Scarcity Rules - Colorado Foundation for Water Education

Transcription

C o l o r a d o F o u n d at i o n f o r W at e r E d u c at i o n | S u m m e r 2 0 0 9
Administering Colorado’s Water Resource
Scarcity Rules
Colorado’s State Engineer, Dick Wolfe
All in a Day’s Work
Jerd Smith heads to the field with two water commissioners from vastly differing regions
Water’s Top Cop
Policing scarcity from the State Engineer’s Office
Reservoir “Rules”
A Stream of En-Gaugement
Water measurement’s ongoing evolution
Right to Remain
Non-consumptive water rights pose a worthwhile administrative challenge
Water Underground
Optimizing use of an unseen resource
Toward a Sustainable Horizon
Dick Bratton,
Gunnison Water Wheel
CFWE: The Next Five Years
I have a confession.
Water administration is not something I was very familiar with
until now. I can’t say I had a clear picture of what the State
Engineer’s job was exactly until I met with Dick Wolfe last
month to find out what he expects will be his most pressing
issues over the next five years. Then I got to read Allen Best’s
write-up, including views from Wolfe and the previous two
state engineers, Hal Simpson and Jeris Danielson, on playing
the role of Colorado’s top water cop, which cleared things up
even more. Next, Jerd Smith transported me to the Blue River
Basin and then the lower South Platte Basin for an on-theground perspective from two of Colorado’s 114 water commissioners. These guys (and gals, if Erin Light has anything
to do with it) are truly getting their feet wet implementing
the nuances of delivering water to the right place at the right
time in the right amount, to the extent nature allows. Their job
keeps getting more complicated as the years roll by, which
George Sibley reports on in his story on administering rights
for water to stay in the stream, as the non-consumptive uses
of water gain perceived value and recognition. We find out
through Sibley that water measurement is incredibly important
to the effort of enforcing Colorado’s instream flows, bringing us back to Smith’s report on the history of Coloradans’
efforts to calculate the volume and speed of an ever-flowing,
liquid target. Finally, Josh Zaffos fills us in on groundwater
administration, and how the advancing understanding of this
hidden resource’s connection to surface flows has been quite
the brainteaser, and possibly the source of more than one
migraine, for almost everyone involved in its use or its administration. So, read on and discover the myriad responsibilities
of the Division of Water Resources, or State Engineer’s Office
as it is also called, and you may just gain a healthy sense of
appreciation, as I have, that someone else is doing the stats.
Jayla Poppleton
Jayla Poppleton (left) and Nicole Seltzer ventured out to the Windsor Reservoir to check
out a Rubicon Gate, the latest in stream
measurement devices. (See Stream of
En-Gaugement on page 12.) Read
Nicole’s update on the Foundation’s
mission statement and strategic
plan on page 29.
Jayla Poppleton, Editor
Colorado Foundation for Water Education
1580 Logan St., Suite 410 • Denver, CO 80203
303-377-4433 • www.cfwe.org
Board Members
Matt Cook
President
Justice Gregory J. Hobbs, Jr.
HEADWATERS | S ummer 2009
Jerd Smith heads to the field with two water commissioners
from vastly differing regions............................................................ 2
Water’s Top Cop
Policing scarcity from the State Engineer’s Office.......................... 9
1st Vice President
Reservoir “Rules”.................................................................................. 11
Rita Crumpton
A Stream of En-gaugement
Water measurement’s ongoing evolution .................................... 12
2nd Vice President
Wendy Hanophy
Secretary
Taylor Hawes
Assistant Secretary
Dale Mitchell
Treasurer
Alan Hamel
Assistant Treasurer
Becky Brooks
Tom Cech
Rep. Kathleen Curry
Alexandra Davis
Jennifer Gimbel
Callie Hendrickson
Sen. Jim Isgar
Chris Piper
John Porter
Chris Rowe
Rick Sackbauer
Robert Sakata
Travis Smith
Steve Vandiver
Reagan Waskom
Staff
Nicole Seltzer
Executive Director
David Harper
Office Manager
Kristin Maharg
Education Program Associate
Right to Remain
Non-consumptive water rights pose a worthwhile
administrative challenge................................................................. 15
Water Underground
Optimizing use of an unseen resource.......................................... 20
Toward a Sustainable Horizon............................................................ 24
Dick Bratton, Gunnison Water Wheel................................................. 27
CFWE: The Next Five Years................................................................. 29
On the Web Please visit www.cfwe.org, the Web
site of the Colorado Foundation for Water Education,
for additional content related to this issue, including
multimedia “All in a Day’s Work” presentations
created by photographer Kevin Moloney.
Headwaters is a magazine designed to provide
Colorado citizens with balanced and accurate
information on a variety of subjects related to
water resources. Copyright 2009 by the Colorado
Foundation for Water Education. ISSN: 15460584 Edited by Jayla Poppleton. Designed by
Emmett Jordan.
Acknowledgments The Colorado Foundation
for Water Education thanks the people and
organizations who provided review, comment
and assistance in the development of this issue.
C o l o r a d o F o u n d at i o n F o r W at e r e d u C at i o n | S u m m e r 2 0 0 9
Administering ColorAdo’s WAter resourCe
Scarcity Rules
Colorado’s State Engineer, Dick Wolfe
Water’s Top Cop
Policing scarcity from the State engineer’s office
A Stream of En-Gaugement
Water measurement’s ongoing revolution
Right to Remain
non-consumptive water rights pose a worthwhile administrative challenge
Water Underground
optimizing use of an unseen resource
Dick Bratton,
CFWE: The Next Five Years
On the Cover:
State Engineer Dick Wolfe, usually knee-deep in
paperwork, explains his vision for the future—see
page 25. Photo by Kevin Moloney
Mission Statement The mission of the
Colorado Foundation for Water Education is to
promote better understanding of water resources through education and information. The
Foundation does not take an advocacy position
on any water issue.
Water commissioner Brent Schantz (above and top right) oversees part of one of the fastest-changing regions of the state, Water Division 1—the South
Platte Basin. Schantz is responsible for an area stretching from Kersey to Julesberg. On any given day, he drives hundreds of miles doing field inspections
and checking gauges like the Kersey gauge pictured above. Scott Hummer is his counterpart in Water Division 5, which includes the headwaters of the
Colorado River. Below, Hummer checks a gauge at the inlet to the Hoosier Tunnel above Breckenridge.
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C o l o r a d o f o u n d at i o n f o r W at e r E d u c at i o n
H e a d w at e r s | S u m m e r 2 0 0 9
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Like many water commissioners Hummer is part historian, part sociologist, part hydrographer and part naturalist.
Story by Jerd Smith | Photos by Kevin Moloney
turn to Summit County and the Blue River Basin he
oversees in Colorado Water Division 5.
Here in the headwaters of the mighty Colorado
River, most of the state’s largest water utilities have
a major presence. Their massive transmountain
delivery systems supply drinking water to millions of
people on the Front Range. The utilities, farmers and
ski areas have spent millions of dollars over the years
battling one another over who gets how much water
and when. Hummer is the water cop responsible for
keeping the peace and ensuring water is being measured and delivered properly.
He knows, for instance, that the Roberts Tunnel
is taking about 56.6 cubic feet of water per second
out of the lake, based on satellite feeds that automatically gather data from dozens of river and reservoir gauges. Later today he will visit critical gauging
stations to make sure the automated readings com-
© iStockPhoto.com
A white jacket of snow covers the Continental
Divide and solid ice blankets Lake Dillon, Denver
Water’s largest water storage reservoir. Beneath
the stillness of the ice, water, as always, is moving
into the mouth of the Roberts Tunnel, destined to
travel 60-some miles down the east side of the Front
Range to 1.2 million Denver Water customers.
Summit County water commissioner Scott
Hummer has already checked stream gauges this
morning from his home above Lake Dillon, eyeing
reservoir levels and flow rates. By 9 a.m. he has
plowed through the paperwork at his tiny office in a
Silverthorne industrial park.
Hummer is one of 114 commissioners who oversee the day-to-day operation of Colorado’s rivers.
A 20-year veteran of Colorado’s Division of Water
Resources, Hummer, 49, is well aware that when
the mountain snowpack begins to melt, all eyes
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ing in via satellite to the state’s monitoring system match those
he sees on the river itself.
As utilities, farmers and regulators gear up for the spring
melt—a time to fill reservoirs and carefully balance the flow of
water between the east and west slopes—everyone goes into
a sort of hyper-alert mode, a ramp-up period that has people
like Hummer carefully monitoring mountain snowpacks and
checking gauging stations and tunnels to ensure they’re
ready for the season.
Above Dillon, the snowpack on that April day was 109
percent of average, according to the Natural Resources
Conservation Service, a healthy reading given the chronic
drought cycle that has plagued Colorado since 2002. But to
Hummer and other commissioners, a slightly above average
snowpack doesn’t necessarily mean it will be a good water
year. “One month ago we were still below average,” Hummer
says. “This is nothing to write home about.”
Still, the snow in April is heavy and wet. On a deeply rutted
dirt road heading over the Continental Divide, melting water
sluices down through the snow, turning clay to a deep, greasy
mud. Hummer is on his way to check the Hoosier Tunnel,
which delivers water from the Blue River Basin to Colorado
Springs. Inside this massive, old structure, completed in 1951,
water drips from the granite ceiling as Hummer checks the
gauge. It’s reading about 1 cubic foot per second, barely a
trickle compared with the spring rush that will occur in a few
short weeks. “Things are just getting started,” Hummer says.
“In another month, it will be at 1,500 cfs.”
Like many water commissioners Hummer is part historian,
part sociologist, part hydrographer and part naturalist. He
has a degree in geography, and he loves the diversity of his
work. “In a district like this,” Hummer says, “you have every
type of water right that has ever been adjudicated being used,
from irrigation water, to water for snowmaking, to water from
a geothermal well that is
being used to heat a local
hardware store.”
Last week, he took snow
shoes and hiked up to a
ridge line to check a small
mountain lake on which a
nearby property owner had
filed for a new water right.
Later, he’ll write a formal
report that the water court
will use to evaluate whether
to approve the water right.
“The process of determining what a new water
right will be starts with the
water commissioners,” Hummer says. “Most people don’t
even know that water commissioners exist. Yet commissioners are the individuals who are responsible for allowing the
people who hold and own water rights to divert their water.
Denver Water has to deal with the water commissioner just like
a rancher down in Durango has to deal with a water commissioner. Pretty much what we say goes.”
Later this summer, he’ll be going door-to-door in the evergrowing mountain subdivisions of Summit County, checking
wells to make sure people aren’t using water outdoors on
lawns and in hot tubs. Here, about 3,500 wells operate but
water is allowed only for indoor use because the wells draw
from the same aquifer that supplies the Blue River. If homeowners and others over-pump, they must buy extra water to
replenish the river.
“If anyone had told me 20 years ago that I would be going
to door-to-door checking hot tubs, I would have said, ‘You
must be nuts.’”
Just as Hummer is gearing up for spring runoff, on the
east side of the Continental Divide, water commissioner Brent
Schantz is at work in his Greeley office. Schantz oversees
Districts 1 and 64 in one of the fastest-changing regions of
the state—Water Division 1, the South Platte Basin. At 7:30 on
a cold, cloudy April morning, he’s already taken a half dozen
cell phone calls in his office. Two large computer screens offer
him views of a slew of gauge readings from Kersey out to the
Nebraska state line at Julesberg.
Stacks of records and paper charts still used to graph readings at old monitoring stations cover an ancient wooden desk.
New portable electronic devices that allow commissioners to
automatically download data from stream gauges during field
expeditions lie around, as do batteries and cables.
