the Conejos and Rio Grande rivers. He said the program has helped to restore and improve some trout and insect habitat, although low flows in the last two years especially have made it difficult to survey fish populations. Going forward, he said, climate change and drought will pose major slow-moving threats.
“Doing things like the winter flow program, where we’re keeping flows higher in rivers as often as we can, allows us to try to mitigate the impacts of those changes,” Vigil said.
Changing mindsets
Anecdotal evidence from fly-fishing outfitters suggests that the winter flows have helped bring more wild brown and other trout into local rivers and streams. Randy Keys, owner of Riffle Water LLC in Antonito, said the program has helped restore certain areas for fishing, drawing more anglers to the area. “It has made a huge difference,” he said. “For example, before the program the area right below the Platoro [Reservoir] was nothing but meadow water, with not a lot of holding places for trout. Now it’s great for fishing.”
As water in this region, and more broadly in the West, becomes increasingly scarce, the winter flow program may become one of many examples of how different water interests with seemingly competing priorities are reassessing their historic perspectives in order to figure out how to squeeze more out of every drop, for everyone.
“It’s one of those things where we’re just changing people’s mindsets,” said Craig Cotten, Division 3 engineer at the Division of Water Resources, which has been working with Trout Unlimited to administer water under the winter flow program. “We don’t have to do everything exactly like we did in the past. We can adjust it a bit to get multiple benefits.”
Fresh Water News is an independent, nonpartisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Our editorial policy and donor list can be viewed at wateredco.org.
This article was supported by a grant from The Water Desk using funding from the Walton Family Foundation.
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.
