Partial accord reached on Black Canyon rights

Environmental and sportsmen groups, including Trout Unlimited, High Country Citizens Alliance, Western Resource Advocates and others, also signed the agreement, Davis said.

http://www.gjsentinel.com/news/content/news/stories/2007/07/31/7_31_1a_Black_Canyon.html

By BOBBY MAGILL The Daily Sentinel

Tuesday, July 31, 2007

After four months of contentious negotiation, Gunnison Basin water users, a slate of environmental groups and the state have reached an agreement in the Black Canyon of the Gunnison National Park water rights case.

The agreement, which defines who must yield water rights to Black Canyon National Park, is the next step in resolving a larger case quantifying the park’s 1933 water right.

All the parties in the case agreed to a general subordination, which means that all adjudicated water rights in the Upper Gunnison Basin dating before Nov. 11, 1957, and the first 60,000 acre-feet stored in the Aspinall Unit will never have to yield to a call for water rights by Black Canyon National Park, said Alexandra Davis, Colorado Department of Natural Resources Assistant Director for Water.

“Technically, you can be a 2030 water right — if that pool of 60,000 acre-feet is still available, the Black Canyon cannot call you out,” she said. “If it’s not available, then you would be called out by a Black Canyon call.”

During the negotiations the parties disagreed whether there should be a selective subordination or a general subordination.

“A general subordination is where you step back in line, so if, say, you’re in line at a deli and you’re number two, a general subordination is where you say you’ll be number 50 and the 49 in front of you take food first,” or in this case, water rights first, Davis said.

A selective subordination is when someone else chooses who would yield to Black Canyon and who wouldn’t, regardless of the seniority of the water rights in question.

Many Gunnison Basin water users signed stipulations in 2003 that said the national park’s water rights would yield to the water rights of the Aspinall Unit and others whose rights date between 1933 and 1957.

The state, however, objected to some language in those stipulations.

The new agreement “works for everyone,” said John McClow, attorney for the Upper Gunnison River Water Conservancy District. “This new agreement provides all the protections of the previous stipulations.”

He said the negotiation was “very difficult, time consuming, (and) took a lot of energy, but in the end everyone was able to reconcile their differences.”

Marc Catlin, manager of the Uncompahgre Valley Water Users Association, said he’s pleased with the agreement and harbors no hard feelings toward the state.

“We’re pleased that they did reach an agreement, and that it helps protect our Taylor Park Reservoir water rights above Gunnison, which is a big part of the system,” he said. “If we were to lose the right just for one year to fill it just because of the Black Canyon, it could be really catastrophic.”

Environmental and sportsmen groups, including Trout Unlimited, High Country Citizens Alliance, Western Resource Advocates and others, also signed the agreement, Davis said.

Representatives of those groups were unavailable for comment on Monday.

It’s important to remember the agreement does not constitute a resolution of the larger Black Canyon case, said Peter Fleming, general counsel for the Colorado River District.

The next step is to return to the table and work with the federal government to reach an agreement about the minimum amount of water that will be allowed to flow in the Gunnison River through Black Canyon National Park.

If that negotiation goes smoothly, Fleming said, “I could see it being finally done within six months.”

But if it doesn’t go smoothly, the case could take years to resolve, he said.

Pine River agreement sets flow

It's too much flexibility, said Drew Peternell of Trout Unlimited, a critic of the agreement.  "They have absolute, unfettered discretion to decide for themselves whether to make a donation," Peternell said.

http://durangoherald.com/asp-bin/article_generation.asp?article_type=news&article_path=/news/07/news070713_4.htm

July 13, 2007

By Joe Hanel | Herald Denver Bureau

CRAIG - Fish in the Pine River below Vallecito Reservoir would get some extra protection under an agreement approved by a state water board Thursday.

The Colorado Water Conservation Board voted to accept a donation of water from the Southern Ute Indian Tribe and Pine River Irrigation District. The deal will put varying amounts of water into the river for a stretch ending 12 miles downstream from the reservoir, home to brown and rainbow trout.

In exchange for the donation, the water board agreed not to file for an in-stream flow right - a water right that could force water to stay in the stream.

