Background

Over the past six years and at the request of Colorado water districts, the Army Corps of Engineers considered many options to increase available water to the Denver Metro area.  Each option sought to provide an additional 8,539 acre-feet per year, and the options included a combination of non-tributary ground water and gravel pit storage, thus reallocating 20,600 acre-feet of flood water to water supply storage; a combination of reallocating 7,700 acre-feet of water supply storage and using non-tributary ground water and gravel pit storage; and even taking no action at all. The Corps considered the many stakeholders’ concerns throughout the process.

The most controversial of the options is to nearly double the capacity of the Chatfield Reservoir (the “Plan”), located approximately twenty miles southwest of Denver.  This project would result in more water for the growing Metro area but may precipitate many consequences, such as the destruction of the surrounding Chatfield State Park’s wildlife and decades-old cottonwood trees.

While the primary function of Chatfield Reservoir is flood control for the South Platte River, the Plan would utilize this existing reservoir to store more water for the growing Metro area.  Some estimates project Denver’s population will double by 2050.  The proposed Plan would inundate more than 500 acres of Chatfield State Park, increase the reservoir’s maximum storage level by twelve feet, and include fluctuating water levels of up to twenty-one feet.  The Plan is estimated to cost upward of $180 million.

Some interested parties, such as local citizens and the Audubon Society, express concern that undertaking this increase in water supply may actually result in a decrease in quality of life, as discussed below.  Proponents for the Plan on the other hand, such as the water district consortium, Trout Unlimited, The Sierra Club, The Greenway Foundation, and Western Resource Advocates, argue that the Plan is the most common-sense solution for the ever-growing issue of the Denver Metro water supply.

The Impact

The proposed changes are guaranteed to affect the Chatfield State Park’s wildlife and cottonwood trees.  The additional 20,600 acre-feet resulting from the expansion may submerge an extra ten percent of the park, resulting in the destruction of forty-five acres of cottonwoods and the habitat of approximately sixty species of birds.  The expansion would also overflow nearby fish habitats, such as those in the shallow weeds of the shore on the reservoir’s southern edge.  Expansion may also affect the endangered Preble’s meadow jumping mouse.

In addition to ecological impacts, the Plan will drastically alter the park’s surrounding recreational areas.  The proposed changes will require relocating the swimming beach and re-anchoring of the floating marina to accommodate the water level fluctuations.  The elevated water level also requires moving the popular shady picnic sites to higher, treeless locations.

Opponents state that because the water consortium owns only junior water rights, the reservoir’s water level will reach the maximum water line only during very wet seasons.  Thus, in normal or dry years, the water level will remain at the current position, with the relocated swim beach roughly 600 feet from the water’s edge.  And during wet years when the water consortiums water rights are utilized, the adjacent woodlands and riparian habitat will flood, forming mud flats.

Proponents, on the other hand, point out many benefits of the Plan.  Chatfield expansion seeks to benefit the Metro area by increasing available water, stabilizing the South Platte stream flows, and potentially supplying more locally-grown produce.  Proponents also note that water users will fully finance the expansion, as opposed to the federal or state government, and the Chatfield Reservoir expansion will benefit the Colorado economy through revenue generation.

Conclusion

As the Denver Metro area continues to expand, water availability is clearly a growing concern.  However, as exemplified in the controversy surrounding the Plan, many disagree as to which method is the least harmful to our quality of life, while also providing the most benefit.  This is a difficult question, and one that the Army Corps of Engineers is attempting to resolve alongside community input.  The ultimate advantages and disadvantages of the Chatfield Reservoir expansion, however, still remain unclear.

 


Sources:


In August, Broomfield joined other communities in Colorado who seek to ban hydraulic fracturing (“fracing”).  Broomfield will vote on the five year fracing ban in November, as will other communities including Fort Collins, Lafayette, and Boulder.  Many of the people opposed to fracing near their communities are concerned with public health and potential dangers to water quality.  A recent Duke University study linked shale gas extraction in Pennsylvania to local groundwater contamination, fueling the controversy.  In an effort to respond to public concern about the effects of fracing, the Colorado Oil and Gas Conservation Commission (“COGCC”) passed a new rule, Rule 609, early in 2013 to inform the public what effect, if any, oil and gas wells have on groundwater throughout the entire state of Colorado.  The COGCC has statutory authority to make and enforce rules to regulate the oil and gas industry in order to safeguard public health and the environment, which includes groundwater.

