Last fall, in a suit filed in Adams County District Court, Silver Peaks Holdings claimed that that Robert Lembke, Ted Shipman, and SP Equities, LLC were “looting” water from a joint real estate development.  The plaintiff argues that the defendants, Lembke and Shipman, used United Water and Sanitation District (“United”) to funnel water away from the proposed project to meet the needs of future Front Range real estate developments.

Points of Controversy

Silver Peaks, the plaintiff, contributed 550 acres of land near Lochbuie, CO to develop the real estate project.  It alleges that instead of holding up his end of the bargain, Lembke used the land as collateral to borrow money and build a $14,000,000 water delivery system.  Plaintiff estimates that this is ten times the cost of a water system adequate to meet the project’s needs.  Once Lembke completed the delivery system, he transferred ownership of water certificates and the water delivery system to United, that was allegedly created to provide water to future Front Range developments.  Plaintiff also alleges that Lembke is using United to fulfill its previous existing contracts with several water and sanitation districts.  Ultimately, plaintiff claims that this has left the real estate project with insufficient water to meet its needs.

United’s Defense

United counters these allegations by stating that Kelley Carson, the plaintiff’s only representative, had knowledge of the project details and operational agreements since 2004.  Additionally, United claims that the project has sufficient water to meet its needs.

United also responds to the plaintiff’s allegations on its website.  United states that Carson is attempting to malign the parties responsible for the project’s success in the court of public opinion. United and SP Equities characterize the suit as using litigation to compensate for difficult economic times.  United also emphasizes that Lochbuie and the project have withstood the housing recession.  Finally, United claims that Carson had chosen to take an absentee role in the project by failing to attend many meetings and attempting to withdraw her personal financial support from the project.

Only time, and a court decision, will tell what will happen in this case.



The Stockholm International Water Institute issued a report to usher in World Water Week last August, entitled “Feeding a Thirsty World: Challenges and Opportunities for a Water and Food Secure Future.” The report focuses on worldwide water issues and how they affect the food and energy sectors.  It offers analysis of the problems arising from those water issues as well as possible solutions.  However, the report has been sensationalized in various news reports and the nearly fifty-page report has been reduced to headlines such as “By 2050, you might be forced to become a vegetarian.”  This is misleading and not in accord with the overall message of the Stockholm Institute’s report.

Points in Controversy

In a Yahoo story, a statement regarding a required move toward vegetarianism was not even attributed to the Stockholm Institute, but rather to an outside scientist commenting on the report. Yes, the report does state that, under the current projections, there is enough water to sustain food production in 2050 only if animal-based foods make up five percent of the total calorie consumption.  However, the purpose of the report was much broader and this post will attempt to fill in the gaps left open by those news reports.

The Facts

Today, one billion people suffer malnourishment in spite of the fact that food production is steadily increasing.  This is certainly not a new problem.  In fact at the turn of this century, the United Nations set a goal to reduce the number of people who suffer from hunger worldwide to 240 million by 2015. As of yet, there has been little progress towards that goal. If the population continues to consume food at current rates, food production will need to increase 70% by mid-century.  This increased production will place great stress on already stressed water resources at a time when the energy sector also faces increased demands for water (which is expected to rise 60% over the next thirty years).

Undoubtedly, more productive use of limited, highly contentious water resources is necessary.  It is certainly important to develop and implement higher efficiency irrigation, but this must be coordinated with better use of local rains and small-scale supplemental irrigation.  Additionally, better coordination between land and water resource management as well as strong support of farmers is vital.  Because rainfall is variable, farmers need early warning systems for drought risks.

There is an undeniable link between hunger and water.  In fact, up to 50% of all malnutrition is attributable in some way to unclean water.  Additionally, each person requires 50 to 100 times more water to produce and grow the food they eat than the amount of water they use in their home.

Analyses taking in to account many factors, such as current dietary trends, food intake, and climate issues show that there will not be enough water available on current croplands to produce food for the expected 9 billion people that will be alive in 2050.  That is, of course, if the world continues to follow current trends and maintain diets common in western nations.  With 70% of all available water being used in agriculture, growing more food to feed an additional two billion people by 2050 will place even greater pressure on water resources.