Schantz, 41, took over supervision of District 1 in 2002, one of
the driest years on record. It was a year that had groundwater-reliant farmers battling surface
water-dependent farmers day
after day. Conditions created
by the prolonged drought,
in addition to a Colorado
Supreme Court case and a
new state law, have mandated that well users put more
water back into the river.
Problems between well users
and those who rely on surface
supplies were first addressed
in a 1969 law that established
that the aquifer that supplied
the wells also supplied the
South Platte. Replacement
Scott Hummer checks the gauge in the Hoosier Tunnel near Alma, which delivers water from the Blue River Basin to
Colorado Springs. The flow was about 1 cubic foot per second, barely a trickle compared with the spring rush.
Listen to Scott Hummer and Brent Schantz describe their work and view
additional photos at www.cfwe.org.
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ers using surface water or
for out-of-priority well pumpgroundwater have access
ing was required beginto satellite telemetry data
ning in 1974 when the State
that tells them how much
Engineer’s Amended South
water they are diverting
Platte Rules were approved.
almost instantly, not days
Still, there had usually been
or weeks later after hunenough water to go around
dreds of acre feet of water
in the South Platte, enough
may have already been
to keep both surface and
improperly used. This near
groundwater users happy.
real-time data is now availBut 2002 changed that,
able for all major diversion
and the drought made it
structures along the South
clear that water demands
Platte from Brighton to the
on the South Platte—
Nebraska state line.
thanks to growing cities
The slightest changes to
and a massive irrigated
the river’s flows may immefarm economy—had outFrom his Greeley office, Brent Schantz monitors satellite-equipped river gauges that provide
instant feedback on fluctuating river conditions.
diately alter whose water
stripped the river’s ability
rights can be exercised,
to supply everyone.
Since then, bitter court battles have been fought and hun- with the senior, or oldest, surface water right holders getting
dreds of wells have been shut off. Well users who’ve survived their supplies first. Now the moment supplies in the river
have spent millions buying water to augment their well use. change, Schantz alerts users whether they can divert more or
Rules dictate that every time a well pumps out of priority, it less water or whether their surface water or well right is no
automatically incurs a depletion debt to the river that has to longer in priority for the available water. In that case, well users
be paid to prevent injury to senior water rights. They’ve built either need to shut down or prepare to incur a liquid debt to
dozens of recharge ponds to ensure they can store extra water the river that will have to be paid out of their recharge ponds.
and return it to the river as their wells draw from the aquifer. All On a good day—and there have been several this spring—the
of these must be closely monitored by Schantz and his small river’s flow is abundant and “free,” and users can take whatever they need.
band of deputies.
Free river days are rare on the South Platte. And with each
The added activity means the winter season—once a quiet
time for water commissioners—has become almost frenzied year, with each new row of houses, the river’s supplies are
because it is the time when well users can draw water from the further stretched. That painful reality pushes Schantz to work
12-hour days gathering data, monitoring recharge ponds,
river to fill their recharge ponds.
“I never thought I’d see the day when I looked forward watching for peaks and free river conditions, and informing
to irrigation season starting,” says Schantz. “But I do. The well users when they must pay back water to pump.
Like Hummer, Schantz spends at least part of his days in
recharge periods are far more busy and hectic.”
Schantz is on the cutting edge of an effort to automate April preparing for the spring runoff, verifying automated sateland publish the thousands of measurements that are made lite data. When the numbers don’t match what is actually occurdaily on this fiercely contested river. Now, many farm- ring on the river, he checks instruments and calls for repairs.
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the wheels of pioneer wagAs heavy clouds wrap
ons. He travels for miles
the eastern plains in a cool,
on unmarked ranch roads,
grey drizzle, Schantz venthoroughfares the early piotures out from Greeley to
neers built along irrigation
check the Kersey gauge, a
ditches and across fields.
critical measuring site just
He’s been stuck near the
below the confluence of
Riverside Reservoir three
the Cache la Poudre and
times since becoming comthe South Platte rivers. As
missioner. It’s an experihe drives, a massive set of
ence he now takes pains to
keys held on interlocking
avoid. “On some of these
silver rings cascade from
roads, all you can do is
the ignition of his white
grab the wheel, drive as fast
truck, rattling against the
as you can without going
steering column. There are
into the ditch, and hold on.
hundreds of keys to head
Sometimes you make it.
gates, diversion structures
Brent Schantz checks diversion structures along the South Platte River to make sure water
right owners are taking only what they’re allowed.
Sometimes you don’t.”
and well houses. If mayors
Though Hummer and
hold the keys to their cities,
Schantz preside over widely differing river basins, each has an
Schantz holds the keys to the South Platte.
At the Kersey gauge, he pulls off Highway 37. First he appreciation for what the other must do in the field--educating
checks gauge readings inside a small white station house, the public, calming angry water users, taking one phone call
then he hikes back up to the highway and onto the bridge after another from those jockeying for position on the streams.
And though Hummer is often reluctant to go door-to-door
that spans the river. Semi-trucks sail by as Schantz leans
over the railing to unlock a small metal box that holds a mea- to stop hot tub violations, he knows that his well-enforcement
suring cable. Slowly he turns a crank lowering the cable until problems pale in comparison to those Schantz is trying to manit touches the river’s surface 20 feet below. This measure- age on the other side of the divide.
“It’s hard to compare sending someone a violation because
ment will help him calculate the volume of water moving
they have an illegal hot tub in an accessory apartment to telling
through the river that day.
On the South Platte this is a tricky proposition because, a family in the South Platte that they are no longer going to be
says Schantz, “The river bed is constantly moving.” One able to irrigate 3,000 acres of corn,” Hummer says.
Still, Hummer’s work high in the headwaters is critical to
gauge, the Balzac, is on a sand channel that is so shifty that
the gauge has to be flushed daily because it becomes plugged the South Platte because much of the water the Front Range
with sand. “The level at the top of the river may be the same, relies on originates in his territory. Spring “State-of-the-River”
but from one day to the next, the bottom could have scoured meetings lure hundreds of people from both the West Slope
and Front Range, and sometimes the gatherings turn raucous.
out by a foot.”
On any given day, Schantz drives hundreds of miles doing But Hummer is used to the tumult.
As one sign pinned to the bulletin board in his tiny office
field inspections, ghost-riding the Overland Trail, hoping he
doesn’t sink into the sandy river bottom soil that also snagged reads, “There are no rules above 10,000 feet.” q
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Erin Light, pictured on the Elk River, is Colorado’s first female division engineer.
The Yampa’s First Lady
Erin Light oversees the remote, lush Yampa River Basin, one
of the last places in the American West where almost anyone
can take water without a water right. Because of increasing
use, however, the river is slowly being integrated into the
state’s regulatory system, and Light, the first and only female
division engineer in the state, is charged with bringing the wildcharging Yampa in line.
Unlike her colleagues in the heavily-regulated Colorado
River and South Platte River basins, Light doesn’t have to keep
tabs on hundreds of stream gauges and measuring devices
because until recently there haven’t been any, at least not on
the Yampa’s mainstem.
“When people from the Front Range come over here,
they’re just shocked,” Light says. “The concept of being able
to divert without a water right is baffling to them.”
But not to Light. The Yampa Basin is a place of liquid plenty,
and those ranchers whose families helped settle this stunning
region have fought long and hard to keep state water commissioners from regulating how much water they divert.
Light’s job is to convince them to join the regulated water
world. It hasn’t, however, been easy. In the past two years she’s
ordered 90 new measuring devices to be installed. At least 10
water users have failed to comply, forcing her to issue ceaseand-desist orders.
“I really hope they don’t try to divert this spring because
we’ll just have to shut them off,” Light says. And that’s almost
unheard of on the Yampa.
So are female division engineers. Light, however, grew
up listening to stories of Elwood Mead, for whom Lake Mead
is named, and of Howard Bunger, co-inventor of the Howell8
By Jerd Smith
Bunger valve. Both are her distant uncles, and both worked
for the U.S. Bureau of Reclamation. She followed in their
footsteps, earning her bachelor’s and master’s degrees in
civil engineering from Colorado State University, focusing on
hydraulics and hydrology. After college, she worked first in
consulting, but then landed a job with the USBR in Denver
before eventually finding her way to the Steamboat office of
the Colorado Division of Water Resources. After working for
five years as a hydrographer, she was named division engineer.
After her appointment two years ago, she anguished
for days over how to tell her boss, then-State Engineer Hal
Simpson, that she was pregnant with her first child, though
he had hired her and served as a mentor. He proved her fears
groundless, taking the news well.
Now Light’s staff of 11 includes seven women, five of whom
are water commissioners, another oddity in the water world.
Light hired one of those commissioners last fall, a 25-year-old
who had been working in the Yampa as a ditch rider. Now she is
overseeing a particularly contentious region of the basin. “She’ll
have a lot to learn this summer,” Light says. “But I think I helped
pave the way for her.” Light also paved the way for another
soon-to-be mother, the water commissioner of the Piceance
Creek basin of the White River. “I bet it was easier for her to
come tell me she was pregnant than it was for me to tell Hal
Simpson.”
That so few women work in water administration beyond
Light’s small universe is puzzling to her. “Sometimes I think it
may be that they lack confidence,” Light says. “I really hope
that’s not it, but it may be. To be a water commissioner you
have to be a really tough person.” q
Policing scarcity from the State Engineer’s Office
Water’s Top Cop
by Allen Best
If water were eternally abundant
in Colorado, no dams would be needed
for storage, their structural safety in
annual need of inspection. Anyone could
drill a well because, well, why not?
Monitoring the allocation of streams,
rivers and ditches would be unnecessary. Interstate water compacts—what
are those?
Instead, scarcity is the enduring reality, even in periods of relative plenty,
which is why Colorado adopted the doctrine of prior appropriation at statehood in
1876, establishing an orderly process for
who gets how much water, from where,
and when.
of the law, with court decisions later
rendering revisions to procedures with
far-reaching consequences. In recent
decades, urban growth and the emergence of new environmental values have
impacted water distribution. Sustained
drought in the early 21st century sobered
users, administrators and policy-makers
alike. Yet through these changes there
has been coherence and clarity. The system has worked.
At the bottom of this pyramid, but
crucial in every way, are the water commissioners. Until 1969, they were deputized sheriffs, authorized to carry weapons as they carried out their duties of
other commonalities. All rose through
the ranks, toiling at DWR before appointment to the top job. Moreover, all three
men have lived on or near farms of
the South Platte Valley—Danielson near
Brush, Simpson at Severance, and Wolfe
near Platteville.
It’s fair to say that all three see themselves as public servants. In that respect,
they have company with another State
Engineer, M.E. Hinderlider, who worked
out of a basement office in the Capitol
from 1923 to 1954. “He was utterly, utterly
devoted to Colorado,” says his granddaughter, Maureen Elliot. Today, carrying the torch as Colorado’s 21st State
“We provide stability and certainty on the river. If we didn’t
have water commissioners, if there was nobody to enforce
water rights, people would steal water.”
—Hal Simpson, former State Engineer
Having a process, however, is one
thing. Adhering to it is another. Hence
the need for water commissioners, water
division engineers and, atop the pyramid in the Colorado Division of Water
Resources, the State Engineer.
“Water wars. Chaos,” replies former
State Engineer Hal Simpson quickly,
when asked to imagine having no agency to administer the 173,000 water rights
filed in the state. “We provide stability
and certainty on the river. If we didn’t
have water commissioners, if there was
nobody to enforce water rights, people
would steal water.”