Rule 609 requires statewide groundwater testing and works in conjunction with earlier Rule 318A.e(4), which mandates area-specific water sampling in the Greater Wattenberg Area (“GWA”), an area south and southeast of Fort Collins.   When passing Rule 609, the COGCC amended Rule 318A.e(4) to acknowledge the large amount of existing oil and gas activity within the GWA region and the large quantity of groundwater samples that  parties had already collected, analyzed, and reported to the COGCC.  The amended rule requires operators in the GWA to take one groundwater sample before drilling a new well unless sampling previously occurred in that location within the last five years, and that sampling data is already on file with the COGCC.  Therefore, while the new Rule 609 does not regulate the GWA, the dual effect of the amended rule 318A.e(4) and the large quantity of existing water samples makes the application of the new rule redundant.

 

COGCC’s New Rule

Developing Rule 609 began last fall when the COGCC worked with industry representatives and several local governments during stakeholders meetings to discuss changes.  In addition to the stakeholder meetings, the COGCC staff held pre-hearing conferences to gather additional input and comments from the industry and other parties.

Rule 609 requires that before any new oil or gas well is drilled, the operators must first collect baseline samples at two different groundwater sources within one-half mile of the well site.  Then, after drilling the well, the operator must take subsequent water samples to ensure no groundwater contamination occurred during drilling or after production.  The operator can pick the sample sites based on five criteria: (1) the type of water feature, (2) local topography and hydrogeology, (3) orientation of locations with respect to the well site, (4) multiple identified aquifers available, and (5) previously sampled domestic wells.

The baseline sampling must occur prior to the commencement of drilling.  In addition, Rule 609 also requires baseline water sampling for any facility installation, even if no drilling is planned.  For well re-stimulations, an operator must take new baseline water samples if more than twelve months passed since the first baseline sampling took place.

Rule 609 requires operators to take the first water sample twelve and eighteen months after well completion or facility installation.  The operator must then take the next sample between sixty and seventy-two months after the operator’s first sample after drilling.  The new rule may require operators to take additional samples if water quality changes during any subsequent sampling.  Finally, the COGCC Director may require further sampling in response to a complaint from water well owners.

All water quality data generated under the new and existing rules will be available to the public on the COGCC website.  The groundwater samples record: pH levels, total dissolved solids, presence of bacteria, total petroleum hydrocarbons, and hydrogen sulfide, as well as other data.  This publicly available data will inform oil and gas stakeholders, political officials, and concerned citizens about the groundwater quality near drilling operations.

In addition to monitoring oil and gas activities, the systematic groundwater testing required under Rule 609 should discover any existing contamination resulting from non-drilling activities, such as agricultural activity, septic system use, household chemical use and disposal, plumbing systems, or industrial activity.  Therefore, a benefit of this required groundwater sampling will identity contamination and mitigate damages because of early detection.

 

COGA’s Voluntary Program

While creating Rule 609, the COGCC staff also gained valuable guidance from examining the older Colorado Oil & Gas Association (“COGA”) Voluntary Baseline Groundwater Quality Sampling Program (“COGA program”).  The COGA implemented the nation’s first statewide voluntary groundwater sampling program and continues to supply the public with groundwater information by publishing data that shows the oil and gas industry’s commitment to protecting groundwater through testing and safe practices.

The main difference between COGA’s program and COGCC’s new rule is that the COGA program is voluntary, while COGCC Rule 609 is mandatory.  Although only voluntary, many operators have participated in COGA’s program in an effort to demonstrate that drilling operations do not compromise Colorado’s groundwater quality.  COGA’s program, like the COGCC’s, asks operators to take baseline samples before beginning any oil and gas operations.  In addition,  both programs require initial water samples from two existing groundwater features located within a half mile of the new drilling site or a new well on an existing well pad and subsequent samples after well completion.

 

Conclusion

Passing Rule 609 shows that Colorado is serious about protecting the state’s groundwater resources.  The new rule not only pleases environmental advocates focused on protecting our water, but Rule 609 also provides operators with the opportunity to showcase safe operating methods.  And if the collected data fails to convince the public of the operations’ safety, then operators have the chance to adjust their methods and remedy any problems at an early stage.