Under the agreement approved Thursday, the tribe and the irrigation district get a lot more flexibility to decide how much water is available to preserve the river's environment.

It's too much flexibility, said Drew Peternell of Trout Unlimited, a critic of the agreement.

"They have absolute, unfettered discretion to decide for themselves whether to make a donation," Peternell said.

Under the agreement, the reservoir will release 136 cubic feet per second during the summer to supply a 12-mile stretch down to U.S. Highway 160. During the winter, the reservoir would release less - up to 50 cfs, but for a 19-mile stretch.

However, those rates could drop if reservoir managers decide water is not available. Managers also could provide extra water when possible.

State water board employee Linda Bassi recommended that the board approve the deal, which has been in the works for two years of detailed negotiations.

"We're being optimistic and thinking the water will be there," Bassi said.

Don Schwindt, a water board director from Montezuma County, disagreed with Trout Unlimited's criticisms.

"This is a really good way to move forward and solve a problem," Schwindt said.

The state water board has had the right to file for in-stream flow rights since 1973. These rights are different from the recreational water rights Durango wants for its kayak park at Smelter Rapid.

Only the state water board can hold an in-stream flow right, so by relinquishing those rights on the Pine River, the board has guaranteed the tribe and the irrigation district don't have to worry about anyone claiming rights to improve the river's environment.

The agreement will take effect once it is signed by Pine River and Southern Ute officials.

Protecting Good Samaritan mine cleanups a wise move

"We think it's a step in the right direction. We need a step further to make it really effective," said Elizabeth Russell, watershed-restoration coordinator for Trout Unlimited, who has been working with local focus groups seeking ways to clean up mine drainage in places such as Peru Creek near Keystone.

www.denverpost.com/opinion/ci_6283643

By The Denver Post Editorial Board

Dotted across Colorado are hundreds of silent polluters that, drip by drip, have fouled our streams and watersheds for more than a century.

They should be everybody's concern, but most are nobody's responsibility.

They are among the 23,000 abandoned Colorado mines and mining sites that are the legacy of our state's first economic boom in the 19th and early 20th centuries.

Across the country, there are an estimated 500,000 abandoned mines. By some calculations, 16,000 miles of Western waterways are tainted by mine waste.

Mines were built quickly and went out of business just as fast, victims of pinched-out veins, undercapitalization and fluctuating ore prices. Their useful lives are long in the past, and their owners are long gone, so there's no one responsible for cleaning them up. But the chemicals used to process ore - like cyanide, arsenic and mercury - and other substances released by mining remain.

With no owners to hold responsible, and with the estimated cleanup bill of $32 billion way beyond the capabilities of the federal or state governments, Westerners long have wrestled with how to even start cleaning up.

One promising answer, interestingly enough, is volunteers.

Many conservation and community groups have been interested in cleaning up mines and streams, but the threat of liability has hampered such efforts.

Cooperation between private groups and government agencies has permitted some citizen cleanup of old mines on federal land, but liability concerns continue to hamper other cleanups.

The U.S. Environmental Protection Agency last month took a step toward solving that problem by approving procedures under which private groups can do limited cleanup - such as removing waste rock and diverting runoff - under agency supervision without fear of being sued and held liable for cleanup of an entire mine site. But the procedures don't apply to work that might be covered by the Clean Water Act. Congress needs to take care of that problem.

"We think it's a step in the right direction. We need a step further to make it really effective," said Elizabeth Russell, watershed-restoration coordinator for Trout Unlimited, who has been working with local focus groups seeking ways to clean up mine drainage in places such as Peru Creek near Keystone.

Colorado Rep. Mark Udall introduced legislation in 2005 that would protect "Good Samaritan" cleanups. It didn't pass. He called the EPA's move a "harbinger" of full reforms needed to allow mine-site cleanups. Udall has been studying the issues with Western governors, and we hope he continues to make a run at the problem.

Washington lawmakers also ought to give a serious look to another proposal that would impose royalties on hard-rock mining and use the revenue to help pay for reclamation.