Blood has, in fact, been spilled in
Colorado because of water. Whether the
violence has been frequent enough to
justify the large legend may be another
matter. The prevailing story has been of
quiet order and an attentive devotion to
the efficient governance of every creek,
ditch, and river—and, since the 1960s,
every well.
Yes, controversies have erupted.
Opinions have differed in interpretation
fairly allocating water. When Simpson
joined the agency in 1972, about half
were former farmers and ranchers. Now
they come from varied walks of life,
although many have college educations,
particularly in resource administration.
More important than the degree is the
skill set, says Simpson: technically competent but also peacemakers by nature,
long on courage, and able to listen well
and express themselves.
The agency has seven water division
offices, corresponding to each major river
basin, with each division administered by a
division engineer. As an agency, it is dominated by people with engineering degrees.
This prevails, too, at the top. Simpson
has master’s and bachelor’s degrees in
civil engineering. His predecessor, Jeris
Danielson, who served from 1979 to 1992,
has the same plus a doctorate. Current
State Engineer Dick Wolfe has bachelor’s
and master’s degrees in agricultural engineering. All of their degrees are from
Colorado State University.
The three living state engineers have
Engineer, Wolfe says he couldn’t have
done the job when his children were
small. Most evenings he is still working
from home, catching up on emails and
other piled-up tasks, and he says the work
is his hobby as well as his career.
The State Engineer’s duties require
orderly processing of voluminous paperwork and crunching staggering numbers.
Division personnel process permits for
5,000 new wells each year and another
1,200 new water right filings. Just one
augmentation decree can run 100 pages.
But the core work lies in the field,
where the division records 30,000 diversion and storage measurements annually.
In 1879, when the Legislature appointed
the first water commissioners, measurements were retrieved by horseback. That
has changed, of course. Colorado continues to push the technological envelope to
make real-time water readings available
to all. More than 480 stream, ditch and
reservoir gauges are monitored by satellite
in a program operated in cooperation with
the Colorado Water Conservation Board.
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“We can do our jobs as well as we can
do because we have been given assets
that I don’t think any other state has,” says
Simpson. Questions now involve whether
such technologies as Facebook and Twitter
have a role in water administration.
Yet at the end of the day—some
very long days, perhaps, during irrigation season – the responsibility of water
administration literally involves wet feet.
The 300 full- and part-time employees of
the division drive 2.4 million miles per
year checking stream gauges and diversion structures, inspecting wells and
evaluating the safety of dams. The State
Engineer communicates weekly with his
division chiefs, but occasionally gets his
feet muddy himself.
In some respects, laws tightly
define the duties of the State Engineer,
though Danielson, looking back to the
1980s, remembers a great deal of latitude in interpreting laws. Simpson
believes two court decisions in the last
15 years constricted the authority of
shifted in many important ways since
Danielson joined DWR in 1969. At that
time, significant development of transmountain diversions from the West
Slope’s headwaters remained underway. Dillon Reservoir was still relatively
new. The Homestake diversions had just
begun. Work continued on the FryingpanArkansas Project. Reservoirs filled rapidly, as it was a time of deep snows and
cold winters. Cities planned for drought,
but their worst-case scenarios assumed
nothing more severe than the multi-year
drought of the 1950s.
Much has changed, affecting administration of water and hence the complexity of the State Engineer’s job. Most pronounced has been population growth,
with the 2.2 million residents of 1970
now dwarfed by today’s 5 million-plus
Coloradans. The most explosive growth
has been in Douglas County, focusing
attention on the south metro region’s
unsustainable reliance on diminishing
aquifers. Front Range urban growth has
then was shadowed by five successive
years of mostly below-average precipitation. Urban districts, realizing greater vulnerabilities than they previously
assumed, hastened to buy agricultural
water rights. Farmers needing to buy
rights for well augmentation couldn’t
compete with rising prices. In total,
Simpson and Wolfe have ordered 2,000
wells in the South Platte and 1,000 wells
in the Arkansas Valley to cease pumping.
“Everything tightened up because of that
extended drought,” says Simpson.
As reservoirs ebbed, threatening to
dry altogether, water managers were
forced to reconsider the razor’s edge
between supply and demand in the
Colorado River Basin. Revised calculations took into account the potential for
the kind of extended droughts that visited the Colorado River Basin 1,000 years
ago. Overlaying that possibility is the
likelihood that accumulating greenhouse
gases in the atmosphere will yield earlier
runoffs, more intense summer heat and
“…my job tends to be 80 percent sociology and psychology and 20 percent
engineering because so much of what we do now requires us to work with a
lot of stakeholders.”
— Dick Wolfe, State Engineer
the State Engineer to create solutions
to depletions caused by wells. Yet
the job demands more than numbers
and calculation. “I have found my job
tends to be 80 percent sociology and
psychology and 20 percent engineering because so much of what we do
now requires us to work with a lot of
stakeholders,” says Wolfe. He regularly
speaks to groups such as real estate
agents, as he perceives educating the
public about water as one of his primary responsibilities. Legislators, who
increasingly hail from cities instead of
farms, also need education in water
administration-related issues.
The State Engineer is also tasked with
administering the nine interstate water
compacts as well as two federal apportionment decrees to which Colorado is
a party. In most cases, compact requirements are treated just like another senior
water right. For Wolfe, it also means
communicating with corresponding officials from the relevant states. In the case
of the two Colorado River compacts,
the State Engineer assists the CWCB in
ensuring compliance.
The landscape of water use has
10
also accelerated ag-to-municipal conversions, posing large questions about
economic and social tipping points in
farm-dependent communities.
Ascendance of environmental values
further constrained the options for development of raw water resources. Instream
flow rights, also called minimum streamflows, first authorized in the early 1970s,
became salient in water administration
in 2002 and successive drought years.
Endangered Species Act requirements
for flows to sustain endangered fish in
the Colorado River and waterfowl on
the Platte have also limited development
options. Applications for decreed rights
for recreational in-channel diversions,
something likely unimaginable in the 19th
century, have flooded water courts in
recent years. Simpson and his deputies
testified in several cases that applications
exceeded the amount of water needed by
whitewater boaters. The broader concept,
however, has been upheld, adding complexity to water administration.
Pivotal to the work of Simpson, and
now Wolfe, was the drought of 2002.
Alone, it dwarfed 1976-77 and every
other drought in recorded history, but
perhaps less precipitation.
The conclusion drawn from both of
these potential futures is an upright-inbed-at-4-a.m. realization: It’s entirely
possible at some point in the future
that lower basin states could issue a
call on the Colorado River. With many
transmountain diversions still relatively
junior in priority, the effect would be
like a bug hitting a spider’s web, with
ripples in the tension out to the Kansas
and Nebraska borders.
Coming to grips with these and other
possibilities is how Wolfe defines an
important part of his job moving forward.
Water users without good planning in
2002 reacted, he says. Better is to produce
a “very thoughtful, systematic response”
to future water shortages. Within the limits of the laws prescribed by legislators,
rulings by the Colorado Supreme Court,
and the vagaries of weather and climate,
he sees his job as delivering the maximum achievable certainty to farmers,
cities and other water users.
In this very fundamental way, the job
of the State Engineer has changed very
little since the Legislature created the post
in 1881. It is all about avoiding chaos. q
By Jayla Poppleton
Westerners prudently store water
from each spring’s abundant runoff to use throughout the year.
Colorado now has about 2,000 reservoirs statewide, which the
Division of Water Resources must administer. In an attempt to
informally codify the state’s reservoir administration practices,
Water Division 1 Assistant Division Engineer Claudia Engelmann
and Division Engineer Jim Hall, along with Water Division 5
Division Engineer Alan Martellaro, assembled a set of guidelines
intended to provide a common starting point for the many difficult decisions DWR staff must make every day. The guidelines
are currently being reviewed by State Engineer Dick Wolfe. Here
is a sampling of the issues covered:
One-fill rule—Established by historical court opinions, the
“unwritten” one-fill rule limits a storage water right to
filling a reservoir once in any given seasonal year. A
seasonal year typically begins Nov. 1, but for many
municipal reservoirs, April 1 is the start date. Emmett Jordan
Second fill—A decreed refill right allows the owner of the
water storage right to begin to fill a second time once
available space is made in the reservoir. This is only
allowed when the refill right, which often has a later,
more junior date, is in priority.
Paper fill—Using this accounting method, division engineers
document when a storage right is fulfilled on paper, even
if it has not been physically filled. Some reservoirs have
more than one owner or more than one decreed storage right with different priority dates. They are required
to take the most senior water first. However, they may
be allowed to fill first under their junior water right while
division engineers use a paper fill to book the water
against the senior right. That way, they keep track of how
much less the owner can later call under the senior water
right, if the junior right comes out of priority. Engelmann
acknowledges that “the accounting gets extremely complicated when you have to track the different priorities
and owners of water.”
Why the complication? According to Martellaro,
who has served as Division 5 engineer for almost 9
years, a common example would be if a senior water
right is limited under its decree to irrigation uses but
the junior water right’s decree is more flexible. In this
case, the owner may consider the junior right more
valuable and elect to store that water first. Martellaro
says this is becoming more common as “people are
coming up with good, creative ways to better use what
water’s out there.”
“Owe-the-river” account—Some reservoirs are literally
built on the stream. When an on-stream reservoir’s
storage right is out of priority, DWR staff attempt
to administer the reservoir as if it didn’t exist, says
Engelmann. To mimic the natural streamflow and
maintain peaks in flow through the system, they track
inconsistencies through an “owe-the-river” account. If
the reservoir releases too little water one day, it must
release more the following day to compensate.
Exchanges and substitutions—Exchanges and substitutions
may be made between reservoirs or between a reservoir
and a direct-flow diversion. “A substitution is when we
make a release from one reservoir for the purposes of
another,” says Martellaro. “It’s not done at the same time,
whereas an exchange happens at the same time.”
A frequently occurring substitution in his division
occurs between Green Mountain Reservoir and
Wolford Mountain or Williams Fork Reservoir when
Denver Water’s Dillon Reservoir fills out of priority.
By state statute, an upstream reservoir can fill out
of priority if allowed by the State Engineer, but if
a downstream reservoir with a more senior right
doesn’t end up filling, the upstream reservoir must
pay the water back. If Green Mountain Reservoir,
downstream from the more junior Dillon Reservoir,
doesn’t fill, Denver often pays back the water directly
to the mainstem of the Colorado River where Green
Mountain’s water would otherwise be destined. In-lieu
of Green Mountain sending water there to meet a
call on the river, Denver would use its Williams Fork
Reservoir or its interest in the Colorado River Water
Conservation District’s Wolford Mountain Reservoir to
make releases to pay back Green Mountain indirectly.
Division 1 has adopted its own requirements that
must be met before any reservoir on the South
Platte’s mainstem can store out of priority.
An exchange might occur to allow a more junior
water right to continue diverting even when out of
priority by replacing the same amount of water at the
same time from another source. Another Division 5
example is when Denver releases water from Williams
Fork Reservoir into the Colorado River so that it can
continue out of priority diversions through Roberts
Tunnel to the city.
Again, Martellaro says, “Substitutions are becoming more and more common to make better use of
what we have.” q
Blue Mesa Reservoir, located on the Gunnison
River, is Colorado’s largest reservoir.
11
In 1884, Colorado State Engineer E.S. Nettleton
(right) developed the Colorado Current Meter.
In 1925, Ralph Parshall (left), a professor at
Colorado State University, patented a flume now
used worldwide to measure streams. (Photo
courtesy of CSU Water Resources, Archive)
Automated devices (facing page), such as this
one on the South Platte River near Kersey, are
increasingly common in Colorado.
Photo courtesy of City of Greeley Museums,
Permanent Collection.