 


Sources:


An interview with past Water Law Review Editor-in-Chief, Allison Altaras.  Reposted courtesy of the University of Denver Sturm College of Law – part of Denver Law’s 2010-15 Strategic Plan

“Law school is what you make of it,” says 2013 Denver Law grad Allison Altaras. She centered her legal education around her participation on the University of Denver Water Law Review (WLR), for seventeen years a go-to source for scholars and attorneys writing and practicing in this specialized, technical, and extremely important area of the law. For Denver Law students, says Allison, the 2012-13 Editor-in-Chief, the WLR can be an incomparable way to build lawyering skills and begin professional networking. Plus, she says, “water issues will define our future. It’s an important and interdisciplinary area of the law.”

“A lot of people advise law students to do nothing but academics the first year,” recalls Allison. “And that’s not bad advice. But I think it can be a mistake to delay your involvement in something like the WLR because of the opportunities that exist for 1Ls to be published and network in the DU community and beyond. We invite 1Ls to write on at the beginning and at the mid-point of their first year. Once on the journal, these students begin to develop essential research and writing skills they might not otherwise pick up until much later, even after graduating. That’s a definite advantage when it comes to succeeding in first year writing classes and ultimately landing a summer position at the end of the first year.”

Allison emphasizes that along with building lawyering skills, the WLR introduces student members to the professional community. “We get the 1Ls involved early on, and through their continued involvement with the WLR and its community of supporters, they eventually have opportunities to intern at places like Denver Water, the Colorado Water Trust, in the Natural Resources Division of the State’s Attorney General’s office, at the EPA and DOJ, and many other places. At our annual Water Law Review Spring Symposium, students meet and work alongside legal practitioners and other professionals—engineers, geologists and policymakers.”

Practitioners in the water law community make themselves available to WLR members, says Allison. “We have strong relationships with attorneys and with the organizations. It’s a small community, and its members are welcoming and nurturing. They are interested in teaching and mentoring the next generation. Many of the leading figures in Colorado water law are former WLR members themselves, or have written articles for the journal. So there are many opportunities out there for our students.”

In the fall, Allison Altaras will take her place in the professional community she has come to know well while serving on the Water Law Review. In 2013-14, she will clerk for Hon. Gregory J. Hobbs, Jr., associate justice of the Colorado Supreme Court and author of “Colorado Water Law: An Historical Overview,” which was published in the very first edition of the University of Denver Water Law Review in the fall of 1997. Following her clerkship, Allison plans to practice natural resources law in the Denver offices of Ryley Carlock & Applewhite. She candidly explains that she found both of these jobs through her involvement with the Water Law Review and looks forward to joining the vast network of DU alumni and the journal’s supporters in paying forward the kindnesses that have come to her via the Water Law Review.


The production of high-quality wine fundamentally connects to climate.  Moisture and growing season temperature critically affect successful viticulture and implicate suitable areas for wine grape cultivation.  Traditionally, Mediterranean climate regions characterized by a narrow climatic range without extremely hot or cold temperatures yielded the highest quality grapes and such climate regions presumptively produced the highest quality wines.

 

A study published by the National Academy of Sciences projected that changes in temperatures and precipitation would result in substantial geographic shifts of suitable viticulture areas.  Using seventeen global climate models, the study mapped potential changes in climate suitability for nine major wine-producing regions and then evaluated the impact those changes might pose to freshwater systems and ecosystems.

 

The study projected temperature increases and precipitation reductions will result in major geographic shifts in viticulture suitability by 2050.  Specifically, extreme heat could significantly diminish wine grapes’ quality in the Mediterranean climate regions, including regions in California, Chile, France, Italy, and Australia, corresponding to dramatic decline of viticulture suitability in those regions.  On the other hand, the study projected increased suitability in higher latitude and higher elevation areas, most significantly in New Zealand, western North America, and Northern Europe.

 

In traditional high-quality wine-producing regions, climate change could create an increased demand on freshwater systems.  If precipitation in these regions declines as the study projects, vineyards would require augmenting irrigation water.  And if temperatures increase, additional water may be required to cool grapes through misting or sprinkling to reduce heat stress, which compromises the quality of the fruit.

 

The greatest threat to freshwater environments exists in wine-producing regions already experiencing water shortages.  For example, 95% of wine-producing areas in Chile already suffer from a water deficit.  This region, highly dependent on diminishing glacial meltwater, is already highly vulnerable.  By 2050, the study predicts that most premium wine-producing areas in Chile will be unsuitable for viticulture.  To maintain viticulture in these areas would likely dramatically increase the strain on already over-burdened freshwater systems.

 

The study also predicts increased risk for natural ecosystems as the viticulture industry responds to geographically shifting viticulture suitability and expands vineyards into the higher latitude and elevation regions, particularly in New Zealand, Northern Europe, western North America, areas near the U.S.-Canadian border.  The establishment of vineyards commonly involves the removal of native vegetation, plowing, soil modification, and fertilizer use, largely destroying the native habitat.