Snake River sampling stepped up

Feds, state agencies to test for metals, study fish populations

On a larger scale, Summit Water Quality/Quantity expert Lane Wyatt and Trout Unlimited’s Elizabeth Russell will use the information to fill in the gaps in a proposed watershed plan for the Snake River Basin.

http://www.summitdaily.com/article/20070703/NEWS/70703002

SUMMIT COUNTY — An ambitious round of water sampling this summer in the Snake River Basin will help lay the groundwork for a comprehensive watershed plan. One key goal is treating polluted drainage from the abandoned Pennsylvania Mine, near Peru Creek, where toxic zinc, cadmium and other dissolved metals are leaching into the water. Combined with pollution from other sources and naturally occurring minerals in the drainage, concentrations of metals in the Snake are so high that fish can’t survive.

The sampling this summer includes EPA tests, as well as more work by state health and water quality officials, while the U.S. Forest Service will take a close look at the status of aquatic insects, the macro invertebrates that form the base of the food chain. Among the agencies doing tests is the U.S. Geological Survey (USGS), which has been sampling the Snake and its tributaries for three years as part of a larger assessment of the environmental effects of historical mining in Central Colorado. The USGS has sampled at six sites, including the relatively untainted North Fork of the Snake (flowing down from Loveland Pass), Peru Creek above and below the Pennsylvania Mine, Deer Creek and Sts. John Creek (above Montezuma) and the Snake River in Keystone.

In an e-mail to the Snake River Task Force, USGS researcher Stan Church explained that preliminary results confirms a previous study by biologist Andrew Todd, showing fish will not survive in the contaminated stream segments. Zinc is directly toxic to trout and also affects the aquatic bugs that form the base of the food chain.

Church said the USGS is compiling a paper on their work and emphasized the preliminary nature of the results, but wanted to give the task force a heads up so that nobody is surprised when the results are published, perhaps by the end of the summer.

Some of the tests scheduled this summer include EPA water sampling and Forest Service macroinvertebrate research next week. The Colorado Division of Wildlife will do some fish population studies later in the month, while state environmental experts will test mine waste piles and do some low-flow sampling in August.

As concentrations of metals vary widely with flows in the streams, the EPA will return to do yet another round of low-flow sampling in late September, repeating some of the early July tests. A full sampling report is expected sometime this coming winter. Using the data, state experts will set new water quality standards for some of the affected Snake River segments, with public comment on those proposed changes to take place in June and July 2008.

On a larger scale, Summit Water Quality/Quantity expert Lane Wyatt and Trout Unlimited’s Elizabeth Russell will use the information to fill in the gaps in a proposed watershed plan for the Snake River Basin.

Wyatt and Russell said previously that a treatment facility for the toxic water from the Pennsylvania Mine could be under construction as soon as 2008, barring any unforeseen pitfalls.

For more Snake River info, check out the task force web site at http://instaar.colorado.edu/SRWTF/.

State rules have cut use of groundwater

“There is increasing concern about whether the wells should be regulated. In a report earlier this year, Trout Unlimited’s Western Water Project said unregulated wells represent a growing threat to wildlife habitat.”

http://www.chieftain.com/metro/1182600924/18

By CHRIS WOODKA THE PUEBLO CHIEFTAIN

Well pumping in the Arkansas Valley has been reduced by a significant amount as a result of changes in regulations that began more than 40 years ago and were accelerated by an interstate lawsuit in 1985.

At the same time, smaller wells exempt from regulation are growing in numbers. Although the volume pumped in those wells is small, there’s a lot of them and their impact could add up.

Prior to 1985, wells pumped an average of more than 150,000 acre-feet of water per year, sometimes up to 200,000 acre-feet. Since then, it’s dropped to 110,000 acre-feet, Water Division Engineer Steve Witte told the Southeastern Colorado Water Conservancy District board Thursday.

“We’re down . . . because administration has diminished the amount available for pumping,” Witte said.

The push to regulate wells first came in 1965, eight years after the state engineer was given responsibility for groundwater flows along with surface water rights administration. Permits were issued for the first time.

After a state Supreme Court ruling in 1968 diminished the state’s authority to regulate wells, the Colorado Legislature passed new laws, leading to regulations put in place during the 1970s. Those regulations permitted pumping three days in seven, but did not limit volume.