12
Water measurement’s ongoing evolution
By Jerd Smith
A Stream of
En-Gaugement
In 1881, Colorado’s first State Engineer,
Eugene Stimson, rode 30 miles each way
on horseback between the Big Thompson
River and the Cache La Poudre checking
gauges he had set in the rivers. He carried a tent and a portable drafting table.
Even then, the public need for accurate water measurements was clear,
especially in those regions on the Front
Range where settlers, miners and farmers
were battling over streams as demand for
water was already outpacing supplies.
And though the prior appropriation doctrine was incorporated in the new state constitution in 1876, establishing Colorado’s
system of water rights, little was known
then about how to measure the precious
liquid and guarantee each water right holder received the correct amount.
In 1878, counties began hiring water
commissioners, according to Dick
Stenzel, water historian and former South
Platte division engineer. They were paid
$5 a day. Three years later, the State
Engineer’s position was created, and by
statute, was handed responsibility for
computing the amount of water in each
stream and providing each water commissioner with a copy of the results. The
water commissioners then determined
who could divert. Colorado was the first
state to provide for such public oversight
of water distribution, but it wasn’t easy.
“The State Engineer was constantly
moving during the irrigation season,”
says Stenzel. “He tried to hire an assistant,
but the state wouldn’t pay for one.”
Early measuring devices were crude
and famously imprecise. Miners’ inches
were among the first measures used.
They were calculated by forcing water
through a 1-inch square opening in the
floor of a box placed in the stream. As
water flowed through the opening, it was
timed, establishing the flow rate.
With each passing decade, Colorado’s
efforts to quantify water rights and dis-
tribute them fairly improved. The state’s
groundbreaking efforts helped lead the
world into a modern era of measurement.
One of the first mechanical water
meters was developed here by the second
State Engineer, E.S. Nettleton, in 1884.
Known as the Colorado Current Meter,
and now housed in the Smithsonian
Institute, the device consisted of three
cups that hung from the bottom of a
rod. The State Engineer or his staff
would wade into a stream, lowering the
meter at different points across the channel. It was considered an advancement
because the cups could clear themselves
of debris as they spun, where previously-used meters would quickly become
clogged and cease operating.
Nettleton also installed continuous
recorders on stream gauges so that
commissioners and irrigators didn’t
have to manually measure flows multiple times a day.
In 1925, Ralph Parshall, an engineering professor at Colorado State
University, patented a flume now used
worldwide to measure streams. Known
as the Parshall flume, it is sturdy and
simple to construct. Today, the flumes
are typically made from sheet metal.
They are three-sided, with two walls and
a floor. When the flume is installed in a
stream, water is forced through in a consistent pattern that allows hydrologicallyengineered rating curves to be applied
to physical water measurements. The
uniformity of the structure and the use of
rating curves made field measurements
much more precise.
Despite such advances, gauges and
flumes were still installed at very few
locations statewide. And Colorado’s
small band of water commissioners—
there were only 70 in 1939—scrambled
to take measurements and record data
in places without such devices to ensure
they could deliver water equitably.
Several regions of Colorado still
wrestle with outdated water systems. In
the Yampa and White River basins, for
instance, stretches of the rivers’ mainstems lack measuring devices, both on
diversion structures and in the river. The
state is pushing water right holders to
install them in order to protect reservoir
releases intended to reach endangered
fish. The need for sufficient measuring
devices will only increase if the Yampa is
tapped by the Front Range or by major oil
companies hoping to develop oil shale on
the West Slope.
Water commissioners in the Yampa,
working on remote tributaries, still sometimes calculate cubic feet per second
manually, measuring stream depth by
hand and calculating water speeds by
tracking how long it takes a floating twig
to travel between two fixed points.
Because there has always been plenty of water in the Yampa, there’s been
little need to determine the mechanics
of the river, such as how long it takes
to deliver water on certain stream segments. To solve that problem, commissioners use special dyes that color the
water and allow its travel time to be visually tracked.
These days, 114 water commissioners monitor streams across Colorado’s
seven water divisions. The Division of
Water Resources, the state’s primary
water regulator, has an annual budget of
$27 million and nearly 300 employees.
A significant part of that budget - more
than $850,000 annually – is spent installing satellite telemetry on gauging stations, a technology that allows water
level readings to feed into state databases at 15-minute intervals.
“All the major diversion structures
from Denver down to the state line are
equipped with these devices,” says State
Engineer Dick Wolfe. “That’s real-time
monitoring. It’s live on our Internet. Our
13
“…all of these devices have some inaccuracies. And though you’re always
going to have people who want more precision, it’s good for all water users
to understand there is an inherent inaccuracy in water measurement.”
— Stephen Smith, president, Aqua Engineering
water commissioners and our users utilize that on a daily basis.”
In 1881, when Stimson began work,
he installed Colorado’s first gauging station. Now the state owns and operates
more than 480, Wolfe says, and each has
a satellite telemetry system. Another 270
stream gauging stations are operated by
the United States Geological Survey.
Today, Colorado is awash in water
data and is racing to employ new technologies and the Internet to make it
widely and quickly available. Data that
was once distributed monthly in the
South Platte Basin is now available to
water users continuously online so that
everyone who has an interest in a given
stream segment, from farmers to city
utility managers, can find out how much
water is moving through the system and
who is diverting at any given time.
“People expect transparency of government and they like this transparency,”
says Wolfe. “They can see what their
neighbors are diverting. But now we like
to say that the division has 114 water
commissioners and 3,000 volunteers,
which include all the users looking at
things on the Internet.”
Pressure continues to build to do more.
“The opportunity and the demand and
the need is greater now than it ever was
before,” says Stephen Smith, president of
Fort Collins-based Aqua Engineering.
New automated measuring and control devices known as SCADA systems
are helping streamline water deliveries.
The term stands for Supervisory Control
and Data Acquisition. “It’s kind of a catchall phrase,” Smith says. It brings together
sensors, processors and actuators into a
computerized, radio-controlled system.
Once seen only in industrial settings,
the systems are now being used in
high-stakes water regions like the South
Platte, where millions of dollars worth of
water must be carefully shared between
fast-growing cities and farmers.
“About seven years ago, we began taking these systems out to ditch companies
and saying, ‘Here’s a way you can read this
14
“The fact is that all of these devices
flume remotely and not have to drive five
have some inaccuracies,” says Smith.
miles twice a day to read it,’” Smith says.
New automated gates can also be “And though you’re always going to have
run via SCADA systems so that when a people who want more precision, it’s good
gauge reading shows the river has fallen for all water users to understand there is an
and a user no longer has the right to inherent inaccuracy in water measurement
divert, the gate can be closed immedi- and you just have to deal with it.”
For every stretch of stream that has
ately. Water users without this technology must wait for a gauge reading and a 2009 technology on it, there are several
water commissioner’s call before physi- more whose diversion structures date
cally going out to the field to either shut back to the late 1800s. It is these strucoff or turn on a diversion structure. In the tures that Wolfe says are likely to cretime that takes, thousands of gallons of ate issues in the future. “Irrigation and
reservoir companies are going to have
water can be lost downstream.
“The sociology of all of this is very big challenges just to meet the cost of
interesting,” Smith says. Many canal replacing these structures. If you’re trymanagers, for instance, have never ing to manage water with them, it’s very
seen SCADA systems. “They’ve always difficult. They have cracks in them, or
opened head gates, then read the flume, they seep water. You really don’t know
then traveled back and adjusted the head how much water you’re ultimately getting
gate again. They’re quite skilled at it.” But down the river,” he says.
Upgrading these structures and bringwhen they see these systems work, they
realize how quickly and efficiently the ing record-keeping practices up to modwork can be done, Smith says. “I call it ern standards is critical as water supplies
continue to tighten in Colorado. the ‘Oh, duh’ moment.”
“We’ve measured water for centuries
As year-round, hour-by-hour water
management gains ground, water man- in the world,” says Wolfe. “I don’t think
agers continue to worry about preci- there are questions about data collection
sion. Even with satellites and hundreds of itself anymore. I think the bigger challenggauges, determining exactly how much es are to maintain the structures and to
water is flowing through a head gate or transmit the information quickly and accupast a gauge at any given moment is still rately. These records are our legacy.” q
difficult.
A
Parshall
flume,
for
instance, has an
accuracy
rating of plus or
minus 5 percent.
New automated
Rubicon Gates,
manufactured in
Australia, have
an accuracy rating of plus or
minus 2 percent,
Smith says, and
they have been
installed in some
locations on the
Real-time flow information, including gauge height and discharge, is available at
South Platte.
www.dwr.state.co.us/SurfaceWater/Default.aspx.
“It’s a work in progress.”
That’s how water commissioner Richard Rozman
describes Colorado’s ongoing efforts to fit a river’s
instream flow rights into a legal system originally
designed to govern the removal of water from rivers.
Rozman fits the traditional image of the water commissioner, the guy responsible for administering water
law in the sometimes contentious social environment of
a head gate. Rozman is a big man, for one thing, which
sometimes helps in that environment. But he is also a
friendly and reasonable man, which helps a lot more.
He also grew up in the valley where he is now water
commissioner, son of a rancher on the Slate River branch
of the Upper Gunnison River. For most of the 20th century, it was practically required that a water commissioner
know well the majority of the people on whom he might
have to impose some hardship in the name of the law.
But over the past half century, Rozman’s District 59 in
the Upper Gunnison watershed has gone from a mining
and ranching economy to a resort and recreation mecca,
changes reflected by new water uses. Similar evolutions
statewide have forced changes in Colorado’s water law,
and the water commissioner’s job has gotten more complex accordingly. Commissioners still primarily administer
agricultural water—more than 90 percent of the water used
Right
to Remain
in the Upper Gunnison —but new mandates and rules have
elbowed their way into the sacred precincts of priority.
Non-consumptive water
rights pose a worthwhile
administrative challenge
© iStockPhoto.com
By George Sibley
15
But after World War II, with the
West increasingly urbanized,
much of the non-urban West,
with its mountains, rivers and
deserts, became the playground
for city-dwellers.
If the many changes impinging on
Rozman’s job could be summarized in
one sentence, it would probably be this:
Water today is at least as valuable economically in the river as it is out of it.
Prior to World War II, the right to use
water required the user to put it to beneficial use in the human economy. With
the exception of hydropower, this meant
taking it out of the stream for irrigation,
domestic use or industry under the 1876
constitutional promise that “the right to
divert the unappropriated waters of any
natural stream to beneficial uses shall
never be denied.”
But after World War II, with the West
increasingly urbanized, much of the nonurban West, with its mountains, rivers
and deserts, became the playground for
city-dwellers. There was also a growing national awareness of environmental deterioration following a century of
heavy industrial development. These cultural changes were resolved with a kind
of seismic lurch of federal and state legislation during the mid-1960s and mid70s. The cultural perception of beneficial
uses for water resources lurched along
with everything else. Relatively suddenly,
non-consumptive uses of water—water
for instream recreational and environmental needs, from fishing to rafting to
ecosystem maintenance—were seeking
parity with traditional consumptive uses,
primarily irrigated agriculture.
One important new law was Colorado’s
1973 Senate Bill 97, which created the
West’s first legislated instream flow protection program “to correlate the activities of mankind with some reasonable
preservation of the natural environment.”
The concept of allocating rights for water
to be left in the stream for environmental
purposes, with no diversion required,
was fairly revolutionary. Ownership of
such rights was limited to the state,
through the Colorado Water Conservation
Board. According to Steve Sims, a former Colorado Assistant Attorney General
for resource issues, proponents of the
instream flow program hoped this step
would “alleviate the fears of the water
development community.”
