Nestled at the headwaters of Lefthand Creek, a mile south of Ward, Colorado, sits the Captain Jack Mill. From 1860 to 1992, the area was a hot spot for gold and silver mining and though the tunnels of the mine have long been empty, the legacy of pollution continues to damage nearby waterways, aquatic life and drinking water.
According to a 2017 study, there are over 23,000 abandoned mines across Colorado and 1,800 miles of streams that are impaired due to pollutants related to acid mine drainage.
The pollution is formed when pyrite (an iron sulfide) is unearthed during mining operations and chemically reacts with air and water. The reaction forms sulfuric acid and dissolved iron, which causes the red, orange or yellow sediments that can be seen at the bottom of contaminated streams. The acid runoff can further dissolve heavy metals such as copper, lead and mercury, which can then leach into and contaminate streams, lakes and groundwater.
That’s what happened in 2015, when the Animas River turned orange after workers accidentally released toxic wastewater from the Gold King Mine in southwest Colorado.
Acid Mine Drainage Sites Span Colorado’s High Country
The state’s Division of Reclamation, Mining and Safety has identified hundreds of inactive mine sites with potentially hazardous water drainage conditions. The map below shows both sites that are currently under restoration and those that have not yet been addressed. The Captain Jack Mill site, below, was designated a U.S. EPA Superfund site in 2003, and construction was completed in 2012; last year, the site was associated with a fish die-off in a nearby creek.
In Colorado and beyond, acid mine drainage has the potential to pollute vital waterways long after mineral extraction has ceased. Part of the problem is the lack of environmental safeguards put in place in the late 1800s, when mining operations started to boom. By the time the Federal Mine Safety and Health Act was enacted in 1977, much damage had already been done.
“Most of the books that address these kinds of problems often start off with, ‘Mines from the Roman times are still generating acid mine drainage,’” said Joe Ryan, an environmental engineering expert at the University of Colorado Boulder.
Working with the nonprofit Lefthand Watershed Center, Ryan traced the source of dissolved metals contaminating the Left Hand Creek watershed, which provides drinking water to 20,000 customers.
In 2004, Ryan and a team led by the University of Colorado’s Alice R. Wood released a report that ranked the Big Five Tunnel at Captain Jack Mill as high priority for reclamation, shortly after the mine was designated as a Superfund site. Even so, it took more than a decade for a remedy to be implemented.
Cleaning up the past
In 2016, the EPA attempted to plug up the mine’s opening by filling the mouth of the Big Five Tunnel with limestone and a bulkhead valve. The limestone was meant to decrease the acidity of the water that collected behind the valve so that it was less harmful to the creek.
But it didn’t quite work.
When the water was released from the bulkhead seal inside the Big Five Tunnel in October 2018, it was too acidic and polluted a five-mile stretch of the river, leaving hundreds of dead fish in its wake.
Following the 2018 release from the tunnel, a portable treatment system was installed to process water from the bulkhead valve before it flows into Lefthand Creek. Though effective, this method is an expensive addition to the already steep cleanup costs.
“There have been anecdotes about fish being back in locations that they haven’t been seen in for quite a long time,” said Ryan, who plans to revisit Lefthand Creek to determine if the cleanup efforts have improved the stream’s water quality.
Between 1998 and 2003, the U.S. Forest Service estimated that more than $310 million was spent cleaning up acid mine drainage around the country.
“I think people didn’t really understand the connection between some of what they were doing and the long-term impacts associated with it,” said Jeff Graves, director of the inactive mine reclamation program for Colorado’s Department of Natural Resources. “These old miners that did the work weren’t bad guys, they just had a different mindset.”
Graves, who helps enforce mining regulations in the state, assesses and develops plans related to the safety and environmental impact of legacy mines, including those designated as Superfund sites like the Captain Jack Mill. Though some of these plans may take many years to implement and will include decades of monitoring, Graves remains positive.
“It’s a finite list and each one that we work through is one less that we have to next year,” Graves said. “We’re getting there one step at a time.”
Of course, pollution from legacy mines is not just a problem in Colorado. The National Association of Abandoned Mine Land Programs, which includes 23 states and three tribes, lists acid mine drainage along with underground mine fires and landslides as major hazards.
Photos: Mitch Tobin/The Water Desk
Climate change could worsen problem
When Diane McKnight began to research acid mine drainage in 1978, she thought that it was a problem on the verge of a solution.
“It became clear that these are really wicked problems with a lot of challenges,” said McKnight, founding director of the University of Colorado’s Center for Water, Earth Science and Technology and former researcher with the U.S. Geological Survey.
Part of McKnight’s research focuses on how climate change may increase acid mine drainage. She has observed large decreases in stream pH during summer months, which she believes is due in part to rising temperatures. McKnight and other scientists theorize that the intense warming and drying of the soils allow more pyrite to oxidize. As temperatures continue to increase due to climate change, warmer and longer summers could mean more acidic streams.
The Colorado Water Plan, released by the state in 2015, acknowledges that with growing demand for water, ongoing pollution from legacy mines is a water quality concern that needs to be addressed as Colorado faces a possible doubling of its population by 2050.
McKnight is optimistic that advances in science and technology will yield effective options for stream remediation. Just as robotics have been used to explore planets in space, McKnight wonders if they can be utilized for remote cleaning of acid mine drainage, especially in the winter months in Colorado, when avalanches pose threats.
“We can figure this out,” McKnight said. “This is an avenue to meet some of Colorado’s water needs in the future.”
A study in 2016 showed that lawns are the largest irrigated crop in America. There are over 40 million grassy acres in the continental U.S., and they take a lot of water to thrive. But in the West, where rainfall is less plentiful, many water providers have been offering rebates to residents willing to tear out turf and replace it with drought tolerant plants. The programs are working and thousands of gallons of water are being saved. So why are two major cities punting on the idea?
DENVER, Colo. — It’s hard to avoid getting swept up in Wendy Inouye’s enthusiasm when she talks about her garden.
“I love it!” she gushes. “I have so much joy from my garden. Every time I come out I always pause and look at it. You know that saying, take time to smell the roses? I literally do that every single day I come and go from my home.”
Inouye’s front yard at her home in Thornton, Colorado, just north of Denver, is full of “xeric” plants—shrubs and groundcovers adapted to survive in dry climates.
Inouye took out her lawn last summer and replaced it with a Colorado-friendly landscape, including red rock penstemon, hopflower oregano, and a plant called red-birds-in-a-tree. She didn’t want to waste any more water and said the grass in her front yard had no function. It was in full sun and its water needs were astronomical. By taking out 750 square feet of turf and replacing it with a variety of water-saving plants surrounded by rocks and mulch, she and her husband have reduced their water usage from 413 gallons a day to 200.
Pointing to a larger area Inouye said, “This was just one big flat piece of grass that was full of weeds.” She was tired of fighting nature, using pesticides and herbicides. Now she says, she has fun with all her beautiful flowering plants.