Kansas filed a U.S. Supreme Court lawsuit in 1985, prompting closer attention to well regulation. That led to measurement rules in 1994 that required wells to be measured either physically or through a coefficient.

After the U.S. Supreme Court ruled in 1995 that Colorado well-pumping violated the Arkansas River Compact, the state adopted well rules that required augmentation of groundwater depletion to surface flows.

“There has been a big learning process to get people to think about the pumping that occurs today,” Witte said. “The total depletions include the effects on streams from pumping that may have occurred two months ago.”

The 1996 rules apply to the larger wells in the basin, which include both irrigation wells and some municipal wells. Three well associations provide augmentation for 1,880 wells in the valley.

Augmentation plans come in three types, Witte said.

The first are decreed augmentation plans, which are taken through water court. An example would be the Upper Arkansas Water Conservancy District’s blanket augmentation plan, which specifies how much water will be depleted and which sources of water will be used for augmentation.

“There are numerous decreed plans,” Witte said.

Throughout the valley, there are 2,910 domestic wells covered by augmentation decrees, Witte said.

The second category are substitute water supply plans. In 2006, such a plan was challenged by cities and senior irrigators in the South Platte basin, creating a crisis when the state engineer ordered 400 wells shut down because they had not obtained decrees after relying on substitute water supply plans for years.

In the Arkansas Valley, the substitute water supply plans for wells have been for emerging or variable uses like hog farms, gravel pits or the ongoing water purification operation at Pueblo Chemical Depot that came into existence after the 1985 case was filed. Most of those eventually will be required to have a decreed augmentation plan.

“He have the advantage of being able to have flexibility in dealing with these wells, so we won’t have the same sort of problem seen in the South Platte,” Witte said.

The final category are “Rule 14 plans,” so-called because the 14th rule in the 1996 regulations spelled out conditions of augmentation. They exist only in the Arkansas River basin as a specific response to the Kansas lawsuit.

The well associations are required to file annual reports on pumping, as well as meeting other criteria.

“Rule 14 plans will probably be around forever,” Witte said. “They are in a sense dealing with older wells. We’re trying to force the newer wells to file for a decree.”

Reduced pumping from wells may simply have changed the way water was used in cases where senior water rights holders also have wells.

“A lot of the water being pumped by wells was depriving senior surface rights within Colorado,” Witte said. “But it becomes a scrambled egg. If a senior irrigator gets less water down the ditch, he pumps more.”

That depends on location, however. On ditches where water supply was more reliable, like Rocky Ford Ditch, wells never played a big part. In other cases, it was difficult to find a place to drill a well, Witte said.

Witte said his staff has located 4,566 high-capacity non-exempt wells that are subject to the rules, with 2,567 apparently inactive.

Smaller wells are exempt from the well rules, but still require permits. There are about 31,600 in the Arkansas basin, not including wells that were built before 1965 and may still be in use.

Domestic wells with under 50 gallons-per-minute capacity in use prior to 1971 are exempt. Additionally, domestic wells under 15 gpm in use since 1971 on lots larger than 35 acres are exempt. Certain commercial wells with minimal use are also exempt, Witte said.

There is increasing concern about whether the wells should be regulated. In a report earlier this year, Trout Unlimited’s Western Water Project said unregulated wells represent a growing threat to wildlife habitat. In Pueblo County, exempt wells have created concern about development near Beulah.

“If you have 100 15 gpm wells, you have a 1,500 gpm well,” Witte told Southeastern Thursday, only half-joking.

He explained that most of the smaller wells are not in continuous use like the larger wells.

“I do suspect the day will come when we regulate them, but I don’t know what form it would take,” Witte said. “It’s unlikely we’d take the same approach. One approach might be to grandfather everything that exists now and then make no further exemptions.”

PUMPED UP

Three major well associations file augmentation plans with the Colorado Division of Water Resources each year, accounting for most of the groundwater pumping in the Arkansas River basin. Here are 2007 requests.

Well association	Wells	Amount
Lower Arkansas Water Management Assoc.	520	58,000 af
Colorado Water Protective & Development Assoc.	1,033	46,000 af
Arkansas Groundwater Users Assoc.	327	7,000 af

Amount figures are projected, in acre-feet. An acre-foot is 325,851 gallons.