Instream flow rights enter the administrative system in priority, junior to
all prior decrees, meaning that senior
users upstream can dry up a protected
instream flow in water-short years. Given
the fact, however, that many protected
segments are in the headwaters reaches
of Colorado’s rivers, above most senior
users, calls from senior users downstream are no hardship since leaving
the water in the stream is the instream
flow right’s purpose. And, according to
Colorado Supreme Court Justice Greg
Hobbs, despite its junior status, the primary purpose of an instream flow right
is to preserve stream conditions existing
at the time of the water right’s appropria-
Chaffee County obtained a recreational in-channel diversion water right
on the Arkansas River in 2006. There are now 14 RICDs in Colorado, with
another pending for Carbondale.
16
tion.
The General Assembly gave a boost
to instream flow seniority in 1986 when
it amended the instream flow statute to
allow the CWCB to acquire existing water
rights through purchase, donation or grant
and change them to instream flow rights,
assuming no damage to other users. In
2006, this was expanded to enable even
temporary loans of water for instream
flows. Since 2001, the Colorado Water
Trust has actively scouted out and facilitated such opportunities for the CWCB as
part of a larger mission “supporting and
promoting voluntary efforts to protect and
restore the state’s streamflows.”
e
Anyone can propose a stream or
lake for instream flow protection,
but it then enters a rigorous
CWCB vetting process, in
consultation with the Colorado
Department of Wildlife and the
U.S. Department of Agriculture
and Department of the Interior.
© iStockPhoto.com
Anyone can propose a stream or
lake for instream flow protection, but
it then enters a rigorous CWCB vetting process, in consultation with the
Colorado Department of Wildlife and
the U.S. Department of Agriculture and
Department of the Interior. It must be
demonstrated that “there actually is a
natural environment that can be preserved to a reasonable degree with
an instream flow, if granted;” that the
decreed right would help maintain that
environment; and that the decreed right
is only for the minimum flow necessary
to “maintain the environment to a reasonable degree.”
Despite efforts to ease it gently into the
appropriations system, the instream flow
law was challenged—first, on its premise
that a water right could be created with
no diversion structure at all. The Colorado
River Water Conservation District argued
in court that this was unconstitutional.
But the state Supreme Court backed the
instream flow law, concluding that the
statement “the right to divert shall not be
denied” does not say that no right can
exist without a diversion.
There were also disagreements in
establishing the minimums for protecting streams and lakes “to a reasonable
degree.” From the start conservationists
did not find the idea of limiting instream
flows to minimum amounts to be particularly reasonable. But then some highaltitude water users—primarily ski resorts
faced with snow-making needs—found
that the minimum instream flows for
stream segments whose water they needed seemed unreasonably large, given the
small size of the streams that high. And
because the minimums were often calculated for the streams at a lower elevation,
after they had accumulated some inflow,
the CWCB agreed that those flows were
too high for the upper reaches. It tried
to correct that error by remeasuring the
streams above the inflows and adjusting
the minimums accordingly.
When the agency adjusted an instream
flow right on Snowmass Creek, following
a complaint from the new Snowmass
17
© iStockPhoto.com (2)
Meanwhile, the struggle to
establish non-consumptive use
rights in the pecking order of
water administration has moved
on to a new front: recreational
in-channel diversions, or RICDs.
18
Ski Resort, the Aspen Wilderness
Workshop challenged the action, saying
it was illegally reducing a water right that
belonged to the people. The citizen’s
group lost at first, but the case went to
the state Supreme Court, which held
that the CWCB did, in fact, have a “fiduciary duty” to the people to enforce rights
appropriated in their behalf. The General
Assembly then passed legislation requiring the CWCB to publicly announce any
proposed decrease, factually justify the
decrease, and delay adjustment for up to
one year so the public can collect scientific data pertinent to the agency’s decision. Underscoring Rozman’s observation
that the instream flow program is a work
in progress, Snowmass Creek now has a
very complicated set of season-specific
instream flow appropriations on four different segments of the 22-mile stream.
Despite such difficulties, the CWCB
has, as of early 2009, developed lakelevel rights on 480 natural lakes and
instream flow rights on 8,679 miles of
Colorado streams, with more entering the system every year, according
to Jeff Baessler, deputy director of
the CWCB’s Stream and Lake
Protection group.
Conservation
groups have
played
a
significant
role
in
advancing
the
program’s
success.
The Colorado
Environmental
Coalition, for example,
banded together with 90 partner
organizations, including Trout Unlimited, to
support passage of HB08-1280, last year’s
bill removing the historic consumptive use
penalty for owners considering long-term
instream flow leases with the CWCB. The
same was done for short-term leases one
year earlier.
Becky Long, the CEC’s water caucus coordinator, believes that legislation
was one of the biggest changes to the
instream flow program since its inception. “It was the biggest boulder that
needed to be moved. The penalty was
blocking the work of the Colorado Water
Trust and the CWCB because it didn’t
make economic sense for someone to
lease their water to the state for income,
but then watch the ratchet effect of their
historic consumptive use credit getting
smaller and smaller every year.”
e
Meanwhile, the struggle to establish nonconsumptive use rights in the pecking
order of water administration has moved
on to a new front: recreational in-channel
diversions, or RICDs. This began in Fort
Collins on the Cache la Poudre River.
In the early 1990s, city park managers
wanted to modify an existing diversion
dam by adding a boat chute for kayakers,
and they applied for an instream water
right, claiming the chute constituted a
new diversion structure for an economically beneficial recreational use. The
water court granted the decree, which
was challenged by the City of Thornton.
But the Colorado Supreme Court decided the structure did, in fact, meet the
criteria of controlling the flow of the river
and affirmed the water court.
The City of Golden followed by filing for a substantial 1,000 cubic-foot-persecond water right for its own recreational
park in Clear Creek, adding and rearranging rocks to provide challenges for
kayakers and other boaters. When the
water court also approved its full request,
the State Engineer challenged, perhaps
fearing the edge of a slippery slope.
Again, the Supreme Court affirmed the
decree, and Vail, Breckenridge, Aspen and
Littleton jumped in with similar requests.
At that point, the legislature stepped
in to bring some governance to what traditionalists decried as water rights based
on moving rocks around in the river. First
came Senate Bill 216 in 2001, which was
strengthened in 2006 as part of Senate
Bill 37. The legislation gave the CWCB
input into the water court’s adjudication on all such applications to evaluate
whether a RICD would 1) promote the
maximum beneficial use of Colorado’s
water, 2) impair Colorado’s ability to fully
develop its compact entitlements, or 3)
adversely impact CWCB instream flow
water rights. The statute also limited the
RICD to the minimum flow necessary for
“a reasonable recreational experience”
—language growing familiar regarding
non-consumptive water uses.
Thus does the world become a more
complicated place on the ground, especially in mixed traditional and amenity
economies like Rozman’s district on the
Upper Gunnison or District 38 across the
Pueblo’s half-mile long whitewater park benefits from a
recreational in-channel diversion water right.
Elk Mountains in the Roaring Fork valley,
administered by Rozman’s counterpart
there, Bill Blakeslee.
e
Blakeslee has been the Roaring Fork water
commissioner for eight years, but like
Rozman, has known most of the traditional
users for much longer. He speaks respectfully about the extent to which ranchers
and other longtime valley residents make
his job easier by essentially “running the
rivers themselves, sharing it out” in dry
times rather than asking him to impose
strict priority with senior calls on juniors.
But instream flows make his job
more interesting—especially when compounded by a transitory population of
newcomers in the valley’s upper reaches. Last fall, for example, when streams
dropped dramatically in a dry autumn, the
CWCB placed calls six different times for
instream flows on Hunter Creek, a heavily
used stream that joins the Roaring Fork
in the immediate Aspen area. Several irrigation ditches draw from Hunter Creek,
but Blakeslee observes that condos and
castles have replaced crops and cows on
much of the stream. On one of the ditches, he says, “The new gold is ponds,” and
they’re not ponds to be used for augmentation in dry times but “purely aesthetic
ponds, and they don’t want them dried up
in August and September.”
Hunter Creek is also one of the feeder streams for the Fryingpan-Arkansas
Project, which exports water from the
Roaring Fork valley under the Continental
Divide to the Arkansas River Basin in the
east. It was, in fact, the threat that the FryArk Project might dry up Hunter Creek
that led to some prototypical bypass
flows for habitat protection in the 1950s.
Today—to show how complex this
can get on a heavily used stream—
Hunter Creek has 23 instream flow rights
on the 10 miles of stream below the
Fry-Ark diversion, ranging in volume
from less than 1 up to 16 cfs, on stream
segments from one-tenth of a mile long
to 6 miles long.
The task of administering instream
flow rights in such a situation is complicated by a couple of factors, noted by
both Blakeslee and Rozman, who also
had an instream flow call to administer
last October on his own Slate River. One
problem is an inadequate number of
stream measuring gauges. Most of the
satellite-monitored gauges on instream
flow segments are in the lower reaches, which often makes administration
affecting junior users above the gauge
an educated guess at best, a prospect
not appreciated by those whose water
is being curtailed. And Amy Beatie,
executive director of the Colorado Water
Trust, reports the absence of sufficient
gauges has foiled some of her efforts to
get existing rights changed to instream
flows due to concern from those who
might consider contributing additional
water to the program.
Baessler acknowledges this problem,
noting that “data is the core of water
administration.” The agency has been
pushing hard to address the problem
over the past five years since the legislature created a stream gauge fund. But
the fund’s annual allocation of $250,000
doesn’t go far. The satellite-monitored
gauges are expensive—$20,000 to install
and as much as $14,000 a year to operate
and maintain each one—and the CWCB
has 1,473 instream flow segments to
monitor. Baessler is currently exploring
new, more affordable cell phone technology for stream gauges, but there are also
considerable expenses associated with
maintaining existing gauges in coopera-
tion with the U.S. Geological Survey and
the state’s Division of Water Resources.
Another challenge stems from the
fact that the commissioners in the Upper
Gunnison and Upper Roaring Fork tributaries are administering rights in an environment of exurban subdivisions rather than
irrigated farmland. Curtailing a junior water
user on an irrigation ditch is a simple matter of dropping the slide on a head gate.
But most of their junior users now are
homeowners served by wells rather than
ditches—dozens of wells instead of a few
ditches. Rozman hopes “it never comes
down to having to go house-to-house,
knocking on doors and telling people I’m
there to turn off their pumps.”
Property owners with non-exempt
wells must have augmentation plans
to replace water they use out of priority with water from some other supply.
But augmentation water can be expensive—in Rozman’s District, $3,500 for
one-twentieth of an acre foot, enough
for indoor use with no outdoor watering.
Not all property owners have complied
with the law or even understand the reason for it. Blakeslee says, “It takes a while
to educate newcomers.”
The impetus toward more attention
to non-consumptive uses will undoubtedly continue. The Interbasin Compact
Committee basin roundtables are currently developing non-consumptive
needs assessments, a major undertaking to identify the most valuable recreational and environmental segments of
the state’s rivers and lakes and to determine how to protect those segments.
Additional instream flow rights and RICDs
that may stem from this effort will likely
add to the burden of water administration, while at the same time rendering the
obvious benefits.
Long is quick to remind that such
rights should be seen as a tool rather
than an inconvenience that must be
worked around. And commissioners
like Blakeslee and Rozman are generally
stoic about the degree to which the effort
to adjudicate, measure and protect nonconsumptive uses continues to complicate the administration of water rights.