Ditching the “Green Carpet”
It was a lot of work for Inouye to transform her landscape even though she hired contractors to assist with turf removal and changes to her irrigation system. But she got support for her decision from the City of Thornton through a turf removal rebate program that paid her $1.00 for every square foot of turf she took out.
Water conservation and efficiency are important to every utility across the country, and especially in the West where “aridification” is occurring. That’s the term being used in the Colorado River Basin to describe the region’s transition to a water scarce environment due to climate change—a condition that will result in a shrinking supplies.
Water utilities have various strategies to get customers to lower usage. Many offer rebates for installing low-flow toilets and efficient showerheads in older homes to reduce indoor use. With outdoor use, water providers can use “cash-for-grass” incentives as Thornton did for Wendy Inouye. They can also offer free mulch, rebates for efficient irrigation systems, and audits of outside water use.
Recently the Alliance for Water Efficiency (AWE), a non-profit dedicated to efficient and sustainable use of water, produced an assessment concluding that utility-sponsored programs to promote sustainable landscapes save water. Tom Chestnutt, the lead author of AWE’s study, said that turf removal programs have been very successful, and they hit that tipping point causing customers to do something different with their front yards.
The idea of a “green carpet”—lots of grass in front of homes, buildings, and sometimes, even medians—has been described as an aesthetic (inappropriately, many say) imported from the East. In the West, where lawns require irrigation, some water providers see them as out of sync with a western lifestyle.
“Grass? That’s Weird!”
The Metropolitan Water District of Southern California (MWDSC) is the largest water supply district in the United States, serving 19 million customers.
Bill McDonnell, the conservation manager for MWDSC, said that they started asking why do people realistically need to have a 1,500 square-foot rectangle of grass in their front yard that they’re never using? Mowing, fertilizing, adding waste, McDonnell said, “There’s a lot going on there to have a green patch.”
So they started to pay people to take out their lawns.
MWDSC has the largest cash-for-grass program in the country, and its board recently renewed the program increasing the rebate to $2.00 per square foot removed—even though there’s not a current drought emergency.
McDonnell said that when they began turf replacement rebates people went crazy. “People were like, ‘I want this, I don’t want to be watering my lawn; I want a smaller water bill.'”
In Southern California, people irrigate their yards 12 months of the year, and on average, 50 to 60 percent of a home’s use of water is outside. Farther east in the district where it can get really hot, a water bill could easily be based on as much as 70 percent for outdoor use.
In an email, Rebecca Kimitch, who works with McDonnell at MWDSC, said they estimate the water savings from turf removal to be 44 gallons of water annually for every square foot of grass taken out.
McDonnell tells his children that someday they’ll be walking down the street with their kids who will point to a yard with grass and say, “That’s weird.” The whole idea, he says, is to flip it so that the person with grass will be the one who is different.
Enough Lawn to Wrap Nearly Around the Globe
Southern California is not alone in incentivizing customers to transform their landscapes. Doug Bennett, Conservation Manager for the Southern Nevada Water Authority (SNWA), agrees with McDonnell that having lots of grass serves no functional purpose. The Las Vegas area is the driest metropolitan area in North America, so conservation is always forefront.
SNWA has been running a turf replacement rebate program nearly 20 years and has saved almost 13 billion gallons a year. Bennett said, “There is no room in this city for ‘keep off the grass’ signs,” meaning all grass must be used, not there solely for ornamental or aesthetic purposes.
When asked if SNWA’s program had been successful, Bennett said, “Absolutely. We’re at about 190,000,000 square feet” of turf removed. To illustrate this he said, “That’s enough sod, 18 inches wide to go 95 percent of the way around the world.” But he added that they still have a long way to go having addressed only about half of the non-functional turf in the area.
Turf Removal Rebates—A “Gimmick”?
Given that two of the largest water providers in the drying Southwest region are deploying “cash-for-grass” programs, one might assume that the idea took off in other major cities. And it has—except in two cases—Denver, Colorado, and Phoenix, Arizona.
Phoenix, Arizona, is the country’s fifth largest city, and its water department serves about 1.5 million people. The city doesn’t offer a turf replacement rebate, and Cynthia Campbell, the Water Resource Management Advisor for Phoenix said that even without one, there has been a 30 percent decline in water use overall since about 1980.
Campbell said that in the late 1970s about 80 percent of single-family homes had a majority of their landscaping in turf, but today that number has dropped to about 14 percent.
Even with the decline in turf use, Phoenix homeowners are still using about 60 percent of their water outside their homes. However, Campbell views some conservation rebates as reactive to a special event like the drought in California. Those programs can “take on a gimmick kind of idea,” she said, “unless they can be sustainable for the long haul.” Instead, she thinks that Phoenix is better off trying to educate the public about how to use water in a desert, instead of saying that this year they’re going to pay residents to rip out their grass.
Campbell also noted that the pricing in Phoenix may discourage grass watering, especially during the summer months. A homeowner who wants to water then would be a heavier user and would pay more for it.
But many cities surrounding Phoenix—Glendale, Scottsdale, Mesa, Chandler, Peoria, and Tempe—offer turf replacement rebates.
Glendale, Arizona, is a city of about 240,000. Joanne Toms, its Environmental Program Manager, said they have had a rebate program since 1986. She roughly estimates that an acre of turf converted to desert landscaping saves about a million gallons. Toms said that she would hate to see the rebate program dropped because it shows the city’s leadership and forward-thinking that began in the 1980s. She sees the rebates as an incentive to homeowners who may be on the fence about whether to convert.
Lawns As a “Dispersed Version of a Reservoir”
In comparison to cities in the Southwest, Denver has a semi-arid climate—it gets more precipitation in the spring and summer and has winters—meaning people don’t have to water year-round to maintain a landscape.
A cash-for-grass program would not result in nearly as much water savings as in drier regions. Still, such an incentive could save water. However, Denver Water, the largest provider in Colorado, has decided it’s not a wise use of customers’ money.
Jeff Tejral, the manager of water efficiency for Denver Water, says there has already been a lot of change in customers’ landscapes without a turf replacement rebate program. Similar to the city of Phoenix, Tejral attributes the switch to a public education program that Denver Water started in the 1980s.
In addition, Tejral says that Denver Water did an analysis of a cash-for-grass rebate in 2016 and it did not make sense to start one. Tejral’s group calculated the water savings and the cost of the rebates to be $75,000 dollars per acre foot of water conserved, which the agency concluded was not a wise use of its ratepayers’ funds. He said that it would make sense to spend that amount, if they were in dire straits, and a turf rebate were the last option available.
However, there may be another reason that Denver Water doesn’t have a turf removal program—lawns might be a safety net where use could be restricted in extreme drought conditions. At those times of severe need, Denver Water could drastically cut back outdoor usage which would be tolerated more easily than restricting use inside homes. Cutting back lawn watering is much easier to get customers to accept than limiting their shower times or their clothes washings.
