Conserve, recycle

EDITORIALTHE PUEBLO CHIEFTAIN

TROUT UNLIMITED recently won a major Colorado Supreme Court case that recognizes there are limits to the water municipal suppliers may claim for future population growth.

In 2004, the Pagosa Area Water and Sanitation District and San Juan Water Conservancy District received a Durango water court decree for enough reservoir water for more than 300,000 people - projected out nearly a century to the year 2100.

Yet, in 2005 the Pagosa district served only 9,500 people with a modest 2,000 acre-feet of water (325,851 gallons per acre).

On appeal, Trout Unlimited convinced the Supreme Court that the amount of water claimed, predicted population growth and 100-year time frame were unrealistic. Colorado's anti-speculation doctrine prohibits hoarding water without a reasonable plan for putting it to beneficial use.

Supreme Court Justice Gregory Hobbs wrote the unanimous decision overturning the lower court.

Justice Hobbs found that municipal suppliers must take into account, among other factors, how water conservation measures and reuse can reduce future municipal water demand.

Closer to home, Colorado Springs Utilities should take notice and seriously undertake conservation and reuse of its existing water supplies to mitigate that city’s Southern Delivery System plan of taking yet more water out of Lake Pueblo to the detriment of Pueblo and the Lower Arkansas Valley.

We congratulate Trout Unlimited for fighting to protect the San Juan River trout fishery and Justice Hobbs for giving judicial weight to the role of conservation and reuse in water law.

Chalk one up for Trout Unlimited

By The Denver Post

Article Last Updated: 10/27/2007 09:25:34 PM MDT

 Trout Unlimited recently won a major victory in the broad realm of in-stream flow protection when the Colorado Supreme Court clamped legal limitations on the ability of water providers to divert water toward future population growth. The suit concerned a 2004 application filed jointly by the Pagosa Area Water and Sanitation District and the San Juan Water Conservancy District for conditional water rights for Dry Gulch Reservoir and pump station. The reservoir would store 35,000 acre feet of water obtained by pumping 200 cubic feet per second from the San Juan River to serve population growth in Archuleta County through the year 2100.

TU challenged the application, claiming the diversion would significantly impact the river's flow. As often is the case, the water court ruled for the developer. TU appealed on grounds that the water was being claimed for speculative purposes.

The Supreme Court reversed the decision and remanded the case, instructing the water court to reevaluate the districts' future water needs.

Drew Peternell, TU's attorney, hailed the ruling for its broader implication.

"It establishes a precedent throughout Colorado that municipal water providers cannot claim water rights for which they do not have a demonstrable need," Peternell said.

"This decision is especially significant in the fact that the Supreme Court recognized the potential of water conservation as a means of limiting water demand."

Several of the state's largest municipal providers filed briefs in support of the Pagosa bid, arguing that cities should be afforded broad deference in appropriating water rights. The court rejected that argument.

Supreme Court denies Pagosa new reservoir

Trout Unlimited said projections for population were unrealistic

October 24, 2007

By Joe Hanel | Herald Denver Bureau

DENVER - The state Supreme Court has denied a large water right for a new reservoir above Pagosa Springs.

The reservoir, which would be called Dry Gulch Reservoir, would meet the future needs of fast-growing Archuleta County. Trout Unlimited appealed, saying the plan was based on unrealistic growth estimates.

On Monday, the Supreme Court overturned a large water right for the reservoir and sent the case back to District Judge Gregory Lyman in Durango. Lyman could order a new trial or accept new evidence and arguments.

"We couldn't really have hoped for a better opinion. We think the Supreme Court got it right," said Drew Peternell, Trout Unlimited's attorney.

The Pagosa Area Water and Sanitation District provides water to most Archuleta County residents, parks and golf courses.

District Manager Carrie Campbell said Tuesday that she hadn't studied the 46-page decision, but she hopes for another chance in Lyman's court.

"I'm hopeful and very optimistic that we're not going to lose what we've applied for," Campbell said.

The San Juan Water Conservancy District - a partner organization to the Pagosa water district - already has a 6,300-acre-foot conditional right for Dry Gulch Reservoir, and Campbell said water managers plan to build the reservoir in some form.

"We have no choice," she said.

It's needed for population growth, and the Dry Gulch site - a mile and a half east of Pagosa Springs - is the best site in the area, she said.

The case began in 2004, when the Pagosa district won a 29,000-acre-foot conditional water right in a trial in Lyman's court. The water would come from the San Juan River.

The district based its request on population projections to the year 2100. Trout Unlimited appealed, saying the predictions were unrealistic.