“It’s to protect the river,” Blakeslee says,
and he has no problem with that. But—it
is clearly “a work in progress.” q
The process for developing instream flow rights
is outlined on the CWCB Web site: http://cwcb.
state.co.us/StreamAndLake/LawsRules.
19
Water Underground
Optimizing use of an unseen resource
By Joshua Zaffos
[groundwater] rules is incredibly complex,” Knox says, “because you’re talking
about people’s livelihoods.”
There’s another reason groundwater
administration is complex—the movement and replenishment of groundwater
itself is complex. The Rio Grande Basin,
for instance, sits in a rift valley with multiple aquifer systems. One is a deep, confined source that runs more than 1,000
feet below the surface. There are also
relatively shallow alluvial aquifers that
feed into the Rio Grande and Conejos
rivers. And there is a shallow, unconfined
aquifer in a closed basin. These sources
are all partially interconnected, and their
interactions must be understood to provide accurate administration.
The movement of groundwater in
other river basins, like the Arkansas and
the South Platte, isn’t quite as complicated, but determining the impacts from
Emmett Jordan
Growing up on his family’s ranch along
the Rio Grande River near Alamosa, Ken
Knox got an early education in the contentious field of groundwater use. The
San Luis Valley is a high-altitude desert
that averages just 7 inches of precipitation a year, so every drop of water—from
the sky or the ground—is precious. Knox
recalls neighbors fighting over rights to
one-quarter of a cubic foot per second
of water, equal to about 180 acre feet per
year. The argument landed in court, and
by the time it was resolved, the only way
the families could pay off their legal bills
was to sell their land.
From ranch kid to chief deputy state
engineer, Knox has spent much of his
life thinking about groundwater. Today,
after 24-plus years in the Colorado State
Engineer’s Office, Knox works for URS, a
private engineering corporation.
“The development of every set of
20
Kevin Moloney
Ken Knox uses a map of the Republican River Basin to explain the dominance of groundwater use in some areas. In Colorado, the Republican Basin is located entirely within the Northern
High Plains Designated Ground Water Basin. (Read more about the Republican Basin in Toward a Sustainable Horizon on page 24.)
groundwater use on stream flows is
hardly straightforward. Figuring out how
to simultaneously protect senior water
rights, meet interstate compact conditions and utilize groundwater resources is
no simple affair, legally or hydrologically.
“There isn’t a rule of thumb” when it
comes to groundwater administration,
says water attorney David Robbins, who
has represented the State of Colorado in
river compact litigation and groundwater
users in additional court proceedings.
Groundwater administration has developed by “fits and starts,” a function
of science and technology, nature and
necessity, Robbins adds. “It’s sort of a
coming-of-age story.”
Tapping Wells and Passing Laws
Groundwater regulation was something of an administrative afterthought
until 1953, when the Colorado General
Assembly passed the Underground
Water Act. Up until that time, when
someone wanted to drill a well, they
just went ahead and did so without
much consideration of its effects on the
underlying aquifer or nearby stream.
From 1953 until 1957, the law stipulated
the Colorado Water Conservation Board
would issue well permits. Although the
CWCB required well drillers to file a
license, it was more of a registration
system than any meaningful regulation.
Four years later, the 1957 Colorado
Ground Water Law put the State
Engineer’s Office in charge of these
permits and acknowledged that a well
license was not a water right, but only a
permit to drill the well itself.
Despite these first steps at administration, water users with senior surface
rights in the Arkansas, South Platte and
Rio Grande basins faulted the expansion of groundwater use, a response to
drought and lower stream volumes, for
depleting river flows. Studies backed
these assumptions, but there was little
regulatory muscle to effectively manage
the impacts.
The state legislature responded
by passing the 1965 Ground Water
Management Act, which provided new
laws for application procedures and
an injury evaluation standard for highcapacity wells. For the first time, state
law enabled the State Engineer to consider—and potentially deny—well applications on the basis of injury to senior
surface water rights. The law recognized
the tributary connection between surface and groundwater in certain basins,
a major hydro-legal epiphany that still
makes Colorado stand out among other
states. The law also created the Ground
Water Commission, which could declare
Designated Basins where surface water
is scarce and/or groundwater is the predominant source of water. There are
currently eight Designated Ground Water
Basins in Colorado.
A few years later, the 1969 Water
Rights Determination and Administration
Act represented another advancement
in the state’s groundwater administration. Kevin Rein, assistant state engineer
for intrastate water supply development
and litigation, says the 1969 law is significant for two reasons: It recognized
that previous laws did not adequately
address injury to senior water rights
holders, and it established augmentation plans as the preferred avenue
for allowing out-of-priority groundwater
21
pumping under the prior appropriation
system, which orders both the use of
surface flows and groundwater.
According to Rein, augmentation
plans include terms and conditions for
obtaining groundwater while protecting
against the depletion of river flows that
could affect senior water rights. The
plans demonstrate how much water will
be pumped and consumed and how
much will be returned to an aquifer or
stream. Each plan must be approved by
the water court and stand up to any individual objections.
The state continues to tweak its
groundwater administration, but the
framework developed in the 1960s still
guides tributary groundwater use today.
Nontributary groundwater, on the other
hand, has minimum or no connection
to surface flows and is mostly regulated
by state statutes adopted between 1973
and 1985. Those rules allow landowners
to use nontributary resources, including
those within the Denver Basin, at a rate
of 1 percent a year for 100 years to pace
the depletion. Additionally, the Ground
Water Commission regulates non-tributary
groundwater as designated groundwater if
it’s within a Designated Basin.
“I really applaud Colorado,” says
Knox, “because even in that time [dating
back to the 1950s], they said we need to
manage these resources for the future,
in balance with economic development.
We are literally decades ahead of some
of our surrounding regions.”
Compacts and Models
Just as Colorado was hammering out its
groundwater policies, another challenge
presented itself. In 1966, the states of
Texas and New Mexico sued Colorado
because it was failing to meet the con-
22
ditions of the 1938 Rio Grande River
Compact. The interstate compact divides
the annual flows of the Rio Grande
between the states it runs through, and
Colorado must ensure its downstream
neighbors receive their allocated flows.
Other compacts also dictate the use of
river flows—and groundwater—in the
South Platte, Arkansas and Republican
river basins.
Water users in the upper Rio Grande
began drilling more wells during the
1950s drought to supplement diminished
flows in the river and its feeder streams.
The fulfillment of senior surface rights and
the increased use of groundwater meant
Texas and New Mexico weren’t getting
their legal share of water. Later lawsuits—
by the state of Kansas with regard to
Colorado’s overuse in the Arkansas River
Basin and by Nebraska in the Republican
River Basin—made similar claims.
“We had no rules or regulations that
dictated use of groundwater up until that
time,” says Steve Vandiver, manager
of the Rio Grande Water Conservation
District in Alamosa and a former division
engineer for that region. “The science
hadn’t really caught up to us.”
A tangle of legal action ensued over
the following decades—and continues
today—to determine the connections
between groundwater and surface
flows. The State Engineer’s Office instituted a 1972 moratorium on new wells
in the unconfined aquifer that feeds
into the Rio Grande and Conejos rivers.
Well drillers targeted the deep, confined
aquifer until another moratorium was
put in place in 1981. Small, home wells
were exempted from the ban.
Legal and regulatory fixes were limited by the understanding of the Rio
Grande Basin’s intricate hydrogeology,
Vandiver says. “Impacts are not onefor-one,” he adds, meaning that tapping
an acre foot of groundwater from a well
in the Rio Grande Basin won’t directly
deplete an acre foot from the river.
Engineers worked to develop groundwater models, both to determine what
was going on underground and to figure
out how to address depletions for users
in Colorado and downstream.
Groundwater modeling, however,
remains an evolving science and perhaps
something of an art. Prior to the 1980s,
electric analog models replicated aquifers
using plywood fitted with a grid of resistors to simulate flow and capacitators
to simulate storage. Computers replaced
paper spreadsheets and slide rules in the
1980s, and modeling went digital, providing a more sophisticated understanding
of groundwater’s movement.
“The parallel with the technological
advancement is the need to have more
effective groundwater management
tools,” says Knox.
Not that computer models have prevented groundwater administration from
being debated in courtrooms. The U.S.
Supreme Court has had to settle disputes
over water use and depletion according to the compacts for the Rio Grande,
Arkansas and Republican. South Platte
water users in Colorado have looked to
the courts to handle in-state quarrels.
That’s because on top of all of the legal
bounds, there is another great limiting condition, Knox says: “We live in a
dynamic hydrologic environment.”
Drought and Disruption
Drought initiated the first wave of
Colorado groundwater regulation half a
century ago, and dry times are influencing current management.
in the South Platte Basin.
Rio Grande groundwater users have
also suffered since 2002, Robbins adds,
“but we’re trying to avoid the economic
destruction and social dislocation” that
has occurred on the South Platte. To that
end, users have discussed buying out
existing wells while preventing the drilling of new wells to create sustainable
aquifer conditions. “Our job is to solve
the problem in the least disruptive way,”
Robbins says.
Groundwater Management Matures
In the Arkansas River Basin, resolution
trumps disruption these days, according
to Robbins. After Kansas sued Colorado
over the Arkansas River Compact in
1985, a decades-long court battle ensued
until the U.S. Supreme Court backed
Kansas’ claims of depleted flows. Wellmeasurement rules followed, to monitor
Colorado groundwater users’ impacts on
river flows.
Like the South Platte, the Arkansas
is an alluvial stream where groundwater
depletion can be directly detected in
lower surface flows. All groundwater
users there are now required to have
plans to replace depletions resulting
from groundwater use, and group associations have formed to lease augmentation water supplies from cities and other
water districts.
Groundwater use in the Arkansas
Basin has undergone “intense scrutiny,”
Robbins says, due to the compact litigation and subsequent regulation. “The
rules have been successful.”
In the Rio Grande Basin, Vandiver
describes the region as still “maturing in
the groundwater arena.”
Surface and groundwater users have
spent decades in court, and Vandiver
says engineers have finally devised a
computer model that accounts for the
complex relationship between groundwater use and surface flow depletion
there. Groundwater users have developed a plan of water management—
instead of a plan of augmentation—that
will enable many current well operators to continue pumping while guarding against injury to senior surface
flow rights. After a degree of encouragement, some users have agreed to
cease their water consumption, and
managers will measure impacts to surface flows.
Vandiver says the Rio Grande district
will also create its own subdistrict to
manage wells locally. The subdistrict
should enable more flexibility and hopefully prevent well curtailment from being
the primary means of regulating groundwater use. If it’s a successful model, the
district would form other subdistricts, but
so far surface water users have objected
to the plan and are in court to make
sure the priority system is enforced. The
maturation process continues.
Recently, the State Engineer’s Office
has fielded an increased number of
requests to mine or utilize geothermal
resources, says Rein. In some cases,
projects will remove water while others
might return flows but at different temperatures, so the state must determine
what constitutes an injury to other water
users. The small but growing industry
is a prime example of how and why
groundwater administration will continue to adapt and change.
“It’s the right thing to do,” says Knox,
of the continuing efforts to refine groundwater administration, “to optimize use of
this resource for short-term gain and
long-term benefit.” q
“The development of every set of [groundwater] rules
is incredibly complex,” Ken Knox says, “because you’re
talking about people’s livelihoods.”
Emmett Jordan
Compared with the hydrology of the
Rio Grande region, the South Platte is a
pretty simple system. Robbins describes
the river as “a trough in bedrock,”
meaning it’s a shallow and fairly narrow stream with water moving relatively
easily between the ground and the channel. As a result, well drilling has a direct
impact on river flows.