If the usage rate continues at its current pace, by the time 2050 scenario comes to fruition, only 1/3 of the world will have enough water to allow for food self-sufficiency, 3/5 of the world will face difficulties in accessing irrigation water, and ½ of the world will live in chronic water shortage.  Those are staggering numbers when the base is 9 billion people. In many cases, surface water irrigation is unsustainable due to depletions of river flow and regional climate aridification. In fact, a quarter of continental land in the world has river flows being depleted and this is occurring largely in areas where agriculture depends on irrigation.

Without a doubt, the report issued by the Stockholm Institute paints a bleak picture of the world’s food and water supply.  It does not, however, simply state that the world will need to go vegetarian by 2050.  In reality, the word “vegetarian” is not found in the report at all and is only referenced in one line about animal-based foods potentially only being able to make up 5% of total calorie consumption in 2050.  The solutions proposed by the Stockholm Institute are much more deeply rooted in information and efficiency than dietary change.

A major theme of the report is the need to pay more attention to the supply chain and reducing waste from the “field to fork” timeframe, which refers to the total cycle from the farm to consumers’ plates.  The report calls for more attention to be paid to supply chain issues, and notes that increasing geographical distance between producers and consumers results in the need for improved post-harvest operations.  As the world urbanizes even more, that geographical distance will grow and exacerbate the issues surrounding water and food security.  On one hand, making water of acceptable quality available for food production carries a significant energy bill, but, on the other hand energy production is associated with significant water consumption.  Therefore, the report states that increased consciousness about water and energy linkage will be a cornerstone of future food, water, and energy security.  The link between water and food is undeniable; in fact, for every 2 pounds of food produced, over 6,000 gallons of water is used.

Another major focus of the report is the need for new partnerships. In addition to the clear water/food/energy linkage, water and food security are related to health security and human rights issues.  Therefore, it is something that all governments should be working together to solve.  Local, national, regional, and global efforts need to be made to ensure better governance of food and water.


In conclusion, the Stockholm Institute’s report highlights the severe issues surrounding water and food scarcity that could plague the planet by mid-century.  The report does not, however, say that people will have no choice but to become vegetarians, as several news articles have suggested.  The report certainly hints that the current consumption of animal-based foods is not sustainable, but only at the current pace and under the current situations.  Greater awareness, new policies, and better efficiency could manage the problem before it becomes an epidemic.


Last year on January 1, Colorado Governor John Hickenlooper proclaimed 2012 as the “Year of Water.”  The year was a milestone for Colorado water, as it marked the 75th anniversary of legislation that created the Colorado Water Conservation Board, the Colorado River Water Conservation District, and the Northern Colorado Water Conservancy District.  To mark the occasion, the Colorado Foundation for Water Education led an initiative known as “Colorado Water 2012” to raise awareness about water as a valuable and limited resource, increase support for management and protection of Colorado’s water and waterways, showcase exemplary models of cooperation and collaboration among Colorado water users, connect Coloradans to existing and new opportunities to learn about water, and motivate Coloradans to become proactive participants in Colorado’s water future.

The primary focus of Water 2012 was increasing the visibility of water issues with over 200 diverse events held throughout the state.  Events included water art exhibits in Durango, xeriscaping classes and tours in Colorado Springs, networking events between students and water professionals in Greeley, water book club presentations in Grand Junction, and a statewide Rotary water symposium in Denver.

Nona Shipman, Assistant Project Coordinator for Colorado Water 2012, collected feedback from attendees and said, “Colorado really seemed to appreciate the events as most of them were free, open to the public, and catered to different age groups.”

Shipman said that one of the most popular and successful aspects of the campaign was the Water 2012 Speakers Bureau.  The bureau assembled dozens of water experts—including members of water conservation districts, utility engineers, water attorneys, and Colorado Supreme Court Justice Gregory Hobbs, Jr.—who volunteered to give presentations about water issues in their area of the state.  Coloradans contacted Water 2012 about an event in their area, and Water 2012 dispatched an expert to give a presentation with an accompanying video.

Another popular activity of the campaign was the Water 2012 Book Club presentations.  Over a dozen presentations were held throughout the state by Colorado authors writing about water in the West.