In 2005, the Pagosa district served 9,500 people with about 2,000 acre-feet of water, according to the Supreme Court. The Dry Gulch decree included a right to continually refill the lake, bringing the total to 64,000 acre-feet a year.

Based on 2005 water use, 64,000 acre-feet would be enough for 304,000 people, or a city twice the size of Pueblo.

"It was an enormous amount of water for what is currently a pretty small community," Peternell said.

Trout Unlimited is worried about a wild population of brown trout in the San Juan River.

"We're not trying to deprive Archuleta County and Pagosa Springs of having a safe water supply," he said.

In 2003, Pagosa's water engineer, Steve Harris, estimated Dry Gulch would need 12,000 acre-feet of storage to meet demands by 2040. But the next year, the district's board asked for a much larger water right.

In the trial, Harris testified the district was worried about a potential recreational water right for a Pagosa Springs kayak park.

"That would essentially tie up a good portion of the river, and if you don't get in ahead of it, you're essentially not going to have hardly any water left to use," Harris testified.

He also worried about future environmental claims on the river by the state or the U.S. Forest Service.

But the state Supreme Court said water rights can't be used to block other people's future uses.

The court's water expert, Justice Gregory Hobbs, wrote the opinion.

Colorado water law does not allow "speculating," or claiming large amounts of water that might never be used. The system is set up to ensure the best use of the public's water, Hobbs wrote.

However, "optimum use can be achieved only through proper regard for all significant factors, including environmental and economic concerns," Hobbs wrote.

In a previous case from the Denver suburb of Thornton, the high court decided 50 years was a reasonable time frame for water planners to use. Pagosa's 100-year plans doubled that period.

Justice Nathan Coats, however, said the 50-year standard is dangerous.

Cities need to be reined in by proving they can build their systems in a "reasonable" time period. Otherwise, they will claim vast amounts of water based solely on 50-year population projections, Coats wrote in a concurring opinion.

High court halts Archuleta Co. 96-year water right

By The Associated Press

Article Last Updated: 10/23/2007 01:56:26 AM MDT

A water court decree that gave Archuleta County a 96-year conditional water right so it could plan for its growing population was reversed Monday by the Colorado Supreme Court.

The Supreme Court ruled that the water court failed to properly determine what would be a reasonable water supply planning period. It said the water court failed to determine substantiated population projections and how much water was reasonably necessary for the planning period.

The court sent the matter back to the water court for further proceedings.

In 2004, the Pagosa Area Water and Sanitation District and the San Juan Water Conservancy District sought water rights to serve Archuleta.

A water court decreed a conditional water storage right through 2100 for 29,000 acre-feet of water, plus the right to refill the reservoir for total annual storage of 64,000 acre-feet.

Trout Unlimited challenged the decree over concerns of how it would affect flows and trout population on the San Juan River. The fisheries conservation group contended the districts were requesting far more than they actually needed.

Pueblo County has authority to regulate SDS

In court proceedings this week, Colorado Springs argued that Pueblo County lacks so-called “1041” authority to regulate the proposed Southern Delivery System (SDS) - a billion-dollar project that would deliver enormous quantities of water from Lake Pueblo for use in Colorado Springs. The term “1041” stands for the state statute giving local governments power to regulate land uses within their boundaries for projects like mines, dams and water pipelines. Pueblo County is right to assert its “1041” authority as a means of limiting the potentially serious natural resource impacts of SDS.

As Colorado Springs has planned it, SDS would remove more than 78 million gallons of water daily from Lake Pueblo and carry it 43 miles north to Colorado Springs through a 5-foot diameter pipeline.

The pipeline would disrupt public roads, private property and countless ephemeral streams, and powering the project would require a host of infrastructure, including a 14,000 square-foot pump house, an electrical substation and 8-foot by 8-foot by 7-foot concrete boxes every 2,000 feet along the pipeline.

After being used in Colorado Springs, the wastewater from SDS would discharge to Fountain Creek, which for years has suffered flooding, water quality and other environmental consequences of being used as a wastewater receptacle. Already 37 percent of the flow of Fountain Creek is wastewater discharge, and under Colorado Springs’ plan, SDS would double the amount of wastewater return flow in the creek.

And then there’s the Arkansas River Legacy Project. The city of Pueblo and the Army Corps of Engineers spent millions of dollars to restore the nine-mile section of the Arkansas River from Pueblo Reservoir to Fountain Creek.

The Legacy Project has brought invaluable recreational and environmental benefits to Pueblo and its citizens and has resulted in an urban waterway that’s now healthy enough to support a population of trout. The SDS project could undermine these gains because it would take its water upstream from the stretch of river that was restored.