This idea was expressed by Colorado University historian Patricia Nelson Limerick in the book she wrote about Denver Water, Ditch in Time: The City, the West and Water. As Limerick writes, Denver water managers see lawns offering a service that is far from evident to most observers. Lawns are devices that receive water that would otherwise bypass Denver unused. She adds that lawns offer a cushion if severe drought should arise, and without that cushion demand would be hardened. “Take out the lawns and water would be directed only to needs that would not be susceptible to restriction.” Limerick writes that to the late Chips Barry, former manager of the Denver Water Department, lawns looked a lot like a dispersed version of a reservoir, holding water that could, in urgent circumstances, be shifted to respond to genuine need.
In response, Tejral said that they are shifting away from viewing turf the way Barry did. He insists there are other benefits to having lawns and landscapes in general, and it’s important to manage landscapes for what is best in the long term for a lot of different purposes, which could include aesthetic. He said that Chips Barry was reflecting on where Denver was, but as it matures as a city and integrates with others, people are going to have to learn the true function of landscapes, which is complicated.
Similar to the municipalities surrounding Phoenix, Front Range municipalities near Denver including Thornton, Centennial Water and Sanitation District (Highlands Ranch), Fort Collins, and Aurora all have rebates for removing grass.
One might think that Tejral would be a big advocate for such an incentive program. Before he worked at Denver Water, Tejral worked at Aurora Water, the water provider for the city of Aurora, just to the east of Denver, and he helped start that utility’s turf rebate program. But, he said, while the two cities are adjacent, Aurora started in a different place than Denver, and the former was more turf-centric. In contrast to Denver, not a lot of people in Aurora were modeling the change to either xeric or more water-efficient landscapes. That led Aurora to start a turf rebate program, in Tejral’s words, “to catch up to what its bigger neighbor Denver had been doing for some time.”
“Smarter Than…Dams, Reservoirs, and Pipelines”
Ten years ago, Drew Beckwith was with Western Resource Advocates, an environmental organization. At that time he told the Boulder Daily Camera, when talking about Denver Water’s plans to expand its water supply in nearby Gross Reservoir, the agency had done a great job with conservation, but what it lacked is what others offer: cash-for-grass incentives.
Beckwith recently moved into the public sector and is now the Water Resources Specialist with another Denver neighbor, the City of Westminster. That municipality plans to offer turf replacement rebates next summer. He said 50 percent of Westminster’s drinking water supplies go to outdoor use, and just like other cities, the water used on grass and plants is highly treated to drinking quality standards, not a cheap process.
According to Beckwith, conservation through cash-for-grass and other incentives, is cheaper, faster, and smarter than building structural projects like dams, reservoirs, and pipelines. He noted there is a cultural shift going on along Colorado’s Front Range moving toward more “Colorado-friendly” landscapes, and Westminster wants to spur that shift.
Meanwhile, back in Thornton, Colorado, Wendy Inouye admires her xeriscape where grass used to be. She said that the rebate she got covered only about a tenth of her conversion expenses. But transforming her landscape gave her the sense that she is doing something for the planet, the community, and herself. And, she added, the rebate made her feel like the city is on the same mission as she is.
My office walls are plastered with them. Some of my favorite publications are gazetteers. Given my cartographic obsession, it should be no surprise that I’ve picked maps to launch a new feature of The Water Desk: creating, aggregating and sharing data visualizations related to water issues.
We’re building a multimedia library that includes photos, videos, charts, graphics, maps and other visual content that can help tell the story of water, especially in the American West and Colorado River Basin. In addition to creating our own multimedia material and data visualizations, we’ll be pulling together public domain imagery from government agencies as well as platforms that offer content with a Creative Commons license, such as Wikipedia.
In this post, I’ve collected a variety of maps depicting the Colorado River Basin, the region that we’re initially focusing on at The Water Desk. Covering nearly a quarter-million square miles, the basin supplies water to around 40 million people and supports $1.4 trillion in annual economic output.
Click the maps below to see and download full-size versions of the images.
U.S. Bureau of Reclamation maps
The U.S. Bureau of Reclamation has created several maps of the Colorado River Basin, including this one:
Native American tribes hold significant water rights in the Colorado River Basin. The map below from Reclamation shows reservations of members of the Ten Tribes Partnership, an organization that represents the federally recognized tribes with reserved water rights in the basin.
Finally, I would be remiss in writing a post about these Colorado River maps and not include one from famed explorer John Wesley Powell that outlines the boundaries of river basins throughout the West.
The map below, from an 1891 U.S. Geological Survey report that Powell authored as the agency’s second director, not only shows the watershed boundaries but also demarcates the arid region he explored and explained. On the east side, the boundary of the region approximates the 100th Meridian; to the west, the arid region excludes the very wet areas between the Pacific Ocean and the crest of the Sierra Nevada and Cascade mountain ranges.
This spring, headlines proclaimed that Colorado was drought-free for the first time since 2017, according to the U.S. Drought Monitor.
The welcomed proclamation came after the state’s waterways and reservoirs swelled thanks to abnormally high snowpack levels, a cooler-than-average spring and an unusually rainy summer. But while the drought monitor is good for identifying overall drought conditions in the short-term––which scientists define as a period of less than six months––it’s not as useful for evaluating long-term trends.
The term drought implies a temporary state––precipitation will eventually return to normal; reservoirs will recharge; streams will continue to flow as expected. But some scientists are now using the term aridification to describe the long-term drying out of the West.
The weekly U.S. Drought Monitor map, which is compiled by dozens of scientists at a handful of organizations, is used by researchers, water managers, farmers and others for short-term planning. It provides a snapshot of drought conditions by comparing historic conditions to current data.
“It’s not a completely mathematical product,” said Becky Bolinger, a climatologist at Colorado State University. “It’s actually a human being who’s looking at all these different things and assessing how bad each of those different indicators are compared to their normal.”
David Miskus, a scientist at the National Oceanic and Atmospheric Administration, prefers the phrase “convergence of evidence” to describe the melange that makes up the Drought Monitor.
He said they use more than 40 indicators, including soil moisture, precipitation, streamflow and other observational data from a network of over 400 individuals. Once compiled, researchers determine a region’s drought intensity, which is delineated on the weekly map through a color-coded system.
The drought monitor determines the drought intensity of a region, which is delineated on a map using a color-coded system. Source: U.S. Drought Monitor
“We try to keep it simple, because believe me, this is a very complex procedure,” Miskus said of putting the Drought Monitor together every week. “We take a lot of evidence into account, both the data and the impacts that are out there.”
Making things more complicated is the fact that there are four different types of drought: hydrologic, meteorologic, agricultural and socioeconomic.
There are four different types of drought: hydrologic, meteorologic, agricultural and socioeconomic.
For example, when media outlets report that the Colorado River basin is experiencing a 20-year drought, what they are referring to is hydrologic drought – defined by shortages in streamflows and reservoir levels. However, some may confuse that with meteorological drought, which is an overall decrease in precipitation.
During the prior drought, the Four Corners region and Southwest Colorado were experiencing exceptionally dry conditions, which abated due to a wet winter only to start creeping back this summer. The hydrologic drought, however, remained in place, which is not evident from looking at the Drought Monitor, but which is obvious at Lake Powell. The reservoir created by Glen Canyon Dam was 56 percent of full capacity at the end of August.
