Pioneer Irrigation Dist. v. City of Caldwell, 288 P.3d 810 (Idaho 2011) (holding ditch owner has discretion to grant or deny an encroachment on its easements or rights-of-way and may engage in self-help removal of an unpermitted encroachment if the encroachment unreasonably or materially interferes with the ditch owner’s easements or rights-of-way; however, ditch owner does not have exclusive interest in the easements or rights-of-way, and judicial review of a ditch owner’s decision to grant, deny, or remove an encroachment is limited to whether the decision was arbitrary and capricious, or made in an unreasonable manner).

Pioneer Irrigation District (“Pioneer”) filed suit against the City of Caldwell (“City”) in 2008, seeking declaratory and injunctive relief for removal of urban storm water discharge conduits constructed by City without Pioneer’s permission.  Pioneer alleged, because City adopted a new municipal storm water management manual, City caused or permitted developers to install storm water discharge pipes in a way that permitted municipal storm water to discharge into Pioneer’s irrigation delivery and drainage facilities without Pioneer’s permission.  Pioneer claimed these discharge pipes unreasonably and materially interfered with its irrigation easements and rights-of-ways.  Pioneer sought several declarations, including that Pioneer was authorized to remove and prohibit future construction of unauthorized, unreasonable encroachments, under Idaho Code Ann. § 42-1209.

The Idaho District Court, Third Judicial District, Canyon County (“district court”) granted the majority of Pioneer’s motion for summary judgment, holding: i) Pioneer has discretion to permit or deny encroachments of its easements or rights-of-way; ii) Pioneer may engage in self-help under § 42-1209 if an encroachment unreasonably or materially interferes with Pioneer’s easements or rights-of-way; iii) judicial review of Pioneer’s decisions to grant, deny, or remove an encroachment is limited to whether the decisions were arbitrary and capricious, or made in an unreasonable manner; and iv) Pioneer has exclusive interests in its irrigation easements and rights-of-way.  City appealed the district court’s partial summary judgment to the Idaho Supreme Court (“Court”).

The Court reviewed the decision de novo, explaining that under a plain language reading of § 42-1209, four conditions must be met to permit a ditch-owner to engage in self-help removal: i) the encroachment is constructed after the effective date of § 42-1209; ii) the encroachment is constructed without permission; iii) the encroachment unreasonably or materially interferes with the use and enjoyment of the easement or right-of-way; and iv) the ditch owner requests that the party responsible for encroachment remove it.  The statute further places the financial burden for removal on the encroaching party.

The statute is silent, however, as to what happens when the encroaching party fails to act upon the demand within a reasonable period of time.  Looking to public policy, the Court reasoned because irrigation facilities play an “essential role” in Idaho, the policy advanced by § 42-1209 is to ensure people do not construct encroachments that unreasonably or materially interfere with irrigation operations. Further, the Court reasoned forcing a ditch owner into time-consuming litigation without letting the owner engage in self-help would go against this policy.  Additionally, self-help should be executed at the encroacher’s expense, so a ditch owner may remove an encroachment first, and sue the encroacher later for damages.  The Court found its holding consistent with common law predating § 42-1209, in that an easement owner has a right to removal so long as the encroachment is unreasonable and there is no breach of peace.

Because the Idaho Legislature imposed certain duties upon ditch owners, the Court held in some situations it will be imperative for ditch owners to have the authority to respond quickly to unreasonable encroachments of their easements and rights-of-ways, and to address or remove those encroachments without judicial pre-approval.  According to the Court, this advances the legislative objective to permit ditch owners to meet the needs of water users and protect the persons and property of third parties.

The Court held Pioneer is therefore entitled to deference in their decisions involving the maintenance of irrigation ditches and the approval, denial, or removal of encroachments thereof.  According to the Court, the Legislature granted irrigation districts the authority to make such decisions through § 42-1209, which allows a ditch owner to review, permit, or deny a third party’s request for encroachment. Ditch owners, especially irrigation districts, must also satisfy comprehensive statutory obligations and risk exposure to liability for failing to reach those obligations.  Judicial review of a ditch owner’s decision to grant, deny, or remove an encroachment, the court held, is therefore limited to whether the ditch owner’s decisions were arbitrary and capricious, or whether the ditch owner reached its decisions in an unreasonable manner.

Finally, the Court overturned the district court’s ruling that Pioneer had an exclusive right to its primary easement and right of way.  The Court cited a long list of common law rulings indicating a ditch owner’s easement interests are not absolute, even if the owner is an irrigation district entitled to judicial deference in its decision-making process.  The Court refused to read a statute as abrogating common law without evidence that abrogation was the Legislative’s intent.  Pioneer’s ownership of its easements and rights-of-ways is therefore neither absolute nor exclusive, and may potentially interfere with the ownership interests of landowners and other third parties.

