WATER LAW OVERVIEW AND ISSUES PRESENTATION
Taylor Hawes
Colorado River Water Conservation District
March 13, 2007
I.
THE COLORADO RIVER DISTRICT
A.
Purposes and Governance.
The River District was created in 1937 during a cosmic state
planning effort in response to the C-BT Project which diverted
water from the Colorado River Basin to the South Platte (north
Front Range).
The River District is a political subdivision of the state. It
covers all or part of 15 counties and 29,000 square miles (25%
of the state). That area embraces four separate drainages:
Colorado, Gunnison, White, & Yampa.
The River District has a broad mission to conserve Colorado
River water for beneficial consumptive use and to safeguard for
Colorado all waters to which the state is entitled under the
Colorado River Compact.
The River District also is directed to secure and ensure adequate
supplies for present and future uses in the District. Our mission
requires a balancing of West Slope interests versus State
interests.
II.
WATER FOR COLORADO’S GROWING POPULATION:
Basin of Origin Issues: Headwaters/West Slope versus Front
Range growth
A. Colorado Water Law allows diversions out the natural basin.
B. Transmountain Diversions (TMD) from the Colorado River to the
Eastern Slope of Colorado are 100% consumptive. Water diverted
1
to the Eastern Slope produces no return flow back to the Colorado
River.
C.
There is a concentration of Front Range TMDs in West Slope
"headwaters" counties. TMDs have historically drafted
between 500,000 and 600,000 AF from the West Slope to the
Eastern Slope. Some TMD projects have existing physical
capacities to divert over 100,000 AF of additional Colorado
River water when demands require.
 Grand County contains the C-BT and Windy Gap Projects and
Denver’s Williams Fork/Fraser system. Approximately 65% of
Grand County's "native" water is currently diverted to the East
Slope. Diversions out of Grand County are expected to
increase to approximately 80%.
 Summit County hosts Denver's Dillon Reservoir System and
Colorado Springs' Blue River System. About 25% of Summit
County’s native water is diverted to the front range. Those
diversions are expected to increase to 50%.
 Arkansas Valley TMD projects are concentrated in Eagle (25%)
and Pitkin Counties (50%): Homestake Project, Twin Lakes'
System, and the Frying Pan-Arkansas Project.
 Burgeoning East Slope municipal growth and the 2002 drought
is highlighting the need for additional reliable supplies.
 The CWCB's estimated population projections of a 50%
increase on the Western Slope by 140% statewide by 2020.
CAVEAT: Not criticizing the Front Range water providers. The West
Slope is aware of their need to supply water to their constituents, but we are
hoping to educate Front Range residents of the impacts associated with
providing water to the metro areas.
D.
Impacts to the Headwater communities:
2
!
Fishery impacts caused by low flows (temp.- 75- 80
degrees & lack of water).
!
Impacts to Gold Medal Fisheries (Silverthorne).
!
Wastewater treatment - increased costs to pay for
treatment.
!
Increased diversions out of the basin mean some of these
streams consist primarily of effluent.
!
Loss of business associated with impacts to marinas
(approx. $1.5 million in direct revenues to Summit County) about half the boats at Dillon Reservoir belong to people in
Denver.
!
Loss of business revenues associated kayak and rafting
industry.
!
Loss of dilution flows increase impacts associated with
abandoned mines sites; thereby increasing water quality
problems.
!
Loss of recharge to wetlands and flushing flows.
!
Increased diversions to the FR creates a “permanent
drought.”
!
Lack of water supply to meet West Slope growth - West
Slope demands are tied to Front Range demands.
Must not sacrifice one part of the State for the sake of the other.
We have all the tools we need to build smart projects that provide
water supply but also protect the environment and the communities
that rely on the rivers, stream and lakes. The political will to do this is
often missing though.
1.
2.
3.
4.
5.
III.
1041 Regulations
Clean Water Act
HB 1177 Process
Environmental Permitting
SWSI II Report on meeting non-consumptive needs
COMPACT ISSUES
A.
The Basin and its Supply. The Colorado River Basin has
approximately 14.3 million acre feet (“MAF”) of useable
average annual yield. The supply is highly variable and storage
3
is needed to make reliable human use of the supply possible.