“We’re still in a drier climate and we still need to be aware of the water we use,” Bollinger said. “We still need to be aware that there are issues with the future of our water long-term in the Colorado River Basin, which affects all of the southwestern states.”
The Water Desk’s mission is to increase the volume, depth and power of water journalism. We’re focusing on Western water issues and the Colorado River Basin—the lifeblood for some 40 million people and a $1.4 trillion economy.
Photo: Adobe Stock
The Water Desk is starting up at a pivotal moment for both journalism and water, not only in our home region but also around the world. Digital disruption and other forces are posing existential threats to media outlets just as climate change, population growth and other stressors are creating unprecedented challenges for managing our most precious natural resource.
The Water Desk will strengthen water journalism in a variety of ways:
Original content: Our own coverage will emphasize data, multimedia, explanatory, investigative and solutions-oriented journalism.
Education and community engagement:We’ll work with students and others beyond the campus to advance learning, train the next generation of water journalists and engage the community.
The Water Desk launched this spring with support from the Walton Family Foundation. As a journalistic effort, The Water Desk maintains a strict editorial firewall between its content and funders. Likewise, The Water Desk has editorial independence from the University of Colorado Boulder, where we’re based at the Center for Environmental Journalism.
The Water Desk will work across platforms and will be looking for ways to support journalism through newspapers, magazines, websites, radio, podcasts, television, video and other media.
Because water is intertwined with so many issues, we’re interested in a broad spectrum of topics: climate change, biodiversity, public health, environmental justice, food, agriculture, drinking water, economics, business, recreation and more.
In short, The Water Desk will operate as a small news organization that also provides resources, training and other support to journalists, media outlets and students so that the public and policymakers are better informed about water.
A powerful sprinkler capable of pumping more than 2,500 gallons of water per minute irrigates a farm field in the San Luis Valley June 6, 2019. Credit: Jerd Smith
Henry, Colorado: As the sun sets at the Colorado Farm Brewery, a light breeze plays over a deep green rye field that borders the patio. As they do most Thursday nights, nearly two dozen people have wandered into this scenic, rural bar 250 miles southwest of Denver to relax and visit with neighbors.
The brewery is part of a 300-acre farm which grows grains and hops, and which also operates a malting company. Wayne Cody, the farm’s 61-year-old patriarch, has just come in from hours of work, roasting malt, examining fields, and preparing to plant buckwheat the next day.
As he visits with customers, it’s clear that most people in this bar tonight know that something almost unholy is in the works here in the San Luis Valley.
Deb Anderson tends bar at the Colorado Farm Brewery June 6, 2019.
A well-connected metro Denver water developer, backed by former Colorado Governor Bill Owens, Front Range real estate interests, and absentee ranchers who themselves control huge amounts of water here, is proposing to export millions of gallons of water out of this drought-stricken, scrappy place for delivery to fast-growing Douglas County.
Sean Tonner, who once served as deputy chief of staff for Owens, is leading the group, which has proposed spending $118 million to acquire water from the farmers here. That sum includes a $50 million community fund to help bolster the poverty-stricken region.
Tonner’s company, known as Renewable Water Resources, is at least the fourth in a stream of developers who’ve beaten a path to this remote region in the past 50 years, intent on harvesting its water. All, up until now, have been decisively turned back.
In February, at a water conference in Alamosa, just up the road from Henry, a man suggesting that Tonner’s proposal had merit was booed.
The proposal to bring water from the San Luis Valley to the metro area would require a pipeline of more than 200 miles. Credit: Chas Chamberlin
Former U.S. Senator Ken Salazar’s family has farmed here for generations. Salazar also spoke at the conference and reassured the 200-plus people in the packed auditorium that no water would ever flow out of the valley into the metro area.
“Over my dead body,” he said to cheers and applause.
In a minute
For Wayne Cody, it isn’t nearly that clear cut. He and his sons, an energetic, muscular lot, are pouring everything they have, including beer, into saving their family farm.
Cody’s grandparents bought the farm in the 1930s, and the family has grown alfalfa profitably, then raised dairy cows, again profitably, for some 80 years. But as farm costs rose, and dairy prices dropped, they turned to a new industry, brewing, with Coors and others as customers.
In 2008, they started the Colorado Malting Company and last year they opened the Colorado Farm Brewery on County Road 12 South. Its custom beer snifters urge guests to “Drink Like A Farmer.”
Wayne Cody bags malt for shipment to a distillery in Longmont, Colo. He and his sons are seeking ways to keep the family farm profitable, even as farm incomes erode. June 7, 2019 Credit: Jerd Smith
Until a corporate malting company entered the valley two years ago, the Cody clan was selling 1 million pounds of malt a year, but they haven’t been able to compete well with the big operation, and so this year they have contracts to sell just 600,000 pounds of malt, Wayne Cody said.
Last month, the family laid off a full-time and part-time employee. Still they’re pushing ahead, hoping to make inroads into California’s malt market.
In the interim, the notion of selling some of their water each year to generate additional cash has a certain appeal.
“I would hate to see the water leave the valley,” Cody said, “but would I sell some? In a minute.”
Unequivocally no
Eight miles north, in Alamosa, Cleave Simpson runs the Rio Grande River Water Conservation District, an agency created by state law in 1967 to manage the Rio Grande River. It serves roughly 1,000 farm entities in the valley. Simpson and others are deeply worried about the export plan because the valley’s water supplies are already under severe stress.
The region’s sprawling farm economy is supported by the Rio Grande River and a giant underground aquifer, a sort of bathtub that is refilled by snowmelt and runoff.
But the aquifer has been over-pumped and hasn’t been able to refill itself for decades, thanks largely to the giant thirst of the valley’s thriving potato industry. It is the second-largest potato growing region in the United States.
A conveyor sorts potatoes at the Monte Vista Potato Growers’ facility in Monte Vista. June 7, 2019 Credit: Jerd Smith
A stubborn 19-year drought, that broke at least temporarily this year, and a warming climate that is causing declines in western rivers are compounding the problem.
So depleted is the aquifer that the state has ordered the valley to bring water levels back up to where they were prior to 2000, or face a massive shut down of farm wells in 2030.
It wasn’t always like this. When farmers began drilling powerful irrigation wells into the aquifer in the 1950s, subsurface water was thought to be so plentiful that they could irrigate their fields almost endlessly. But as modern hydrology caught up with pumping technology, it became clear that there was a close connection between the aquifer and flows in the river, and that the pumping was harming the aquifer, the river, and other farmers’ water rights in the river.
Soon, the Rio Grande Basin was under legal fire. Eventually the courts determined that the farmers of the San Luis Valley were overusing their fair share.
Still, bringing the aquifer back into balance is no small task. To get it done, valley farmers are voluntarily taxing themselves, and using those revenues to pay other farmers to reduce their pumping and fallow fields. But last year’s drought stripped the Rio Grande River of much of its water, and forced the farmers to pump heavily to protect their crops, wiping out much of the water their voluntary conservation program had placed underground in the prior seven years.