Colorado Springs has taken laudable steps forward in terms of per capita water usage, but the city’s modest reductions in per capita usage are insufficient to compensate for its alarming growth in population.

Moderating Colorado Springs’ growing water demands and its impacts on Colorado’s water resources requires aggressive and innovative water supply approaches. For example, Colorado Springs could reuse the water it brings to the Front Range from the West Slope, thereby reducing its demands for additional diversions from the Arkansas River.

Yet, even in the face of projections that its population will nearly double in 20 years, Colorado Springs leaders have displayed an unwillingness to get serious about a water reuse project.

The tension between Colorado Springs and Pueblo County over water resources is long-standing, and in pursuing SDS as it is currently contemplated, the Springs is reaching out to its neighbors to the south not with an olive branch but with a club.

Until the time there is peace on the Arkansas River, Pueblo County is right to assert its “1041” land use authority as a way to limit the environmental damage from projects like SDS.

Drew Peternell is the director and counsel of Trout Unlimited’s Colorado Water Project.

Western & Colorado Water Project Staff Notes

October 2007  On the Road: We spoke at an American Groundwater Trust conference about TU's interest in sound ground water management, made some new contacts and garnered some good press. We also attended the biennial Colorado River Symposium at Bishop's Lodge in Santa Fe and talked about TU reconnect and restoration projects in the Basin, as well as had many productive conversations about climate change's effects on trout and the energy-water nexus. Finally, we spoke to Light Hawk volunteer pilots at their annual Fly-In, held this year in Boulder, about the Western Water Project and the power of seeing the watersheds. 

Santa Fe River: While in Santa Fe, we spent time with the Director of the Santa Fe Watershed Association, toured the river, and made a presentation about river re-connect and restoration strategies used around the west at a forum the Association sponsored. The Santa Fe River was listed as the most endangered river in this year's American Rivers report. The Association would like to partner with TU to bring this river, which used to support native Rio Grande cutts, but now is dry for months out of the year, back to life. 

Flow Mapping: Colorado's mapping of environmentally and recreationally important stream reaches that need flow protection continues to inch forward. On a recent call, the steering committee set a state-wide meeting to explain and discuss the coarse and site-specific flow characterization models that we hope to use. 

Black Canyon: TU and the other parties to the Colorado water court proceedings to quantify the Black Canyon reserved water right are engaged in mediation. The court has stayed proceedings until middle of January to allow negotiations to continue. 

Colorado Headwaters Forum: We attended the Colorado Headwaters Forum in Silverton 

The Yampa: We spent the better part of a week surveying streams in the Yampa River Basin with Colorado Division of Wildlife staff in anticipation of bringing recommendations for instream flow rights to the CWCB. We are continuing to work with staff to advocate for Denver to release reasonable winter flows from the Williams Fork Reservoir. 

Temperature: We continue to collect, analyze and summarize stream temperature data in anticipation of the Colorado River Basin-wide hearings this winter. We are working to help improve the state's model of expected stream temperatures. This model is being developed for the Aquatic Life Workgroup as part of their effort to delineate the expected conditions against which actual stream health is compared. We also assisted with a large scale sampling effort led, in large part, by the EPA in Peru Creek that is part of ongoing efforts to restore the stream and cleanup the ongoing impacts from acid mine drainage.

New temp standards set to protect trout

Global warming a wild card in new rules, experts say

http://www.summitdaily.com/article/20071004/NEWS/71004014 

By BOB BERWYN summit daily news October 4, 2007 BRECKENRIDGE — Along with monitoring concentrations of toxic pollutants like heavy metals from leaky mines, local streams will also soon be subject to strict temperature standards. After a rigorous scientific process, the state is adopting new rules to protect fish and other aquatic life by setting maximum temperatures.

The idea is to make sure that impacts like discharges from water treatment plants and urban runoff don’t kill fish, or impair their ability to reproduce.

Temperature standards are important because the body temperature of fish basically matches the temperature of the surrounding water, said U.S. Geological Survey research biologist Andrew Todd.

Trout and other species have evolved and spawn under very specific temperature conditions and don’t have a mechanism to adapt to temperature changes in the short-term, Todd said, speaking Wednesday during a water quality summit in Breckenridge.

“When we introduce heat, we disrupt metabolic and reproductive functions,” Todd said.

A number of factors can affect stream temperatures, including sunshine, shading from stream-side vegetation, stream flows and water quantity, as well as direct discharges from point sources like factories and treatment plants.