The Water 2012 campaign came at a significant time for Colorado as the summer brought extreme drought conditions and an unusual and alarming number of wildfires.  Abnormally low winter snowfall, frequent temperatures over 100 degrees, and a persistent drought that affected much of the U.S. contributed to dangerous fire conditions.  Wildfires forced tens of thousands of Coloradans to evacuate their homes—hundreds of which were destroyed—and caused multiple deaths.  Water 2012 tried to use the drought conditions and wildfires as a learning opportunity for Coloradans. The campaign created a drought public service announcement that was aired on radio stations on the Colorado western slope during the summer.

As the year of water drew to a close, Shipman said that Water 2012 met and surpassed many of its goals.  To measure its success, Water 2012 aimed to reach half a million people, which it accomplished well ahead of schedule in October.  Many participants reported that the campaign gave them an opportunity to build new partnerships and relationships with individuals they would not have otherwise met, an unexpected and welcome byproduct of the campaign

Although Water 2012 is over, its supports hope that the momentum will shift into developing the Value of Water long-term campaign—sponsored by a broad group of Colorado water stakeholders including some from Water 2012—with the goal of engaging members of the public that do not already share an interest in Colorado water issues.  The campaign will work to increase understanding of the value of water for Coloradans and its impact on their day-to-day lives.

Shipman noted that Water 2012 was not an effort made possible by a few individuals, but the ongoing dedication and effort from hundreds of partners and volunteers was the true strength of the campaign.  To honor and cheer the hard work of the campaign, Colorado Water 2012 invites all members of the public to attend a celebratory luncheon on January 30th, 2013.  Registration and further information for the luncheon can be found at


  • Colorado Water 2012, (last visited Nov. 30, 2012).
  • Colorado Waterwise – Value of Water Campaign, (last visited Nov. 30, 2012).
  • E-mail Interview with Nona Shipman, Assistance Project Coordinator, Colorado Water 2012, in Denver, Colo. (Nov. 19, 2012).


In 2011, the Environmental Protection Agency (“EPA”) announced that it would synthesize information from across U.S. industry sectors to form a report on the economic value of water in the U.S. market economy.  Known as the “Importance of Water to the United States Economy,” this project consists of multiple stages taking place over the course of two years.

Background Report

In September 2012, EPA published a background report, which compiled current water information from major industry sectors for review.  The report breaks down water use into economic sectors, and then into either an “off-stream” or “in-stream” use.  Economic sectors reported on included recreation and tourism, energy production, manufacturing, and agriculture.Along with publishing the background report, EPA also funded expert papers focusing on different uses of water in the U.S. economy.  Papers ranged in topics from calculating water’s value using computer models to FEMA’s methodology dealing with short-term water supply disruptions.  One example came from the global consulting firm CH2M Hill, who produced a paper with case studies from five companies in five major economic sectors. Those companies, Intel, Rio Tinto, Dow Chemical Company, Chesapeake Energy, and Southern Company, represented the following five economic sectors: semiconductor manufacturing, oil and gas, mining, chemicals, and thermal power generation.EPA also held a technical workshop in September 2012 in Washington, D.C.  During the workshop, EPA presented the papers and background reports with the hope of facilitating discussion over policy decisions based on the information.  EPA also wanted to determine if gaps existed in the information gathered, and, if so, what steps to take to fill them.  While one criticism of the project has been the lack of industry representation on the project board, the workshop did include industry representatives who had the opportunity to submit papers and research as well as engage in discussion over the issues presented at the workshop.In December 2012, EPA was scheduled to publish a final report synthesizing all of the expert papers, the background report, and the feedback from the technical workshop.  Finally, EPA will hold a symposium December 4, 2012 in Washington, D.C. to discuss the final findings as well as future water resource needs.  In 2013, EPA plans to release a final summary of the symposium to recap the information shared.


EPA hopes the public and private sectors use the report for better water policy making decisions.  On the other hand, skeptics of EPA believe the economy focused report will be used to increase regulation on water standards throughout the U.S.  As water scarcity and water competition increase, the need for information on how to handle and evaluate water issues will place greater importance on the project.  However, as one commentator on the project put it, placing a value on water is like playing out an American Express commercial— we all know in the end it’s priceless.