Source: Rio Grande River Water Conservation District. Credit: Chas Chamberlin
Now, even in a good water year like this one, the valley must pay back the water it has overused in the past so that the Rio Grande can be made whole as it flows south to irrigate fields in New Mexico and Texas and refill reservoirs for the citizens and farmers of those states.
It is a bitter reality in the San Luis Valley, one that makes the notion of outsiders taking even more water out of the depleted region particularly painful to many of its farmers and water officials.
“This basin is just highly over-appropriated,” Simpson said. “There are way more decrees for water rights than can be delivered in any one year. We have water rights that haven’t been able to draw from the river in 20 years. Likewise the groundwater system is also over-appropriated.”
Tonner and his team made a presentation to the district’s board in January, asking that the district support its export proposal and help manage the $68 million water purchasing effort.
That’s big money down here. But the district’s board said no. Unequivocally no.
Simpson and other water leaders here believe that most farmers will oppose any Front Range deal to export San Luis Valley water, no matter the dollar figures involved.
Town by town
Tonner is not discouraged.
Since last October, he’s been traveling the mountain passes and dusty two-lane highways that link the San Luis Valley to the Front Range, bringing his 11-slide PowerPoint presentation to the tiny towns of the valley, from Saguache to Moffat to Crestone.
Sean Tonner, a principal with Denver-based Renewable Water Resources, is leading a group of investors who want to export water from the drought-stricken San Luis Valley. June 25, 2019. Credit: Jerd Smith
His plan: To buy 22,000 acre-feet of water, a purchase that would dry up roughly 10,000 acres of farm fields and provide enough water for some 44,000 urban homes annually.
He also proposes paying more farmers to fallow enough land to forego the use of another 30,000 acre-feet of water, allowing it to remain in the vast, complex underground water system. According to RWR’s math, even after their 22,000 acre-foot export, ensuring that 30,000 acre-feet is no longer pumped means an 8,000 acre-foot net gain for the system.
Tonner’s Renewable Water Resources is only the latest company to attempt this controversial task. Three others have tried since the 1980s. Tonner was involved with an earlier effort that stalled out due to a ranch owner’s death. Tonner and his backers came back and bought that ranch and are now moving forward with RWR.
RWR says it has raised $28 million from private investors to help fund the deal, but documents on file with the U.S. Securities and Exchange commission indicate that $750,000 has been raised. Tonner said those figures are out of date and that the rest of the money will come once the company has signed a deal with an “end user” in Douglas County.
He says no agreement has been signed yet, but that the end user would need to sell enough bonds to pay the farmers, RWR, and the cost of the massive well fields, pipeline and delivery system that will be needed to bring the water up Highway 285 and across to the Front Range. How much money is that? Tonner estimates construction costs of more than $600 million, depending on the final route of the proposed pipeline.
Tonner said he has signed sale agreements from roughly 40 farmers and that more than 100 farmers have approached him about selling their water. Tonner declined to identify them, citing the tensions in the valley and the potential for public backlash. Wayne Cody is not among them.
But Jerry Berry, a local ranch manager in the town of Moffat who has an ownership interest in RWR, did agree to talk about the proposal.
“This is an 8,000 acre-foot net gain. How does that not benefit the aquifer? You have to be open minded enough to see where the true benefits are. $50 million in a trust fund that they can use for economic growth is more than that water would ever produce agriculturally,” Berry said.
Berry, who is on the local school board, said he believes RWR is looking for a deal that benefits all parties. “I’ve done business with these guys. They are reputable. If it’s not a win-win for everybody they won’t do it.” Other developers, says Berry, have gone straight to water court without seeking community input.
And they’ve all been defeated there.
Having fought off water-hungry invaders before, the San Luis Valley, aided by such powerful politicians as Salazar and former U.S. Senator Tim Wirth, among others, and such powerful environmental groups as The Nature Conservancy, has established a long list of protections that will make any kind of a water export proposal difficult to execute.
Backers would have to prove that the exports don’t harm other users on the Rio Grande River and that they would not harm the aquifer itself. The plan would also have to demonstrate that it would not diminish the groundwater that maintains the Great Sand Dunes National Park and other conserved areas.
Still farmers are entitled to sell their water rights under Colorado law, even if their neighbors disagree.
Insatiable thirst
In his quest to protect the farmers in his district, Simpson too has been traveling the state and in February briefed Colorado’s Interbasin Compact Committee, a group created in 2005 under Colorado state law to facilitate cooperation between river basins.
Jeris Danielson, a former Colorado water regulator who sits on the IBCC, said the RWR proposal exemplifies a long-standing problem in Colorado — how to protect the state’s individual river basins, while ensuring the seemingly endless thirst of the Front Range, whose South Platte and Arkansas basins are also stretched beyond capacity can be satisfied.
“The problem is the six-county sucking chest wound called the metro area,” said Danielson, who represents the Arkansas River Basin on the IBCC. “That’s where all of the people are moving. So how do we solve this problem?”
Transbasin diversions (TBDs), which move water from one river basin to another, are not new in Colorado. More than two dozen pipelines have been harvesting West Slope water and delivering it to the drier Front Range for nearly 150 years, often leaving some of the state’s most scenic, fragile mountain areas and wetlands forever altered.
However, they have become so controversial, and expensive, that no new ones have been built since the 1980s. And Governor Jared Polis, when he was campaigning last summer, said he would do everything in his power to stop any newly proposed TBD.
But that doesn’t address Colorado’s urban thirst. The Front Range needs roughly 300,000 acre-feet of water by 2050 to stave off shortages, according to the Colorado Water Plan. In Douglas County, the number is smaller but the problem is more urgent. Douglas County, along with parts of El Paso and Elbert counties, relies on an aquifer that, unlike the one in the San Luis Valley, cannot renew itself. And aquifer levels are dropping. Cities such as Castle Rock rely on the aquifer for roughly 70 percent of their water, and though they have acquired some surface water rights and they operate a water recycling plant, they still need more fresh water to ensure they don’t drain their own underground supplies.
Will new surface water come from the San Luis Valley? That’s not clear yet.
Construction workers build a single family home in Castle Rock. The city needs new surface water supplies to reduce its reliance on non-renewable groundwater. Credit: Jerd Smith
“RWR has presented to us,” said Castle Rock Director of Utilities Mark Marlowe. “But it’s not part of our long-term plan at this point.”
Tonner said RWR has talked with several major water districts in Douglas County, including Castle Rock and Parker and, very early on, Colorado Springs. But he says he’s not ready to identify the lead water district in the deal thus far.
Marlowe says it isn’t Castle Rock, but that the city might be interested in the plan if the price was right and if there was local support for the proposal in the San Luis Valley.
Colorado Springs said it has not met with RWR and it will not participate under any circumstances, planning instead to pull more water from places such as the Colorado River, where it already has some supplies.
