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Colorado River crisis: Dispute, drought have local implications

8/12/2022

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By: Joe Stone 
​Two decades of drought conditions in the Colorado River Basin have prompted dire warnings and alarming headlines about climate change and the Colorado River water crisis. Critically low water levels in lakes Mead and Powell now threaten the ability to generate electricity at Glen Canyon and Hoover dams and spurred Bureau of Reclamation Commissioner Camille Touton to issue an ultimatum: On June 14, Touton announced that Colorado Basin states would have 60 days to come up with a plan to reduce water use by 2-4 million acre-feet per year. (An acre-foot of water is the amount needed to cover an acre of land with one foot of water.)
If Colorado, Wyoming, Utah, New Mexico, Arizona, Nevada and California can’t agree on a plan, the bureau will use its emergency authority to make the cuts, Touton said.
The Arkansas Basin receives about 130,000 acre-feet of water per year from the Colorado Basin – up to 23 percent of Arkansas River flows, according to Colorado Division of Water Resources data. The Bureau of Reclamation operates the Fryingpan-Arkansas Project, which imports an average of 57,000 acre-feet of water per year. Colorado Springs, Pueblo and Pueblo West combine to import the other 73,000 acre-feet. 
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THE CRISIS OF THE COLORADO RIVER SYSTEMS

7/13/2022

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 By Ralph "Terry" Scanga, General Manager, Upper Arkansas Water Conservancy District

         
​           It should be obvious to anyone; trying to fill a bathtub with the drain wide open is foolish.  This is precisely what the operators of the Colorado River System (Lake Powell & Mead) have been attempting to do for the past 20 years.  They have disregarded the increased withdrawals to the Lower Basin States (California, Arizona, and Nevada) and the ubiquitous arid nature of the Southwest.
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WATER TALKS: Roy Vaughan Receives Bob Appel Award

5/3/2022

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What Landowners Need to Know about Water Use on Rural Home Parcels

2/17/2022

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By: Ralph L. Scanga, General Manager of UAWCD
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Written in Water: A Brief History of Colorado Water Law and the Upper Arkansas Valley

2/3/2022

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By:  Joe Stone, Heart of the Rockies Radio

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“Here is a land where life is written in water.” — Thomas Hornsby Ferril, Colorado Poet Laureate
The People’s Ditch of San Luis diverts water from Culebra Creek in Costilla County. Established in 1852, the People’s Ditch represents the oldest continuous water right in Colorado (photo by Gregory Hobbs).

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BENEFITS FROM UPPER ARKANSAS WATER CONSERVANCY DISTRICT PROGRAMS

9/29/2021

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By: Ralph L. (Terry) Scanga, Jr., General Manager
Upper Arkansas Water Conservancy District
In 1979 the Upper Arkansas Water Conservancy District was formed.  Since that time innumerable benefits have been provided to the citizens of the District.  The primary goal of the District is the protection of water rights within the Upper Arkansas.  Continuous monitoring and involvement in legislative measures that impact water rights, involvement in water court cases that have the potential to negatively impact Upper Basin water rights, and operating umbrella augmentation plans that prevent injury to water rights by making weekly water replacements to effected rivers and streams by out of priority uses are the major areas of work. Other areas include conducting water studies that include ground water monitoring, water balance studies with the United States Geologic Survey, Identification of and development of alluvial water storage, watershed health activities, such as spearheading the Monarch Pass Steep Slope Timber Harvesting Project, and water education programs. The benefits of these programs are not always recognized by the citizens of the District.

Water resource development is essential to an effective water right protection program.  The most obvious and direct benefit of this is the District’s umbrella augmentation plan program.  Augmentation is a little understood water resource concept that was developed in 1969 when Colorado fully recognized in legislation the connection between tributary ground water and surface water.  With this recognition all ground water production was brought under and regulated by the prior appropriation system.  Basically, this meant that the right to extract ground water for use would be governed by the date of first use.  In an arid country such as Colorado, and in particular Eastern Colorado, there is never enough water to satisfy all legal claims.  Thus, priority of use is controlled by the established date of first use or “First in Time is First in Right”.  This legislation prevented most well use except when a “fully consumable” water source was utilized to replace the amount of water used-up by the well.  In other words, the well use would have to be augmented with a court decreed “Plan of Augmentation”.  The full impact of this was not completely felt until the decision of the Kansas-Colorado Compact lawsuit and the adoption by Colorado in 1995 of the “Amended Rules and Regulation on Tributary Ground Water Use in the Arkansas Basin”.  Fortuitously the District had filed in 1992 and obtain an umbrella augmentation plan in 1994.  The benefits have been enormous for citizens within the District boundaries of its decreed augmentation areas needing augmentation to use their wells, surface diversion, or ponds.