  • CH2MHILL Develops Report on Changing Value of Water to U.S. Economy & Implications from Five Industrial Sectors, CH2MHILL (Sept. 25, 2012),
  • Alan Kovski, EPA Works Towards Synthesis of Information on Evolving Economics of U.S. Water Supply, 43 ENV’T  REP. 2478 (2012) (discussing EPA project on the value of water for the U.S. economy).
  • Paul Quinlan, Panel Weighs Water’s Economic Impact as EPA Girds for Political Combat, E&E PUBLISHING LLC (Jan. 23, 2012),

This December, the United States Supreme Court will consider simultaneously Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, two appeals resulting from the Ninth Circuit case of Northwest Environmental Defense Center v. Brown, 630 F.3d 1063 (9th Cir. 2011).  The case centers on stormwater runoff resulting from logging operations in state forests in Oregon and whether it falls within certain permitting requirements under the Clean Water Act (“CWA”).  In the past, the Environmental Protection Agency (“EPA”) has determined that runoff resulting from logging operations does not fall within these requirements.  However, the Ninth Circuit below in Brown held that the stormwater runoff collected and discharged by a system of ditches, culverts, and channels alongside the roads used by the logging companies is a point source discharge that requires a National Pollutant Discharge Elimination System (“NPDES”) permit.  Both state forestry officials (“Decker”) and private companies (“Georgia-Pacific”) filed petitions for writ of certiorari with the Supreme Court, which will hear oral arguments on December 3, 2012.

Logging companies contracted with the state use a system of roads to remove harvested trees from the state forests.  The sloped roads used by the companies’ trucks and equipment utilize a system of ditches, culverts, and channels to handle stormwater runoff and extend the duration of the roads.  This system collects not only water but a substantial amount of sediment as well, which is considered a pollutant.  The water and sediment eventually finds its way to the rivers, leading to the argument by the Northwest Environmental Defense Center (“NEDC”) that this system is point source discharge and is subject to NPDES permits.  Decker and Georgia-Pacific both argued in their respective writs for certiorari that a permit was not required because the drainage system was a non-point source discharge, fell under the silvicultural exemption, or at the very least an amendment to the CWA in 1987 excused the requirement.  These arguments stem from 33 U.S.C. § 1342(p), which requires NPDES permits for stormwater discharges resulting from industrial activities.  However, it was left to the EPA to decide what exactly constituted “industrial activity.”  The EPA passed its own regulation, 40 C.F.R. § 122.26(b)(14), which determined that stormwater runoff from logging activities and other silvicultural activities is non-industrial and does not require an NPDES permit. Additionally, both Decker and Georgia-Pacific argued that with the two-step process required by the 1987 Amendment to the CWA, the EPA intentionally refused to list logging operations as “industrial activity” that would require a NPDES permit for stormwater runoff.

The Supreme Court granted certiorari and will be considering two distinct issues.  The first is whether the Ninth Circuit improperly determined that the stormwater runoff resulting from logging operations is industrial runoff, subject to NPDES.  This holding, argues Decker and Georgia-Pacific, goes against the longstanding determination of the EPA and its regulations, the apparent intention of Congress in the 1987 amendment to the CWA, as well as decisions made by several other circuits that deferred to EPA decisions.  The second issue is the manner in how NEDC originally brought the suit.  Decker argues the Ninth Circuit allowed NEDC to bypass judicial review of the NPDES permitting rule and challenge the validity of the rule directly in a citizen suit to enforce the CWA.  This argument stems from countering statutes, 33 U.S.C. § 1365 and 33 U.S.C. § 1369.  The Supreme Court must decide whether or not the decision to allow the citizen suit under § 1365 was proper and not precluded by § 1369, which says EPA rulings cannot be challenged in any civil or criminal enforcement proceeding, as the Ninth Circuit apparently allowed.

Should the Supreme Court uphold the Ninth Circuit’s decision (stormwater runoff from logging operations is industrial runoff), logging companies would be required to apply for and receive a NPDES permit for all the roads they use during operations, rather than utilizing best management practices.  This would result in time consuming litigation and reallocation of resources for the companies.  State governments may even be required to alter their well-established road drainage system requirements in order to reduce NPDES permitting.  Most importantly, however, is if the Court were to uphold it would approve the Ninth Circuit’s decision to break thirty-five years of precedent and overrule the EPA and its interpretation of its own regulations.  This may very likely require a revisit to Chevron.


  • Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir.)Petition for Writ of Certiorari, Decker v. Nw. Envtl. Def. Ctr., No. 11-338 (U.S. Sept. 13, 2011), 2011 WL 4352279.
  • Petition for a Writ of Certiorari, Georgia-Pacific W., Inc. v. Nw. Envtl. Def. Ctr., No. 11-347 (U.S. Sept. 13, 2011), 2011 WL 4352287.
  • Respondent’s Brief in Opposition, Decker v. Nw. Envtl. Def. Ctr., Nos. 11-338, 11-347 (U.S. Nov. 10, 2011), 2011 WL 55487721.

The Water Law Review is pleased to announce the addition of a new Advisory Board Member, Mr. Jason Turner, Esq. of the Colorado River Water Conservation District.

Mr. Turner grew up in upstate New York and attended Westminster Choir College in Princeton N.J., a small music conservatory, for four years (1990-1994).  He then received a Bachelor’s degree in History from Rutgers University (2000) and his law degree from the University of Denver College of Law in 2004. Prior to law school, Mr. Turner worked in the wine industry in New York, New Jersey, and Oregon. Prior to taking his position with the River District, he was with the law firm of White & Jankowski in Denver, where he represented public and private clients in all manner of water rights transactions and water court litigation. He became Associate Counsel for the Colorado River Water Conservation District in 2008.

Mr. Turner also served on the Water Law Review while attending DU LawHe recalls that his favorite part of serving on the Journal was his interactions with the other editors and staff, many of whom he remains close with today. The Water Law Review has changed since his graduation in 2004, and Mr. Turner believes that one of the most positive changes he has seen is the fact that the Editorial Board and staff of the Water Law Review are reaching out and better utilizing its Advisory Board members.

Mr. Turner said that he first became interested in water law from his experiences in the law school classroom. “We had a brief section in my first year Real Property class on water rights in Colorado which I found very interesting; after that it became my focus.” He said, “I also had the great pleasure of taking water law at DU with Professor Emeritus John A. Carver, Jr. which solidified my interest in the practice.”

Allison Altaras, Volume 16 Editor-in-Chief of the Water Law Review, remarked “We are very fortunate to have Jason on our Advisory Board.  His personal familiarity with the Journal’s work combined with his West Slope perspective adds even greater depth to the expertise of our Advisory Board.”

Outside of work, Mr. Turner spends time with is wife Sonya and their two sons, Alden and Chapin. His favorite outdoor activities include trail running, mountain biking, back country skiing, and fly fishing in the Roaring Fork Valley.

Please join us in welcoming Jason Turner to the Water Law Review Advisory Board.

As record droughts have affected the American landscape in 2012, Republicans and Democrats alike have shown an interest in furthering investment in water infrastructure. Both parties included water policy issues in their 2012 national policy platforms. This is a momentous occurrence since it marks the first time ever Republicans and Democrats have both pressed for water infrastructure in their policy platforms.

The Water Environment Foundation (“WEF”), a non-profit organization that provides educational and technical training for water professionals, sent letters to the parties’ policy drafting committees. The WEF advocated for inclusion of water policy in the parties’ agendas by stating that a healthy water infrastructure is vital for economic growth and the environment. According to the WEF, America’s water infrastructure is failing and the U.S. Environmental Protection Agency predicts that by 2020 there will be an $84 billion gap between our national water needs—such as investment in wastewater and drinking water infrastructure—and what is invested in other national priorities.

In a victory for the WEF, Republicans and Democrats included language concerning water infrastructure in their 2012 policy agendas. The Republican national policy platform states that investment in drinking water systems, dams, wastewater systems, levees, and inland waterways “can renew communities, attract businesses, and create jobs . . . [but] [m]ost importantly it can assure the health and safety of the American people.” Moreover, the Republican platform recognizes the tenuous condition of the current infrastructure claiming, “[w]hat most Americans take for granted—the safety and availability of our water supply—is in perilous condition. Engineering surveys report crumbling drinking water systems, aging dams, and overwhelmed wastewater infrastructure.” Similarly, the Democratic national policy platform states, “[w]e support strengthening rural water [and] sewer…infrastructure to make rural businesses more competitive.” In addition, the Democratic platform advocates for protecting the integrity of American waters which are essential for “drinking, swimming, and fishing by supporting initiatives that restore our rivers, oceans, coasts, and watersheds.”