$50 million worth of indifference
Jason Anderson is a Saguache County Commissioner. If this export plan becomes a reality, the well field and pipeline for the project would be built within his district. Saguache is one of the poorest counties in Colorado, with a median household income of $34,765, according to the U.S. Census Bureau.
Across the Continental Divide, in Douglas County, that figure is $111,000. The chasm between rich and poor isn’t lost on anyone in the San Luis Valley.
Cattle have their evening meal in the San Luis Valley. June 6, 2019. Credit: Jerd Smith
“It seems like every five years or so, the Front Range tries to figure out how to tap our water,” Anderson said. “I’m trying to keep an open mind because some of the folks in the proposal are from Saguache County. On the other hand, I haven’t had many folks speak to me in a positive manner about the plan.”
So far, Anderson said, the proffered $50 million community development fund, which might be used to support food banks and new industry, hasn’t swayed public opinion, despite the region’s poverty.
“That $50 million doesn’t seem to be playing much of a role in anyone’s decision down here,” he said.
But a look at Front Range water prices makes clear why there is so much pressure to find more and sell it on the Front Range. RWR says it is willing to pay double the market price for an acre-foot of San Luis Valley farm water. That’s roughly $2,000-plus 3,000.
That same acre-foot of water piped east across the mountains would easily sell for ten times that. And in some communities, $30,000 an acre-foot is a blue-light special.
RWR’s Tonner says his backers are now examining whether they can create an additional financial incentive for farmers that could include a sort of annual royalty payment in addition to the economic development fund.
“Look,” said Tonner, “I’ve had some people say we should pay them $1 billion for their water. That’s not going to happen. But we are trying to put some bones on a proposal that would include an annual royalty payment.”
Tonner said he would go public with his plan in six months and begin making presentations to the public water roundtables in the San Luis and in metro Denver.
Once it starts
Among locals, though, there is a much bigger concern than the cash behind the deal. The worry is that if another pipeline is built to the metro area, it will be only the first in a series of urban water exports that sooner or later will permanently strip the region of its agricultural economy and its proud farm culture.
“There is a reality that when you take the water that is being used in the San Luis Valley and open up a 22,000 acre-foot spigot — I can guarantee in 20 years it opens up to 220,000 acre-feet,” Salazar said in February at the Alamosa water conference. Salazar did not respond to requests for comment for this article.
Tonner says his backers have agreed that they will insert into any eventual water court decree an absolute limit of 22,000 acre-feet on their export plan. But that would not necessarily limit others from using the same pipe to export more water, said David Robbins, an attorney who represents the Rio Grande Water Conservation District.
“I don’t care what RWR says, no one is going to build a pipeline out of the valley and simply take 22,000 acre-feet. That is absurd. You would have to be so insanely naïve as to believe in the tooth fairy. Once it starts, it never stops,” Robbins said.
A sign at the Colorado Farm Brewery pays homage to the farm. June 7, 2019. Credit: Jerd Smith
Saving a farm
Out in Henry, the Cody family has grown accustomed to hard work and risk. In recent weeks, they’ve unveiled a new lager and brought in beer steins to sell. It’s not clear that any of this will sustain the farm.
But if selling a small portion of their water and deriving an annual royalty payment from it could help, Wayne Cody might consider such a proposal.
“Everything we’ve done here is to save this farm,” he said. “Selling some of the water is the most profitable thing I could do.”
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.
This story originally appeared on Fresh Water News, an independent, non-partisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Its editorial policy and donor list can be viewed at wateredco.org.
Homestake Creek, flowing toward the Eagle River, near the Alternative A dam site being studied by Aurora Water and Colorado Springs Utilities, about three miles up Homestake Road from U.S. 24. The photo was taken on July 13, 2019 by Brent Gardner-Smith/Aspen Journalism
Minturn, Colorado— The cities of Aurora and Colorado Springs are increasing their efforts to develop a reservoir on lower Homestake Creek in the Eagle River basin that would hold between 6,850 acre-feet and 20,000 acre-feet of water.
The two Front Range cities, working together as Homestake Partners, have filed an application with the U.S. Forest Service to drill test bores at four potential dam sites on the creek, renowned for its complex wetlands.
They briefed members of Colorado’s Congressional delegation in April about federal legislation they are drafting that would adjust the Holy Cross Wilderness boundary near the dam sites.
And Aurora spent $4.1 million in 2018 to purchase a 150-acre private inholding parcel that accounts for about half the surface area of the 20,000-acre-foot version of the reservoir, removing one obstacle in the way of submitting a comprehensive land-use application to the Forest Service.
“We are in preparation to permit this overall project, to try and get that larger application in, so every piece of the project has had more time and effort spent on it,” said Kathy Kitzmann, a water resources principal with Aurora Water.
One of four potential dam sites on lower Homestake Creek, about four miles above U.S. 24, between Minturn and Leadville. From this location, the dam that forms Homestake Reservoir higher up the creek can be seen. Photo by Brent Gardner-Smith/Aspen Journalism
Eagle River MOU
The Whitney Reservoir project is defined in part by the Eagle River Memorandum of Understanding, a 1998 agreement that gives Aurora and Colorado Springs a basis to pursue 20,000 acre-feet of water from the Western Slope.
Parties to the MOU include Aurora, Colorado Springs, Climax Molybdenum Co., Colorado River Water Conservation District, Eagle River Water and Sanitation District, Upper Eagle Regional Water Authority, and Vail Associates.
Peter Fleming, the River District’s general counsel, told the district’s board in a July 1 memothat the River District is “not participating in any Homestake Creek based alternative at this time, this effort is now being carried forward solely by the Homestake Partners.”
Under the MOU, various parties can pursue projects on their own, and the other parties are bound to support those efforts, but only to the degree that a proposed project meets the objectives of the MOU, including whether a project “minimizes environmental impacts.”
A view, from the Alternative A dam site, of the Homestake Creek valley. The triangle shape in the distance is the dam that forms Homestake Reservoir. Photo by Brent Gardner-Smith/Aspen Journalism.
Serious intent
Whitney Reservoir takes its name from Whitney Creek, which flows into Homestake Creek just above the four potential dam alignments now being studied. The dam that would form Whitney Reservoir would stand across Homestake Creek, not Whitney Creek. Homestake Creek flows into the Eagle River at Red Cliff.
Asked how serious the two cities are about the Whitney Reservoir project, Kevin Lusk, the principal engineer at Colorado Springs Utilities, said, “We’ve been serious about it for the last 20 years.”
And he said the recent drilling application “is another step in the continuum from concept to reality.”
On June 25, the two cities submitted an application with the Eagle-Holy Cross Ranger District for permission from the White River National Forest to drill 13 test bores 150 feet to explore the geology under the four sites.
The sites are clustered on the creek between 3 and 5 miles above the intersection of U.S. 24 and Homestake Road, shown as Forest Road 703 on most maps. The intersection is not far below Camp Hale, between Minturn and Leadville.
The drilling application says Aurora and Colorado Springs are conducting “a fatal-flaw level reservoir siting study” that “comprises subsurface exploration to evaluate feasibility of dam construction on lower Homestake Creek.”