The value of being able to enroll into the District’s augmentation plan and continue to use one’s well is best quantified by cost savings.  Typical residential well augmentation requires a source of fully consumable water, storage, an engineering plan, and a water court decree.  The typical current cost for such a plan range from a low of $80,000 to $150,000 per residence.  The cost per residence with the District’s plan is less than $4500, a savings per residence of $75,000 to over $145,000.  Presently, the District provides augmentation to over 2000 wells.  The vast majority of these are for residential use.  This savings expressed in dollars would represent a cost savings to District citizens of as much as $290 million dollars.  The additional and as important benefit is to the rivers and streams in the District.  Annually, over 700-acre feet of water is released to our streams and available to support water rights and protect them from injury.  Further benefits are the water infrastructure that is maintained and constructed that supports recreation and the environment.  Many of the area lakes and reservoirs are filled with District owned and controlled water rights, such as O’Haver Lake.  The studies and watershed health projects the District has undertaken in its 35 years of existence provides a wealth of knowledge and data for present and future understand of our water resource and a roadmap to future water development. 
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Water Talks: QUANTIFYING WATER RIGHT OWNERSHIP And the Term “BUY & DRY”

1/28/2021

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​By:  Ralph “Terry” Scanga, General Manager
Upper Arkansas Water Conservancy District

​​In Colorado, transfer of water from one type of use to another is a historical necessity and will continue throughout Colorado and the semi-arid West.   As economic and social needs change water moves to new areas to satisfy changing needs.  Historically, mining utilized the majority of water in Colorado.  As population increased the mining water rights moved to agricultural use.  Due to improved transportation and the economies of scale in agricultural operations much of our agricultural commodities are produced in areas with climates more conducive to large year-round production.  Many small agricultural operations that are no longer profitable have left the market and sold their operations and, in some cases, sold their water rights separately from the land to meet the changing demands.  Some increase in the demand for water is now being driven by small specialty and organic farming operations.  Still in the larger farming areas of the State there continues to be a demand for water and here these rights are not changing.
 
In recent years, the term “buy and dry” has become popularized by individuals intent on characterizing the purchase and transfer of an irrigation water right to other uses as an economic and environmental catastrophe.  Doing so obfuscates the reason why drying up of formerly irrigated lands is necessary.  In fact, the need in water right transfers to dry up the land is to protect adjacent water rights from injury.  This ensures that only the exact amount of water historically owned (used) by the irrigator is transferred to the new use.  Without an exact proof of use the amount of water moved may be much larger than was historically used and the environmental and economic damage would be large.
 

Of course, for many, the tedium of factual analyses does not lend itself to telling a “juicy” conspiracy story.  To some others, who really know the facts, there are ulterior motives.  One of the motives deals with the promotion of an alternative method of moving water and not using the time-tested court process.  These promoters of the alternative wish to avoid the legal scrutiny and work of accurate analysis and quantification of historic use.  They claim many reasons for advocating for alternative methods.  Among these reasons are, “it takes too much time”, “it costs too much” or “it’s too hard.”  The best but totally dishonest reason given is, “It means the land will be dried up forever” all the while knowing their alternative would require dry-up too.  From this has come another popularized term, “Alternative Transfer Method” or “ATM”.
 
Alternatives to the traditional water right transfer still require dry up of former irrigated lands.  There are actual alternatives, but these are marginally different from the traditional purchase and transfer of the water rights.  These are temporary transfers such as leasing of the water right and temporary fallowing of the former irrigated lands.  These temporary transfers or leasing of the historically consumed water from the irrigated land is a complex transaction.  To reduce the transactional costs in the engineering analysis required to accurately calculate the amount of water that could be transferred under a temporary lease without causing injury to adjacent water rights, the Upper Arkansas Water Conservancy District sponsored a study and development of a common technical platform called a “Lease Fallowing Tool”.  It is now available free of charge and is widely accepted by the water community.  Except for pilot projects of limited duration, the water right still needs to undergo a legal decree change through the water court.  In these temporary transfers or “ATMs” the land is still dried up.  The legal requirement to prevent injury to remaining adjacent water rights becomes more difficult to ascertain and the ongoing monitoring and development of water infrastructure to maintain historic stream conditions is more daunting.  One thing is clear about ATMs, to be effective in meeting future long-term needs construction of more water storage facilities—reservoirs and recharge basins will be required.
 
This really gets one to the crux of the matter.  Recently, articles have been written about Wall Street investors scooping up water rights in Colorado to market to out of state interests.  This concern and others have triggered our legislators to promote legislation to prevent speculation.  The problem is the Colorado Water Doctrine already has anti-speculation inherently built into its water allocation system.  In order to own a water right one must demonstrate beneficial use.  As described above, it is this quantification of use that determines the amount of water owned that can be bought and sold.  So, unless a prospective buyer has a use in mind, in Colorado, buying a water right to simply hold without use gets him no water.  
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Wildlife and Agriculture Can Coexist

1/5/2021

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​Gillian Flaccus | AP photo) In this March 2020 photo, birds take off from a marsh in the Tulelake National Wildlife Refuge in the Klamath Basin along the Oregon-California border.