The latter are less of a factor in the High Country, but increased urbanization around local streams and runoff from paved areas, as well as diversions for snowmaking and other needs, could conceivably influence water temperature in Summit County.

The biggest wild card in the deck is air temperature, which is beyond human control.

Given recent climbing temperature trends associated with climate change, it’s not clear how the state’s new rules will be effective in stemming any potential impacts from global warming.

But as they now stand, the temperature standards are stringent enough to protect even cutthroat trout, most sensitive of the trout species.

“Cutthroat trout drove the setting of the table-value standards,” Todd said, adding that 85 percent of the state’s cold-water streams qualify as cutthroat trout habitat.

Todd explained that the existing standards, set in 1978, were not considered to be scientifically defensible, and that the rules lacked any clear mechanism for enforcement and implementation.

The new temperature limits were determined after scrutinizing hundreds of scientific studies based mainly on laboratory work.

Todd said the rules include criteria for acute conditions (peak temperatures that can kill fish within days), and for chronic conditions — warm temperatures that, over a longer period, can impair reproduction and growth.

The limits also take into account seasonal spawning requirements and are broken down for different types of fisheries, from high mountain trout streams to lowland ponds and rivers with habitat for completely different species.

The rules cover eight cold-water species and 43 warm-water species.

Even these new protective limits may not be adequate to fully protect the resource in the long run, Todd said, explaining that the rules, for example, don’t cover thermal shock, a very sudden change in temperature that can kill fish in a short time.

The state may address that issue during a future round of rulemaking in 2010, he concluded.

The Breckenridge conference included tours of local river restoration projects, streams impacted by mine drainage and other presentations on watershed planning and water quality.

It brought together groups like the Colorado Watershed Assembly, the Colorado Watershed Network and the Colorado Riparian Association.

Local activist Sandy Briggs said the conference was a great networking opportunity, and that he was surprised that no local government officials attended, as far as he knew.

A presentation Tuesday evening by Rocky Mountain Regional Forester Rick Cables focused on the important role of forest health in watershed protection, a crucial issue in Summit County’s beetle-stricken and potentially fire-prone forests.

Colorado Water Project Notes, September 2007

We assisted the CDOW with fish sampling on the Snake and Blue Rivers. The Snake continued to show the effects of a large runoff event that appears to have brought a lot of metals in from mines upstream. In other words, we only found two fish. Conversely, we sampled a recently restored stretch of the Blue River and found too many fish to count. Well, not really, but this is one happy fishery. CDOW is currently working up the resulting data. We are also continuing to assist the CDOW’s efforts to collect data for instream flow appropriations. We attended a retreat for Colorado environmental leaders to set a 2007-2008 strategic agenda and think about even longer term planning. At that meeting, Colorado's water future was one of the top three statewide issue campaigns (along with climate change/clean energy and habitat protection). There was much talk about the sportsmen-enviro alliance and hope that adding the land protection community (TNC, TPL et al) will make a strong voice more powerful. We have continued to focus on temperature monitoring in the Colorado River, Eagle River, and Roaring Fork River Basins. These efforts have not only been aided by other non-profits such as the Roaring Fork Conservancy, but by one of the big water districts, Northern. Northern have made their data available and are currently warehousing some of the data collected by the Grand County Water Information Network. Some of these data indicate some temperature exceedances. However, this winter the Colorado River Basin will go through the process of adopting the presumptive temperature standards. Until then, the less stringent and less enforceable interim standards are in effect.  We have been working to encourage Denver to release as much water as possible from the Williams Fork Reservoir this winter. Because the Shoshone Power Plant had a penstock explode this summer there will be no Shoshone Call this winter. Denver asked the CDOW to provide a minimum flow recommendation for the Williams Fork. Based on this analysis, they have agreed to release 25 cfs all winter long. This is more than the 15 cfs they are legally required to release, but somewhat less than they typically release.

Western Water Project Staff Notes, August 2007

Attended more IBCC meetings, including one to consider whether Colorado has adequately assessed its upcoming consumptive water needs and another where we discussed non-decisional items, giving feedback on a report from a group of business leaders and the possibility of state redoing a proposed scope of work for determining how much water Colorado is entitled to use that it isn't actually using. We also had a good internal TU conversation about the energy-water nexus.

Spoke to Regional Forest Service hydros and biologists about Western Water Project and TU's approach to stream protection-reconnection-restoration in the region.