The holding of the district court is therefore affirmed in part and reversed in part.


Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511 (2012) (holding that (i) government-induced temporary flooding can give rise to a compensable taking claim under the Fifth Amendment, and (ii) on remand, the lower court should consider the duration of compensable taking, character of the land, owner’s expectations about the land’s use, and foreseeability of invasion when determining whether a compensable taking occurred).

Arkansas Game and Fish Commission (“Commission”) owns the Dave Donaldson Black River Wildlife Management Area (“Area”), a 23,000-acre track of land along the Black River.  In 1948, the US Army Corps of Engineers (“Corps”) built the Clearwater Dam upstream from the Area and adopted the Water Control Manual (“Manual”) to set seasonal water release rates.  The Manual allowed deviations from normal release rates for agricultural, recreational, and other purposes.  In 1993, pursuant to farmers’ requests, the Corps approved deviations, allowing a slower than usual water release rate from the dam.  The Corps continued implementing deviations to water release from 1994 through 2000 and proposed to revise the Manual in order to make the temporary deviations permanent.

The Commission opposed Manual revision plans because of a detrimental effect to the Area.  While the deviations benefitted farmers, they interfered with natural habitat and timber growing seasons by causing abnormally long downstream flooding.  After testing the detrimental effects of the deviations on the timber and natural habitat of the Area, the Corps abandoned the Manual revision plans and ceased the temporary deviations.

In 2005, the Commission filed a lawsuit against the United States (“Government”) and sought compensation under the Fifth Amendment Takings Clause.  The Commission claimed that government-induced temporary flooding resulted in the destruction of timber and a substantial change in terrain.  These damages allegedly required costly reclamation measures.  The United States Court of Federal Claims (“claims court”) ruled in favor of the Commission.  The claims court concluded that the cumulative effect of the water release rate was exceptionally damaging to the once flourishing forests of the Area and awarded the Commission $5.7 million in compensation.  The Government appealed.  The United States Court of Appeals for the Federal Circuit (“appeals court”) reversed.  It acknowledged the general rule, stating that temporary governmental action may give rise to a Takings Clause claim if permanent action of the same character would constitute taking.  However, the appeals court held that flooding cases constituted an exception to the general rule and were subject to a compensable taking claim only if flooding was permanent or inevitably occurring.  The Commission appealed, and the United States Supreme Court (“Court”) eventually granted certiorari.

The only issue that the Court addressed was whether government-induced temporary flooding could ever give rise to a compensable taking claim.  Arguing that temporary flooding was an exception to the general rule, the Government’s position was that in order to create liability under the Takings Clause, government-induced flooding needed to be permanent.  Having ruled for the Government, the appeals court had categorically confirmed this exception.  However, the Court disagreed with the Government and the appeals court.  It rejected the Government’s interpretation of the earlier case precedents, which allegedly created the temporary flooding exception.  The Court explained that in support of its position, the Government parsed out stand-alone sentences from the context of prior precedent.  Furthermore, the Court added that subsequent developments in jurisprudence superseded the cases that the Government used to support its position.

The Government’s second argument relied on public policy reasoning.  The Government projected that reversing the appeals court’s holding would disrupt public works in flood control areas.  It asserted that such a ruling would make even the smallest flood, attributable to a flood-control project, qualify for a compensable taking.  The Court rejected this position as a slippery slope argument, noting that this case was no different from other Takings Clause cases that unsuccessfully tried to urge blanket exceptions from the Fifth Amendment without proper justification.

Finally, the Government attempted to address two additional issues: (1) the collateral nature of the flood damage, and (2) the bearing of Arkansas water-right law on this case.  The Court refused to express any opinion with regard to these issues because the parties did not brief the issues or argue them in the lower courts.

Accordingly, Justice Ginsburg delivered the opinion of the Court, reversing the appeals court’s decision and holding that government-induced temporary flooding can give rise to a compensable taking claim under the Fifth Amendment.  The Court noted that the majority of such claims depend on situation-specific, factual inquiries.  Consequently, the Court remanded the case, directing the lower court to consider the duration of compensable taking, owner’s reasonable investment-backed expectations regarding the land’s use, and the degree of foreseeability.  Although the claims court previously ruled that the invasion was foreseeable, the Government challenged this fact-finding on appeal.  Because the appeals court never addressed this challenge, the Court also ruled that the foreseeability issue remain open for consideration on remand.

 

 


COLORADO WATER CONGRESS 2013 ANNUAL CONVENTION

Denver, Colorado   January 31, 2012

Moderator, Chris Treese, of the Colorado River Water Conservation District introduced this session describing the importance of planning for the future and considering the changes that are happening throughout the state in the next year.  This session included discussion of four separate topics: (1) Colorado River basin study, (2) drought, (3) Good Samaritan legislation, and (4) the public trust special project.