Farmers and others along the
South Platte have relied on groundwater for several decades. Some users
had obtained decrees for augmentation
plans, but Ground Water Appropriators
of the South Platte and others relied
on annual substitute supply plans. Both
water court-approved augmentation
plans and State Engineer-approved substitute water supply plans aim to ensure
that depletions caused to the river by
well pumping are replaced by some
other source of water. That became
a front-and-center problem when the
2002 drought kicked in, and surface and
groundwater flows couldn’t measure up
to past uses.
In 2001, the Colorado Supreme Court
decided the State Engineer didn’t have
the authority to approve substitute water
supply plans, ruling that plans for replacing depletions to the stream system
must be approved by the water court.
Known as the Empire Lodge case, the
decision forced groundwater users in the
South Platte and other basins to obtain
approved plans of augmentation or shut
down their wells, says Robbins. The state
legislature later passed a law allowing
the State Engineer to approve substitute
water supply plans if an augmentation
plan is concurrently filed in water court,
but hundreds of farmers have essentially
lost their ability to legally pump their
wells, wreaking havoc on communities
23
State Engineer Dick Wolfe gets his feet wet at Confluence Park on the
South Platte, just one of many river systems he aims to bring into balance.
24
Much like the current recession has forced Americans to
think about living within their means, Colorado’s brush
with drought and past interstate river compact violations
have led its top water administrator to preach sustainability. In every water division, no matter the diversity
of water’s interplay between surface and groundwater
or the various river compacts that must be considered,
sustainability is State Engineer Dick Wolfe’s overarching
goal. Here’s Wolfe’s take on how to get there.
By Jayla Poppleton | Photo by Kevin Moloney
Division 1—The South Platte and Republican Basins
An ongoing challenge for the Division of Water Resources,
which Wolfe oversees, has been the administration of the
South Platte Basin’s 8,200 or so high-capacity wells. “We’ve
reached an unsustainable operation of these wells, and the
2002 drought took that mask off,” says Wolfe. “We need to
bring that system back into balance.”
To re-calibrate, Wolfe says two elements will be necessary.
One is finding the physical supplies to replace depletions associated with the operation of wells. The other is development
of rules regarding well measurement. “We’ve got an available
supply out there. We’ve got to know how much of it we’re consuming. We make estimates. But we don’t know in an absolute
sense exactly how much water those wells are diverting.”
Recession-related state spending and hiring freezes have
imposed budget constraints on DWR that have delayed implementation of new rule-making in the South Platte for now.
In the Republican Basin, a distinct basin that also lies in
Division 1, the state has been out of compliance with the governing interstate compact for the past five years. There is very
little surface water diversion from the Republican. Instead,
nearly 550,000 acres are irrigated by groundwater diversions,
primarily from the Ogallala aquifer. In 1998, Kansas filed suit
that the basin’s groundwater depletions should be considered
part of Colorado’s compact allocation, and in a 2002 settlement, Colorado conceded. As a result, well measurement rules
were implemented at the end of 2008, requiring about 4,000
wells to install a meter or acceptable measuring device by
March 2009 to keep pumping. Wolfe says measurement alone
may result in 5 to 10 percent conservation, simply because
people know how much they are using.
In addition, the newly formed Republican River Water
Conservation District has bought out the bulk of surface water
rights in addition to approximately 30,000 acres of land irrigated by wells. Its goal is to take out 30,000 more. And a final
proposal to achieve compliance is a $71 million pipeline project the district hopes to use to pump about 13,000 acre feet
of water—bought for $50 million and associated with 10,000
acres of land—from the ground back into the river near the
Nebraska state line.
“They’ve spent about $90 million trying to achieve compact
compliance,” says Wolfe. “This is local water users trying to
solve a local problem.” But, about his own role, he adds, “The
compact is the tail that wags the dog. And I’ve got to achieve
compact compliance. It’s what drives everything out there.”
Division 2— The Arkansas Basin
Wolfe says the Arkansas Basin is in good shape concerning
compliance with its own interstate compact with Kansas, but
the DWR is taking proactive steps to prevent future problems.
Kansas’ 1985 lawsuit against Colorado claimed injury due to
post-compact well development under a compact provision
called Article IV-D, which states system improvements cannot reduce the amount of water available in the river. It took a
series of rules developed to govern well measurement—promulgated in 1994 and updated in 2005—and well use—instituted in 1996—to settle the case.
The current development of an additional set of “irrigation
improvement rules” is intended to stave off future violations
of the same stipulation. As farmers make advances in irrigation efficiencies through upgrades like center-pivot sprinklers,
historical return flows may be affected. Wolfe’s office is not
against such improvements, which many farmers are implementing both for labor savings and water quality improvement.
However, historical return flows must be protected. Though
25
not a huge problem yet—Wolfe says maybe 1,000 acre feet
of diminished return flows per year is currently attributed to
irrigation improvements—the goal is to “get it while it’s small.”
He plans to submit the rules to water court for approval
in June.
Division 3—The Rio Grande Basin
The Rio Grande Basin has long suffered from the dilemma
of how operating wells were impacting senior water rights.
As in the South Platte, the 2002 drought added more salt to
the already festering wound for surface water users who had
their water curtailed as wells continued operating. In 2004, the
Legislature passed Senate Bill 222 to give the State Engineer
authority to promulgate rules that would curtail those well
users unless they demonstrated they were either under an augmentation plan or a water management plan through a newly
created water management subdistrict.
industry when water is pumped out to tap the natural gas in
underlying coal seams is, in fact, being put to beneficial use.
The case, Vance v. Wolfe, was a result of senior well users
claiming nearby CBM wells were depleting the groundwater
supply. As a result of the decision, oil and gas wells are now
under the DWR’s jurisdiction.
Wolfe will get a time-out until early 2010 thanks to House
Bill 1303, introduced by Rep. Kathleen Curry and Sen. Jim
Isgar. The bill passed on April 28 and was signed by Gov. Bill
Ritter on June 2. It appears the Legislature anticipated the
court’s decision, wisely preparing its response to avoid the
chaos that may have followed. A large coalition of those who
will likely be impacted supported the bill.
The legislation recognizes that there are an overwhelming
34,000 active oil and gas wells out there, says Wolfe. About
5,000 are CBM and between 3,000 and 4,000 of those are tributary, or linked to a surface stream. Most of these are in the San
“To the extent I can play a role in developing rules and policies that help people understand what we can do…knowing
what can potentially happen and that if that happens, this is
what the plan is… it gives them some certainty.”
—Dick Wolfe, State Engineer
The first subdistrict, under the Rio Grande Water
Conservation District, provides an umbrella to about 3,000
wells out of the 6,000 operating in the basin. “Basically, the
rules say that the State Engineer is going to curtail you unless
you can demonstrate you’re preventing injury to senior water
rights, not impairing the state’s ability to maintain compact
compliance, and promoting sustainability of the aquifers,” says
Wolfe. With the input of a 55-member advisory committee,
Wolfe is working on those rules now and expects to have a final
draft to submit to water court by the end of 2009.
Divisions 4, 5, 6 and 7—The Gunnison, Colorado,
Yampa and San Juan/San Miguel basins
Though there is less well development in these divisions, Wolfe
sees big changes for his office’s future. For one, he will have
to determine if and when a basin becomes over-appropriated,
as has already been declared on the South Platte, Arkansas
and Rio Grande. “For example, has the new Shell Oil filing now
made the Yampa River Basin over-appropriated?” Wolfe asks
rhetorically, referring to a water right requested last December
that the company would use to develop oil shale.
Though well users don’t presently need an augmentation
plan to operate in a basin that is not over-appropriated, Wolfe
believes they will need to develop rules and regulations to deal
with that eventuality. “Again it gets to the priority system, sustainability, compact compliance….We’ve got to develop those
rules. Well-use rules come first, then measurement.”
A new addition to Wolfe’s job description is the recent
mandate that he and his office begin administering coalbed
methane wells, or CBM wells. On April 20, the Colorado
Supreme Court ruled that the water “produced” by the
26
Juan Basin in Division 7 or the Raton Basin in Division 2. Those
wells deemed tributary will have to undergo a similar process
as well users did on the South Platte in 2003, obtaining well
permits and temporary substitute supply plans or augmentation plans. “It’s a new era for our office,” says Wolfe.
The other major issue affecting the four West Slope water
divisions is compliance with the Colorado River Compact.
Wolfe describes an unnerving scenario in which Lake Powell,
the effective water bank of the compact’s four upper basin
states, is essentially drained. Colorado and its neighbors get
a compact call from the three lower basin states and have
to curtail water users in order to pay back the bank. Wolfe
acknowledges that no one envisions the state is close to
being in that situation, but says, “The time is now to start
working toward how we will address that.” He is working
with the Colorado Water Conservation Board, the Colorado
River Water Conservation District and the Southwest Water
Conservation District on developing rules for how to administer such a call.
Facing an uncertain future and believing what people want
is certainty, Wolfe reflects on administering a limited resource:
“Peter F. Drucker said, ‘The best way to predict the future is to
create it.’ To the extent I can play a role in developing rules and
policies that help people understand what we can do…knowing what can potentially happen and that if that happens, this is
what the plan is…it gives them some certainty.”
“What I’m doing,” he continues, “and what I promised
the governor, is to be looking for and trying to avoid train
wrecks into the future. We need to reach a point of sustainability or our systems are going to fall apart. You can’t fool
Mother Nature.” q
Colorado Foundation for Water Education’s 2009 President’s Award Recipient
Dick Bratton,
by Justice Greg Hobbs
The annual CFWE President’s Award honors a Coloradan
whose character and career in water resources have
yielded lasting benefits for the citizens of Colorado. The
award also recognizes this individual’s commitment to the
dissemination of balanced and accurate information, as well
as the advancement of geographical, gender, ethnic and
constituency diversity. This year’s Award was presented to
Dick Bratton during a gala reception held at the Cableland
Mansion in Denver on April 3.
Sara, and three grandchildren. They have
a beautiful home overlooking Tomichi
Creek, where Bratton loves to fish.
Community Mentor
Bratton benefited from a fine mentor in
leadership, education and the law, Ed
Dutcher, who brought the young University
It’s July, and you’re going to the
of Colorado law graduate of 1957 back
Gunnison Water Workshop at Western
to Gunnison in 1958 after a short stint in
State College. Rolling off Marshall Pass
Denver practice. “Dutcher was the legal
on the western side, you’ll glide along
and political brains for Dan Thornton, the
the mountain hay meadows of Tomichi
Colorado governor from 1950 to 1954,”
Creek, along the riffles, the pools and
says Bratton. “Thornton put Dutcher on
the lovely curving bends of dancing
the Colorado Water Conservation Board
light into Gunnison.
and the Upper Colorado River Compact
This is the water conference all of
Commission. When Dutcher became a
Colorado comes to. Dick Bratton and
Harper’s Weekly, 1886, depicting a water-happy
Grand Junction district judge in 1961, I
homesteader, a water wheel on the Gunnison
Duane Vandenbusche started it up in the
inherited his law practice.”