The Basin comprises and drains seven western states, about 8%
of the land area of the lower 48 states. Some states, like
Colorado, contribute large amounts of water to the system.
California contributes little to the physical supply yet is entitled
to a large amount of Colorado River water. Politics trumps
nature!
The 1922 Colorado River Compact apportioned 15 MAF
equally between the Upper and Lower Basins on the
understanding that reliable yield was about 16 to 21 MAF.
1920s were the WETTEST DECADE. Runoff data since 1922
have not supported that optimism.
Recent "tree ring" studies indicate that the long-term average
annual supply is 13.5 MAF and that sustained droughts
historically produced 10-year yields below 10 MAF.
The post-Compact yield estimates illustrate the potentially large
"disconnect" between physical reality and the political and legal
expectations about the River as a dependable supply for human
uses.
B.
"Law of the River".
1.
Colorado River Compact (1922) (codified at C.R.S. §
37-61-101). The Compact originated in (a) the Lower
Basin's desire for flood control (storage) and water
system reliability; and (b) the Upper Basin's fear that
without a compact, the Basin states' rights would be
determined by the prior appropriation doctrine (first in
time, first in right). The Compact allocated water
between states of the Upper basin (Colorado, Utah, New
Mexico, Wyoming) and states of the Lower Division
(California, Arizona, Nevada).
2.
Upper Colorado River Basin Compact (1948)
(codified at C.R.S. § 37-62-101). Allocation:
!
Colorado:
51.75% (3.85 MAF)
4
!
!
!
C.
New Mexico:
Utah:
Wyoming:
11.25% (0.84 MAF)
23.00% (1.71 MAF)
14.00% (1.05 MAF)
3.
Arizona v. California [opinion at 373 U.S. 546 (1963);
decree at 376 U. S. 340 (1964)] apportioned the Lower
Basin waters:
!
California (4.4 MAF),
!
Arizona (2.8 MAF),
!
Nevada (0.3 MAF).
4.
The Rio Grande, Colorado, and Tijuana Treaty of
1944 between the United States and Mexico guaranteed
delivery of 1.5 MAF of Colorado River water per year to
Mexico. If there is not adequate surplus water for
delivery, the Upper and Lower Basins are to share
equally the burden of fulfilling any deficiencies.
Colorado's Intrastate Allocation.
1.
Colorado's Share. Colorado's entitlement to beneficial
consumptive use is 3.885 MAF (average annual) based
on a 7.5 MAF apportionment to the Upper Basin and the
percentage allocations under the Upper Basin Compact.
Depending on legal interpretations of the Compact and
extended drought hydrology, there is an argument that
the Upper Basin states’ share could be as low as 4.8
million acre feet, making Colorado’s allocation only 2.7
million acre feet. UNCERTAINITY
Colorado is therefore REQUIRED to pass 75% of native
flows to the downstream states.
The Colorado Water Conservation Board (“CWCB”)
staff estimated that about 450,000 AF of annual Compact
entitlement remain undeveloped.
The state essentially has consumed between 80 to 100%
of its compacted consumptive use entitlement.
Significant questions exist about how any remaining
5
entitlement will be developed if there is any left. The
Colorado River has 3 million acre feet of conditional
rights that could be developed. And while all of that will
not be developed, some of it will be developed = West
Slope towns, Front Range cities, oil shale???
D.
Compact Call Administration. The intrastate allocation of
Colorado's Compact entitlement and delivery obligation is
unresolved. The Department of Interior has developed surplus
criteria but no shortage criteria.
1.
Colorado, as well as the other states, need certainty
relative to intrastate administration if there is a Compact
Call. ALL RIGHTS JR TO 1922 CALLED OUT???
 Denver
 C-BT
 Aurora
 C-Springs
 Most West Slope towns
2.
Lower states believe they are entitled to full 8.3 MAF
every year.
3.
Upper Basin states want to ensure that they do not have
to by pass full 8.3 MAF if Powell is empty.
All Parties have something to lose if negotiations fail.
Jim Lochhead speaking on this issue from 12:00 – 1:30 today.
6