Colorado River Basin Study

Erin Wilson of the Wilson Water Group first discussed the key findings of the Colorado River Basin Water Supply and Demand Study (“Study”).  The Study employed several different demand scenarios to obtain the best possible projection of water use within the Colorado River Basin.  The Study used various scenarios based on models such as Paleo-direct natural flow (tree-ring information) and projected climate models taking into account climate change.

Wilson further explained the Study does not institute any decisions itself, but provides the foundation for future decision making surrounding our water infrastructure and supply.  The key indicators for identifying changes in Colorado’s water supply in the Colorado River, described Wilson, are flows at Lees Ferry and other critical locations, as well as demand signposts.  Based on the results and data of the Study, Wilson concluded that there are a number of next steps for Colorado.  First, Colorado should adopt a signpost approach outside of the modeling industry to respond to indicators in weather and streamflow conditions. For example, water planners can respond to certain set streamflow conditions with carefully planned drought response measures. Next, Colorado must develop methods to accurately represent supply and demand models.  Wilson explained the Surface Water Supply Index (“SWSI”) is a good model for basin-wide analysis; however, additional models should include cross-basin impacts.  Finally, Wilson advocated for Colorado to support continued efforts to conduct water bank programs and desalination projects in the lower Colorado River basin.

Wilson’s discussion set forth the basic fundamental concepts revealed by the Study for the Convention attendees and presented several key concepts for water managers to think about as steps to address the projected issues presenting the future for water supply and demand in Colorado.

Drought

The next panel on drought included Stacey Chesney of Denver Water, Diane Johnson of the Eagle River Water and Sanitation District (“ERWSD”), and Russ Sands of the City of Boulder.  Each panelist discussed the impacts of drought on their respective municipal water provider, with a specific focus on how the drought will impact public relations and rate-setting for water in 2013.

Chesney spoke first, discussing three main takeaways from 2012.  Chesney explained drought is a result of many different factors, and water planners should not become too focused on reservoir levels.  In order to be fully prepared for drought conditions, municipalities must always be on guard for signals of impending drought.  Next, Chesney suggested that customer relationships are key to responding to drought in a timely and meaningful way.  Finally, Chesney noted that the most effective way to get people involved in combating drought is to give them tangible actions with achievable goals.

Next, Johnson spoke about her reactions to a very dry 2012 in the Vail Valley.  Johnson explained Vail Mountain is celebrating its 50th anniversary this year, so it is a fairly young community with little experience with severe drought conditions.  This inexperience is difficult for community members who are more likely to have reactionary behavior to drought conditions. However, Johnson and the ERWSD did take lessons from the drought of 2002.  Finally, Russ Sands stated that 2012 was the City of Boulder’s first actual run-through of its new drought plan. After implementing the plan for the first time, the main question for those in his office was how to work with customers.

The panel then responded to a number of questions.  First, do voluntary restrictions work?  Chesney responded that Denver Water’s aggressive conservation plan after 2002 made it more reluctant to impose mandatory restrictions because of the success of the voluntary plan.  She described that because so many customers were complying with voluntary restrictions, Denver Water did not want to impose additional mandatory restrictions.  Sands disagreed, arguing that voluntary restrictions do not work, especially when there is no robust notification and public knowledge plan in place.  Johnson agreed with Sands, explaining that in the Vail Valley, ERWSD implemented mandatory restrictions, but also explained to its customers the reasons why the water needed management.  Johnson also explained that ERWSD labeled the mandatory restrictions as “regulations” and reached out to the tourism industry to highlight that the regulations would not impact tourism in the Vail Valley.

Next, the panel responded to this preset question: what is in store for 2013?  Sands said indoor use continues to decline in Boulder and the City plans to continue and expand its partnership with the Center for Resource Conservation (“CRC”).  The CRC provides indoor and outdoor water audits for Boulder residents and businesses.  Boulder plans to empower the CRC to implement actual improvements and repairs in people’s homes instead of simply providing recommendations.  Chesney explained that Denver Water plans to continue using “normal” or “annual” summer water use regulations for its customers.  Finally, Johnson stated that ERWSD will continue to focus on outdoor and irrigation water uses, utilize a five-tiered rate system, and identify “excessive water users” within the district to target for water conservation measures.

Finally, the panel wrapped up with this question: how do you keep people’s attention if drought is the new normal?  Chesney assured the crowd that if water use affects people directly in their daily lives, they will pay attention.  The key for water managers is to effectively communicate to the customer what the steps to take in the face of a drought.  Sands wrapped up the discussion describing that drought mitigation is a long-term prospect.  Changing people’s perception of normal water use and then internalizing changes takes time.