White River National Forest supervisor Scott Fitzwilliams said review of the drilling application itself is “fairly standard stuff.”
“We’ll definitely send out a scoping statement, asking for public comment, but it won’t be about a dam,” he said. “It will be about drilling the holes.”
Each of the 13 borings would take up to five days to drill, so there could be 65 days of drilling this fall or, if the application is not approved this year, in 2020, according to Lusk.
The project includes taking a “track-mounted drill rig or a buggy-mounted drill rig,” a “utility vehicle pulling a small trailer” and a “track-mounted skid steer” onto public lands along 10-foot-wide “temporary access routes.”
The drill rigs are about 8 feet wide, 22 feet long and 8 feet high. To get the rigs to drilling sites, some wetlands may need to be crossed and trees will be cut as necessary.
The information about the geology under the four sites will help determine the size of a dam on a given alignment and how much water a reservoir would hold, Lusk said. And that could affect how much wilderness area might be encroached on.
A map prepared by Aurora Water that shows a potential 500-acre adjustment to the Holy Cross Wilderness boundary near the potential Whitney Reservoir on lower Homestake Creek. The map as current as of July 16, 2019.
Wilderness boundary
Given that Aurora and Colorado Springs are still working through various options, it’s not clear yet how big of an adjustment to the wilderness boundary they might ultimately seek from Congress.
The current proposed legislation developed by the cities asks to remove 497 acres from the wilderness boundary, but it is also expected to include a reversion provision so if all 497 acres are not needed, the boundary adjustment could be reduced.
According to Lusk, in one the of the alternatives studied, about 80 acres would need to be removed from the wilderness area if Whitney Reservoir was to hold 20,000 acre feet of water. However, the cities have yet to rule out the option of building an alternate reservoir below the Whitney Reservoir location – Blodgett Reservoir – which could require a larger boundary adjustment, although not the full 497 acres.
An adjustment to a wilderness boundary requires an act of Congress and the president’s signature. In April, representatives from the two cities described the potential boundary change to staffers of U.S. Sens. Michael Bennet and Cory Gardner and U.S. Reps. Scott Tipton, Jason Crow, Joe Neguse and Doug Lamborn.
Fitzwilliams said Monday the Forest Service won’t accept a full-blown land-use application for Whitney Reservoir until the wilderness boundary issue has been worked out through federal legislation, if that is still needed after the final version of the reservoir is better defined.
Kitzmann said she is reaching out to stakeholders to continue to refine the legislative language and the map showing the extent of the proposed boundary change.
A wetland area along Homestake Creek in an area that would be flooded by a potential Whitney Reservoir. Aurora and Colorado Springs, seeking to build the reservoir, have recently submitted a drilling application to the U.S. Forest Service to search for fatal flaws in the geology under four potential dam alignments. Photo by Brent Gardner-Smith/Aspen Journalism.
Wetlands and fens
On another front, Aurora Water and Colorado Springs Utilities staffers are hosting a tour this week for the directors of the Colorado Water Conservation Board of the Homestake Plant and Fen Relocation Project, near Leadville.
The CWCB directors, holding their July meeting in Leadville, also will hear a presentation at their meeting about the fen-relocation effort, which consists of moving “fen-like organic soils and plant life” from one location in blocks or bales to another location and “reassembling them in a specially prepared groundwater-fed basin.”
Many regulatory agencies do not believe it’s possible to re-create complex fen wetlands, according to a CWCB staff memo, but that regulatory stance “may be related to the lack of scientific investigation on fen mitigation.”
A 2016 study estimated between 26 and 180 acres of wetlands on lower Homestake Creek would be impacted by Whitney Reservoir.
“This is one of the finest wetlands we can find on our forest — it’s unbelievable,” Fitzwilliams said. “From an environmental impact standpoint, this would not be a project that we would be favorable to.”
But Lusk said the fen-relocation project near Leadville is “proof of concept” that replacing fens, while “a tough nut to crack,” can be done.
Fitzwilliams may be hard to persuade.
“You can mitigate,” he said, “but you can’t replace 10,000 years of work.”
A map from Colorado Springs Utilities that shows how tunnels could bring water to Whitney Reservoir from Fall and Peterson creeks, and from the Eagle River. The map also shows the route of a pipeline to pump water from Whitney Reservoir to Homestake Reservoir.
Homestake Reservoir, which is partially in Pitkin County, but mainly in Eagle County. Below the reservoir the Homestake Creek valley is visible, as well as short section of what’s known as Homestake Road. Water held in the potential Whitney Reservoir would be pumped up to Homestake Reservoir and then sent to the Front Range. Photo by Brent Gardner-Smith/Aspen Journalism.
Forebay and pumping
Despite the wetlands and wilderness challenges, Lusk and Kitzmann said no fatal flaws have been found yet in what they view as an important future element of their water-supply systems.
The new reservoir would serve as a collection point for water brought in via tunnels from the Eagle River and Fall and Peterson creeks, and for water captured from Homestake Creek.
The reservoir would also serve as a forebay, as the water captured in Whitney Reservoir would be pumped 7 miles up to Homestake Reservoir. Once there, it can be sent through a tunnel under the Continental Divide to Turquoise Reservoir, near Leadville, and then on to Aurora and Colorado Springs.
The two cities own and manage Homestake Reservoir, the upper end of which is in Pitkin County. The reservoir opened in 1967 and normally stores 43,600 acre-feet of water from seven high-mountain creeks behind a 231-foot-tall dam. About 25,000 acre-feet a year is sent through the Homestake Tunnel each year to the Front Range.
Homestake Partners also has a conditional water-storage right from 1995 to store 9,300 acre-feet of water behind a potential 110-foot-tall dam in what is called Blodgett Reservoir, located on Homestake Creek below the Whitney Reservoir sites. Blodgett Reservoir also has a longer history, and has been viewed as an alternate location for older water rights – appropriated in 1952 and adjudicated in 1962 – that are tied to Homestake Reservoir.
Aspen Journalism covers rivers and water in collaboration with The Aspen Times and other Swift Communications newspapers. The Times published this story on Wednesday, July 17, 2019. This version includes a clarification concerning the size of the adjustment to the wilderness boundary and the date of the water rights for Blodgett Reservoir.
A meeting on Thursday, July 18, 2019 in Leadville between the members of the Colorado Water Conservation Board and the Interbasin Compact Committee, in a meeting room on the Colorado Mountain College campus. The CWCB members discussed the unfolding demand-management workgroup process in an unscheduled executive session, and then were challenged to explain their process. Photo by Brent Gardner-Smith/Aspen Journalism
By Brent Gardner-Smith, Aspen Journalism
LEADVILLE — After a week filled with pushback from water managers and users, especially on the Western Slope, the director of the Colorado Water Conservation Board has decided to hold upcoming workgroup meetings about a potential water-demand management effort in public and will no longer ask the workgroup volunteers to sign non-disclosure agreements or always meet behind closed doors.