​The Salt Lake Tribune earlier today published this letter to the editor penned by Paul Simmons, executive director of the Klamath Water Users Association, in response to Pepper Trail’s Dec. 26 commentary on Klamath Basin wildlife refuges.
 
While acknowledging that Mr. Trail ably describes the botulism outbreak on Tule Lake National Wildlife Refuge that tragically killed tens of thousands of waterfowl in 2020, Mr. Simmons notes that Mr. Trail misses the cause of the problem, which is the reallocation of water to endangered fish species.

For generations, both agriculture in the Klamath Project and the national wildlife refuges have had adequate water supplies in the great majority of years. In more recent years, however, regulators have required that water historically available for irrigation and refuges instead be held in Upper Klamath Lake for endangered suckers, or released down the Klamath River for coho salmon.

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Water Talks: Nestle Waters & Augmentation

7/15/2020

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WATER RIGHTS PROTECTIONS & NESTLE WATER’S 
RUBY MOUNTAIN SPRINGS AUGMENTATION

BY: Ralph “Terry” Scanga, General Manger, UAWCD

Over the past 20 plus years I have written many articles on water rights and water allocation in Colorado.  However, since so much of our current population is relatively new and therefore unfamiliar with Colorado’s water Doctrine, it may serve the District and all of us well to review that Doctrine and especially with the Nestle Water’s 1041 renewal permit approval pending in Chaffee County.
 
The Colorado Doctrine is quite simple.  The waters of the State belong to the people subject however to appropriation by individuals or entities for beneficial use.  Beneficial use is municipal (drinking), irrigation of crops, industrial uses, recreation, and environmental.  Recreational and environmental uses can only be appropriated by specific public entities and are a relatively new addition to the types of recognized beneficial uses.  Since Colorado and especially the Arkansas Basin is an arid State and Basin adjudicated water rights each have a priority date based upon the first date of diversion.  That is “First in Time is First in Right”.  However, since 1969 when tributary ground water was integrated under this system, like surface water has been since statehood, one could divert or pump ground water only if he replaced the water used-up at a location above the shorted water right.  There are some exemptions to this law, but they relate primarily to historic residential/home uses.  This replacement practice and plan also must be adjudicated by the water court and undergo extensive scrutiny before being approved.  These plans are called “Augmentation Plans”.
 
Nestle Water’s Ruby Mountain Springs’ wells have operated pursuant to the Upper Arkansas Water Conservancy District’s umbrella augmentation plans since 2015.  All the water used-up by Nestle has been replaced in the Arkansas River under this plan and by new water brought into the basin from the Western Slope of Colorado.  There have been no negative impacts or injury to the flows or water rights by the Nestle well pumping and use.  In fact, due to the Chaffee County 1041 permit conditions and terms, Nestle water replacements have enhanced flows in the Upper Arkansas river.  Under State water administration rules and laws water depleted in an augmentation plan must only be replaced above the shorted water right.  In the case of Nestle depletions, the replacement water does not have to be new trans-basin water and could be replaced out of Pueblo Reservoir, thus bypassing the Upper Arkansas portion of the River.
 
The former owner of Nestle Water’s Ruby Mountain Springs was impounding water for fish propagation under a decree that was non-consumptive.  However, the water impoundments were causing depletions to the river and injured water rights.  Today the Division of Water Resources is scrutinizing out of priority uses that are causing injury to river flows and water rights in the Upper Arkansas area.  These uses are primarily illegally filled catchments such as ponds built for fish propagation and aesthetics.  The amount of annual depletions is large.  More importantly, the major portion of these unsanctioned depletions occur during summer irrigation months of July and August.  Each acre of surface in these open-water ponds can create more than 3-acre feet of annual evaporation.  It is entirely possible that more than 1000 surface acres of illegally filled ponds exist in the Upper Arkansas Basin.  If so, this would equate to more than 3000-acre feet of injury to water rights annually.  Injury to Arkansas River flows and water rights do not occur when entities or individuals appropriate water in priority or if out of priority make ​​replacements under existing laws through court decreed augmentation plans.  The problem occurs when entities or individuals take water out of priority without making replacements to the River.
 


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Joe Stone Reports on May UAWCD Board Meeting for Heart of the Rockies Radio

5/19/2020

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A recent ruling by the Colorado Supreme Court involves a San Luis Valley water rights case. The ruling highlights a significant difference between "native" water and water imported from a different watershed (photo by Joe Stone).
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