Good Samaritan Legislation

Jimmy Hague, legislative assistant for Senator Mark Udall, presented a legislative update from Washington D.C. on some important administration rulemaking that will have an impact on Colorado in 2013.  Senator Udall recently announced the U.S. Environmental Protection Agency’s (“EPA”) “Good Samaritan” policy for cleanup of abandoned mine sites.  Hague explained there is a great mining history in Colorado, and cleanup of abandoned sites is very important here.  The problem with cleanup of these sites is there are liability issues under the Clean Water Act and Comprehensive Environmental Response, Compensation and Liability Act for any parties involved in contaminated sites.  Hague explained in 2007, the EPA put out a set of administrative “tools” for addressing liability for no-fault parties wishing to cleanup abandoned mine sites.  However, lingering fears of unlimited liability for parties wishing to clean up contaminated sites still existed.  For example, many questioned whether building and leaving behind a water treatment facility would subject the party to long-term liability for the site.

Because of opposition in Congress, Senator Udall began seeking administrative solutions to these fears.  Eventually, in December of 2012, the EPA and Senator Udall unveiled the new legislation which amplifies already existing tools.  The EPA’s memo requires the “Good Samaritan” to enter into an agreement with the EPA to clean-up the contaminated site.  Unlike the previous tools, the EPA memo allows the agreements to exist for an unlimited duration.  Additionally, if the Good Samaritan meets a 5-part test, the EPA will exempt it from obtaining a Clean Water Act permit for any changes to water quality.  Without legislation from Congress, Hague noted, the EPA memo can only help, but not erase the potential for civil liability.  Hague urged the Convention attendees to investigate the Good Samaritan rules in more detail and hoped that they can make a difference for water quality in Colorado.

Public Trust Special Project

In the final panel of the session, “What’s On Our Plate for 2013,” Doug Kemper, of the Colorado Water Congress (“CWC”), and Steve Leonhardt, of Burns, Figa & Will, P.C., discussed the Public Trust Special Project (“Special Project”).  Doug Kemper set the tone by explaining drought and water demand issues are very important to the water industry, but not as serious a threat as the Public Trust Doctrine.  The CWC has worked for nearly two decades opposing ballot proposals that would impose the Public Trust Doctrine on Colorado water rights and riparian landowners.  Kemper noted the movements are not really movements of the nonprofit environmental organizations, as similar movements have been in other states.  Richard Hamilton and Phil Doe are two individuals who have been the proponents and sponsors of the ballot initiatives throughout the last two decades.  Kemper highlighted Doe’s statement that “we will stay with this until we win.”

In 2012, Hamilton and Doe submitted another Public Trust ballot initiative that fell short of the minimum signature requirement.  Although every attempt by these individuals has failed to even get an initiative on the ballot, Kemper stressed there needs to be a more sustained opposition to these initiatives.  Hamilton and Doe’s determination and persistence suggest there will be future initiative submissions.  Therefore, the CWC Board decided to create the Special Project to provide a permanent opposition to the initiatives.  The Special Project will strive to create more public outreach, and provide information about the actual effects of these initiatives.  The Special Project will also serve as a wide forum for parties all across the state to discuss important water issues.

Steve Leonhardt spoke next, explaining in further detail the effect of the public trust ballot initiatives.  The Public Trust Doctrine imposes a nonwaivable duty on the state to administer water rights without encroaching on the public’s right to water.  The extent of this public right varies based on each state’s interpretation of the doctrine.  California’s Public Trust Doctrine (currently the most expansive state doctrine) includes fishing, navigation, and even environmental needs as public uses of water.  Leonhardt explained the proposed initiative from 2012 would be stronger than the California version because it would apply to all waters in Colorado, not just “navigable” waters.  The Special Project is still in its early stages, but you can find more information at the CWC webpage: www.cowatercongress.org.


Where’s the Snow?

COLORADO WATER CONGRESS ANNUAL CONVENTION

Denver, Colorado – February 1, 2013

Real Weather

Nolan Doesken, Colorado State climatologist, provided a look back at the weather patterns of 2012.  With 2012 being the fifth driest year since 1895, Doesken explored the details of Colorado’s current drought.  The only other winter with similarly high temperatures occurred in 1939.  The current drought most severely affects Southern Colorado, which experienced two of its driest years back to back.

Doesken’s presentation walked through weather patterns from each month in 2012.  After a mild and dry January, February saw a lot of snow, with snow packs nearly returning to average by the end of the month.  However, March was unusually warm with little snow, leading to early snowmelt.  As a result, spring storms proved ineffective, because snow falling on bare ground lead to less accumulation.  June weather was terribly hot and dry while July gave some Colorado regions a small amount of moisture.  However, in August the drought returned with full force.  The fall provided a little rainfall, allowing farmers to plant wheat.  Doesken described December as a “wimpy beginning” to the winter of 2012-2013.