Colorado Water Project

Clean Water Restoration Act: Worked to gain support of Congressman John Salazar and Governor Ritter. Activities include communications with the Congressman as a member of his Water Advisory Committee, development of talking points for a letter-writing campaign by Colorado conservation groups, and co-writing a letter to Governor Ritter with Colorado Council's executive director. TU also participated in a Clean Water Restoration Act conference in Albuquerque, co-sponsored by TU, DU and NWF.

Regulation of CBM Wells: In a recent decision, a Colorado water court ruled that coalbed methane wells may no longer operate without obtaining water pumping permits from the State Engineer and going to water court for approval of measures to prevent injury to surrounding water wells or surface streams. The decision is expected to be appealed to the Colorado Supreme Court and will likely be the target of legislative efforts by both the State and industry in the upcoming session. TU is also working to gain support from local and regional governments on both the judicial and legislative fronts.

Colorado River Headwaters: As part of the CWP's effort to get the State's instream flow leasing program off the ground, TU continued a series of meetings with key irrigators and other key entities in the area, to promote the program, explore future specific transactions, and seek support for CWP's legislative efforts to improve the program in the upcoming session.

Met with Northern Colorado Water Conservancy District, the east slope beneficiary of the C-BT project, to discuss cooperative solutions to the chronic low flows of the Colorado River headwaters below Granby Reservoir. TU discussed our efforts to increase flows through leasing. Northern said it is exploring possible operational scenarios that may assist the river.

Colorado River Basin: TU focused on temperature monitoring in the Colorado River Basin. In cooperation with the Roaring Fork Conservancy and the Eagle River Watershed Council, we deployed loggers These loggers will contribute to the wealth of temperature data being collected in the Colorado River Basin in anticipation of the basin-wide standards hearing this winter.

Gunnison River Basin: Worked with the Colorado Division of Wildlife to collect discharge data on a couple of streams in the Gunnison River Basin. These data will serve as the basis for recommendations to the CWCB for instream flow appropriations on these streams. TU plans to collect additional data on these and other streams so that we can continue to recommend trout streams for instream flow rights.

Shoshone Call: As the most senior Colorado River water right within Colorado, the Shoshone hydropower plant diversions control the administration of the river. In late June, an upset shut down the plant for the immediately foreseeable future, threatening the delicate administrative balance achieved over decades of operations. From an environmental standpoint, the absence of the call has a potential to impact ESA listed fish a few miles above the state line as well as cold water fisheries at its headwaters. From a recreational standpoint, the shut down could threaten a $20 million industry. TU has been participating in a series of conference calls among affected entities to discuss a cooperative administration agreement in lieu of the Shoshone call. TU has been working to assess what the impact of the Shoshone shut down will be on flows in the Colorado River and how various efforts to keep water in the river might impact fish, especially if winter flows are severely curtailed.

Shoshone Generating Station to be back online by next spring

“The group Trout Unlimited has expressed concern over what will happen to water levels after Oct. 31.”

http://www.postindependent.com/article/20070817/VALLEYNEWS/108170053

Glenwood Springs, CO Colorado August 17, 2007

Xcel Energy announced Thursday the Shoshone Hydroelectric plant won't be back online until the beginning of spring.

The Shoshone station, located in Glenwood Canyon, produces 14 megawatts of power.

The 98-year old plant was shut down on June 20 after one of the large pipes that delivers water to the plant ruptured and caused water and debris to flood the plant area. Approximately eight feet of water and several tons of rock and soil rushed into the station.

The rupture didn't result in a loss of service for residential customers. Xcel Energy has determined the rupture was caused by corrosion on the exterior of the section of pipe that was buried underground.

Repairs are estimated to cost about $12 million, and will include repairing and upgrading both large penstocks. Crews will begin construction in September.

"The Shoshone station is a key part of our fleet, providing 14 megawatts of economical, clean, renewable power for our Colorado customers," said Lou Matis, vice president of operations. "We appreciate the patience of other Colorado River water users, and the cooperation of the Colorado Department of Transportation and emergency responders during the event."

The Colorado River District announced a plan to keep enough water in the Colorado River to benefit rafting companies and endangered fish this summer.

Water flows of 1,200 cubic feet per second in Glenwood Canyon will be kept through Labor Day and 810 cfs for endangered fish in the Grand Junction area through October.

The group Trout Unlimited has expressed concern over what will happen to water levels after Oct. 31.

Once the plant resumes operations, an important balance will also be restored among Colorado River water users. The generating station does not consume water, but commands important flows in the Colorado River, which benefit fish, rafters and a multitude of other Western Slope water users.

The plant is one of seven hydroelectric power plants owned and operated by Xcel Energy in Colorado.