River and the “Badlands” with no irrigation water.
mid-1970s, hoping to center Coloradans
In April 1963, Republican Gov. John
on the virtues of Gunnison, Western State College and water. Love appointed Bratton to the board of trustees of the State
Vandenbusche, historian, teacher and writer; Bratton, lawyer, Colleges of Colorado that include Colorado State, Adams
entrepreneur and member of the college board of trustees; State, and Western State colleges. Bratton was 31 at the time.
both seeing an opportunity for open dialogue with other people Others on the board called him the “teenage trustee.” He
engaged with water.
served 12 years in that office. Dutcher had preceded Bratton
A multitude of water topics have been discussed and on the same board. When Dutcher went to the bench, Bratton
debated at the workshop during the past four decades. State succeeded him as chief counsel for the Upper Gunnison Water
and federal legislators, county commissioners, city councilper- Conservancy District.
sons, water utility directors, lawyers, Indians, environmentalBratton worked to build his real estate, business, and
ists, representatives of the U.S. Bureau of Reclamation and water law practice; invested in Gunnison Valley property, parother federal agencies, paleo-hydrologists and other citizens ticularly along Tomichi Creek; and actively pursued local and
interested in their neighboring watersheds all confabulating statewide politics as a Republican—Gunnison’s counterpart to
inside the meeting hall and outside on the courtyard for after- Durango water lawyer and community leader, Sam Maynes, a
hours barbeques. The idea, says Bratton, “all responsible posi- Democrat. In October 1983, Gov. Richard Lamm, a Democrat,
tions fairly represented.”
appointed Bratton to the Colorado Water Resources and
Bratton grew up in Salida, on the opposite side of the pass Power Development Authority, which he chaired between
from Gunnison. His mother, Mary, was teaching in a one-room 1989 and 1990.
schoolhouse on the east side of Marshall Pass, in Monarch,
Bratton attributes much of his success in the law practice
when the Great Depression hit in 1930. Lyle Bratton, Dick’s to fine colleagues. In addition to Dutcher, he mentions Tom
father, was working as a miner at the Colorado Fuel and Iron Whittington, Chuck Alexander, Jim Richards, John McClow and
limestone quarry at Monarch. His parents met, married in 1931, John Hill. And he credits his wife Donna with a business sense
and welcomed Dick in 1932.
and graceful manner that has helped the firm enjoy a good
During summer vacation from Western State College in the practice and leading presence in the community.
early 1950s, Bratton worked as a miner in the same Monarch
quarry his Dad had. During the school year, he played football, Water Worker
wrestled, ran track, and majored in accounting and econom- Under Dutcher, Bratton worked with the Colorado River Water
ics, graduating in 1954. Prior to graduating, he married Donna Conservation District to transfer the Blue Mesa, Crystal, and
Howard, daughter of a third generation ranching family from Morrow Point water rights from the River District to the
outside Lake City. Now they have two daughters, Susan and United States for construction of what is now the Aspinall
27
…he has participated as an attorney in
some of the most important Colorado
Supreme Court cases of his day.
28
Propelled by colleagues and a genuine concern for Colorado water users, Dick
Bratton’s water wheel of a career has kept on turning.
ranching roots of the Gunnison Valley. In the pits of the 2002
drought he counseled a newcomer, who had bought up one
of the old ranches and its water rights, to let his water pass to
the neighbors. Why? Because “helping those who helped make
this place is a good thing to do.”
Water Educator
Being an educator flows in his lineage. Characteristically,
Bratton stepped forward in 1991 when a broad-based coalition
of Colorado water, environmental and civic interests formed
the Colorado Water Education Foundation, CWEF. The first of
its kind, the non-profit had a 33-member board of trustees and
described its mission as “to provide a wide range of waterrelated information from various viewpoints with no advocacy
position taken on any issues in order to foster a broader understanding of water challenges among the general population
and aid in the informed and timely discussion of water issues.”
Bratton served from the start as a member of the executive committee, as by-laws chair and later as president.
Carmine Iadarola, co-founder of CWEF, described Bratton as
bringing “credibility, stature, knowledge, and expertise” to the
foundation during its six years of existence. In 1996, CWEF
suspended meetings due to a lack of an executive director
and stable funding.
In the horrendous drought year of 2002, some former
CWEF trustees, the Colorado Water Congress, and other
organizations and interested persons met to plan for the new
Colorado Foundation for Water Education. Rep. Diane Hoppe
and Sen. Lew Entz had successfully carried House Bill 1152 in
the just-concluded 2002 Colorado legislative session, which
included a provision to establish a water education foundation
“to promote a better understanding of water issues through
educational opportunities and resources so Colorado citizens
will understand water as a limited resource and will make
informed decisions.” The General Assembly appropriated a
start-up grant and annual monies from the Colorado Water
Conservation Board Construction Fund that, paired with other
grants and contributions, funds the Foundation and its ongoing
educational programs.
As a result, the water education legacy of Dick Bratton and
so many others lives on in the CFWE. q C o l o r a d o f o u n d at i o n f o r W at e r E d u c at i o n
© iStockPhoto.com
Unit on the Gunnison River. In the ensuing decades, Bratton
has worked to preserve the interests of Upper Gunnison and
Uncompahgre Valley water users and to develop Colorado’s
share of the 1922 Colorado River Compact and 1948 Upper
Colorado River Basin Compact.
Along the way, he has participated as an attorney in some of
the most important Colorado Supreme Court cases of his day.
For example, in the 1992 Arapahoe County case, he strategized
and secured a refill right for the Taylor Reservoir upstream
of the Blue Mesa Reservoir. He then obtained a pioneering
Supreme Court opinion authorizing use of reservoir releases
to enhance fish habitat and rafting flows down a long stretch
of stream to Blue Mesa. This showed that water rights could
be obtained by others than the Colorado Water Conservation
Board to produce instream benefits.
In subsequent cases, Bratton helped ranchers, the River
District and the United States prove that only 15,700 acre feet
of unappropriated water was available annually for Arapahoe
County’s proposed Union Park transmountain diversion upstream
of Blue Mesa Reservoir, rendering that proposed project infeasible and protecting water appropriations in the Gunnison River
Basin. On behalf of the Upper Gunnison District, Bratton joined
with lawyers for the River District, the State of Colorado, and
the United States in arguing that the Aspinall water rights had
been subordinated to 60,000 acre feet of in-basin Gunnison use
above Blue Mesa Reservoir, and up to 240,000 acre feet of Blue
Mesa storage water might be used through USBR contracts to
benefit both the West and the East Slope as part of Colorado’s
compact entitlements. Coming full circle on his early collaboration with Dutcher, Bratton helped through this work to solidfy the
local, state and federal partnership that built the Aspinall Unit for
Colorado and the United States.
Bratton’s knowledge of Colorado River matters, his focused
analytical ability, and his reputation as a listener and a learner
led President George W. Bush to appoint him as the federal
representative and chair of the Upper Colorado River Compact
Commission in July 2002. This commission plays an essential role
in preserving the 1922 Colorado River Compact entitlements of
Colorado, New Mexico, Utah and Wyoming. Bratton and the commission were instrumental in forging a seven-state Colorado River
water shortage agreement, approved by the U.S. Secretary of the
Interior in December 2007, which includes annual coordination of
Lake Powell and Lake Mead operations. The shortage plan also
includes cloud seeding, agricultural to municipal leases, desalination, conservation, and water importation into the Colorado River
Basin to cope with drought and climate change. As federal representative, Bratton has acted as a facilitator, mediator and senior
counselor on Colorado River matters.
In the midst of everything, Bratton has never forgotten the
The Colorado Foundation for Water Education
The Next Five Years
Often, when people hear the phrase “strategic
planning” they roll their eyes and hope they have a
conflict on their calendar. Personally, I find value
in stepping back and taking a look at how day-today activities fit into a larger set of goals. After all,
how do you know when you’ve arrived if you don’t
know where you are going?
I am lucky that one of the first tasks the
Colorado Foundation for Water Education set its
mind to was the creation of a strategic plan. This
first plan, adopted in 2003, laid out goals centered
on program development, membership recruitment
and fundraising. The programs we are best known
for, including Headwaters, the Citizen’s Guide series
and our annual River Basin Tour, are a direct result
of this planning effort. Many of the goals that the
Foundation outlined in that plan have been accomplished, due to a large amount of hard work and the
support of our members.
The simplest path for me, as Executive Director,
would be to continue along the Foundation’s current trajectory, publishing Headwaters and an
annual Citizen’s Guide, putting on events such as
Water Leaders and the Tour, and maintaining our
historic membership base. Continued participation
in these programs by our members has demonstrated their utility and desirability, and the Foundation
is proud that these products and events are so suc-
organization’s work and furthers the intent of creating mechanisms to measure the impact that our programs have. Our vision is that Coloradans, through
an improved understanding of water’s complexities
and trade-offs, will make more informed water
resource decisions. We will make progress toward
this vision by working towards five new goals in the
following areas:
• Audience: CFWE will target its programs at
Colorado decision-makers to help them make
more informed water resource decisions.
• Partnerships: CFWE will partner with key
“gatekeeper organizations” to ensure that
their staff and constituents have appropriate
knowledge of basic water resource concepts.
• Engagement: CFWE will deepen the value
and awareness of our programs by building feedback and measurement mechanisms into the work we do.
• Accessibility: CFWE will strengthen its
capacity to ensure that all Coloradans
have access to unbiased water education
programs.
• Financial stability: CFWE will diversify its
funding base to maintain the reliability of
its educational programs.
Our vision is that Coloradans, through an improved
understanding of water’s complexities and trade-offs,
will make more informed water resource decisions.
cessful. But, I know I would be doing a disservice
to Colorado’s water community if I did not expand
upon the Foundation’s past success and grow the
organization to its next logical level.
With that goal in mind, the CFWE staff and
Board met in Frisco on a rainy Saturday in May to
chart our course for the next five years. With help
from the experts at Conservation Impact and consideration of input received from interviews with
over 50 members and stakeholders, we grappled
with questions such as, “Who is our primary audience?” and “To what end are we educating the
people of Colorado?” We realized that answering
these key questions would be critical to our longterm success.
After a long discussion, the CFWE Board adopted its 2009-2014 Strategic Plan on May 27, 2009.
The new plan brings a more defined focus to the
In the near term, those not involved in the dayto-day operations of the Foundation will not notice
a significant difference in the programs and products
that we offer. However, over the next year, staff
will oversee an evaluation of all programs, making
changes where needed to better target our new goals.
This is an exciting time for the Colorado
Foundation for Water Education, and I am happy
to lead the organization through this transitional
period. As the staff and Board refine the above goals
and grow our understanding of the implications for
our programs, I will be sure to keep you in the loop.
Thank you for all of your support and encouragement thus far. We couldn’t do this without you.
Nicole Seltzer, Executive Director
29
1580 Logan St., Suite 410 • Denver, CO 80203
4th Annual Friends of Water Education Golf Classic
Bring the family! Golf f Tennis f Swimming
Support water education in Colorado
New this year! Golf is just one option. Your
family—and extended family—can enjoy an
afternoon of tennis, swimming and socializing
at Denver’s Pinehurst Country Club.
by joining the Colorado Foundation for Water
Education for an afternoon of swimming, golf
and tennis. Please come to the Foundation’s 4th
annual golf tournament on Aug. 3 at Pinehurst
Country Club in Denver. This family-friendly
event is a fun networking opportunity, as well
as a great way to experience beautiful Pinehurst
Country Club.
The event is not just for golfers anymore!
It will also be an enjoyable afternoon for tennis
buffs or those who’d like to lounge at the pool.
Registration opens at 12 noon, and the tournament’s shotgun start will follow at 1 p.m. We will
round out the evening with a prime-rib awards
dinner and silent auction, beginning at 6 p.m.
Registration, as teams or individuals, is
open to the first 144 players. Sign up before
July 27 for early-bird pricing. Those who do
not wish to golf, children or adults, can also
register separately for a swim/tennis package and for the awards dinner. For more
details and to register online go to www.cfwe.
org/2009Golf/2009GolfHome.asp.
Early registration discounts available
—www.cfwe.org
August 3, 2009 | Pinehurst Country Club | Denver

Scarcity Rules - Colorado Foundation for Water Education

Transcription

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