“The CWCB will adjust course and move forward without requesting that workgroup participants sign any disclosure agreements,” director Becky Mitchell said in an update on the workgroup process released Sunday. “Additionally, the workgroup meetings will be open to members of the public, with an opportunity for comment.”
But Mitchell also reserved the option to shield from public view sensitive information and discussions that came up during the process.
“As appropriate and dependent on the relevance of the workgroup discussion to interstate considerations, a non-disclosure setting may be necessary for elements of particular workgroup subject-matter discussion,” Mitchell wrote.
Mitchell said it was most likely that sensitive information would come up in the law and policy workgroup, which includes eight current or former water attorneys.
CWCB staff members, working closely with lawyers in the attorney general’s “defense of the Colorado River” subunit, have been crafting a process for months to investigate the feasibility of a “voluntary, temporary and compensated” demand-management, or water-use reduction, program in order to stay in compliance with the 1922 Colorado River Compact.
The CWCB intends to set up eight workgroups, each exploring a different aspect of a potential demand-management program in Colorado: law and policy; monitoring and verification; water-rights administration and accounting; environmental considerations; economic considerations and local government; funding; education and outreach; and agricultural impacts.
Each workgroup is slated to meet four times over the next year, meaning there could be 32 workgroup meetings.
“The workgroups are kind of an extension of staff at this point. That’s how we’re seeing them,” Brent Newman, the head of CWCB’s section on Colorado River issues, told the CWCB directors in May. “They’re here to help inform staff about these solutions from a more technically diverse perspective. And then we’re going to bring those solutions to you guys.”
Asked whether CWCB directors should attend the closed-door workgroup meetings, Newman advised against it.
“When you have a decisionmaking body like this board, having you all directly participate in some of the conversations of these working groups, it contravenes some open-meeting requirements, and we don’t want to do that,” Newman said.
The open-meetings law says that if two or more officials of a state public body, such as the CWCB, attend a meeting, then it’s a public meeting.
Steve Zansberg, an attorney at Ballard Spahr in Denver, is an expert on the state’s open-meetings law and the president of the Colorado Freedom of Information Coalition.
He said advisory committees, such as the CWCB’s proposed workgroups, are considered public bodies subject to the open-meetings law if they are appointed directly by the members of a public body, such as the CWCB directors.
But if staff members form such committees and if the committees report directly to staff members and not to a board, then they may meet behind closed doors.
“They are probably being very crafty and careful, and with the advice of the attorney general’s office, trying every which way to set these workgroups up as not being public bodies, and they are probably succeeding,” Zansberg said Friday, before Mitchell at the CWCB had changed course and opened up the meetings, or at least most of them.
Zansberg also said the Colorado Supreme Court stated in a 2008 case, Town of Marble v. Darien, that “the open-meetings law prohibits bad-faith circumvention of its requirements.”
“I’m not going to ascribe bad faith here, but it is an effort to evade or circumvent the requirements of the open-meetings law,” he said of the CWCB’s staff-meeting approach.
During the River District’s quarterly meeting in Glenwood Springs last week, the district’s general manager, Andy Mueller, brought up the CWCB’s proposed workgroup process with his board of directors, who represent 15 Western Slope counties.
Some of the directors voiced strong opposition to the CWCB’s requirement of a non-disclosure agreement and closed-door meetings, and unanimously passed a motion asking the CWCB to explain its process.
“In all my years of participating in policymaking at the state level, at the local level, I’ve never seen anything like this,” said Steve Aquafresca, who represents Mesa County on the River District board and is a former Mesa County commissioner and a former state legislator.
Marc Caitlin, a state legislator and the Montrose County representative on the River District board, said, “This idea of putting this behind closed doors, putting a gag in your mouth and having us be surprised, so wonderfully surprised, when this comes out is not going to make sense to me. I can’t believe that the CWCB believes that they can actually pull this off.”
He added: “I can’t believe the attorney general would even go along with this.”
Colorado Attorney General Phil Weiser explained his support for the CWCB’s process in a July 8 memo to the CWCB board.
He said the proposed non-disclosure agreement was meant to “strike a balance between the need for the CWCB to lead the investigative process in a manner that considers and protects the state’s ongoing strategies in interstate forums” while also “honoring the roles and perspectives of the subject-matter experts” asked to participant in the workgroups.
The first version of the CWCB’s non-disclosure agreement — a six-page “confidentiality agreement” — ran into opposition from many invited workgroup members when it was released in June.
In July, a second proposed agreement — this time labeled as a “disclosure agreement” — was circulated. It was shorter but still contained two key provisions from the first proposal.
First, participants needed to agree to not attribute anything said in the closed-door workgroups. Second, the participants couldn’t share in a public setting what was said at the workgroups unless they got permission from the CWCB.
The 74 invited participants are still being asked to volunteer as individuals and “subject-matter experts,” and not as representatives of their organizations or clients, which also troubled some River District board members.
On Thursday, during a CWCB meeting in Leadville, Mueller told the CWCB directors that the River District board was seeking an explanation about the process, and that he and his staff could not participate until his board had learned more.
Mueller made his comments shortly after the CWCB directors held a long and unscheduled executive session to discuss the non-disclosure agreements.
CWCB chair Heather Dutton, who represents the Rio Grande River basin, responded by saying the board’s position on the workgroup process was still evolving.
Also during the meeting, the CWCB had invited the members of the state’s Interbasin Compact Committee to join them at the table to discuss aspects of demand management.
And Bill Trampe — a rancher from the upper Gunnison River basin who serves on the IBCC, the Gunnison Basin Roundtable and the River District board — told the CWCB board members that their approach to the workgroup process was raising a lot of questions about demand management among his constituents on the Western Slope.
“Everybody is starting to think about how they might participate, because they like the voluntary, compensated, temporary part,” Trampe said. “And they recognize the fact that we probably better show up and participate in some fashion, so that our brethren on the east side of the mountain will also be willing to participate.
“But we know it’s going to hurt us like heck if we participate very deeply, and we’re trying to figure out how we can do it. And we feel like we’ve been shut out of this initial process. If you’re going to go behind closed doors and develop these ideas, we feel that that’s the wrong way to do it, that it should be open from the very beginning, and we can’t figure out why these different workgroups have things that they think they need to do behind closed doors.”
On Friday, Mitchell issued a workgroup update that said the non-disclosure agreements had been eliminated and that the meetings would be public.
That update took a softer approach to the remaining potential need for closed-door meetings and agreements to not discuss sensitive information, saying “each of the groups will work with CWCB staff to develop expectations around participation and communication in this effort.”
On Sunday, she issued a revised update that did not include that statement but did include the new provision that some meetings could still occur, if necessary, in a “non-disclosure setting.”
In response the overall course change by the CWCB, the River District said, “We look forward to working with CWCB as they move forward with this important public-policy process. And we appreciate the deliberation that went into considering how the workgroups will do their work.”
Aspen Journalism covers rivers and water in collaboration with The Aspen Times and other Swift Communications newspaper. The Times published a version of this story on Monday, July 22, 2019.