Thus, temperature averages of 2012 were well above the long-term average in Colorado.  The dry year led to a diminished snowpack, demonstrating the importance of spring precipitation to maintaining snowpack levels.  Typically, the highest snowpack accumulation occurs in April, but not so for 2012.  Doesken presented a picture showing the top of Copper Mountain in late March 2012. The mountain peaks lay bare with only man-made and groomed snow visible.

Furthermore, the flows of the Colorado and Yampa River dropped dramatically between 2011 and 2012.  Colorado reservoirs similarly dropped to below average levels, despite attaining above-average levels in 2011.  Doesken ended his presentation by stating that while Colorado is still in a drought, there are signs of improvement for 2013.

What’s Up with the Weather?

Brian Bledsoe, Chief Meteorologist at KKTV, presented his long-term weather projections for Colorado.  Bledsoe specifically forecasted that Colorado can expect further drought based on: (1) El Nino and La Nina cycles, (2) Madden Julian Oscillation (“MJO”) and (3) temperature oscillations of the Atlantic and Pacific Oceans.

The El Nino and La Nina cycles result in opposing weather patterns for Colorado.  El Nino brings in the Pacific jet-stream, which rolls across the southern states bringing wet and cool weather.  La Nina develops a ridge of high pressure, pushing storms north of Colorado, leaving eastern part of the state windy and dry.  Bledsoe explained that while Colorado is technically in between the two cycles, current projections suggest that weather will remain in a La Nina cycle.

The MJO tracks storm activity originating over the Indian Ocean.  This weather pattern often correlates to weather events in Colorado.  Recently, the MJO is not particularly active, which Bledsoe explained has him concerned because an inactive MJO typically results in fewer storms in Colorado.

Bledsoe also discussed the multi-decadal temperature cycles of the temperatures of the Pacific and Atlantic Oceans.  The Pacific Ocean shifted to its cold phase in 2005, which typically results in more frequent La Nina cycles.  Currently, the Atlantic Ocean remains in its warm phase, leading to more frequent storms, especially hurricanes.  According the Bledsoe, the current cold Pacific Ocean and warm Atlantic Ocean configuration is similar to ocean temperatures in the 1950s.  Incidentally, one of the largest droughts in recent Western history occurred during the 1950s.  Bledsoe further argued that the Atlantic Ocean is likely to shift to a cold phase in the next three to eight years.  He suggested that this temperature shift will lead to a generally wetter United States, except for an intense drought in the high plains.  Thus, Bledsoe advised that Colorado, especially the Eastern plains, is entering a long-term drought phase and that the state must plan accordingly.

Dust in Western Snow Cover: What’s In It and Where Did It Come From?

Rich Reynolds, from the U.S. Geological Survey (“USGS”), discussed the increasing problem of dust on Western snow packs.  Dust particles absorb solar radiation, instead of reflecting the radiation as snow does, which warms and melts the pack.  Dust-covered snow packs lead to serious problems including: decrease in the albedo (reflectivity) of snow cover, triggering earlier and faster snow melt, and smaller late season water supplies.

The USGS analyzes the mineral content of dust on the snow pack, and has more recently focused on the Wasatch Range in Utah.  Milford Flats, south of the Wasatch Range, experienced a large wildfire in 2007 and is now one of the best documented dust sources in North America.  After the fire, Utah land managers began rehabilitating the land to prevent erosion and to improve forage for cattle grazing by seeding and applying herbicide.  Dust from Milford Flats settling in the Wasatch Range actually comes from the treated part of the soil, not the remaining burned areas.

USGS’s study of the mineral composition of the dust on the Wasatch Range revealed that particles contained both iron oxide minerals and carbonaceous material, such as black carbon.  The study found high levels of iron oxide in the Milford Flats area and USGS believes that the carbonaceous material comes from industrial and transportation sources in the heavily populated near the Wasatch Range.  Reynolds explained that the presence of both materials led to lower reflectance of solar energy by the snow pack.  Hence, the dust is absorbing heat from solar radiation and promoting snowmelt.  As a result the USGS currently works with the Bureau of Land Management to create dust risk maps.  These maps intend to avoid the mistakes made by the land rehabilitation efforts at Milford Flats.

Reynolds then turned to discuss dust issues in Colorado, where large dust events have occurred more frequently over the past decade.  Colorado experiences dust moving from southern Colorado plateaus northeast into the mountains.  Reynolds identified numerous sources where this dust may be coming from.  For instance, regional groundwater withdrawal, overgrazing, and increasing regional aridity may all contribute to the increased dust.  Reynolds pointed to Tolani Lake, a dried-up lake in Arizona, as large contributor of dust into Colorado’s mountains.  The USGS is testing sediment from Colorado snow pack and using the types of iron oxide materials in an attempt to trace the largest contributors of dust in the state.