The 2012 policy platforms come on the heels of the worst American drought and highest temperatures in 75 years. In much of the western and central United States, there has been lower than average snow cover and rainfall. This directly impacts national water issues, from drinking water supply to agricultural and electricity uses. Meanwhile, water consumption is growing due to increases in population. The U.S. Geological Survey estimates that Americans consume about 100 gallons of water per day, demonstrating the growing disparity between demand and supply.

While there is still a long way to go in bringing water issues into the national discussion, it is a step in the right direction for both political parties to articulate support for investment in water infrastructure in their policy platforms. Water provides the backbone for a strong economy. It is essential for agriculture, industry, and recreation. Drinking water and wastewater systems are vital to the wellbeing of the American people. In order to bring water policy issues into the national conversation, the political parties should continue to spearhead the discussion.



Generally, all prospective plans to bring water from Wyoming to Colorado involve the Flaming Gorge Reservoir and the Green River. The most well known plan for a pipeline comes from Aaron Million and his company Wyco Power and Water Inc. Million wants to build a pipeline to bring water to the front range, store water in new and expanded Colorado reservoirs, and create hydro-electric water along the way.

Both the Federal Energy Regulatory Commission (FERC), most recently in May 2012, and the U.S. Army Corps of Engineers, in July 2011, denied Million’s plan. Both agencies denied the plan for lack of information, lack of feasibility, and basically for being a poorly presented plan. The Army Corps of Engineers also stopped reviewing Million’s plan when its primary purpose changed from water supply to electrical power generation. FERC denied Million’s permit beforehand so the July 2011 denial was at a rehearing. FERC denied Million most recently because Million did not provide enough specifics and could not demonstrate any foreseeable authorization for the pipeline’s planned route and water conveyances, which was magnified by the extensive opposition and controversy to the plan.

Other Coloradans are also looking at diverting water from the Flaming Gorge Reservoir to Colorado. These include the Parker Water and Sanitation District and a large state task force of water interests from throughout Colorado.

The main question for the pipeline proposals, that many seem to overlook, is whether the state of Colorado has the right to draw any more water out of the Colorado River system. Colorado proponents considering the issue think Colorado has a right to the water. However, those in Wyoming, including Wyoming Governor, Matt Mead, disagree.

The Colorado River Compact of 1922 predates the Federal Government’s official declaration of the Flaming Gorge Reservoir in 1968. Thus, the Colorado River Compact allocated water before the Reservoir was created. However, it is important to remember that the U.S. Supreme Court and Congress can also help resolve water conflicts between states, and that the federal government, with its current expanded powers, could begin to regulate water like other survival needs like food production, air quality, etc. Additionally, Wyoming is no stranger to pressuring the federal government to act in Wyoming’s interest. In 2010 Wyoming threatened to sell state-owned land in Grand Teton National Park to private sources spurring the federal government to pay a fair price for those pieces of land.

Wyoming residents are, by a strong majority, against this plan and see it generally as a growing and poorly designed city’s attempt to take advantage of a sparsely populated state. The pipeline would potentially take water from a much beloved and used recreational area in southwestern Wyoming and destroy the environment in the process.

Wyoming currently has a “surplus water situation” because it does not use all of its allocated water under the Colorado River Compact while Colorado, with its growing urban sprawl, sees a future of water deficit. However, some politicians and Wyoming citizens think that Wyoming does use all of its allocated water, for recreation and outdoor sports in additional to communal and farming uses.

Many environmental groups and outdoor enthusiasts also oppose the pipeline because it would do severe and irreversible damage to the Flaming Gorge Reservoir, the animal and marine life, and the Green River.

It may not be Aaron Million who next petitions the federal government for approval to bring Flaming Gorge Reservoir and Green River water to Colorado, but it will happen again, and in the near future.