Reynolds ended his presentation by listing possible solutions to the increasing dust on the snowpack, such as stabilizing soil and sand dunes with perennial vegetation and maintaining high groundwater levels.  Reynolds made it clear that any solution is going take a lot of “will power, knowledge, resources, and collaboration.”


Please join me in congratulating the Volume 17 Editorial Board of the Water Law Review!
Editor-in-Chief - Everette (Rob) Bullard
Managing Editors – Jenna Anderson and Aubrey Markson
Articles Editors – Natalia Schissler, Ashley Jackson, Chris Stork, Aaron Brunskill, and Koley Borchard
Court Reports Editors – Davis Wert and Chris Butler
Business Editor – Sarah McGrath
Symposium Editor – Chris Stevens
Production Editor - Zander Louden
Online Content Editor – Andy McFadden

Colorado Law Institute CLE International 11th Annual Conference:  Colorado Water LawDenver, Colorado,  February 1, 2013

This conference was hosted at the Four Seasons Hotel and was co-chaired by Brian M. Nazarenus of Ryley, Carlock & Applewhite and John J. Cyran of the Colorado Attorney General’s Office, Water Resources Unit.  Dick Wolfe, the State Engineer and Director of the Colorado Division of Water Resources (“Division”), gave an in-depth discussion of the Division’s general principles and guidelines regarding the administration of reservoirs.  He began by discussing why the guidelines were implemented.  The Division created the guidelines to provide a framework for managing and lessening the complexities of operations for the more than 3,000 reservoirs in Colorado.  The guidelines act as a practical guide for Division staff and are not intended to work as a legal authority, even though courts have occasionally cited to them.

The guidelines themselves are largely definitions, but nonetheless are important for water attorneys to know and recognize.  For instance, the one fill rule, which states that a reservoir owner may only fill once per year, and the definition of fill year, the time a reservoir owner may fill, are two crucial details that clients need to be aware of, or they may lose a portion of their water right.  An important detail with the one fill rule is that a reservoir owner may be able to receive a refill right from the Division, allowing for an additional fill.  However, a refill right is only meant to replace water lost through evaporation and seepage.  Additionally, the Division requires on channel out-of-priority reservoir owners to maintain natural flow through the reservoir by releasing extra water for downstream in-priority reservoirs.  This is to account for extra evaporation lost from the larger surface area of the on channel reservoir.  Without this method, downstream in-priority reservoirs will lose water through the out-of-priority reservoir’s evaporation.  Also, water lost to seepage out of any reservoir, either into the ground or into a stream, is considered to be state water again and a loss for the water right owner.  Some reservoir owners may try to stop seepage by lining their reservoirs, but they must be careful to not keep more water than their decreed right allows.

Mr. Wolfe also discussed how leftover water could count against a water right owner.  Carryover water is water leftover from one fill year that carries over to the next fill year.  For example, if a reservoir has 50 acre-feet of water remaining at the end of the fill year, the reservoir owner will begin the next fill year with 50 acre-feet.  A crucial detail is that leftover water counts against what a reservoir owner may store during the next year, though it does not decrease an owner’s actual water decree.  With the previous example, if the reservoir owner’s water right is 200 acre-feet, then the owner will only be able to fill with an additional 150 acre-feet to match the 200 acre-feet right.  However, the owner’s original 200 acre-foot right will not diminish for future fill years.

Mr. Wolfe then discussed decreed capacity and physical capacity, emphasizing the two methods can sometimes conflict, so attorneys should take care when applying for water rights.  Both methods begin the same way, with a conditional water right establishing a certain decreed acre-foot of water.  Once the reservoir is filled, if the physical capacity is less than what was decreed in the conditional water right, then the physicalcapacity becomes the established water right.  Additionally, if the decreed capacity is less than the physical size of the reservoir, then the decreed capacity becomes the established water right.  Basically, whichever capacity is smaller, whether it was decreed or is the physical size of the reservoir, will become the established water right.

Then, Mr. Wolfe explained another area of potential confusion is determining measurement by either volumetric decree or gage height decree.  Volumetric decree is, as one might imagine, a measurement of the actual volume of the reservoir, whereas gage height decree is a measurement of the water level in the reservoir.  Depending on how a reservoir is built, an owner may find it more beneficial to measure the decreed amount one way and the owner’s attorney should be aware of these differences.

Finally, Wolfe explained Storable inflow, paper fill, out-of-priority storage, temporary detention, and surcharge all pertain to the physical holding of water in a reservoir.  Storable inflow is the amount of water that is both physically and legally available for storage under an existing water right of a reservoir owner.  Water that bypasses through a reservoir counts against the storage water right.  The Division then uses an accounting mechanism called paper fill.  This method charges the bypassed water against the actual storage water right, decreasing the remaining water right.  The Division does this to ensure that senior water rights downstream or other downstream resources are protected by not allowing upstream junior water rights to store water late in the season causing a shortage for the downstream senior water rights.  Out-of-priority storage permits the storage of water by an upstream, out-of-priority reservoir so long as the water can be made readily available to downstream senior storage rights when needed.  Colo. Rev. Stat. § 37-80-120(1) (2012).  Additionally, the upstream, out-of-priority reservoir may have to release more water than needed by the downstream senior right to account for transit loss.  Temporary detention allows for an on-channel water right to detain a surcharge, the amount of water that may be impounded, for up to 72 hours in order to achieve more efficient or effective beneficial use.  After 72 hours, the water right owner must cease detention and allow the water to flow freely once again.

Attorneys attending the conference were mainly concerned with paper fill.  More specifically, the attorneys were concerned that water not stored by reservoir owners still counts against their storable water right.  Mr. Wolfe explained that the reason it is done is to ensure that in times of a drought or an otherwise low-water season, upstream junior rights do not take advantage of the downstream senior rights.  Additionally, the Division wants to maintain the natural flow of the water throughout the entire season.


Rio Grande!

2013 COLORADO WATER CONGRESS ANNUAL CONVENTION
Denver, Colorado  February 1, 2013

Steve Vandiver of the Rio Grande Water Conservation District moderated the Sixth General Session of the 2013 Colorado Water Congress Annual Convention, titled “Rio Grande!”  Vandiver introduced the four panelists: Bill Paddock of Carlson, Hammond & Paddock, L.L.C.; Craig Cotton, the Colorado Division Engineer from the Rio Grande Division; David Robbins of Hill and Robbins, P.C.; and a special appearance by the early 1900s Rio Grande Reservoir Chief Engineer, J.C. Ulrich (performed with a mustache and turn-of-the-century attire by Colorado Supreme Court Justice Gregory J. Hobbs, Jr.).

“Ulrich” took the stage strongly, despite surpassing 100 years of age many years ago, and recited a letter he wrote October 27, 1905, to the Farmers Union Irrigation Company, who enlisted Ulrich to construct the Rio Grande Reservoir Dam.  In the letter, Ulrich discounted his prior reservations regarding dam construction and laid out a proposal for a composite structure, comprised of dry rubble, clay, and earth.  His subsequent letters illuminated his strict attention for detail to every activity related to the dam construction.  These letters dictated the proper number of tents for labor crews, the required number of axes and axe handles, and the appropriate dimensions and wood type for an engineer’s drafting table.  No detail was too minor for his attention.  Ulrich concluded by expressing great concern over the quality of the contract laborers in a 1910 letter, but seemingly, he eventually turned the troublesome contractors into a productive crew as shown by the successful creation of the Rio Grande Reservoir.

Bill Paddock spoke next, thoroughly discussing the history preceding the development of the Rio Grande Reservoir.  Starting in the 1880s and ‘90s, the United States placed embargos on reservoir development on federal lands due to an international conflict between the United States and Mexico over use of the Rio Grande.  In 1906, Mexico and the United States signed a treaty that solved the dilemma and lifted the embargos.  However, subsequent water use issues among Colorado, New Mexico, and Texas emerged.  The federal government revived the earlier embargos, pressuring the three states to enter into an agreement to assure adequate water supply along the Rio Grande.  Paddock noted that the consequences of these past embargos still affect the region today as shown by the current limited storage capacity along the Rio Grande.  By 1939, Congress approved the Rio Grande Compact (“Compact”) that created a water credit and debt system for the three states, effectively placing a cap on water use.  Nevertheless, throughout the 1950s and ‘60s Colorado failed to meet its statutory obligations by running up a large debt under Compact provisions.  In 1966, Texas and New Mexico sued Colorado to enforce the Compact.  Under pressure to comply, Colorado began severely curtailing surface water rights in 1968, and by the 1980s Elephant Butte Reservoir spilled, wiping clean the water debt.

Craig Cotton followed and explained administration of the Compact.  The Compact requires delivery of water from two streams in Colorado: the Rio Grande itself, and the Conejos River, the main Rio Grande tributary.  Generally, Colorado must deliver 27%-28% of the Rio Grande’s 650,000 acre-feet average flow and 38% of Canejos’s 300,000 acre-feet average flow.  One important and challenging Compact condition requires projecting Colorado water needs each year before the need actually arises.  During periods of low flow, the Compact prioritizes Colorado’s projections and reduces Colorado’s delivery obligations.  During periods of high flow, the Compact caps Colorado’s water use near the projected use, and the state’s delivery obligation increases.  Cotton stated that at periods of extremely high flow, the Compact requires Colorado to send 100% of the excess water down to New Mexico and Texas.  This often aggravates Colorado farmers because the State prohibits them from diverting substantial flow amounts passing right by their lands.  Cotton mentioned another challenge to Compact administration includes meeting endangered species guidelines.  Congress designated certain stretches of the Rio Grande as critical habitats, posing the challenging task to retain specific flows in difficult to reach regions.

David Robbins spoke last on the “Rio Grande!” panel and discussed two current legal issues surrounding groundwater.  First, Robbins detailed new governmental sub-districts of the Rio Grande Water Conservation District.  The sub-districts are statutorily formed entities created to analyze and replace regions of low flow along the Rio Grande due to groundwater pumping.  They manage water levels in the San Louis Valley aquifers and address the pressing issue of groundwater overdraft.  Second, Robbins discussed Texas’s pending lawsuit seeking petition for certiorari by the United States Supreme Court.  Although the legal issue directly involves Texas and New Mexico’s well pumping adjacent to the Rio Grande, the lawsuit indirectly implicates Colorado because of its participation in the Rio Grande Compact.  Robbins explained that the fundamental issue of this conflict arises from differing legal characterizations of groundwater use.  Although Colorado law treats surface water and groundwater as part of the same hydrological system, the Compact and other states treat these two water sources separately.  Texas, in particular, allows for unfettered groundwater pumping, and Robbins suggested that such unrestricted water use instigated the present litigation.  Robbins concluded by again stressing the case is still pending with no guarantee the Court will hear it, but if the Court does grant cert, then Colorado will be ready to defend its water interests.


Background

The Razorback Sucker, Xyrauchen texanus, was once one of the most common big river fish endemic to the Colorado River Basin.  Characterized by a muscular predorsal keel, small eyes embedded in a depressed head, and thick, leathery skin, the razorback has a prehistoric appearance that is highly adapted to the extreme stresses of irregular flow and high sediment load in the historically free-flowing Colorado river.  A combination of dam construction resulting in habitat loss as well as predation from invasive species have led to a significant decline in Razorback populations and the sucker’s subsequent listing as endangered in 1991.  Until its recent discovery in the Grand Canyon, the razorback had long been considered extirpated from large portions of the mainstem river, leading wildlife officials to speculate on the significance of their recent discovery.

Significance of the Razorback’s Return

Researchers had good reason to be surprised by the lone Razorback’s appearance during a recent electric sampling of fish stock in the Grand Canyon section of the Colorado River.  The sucker, which researchers had not seen in the canyon for more than twenty years, is the subject of extensive State and Federal conservation and recovery efforts.  When the federal government listed the Razorback as an endangered species in 1991, they also designated critical habitat in the Colorado Basin and implemented a federal recovery program.  Biologists suspect that the individual discovered in the Grand Canyon may have migrated nearly fifty miles upstream from Lake Mead, where mandated recovery efforts protected a self-sustaining population of 250-500 adult razorbacks for the past twelve years.  Similar recovery efforts, notably in Lake Mohave, have been hampered by high predation rates from non-native species such as striped bass, sunfish, and channel catfish.  While the discovery of a razorback so far from the nearest known self-sustaining population raises the question of whether Razorback suckers might someday re-populate the Grand Canyon, the impacts of the Glen Canyon Dam on Razorback habitat in the Canyon represent a major hurdle to the species’ return.

Completion of the Glen Canyon Dam in 1963 transformed the Colorado River as it runs through the Grand Canyon.  Where flows once peaked with the late spring runoff, demands for hydroelectric production now dictate flow rates that peak in late summer and winter months.  Water that historically varied from 35-85 degrees Fahrenheit between summer and winter months now emerges from the depths of Lake Powell (the reservoir behind Glen Canyon Dam) and enters the Canyon at a near constant 48 degrees.  Heavy sediment loads that once scoured channels and reinforced sandbars throughout the Canyon are now deposited behind the dam. Such drastic changes in river conditions following dam construction have played a major roll in the decline of native Colorado River Basin fish species.  Along with the Razorback Sucker, three other species (Bonytail, Colorado Pikeminnow, and Humpback Chub) endemic to the Colorado River Basin are listed as endangered.

Conclusion

The appearance of a Razorback Sucker in the Grand Canyon has raised the question of whether endemic species extirpated by Glen Canyon dam may someday re-establish populations in their native habitat.  While the implications of the Razorback’s return remain unclear, the discovery serves as a potent symbol of the complex history of the west’s most litigated river.


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