 

Projected climate change models predict a dramatic shift in geographic viticulture suitability.  As a result, traditional wine-producing regions are expected to further strain associated freshwater systems.  Furthermore, as new areas develop increasingly suitable climates to sustain viticulture, new vineyard development and expansion may threaten many natural ecosystems.  These changes to viticulture may foreshadow larger agricultural shifts and further threats to freshwater systems and natural ecosystems.

 


Sources:


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law.

 

Vance v. Wolfe

“While the term ‘beneficial use’ is undefined in the Colorado Constitution, the 1969 Act defines it broadly as ‘the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’ Under the language of the 1969 Act, the CBM [Coalbed Methane] process ‘uses’ water – by extracting it from the ground and storing it in tanks – to ‘accomplish’ a particular ‘purpose’ – the release of methane gas. The extraction of water to facilitate CBM production is therefore a ‘beneficial use’ as defined in the 1969 Act.

Arguing against this interpretation, the Engineers and BP’[British Petroleum] assert that the use of the water during the CBM process cannot be a ‘beneficial’ one because the water is merely a nuisance. They stress that the goal of the CBM process is to capture the gas, not the water. The water, they continue, is simply an unwanted byproduct of the process. In sum, they question how the use of the water in this case can be termed ‘beneficial’ when they consider it to be a hindrance. . . . ‘[W]e disagree[.]

In fact, the presence of water and its subsequent extraction during CBM production is far more than an ‘inevitable result.’ Indeed, the presence and extraction of water are integral components to the entire CBM process. CBM producers rely on the presence of the water to hold the gas in place until the water can be removed and the gas captured. Without the presence and subsequent extraction of the water, CBM cannot be produced . . . While the Engineers and BP are correct that no Colorado case has specifically held that water used during CBM production is a beneficial use, this fact does not prevent us from finding such a beneficial use where our case law and the language of the 1969 Act so dictate.

As the water court noted, the Ranchers’ central concern is the protection of their vested senior water rights. We agree with the district court that our prior appropriation system exists to protect water rights holders. Here, the extraction, storage, and reinjection of water during CBM make the water inaccessible to other water rights holders such as the Ranchers. When the water is stored in surface tanks, a small quantity is lost to evaporation. At a later time, the water is typically reinjected, via underground injection control wells, into designated geologic formations that lie deeper than the aquifer from which the methane is produced. Consequently, ‘beneficial use’ also means use of water for a designated purpose – the result of which is to make the water inaccessible to other water rights holders.

We emphasize that determining the boundaries of ‘beneficial use’ requires careful case-by-case factual analysis and our holding today addresses the unique circumstances involved in CBM production. The definition of ‘beneficial use,’ however, is a ‘broad’ one, and we agree with the Ranchers that it is broad enough to cover the extraction of water to facilitate CBM production. In rendering our decision, we observe that the General Assembly may choose to make modifications to the statutes in light of our opinion.

In sum, while the production of oil and gas is subject to extensive regulation by COGCC [Colorado Oil and Gas Conservation Commission], it is also subject to the 1969 Act and the Ground Water Act. And, as noted above, we find that the extraction of water to facilitate CBM production is a beneficial use under those provisions.”

Vance v. Wolfe, 205 P.3d 1165, 1169 (2009) (case citations omitted).

Click here for a PDF of the entire article: 14 U. Denv. Water L. Rev. 159, 2010-2011

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.

View the fourth update to Colorado Water Law: 8 U. Denv. Water L. Rev. 213, 2004-2005.

View the fifth update to Colorado Water Law: 10  U. D. Water L. Rev. 391, 2006-2007.

View the sixth update to Colorado Water Law: 13 U. Denv. Water L. Rev. 389, 2009-2010.


COLORADO WATER CONGRESS SUMMER CONFERENCE 2013: LEADING OUR WATER FUTURE

Steamboat Springs, Colorado   August 21-23, 2013

Agricultural Leadership Forum: So What Exactly does “Saving Ag” Mean?

The Colorado Water Congress is a leading nonpartisan voice in shaping policy and legislation relating to water development, management, and conservation.  In addition to working as an advocate for a variety of legislative and regulatory issues, the Colorado Water Congress provides members with various opportunities for collaboration, networking and professional development at several events throughout the year.  One such event is the Summer Conference.  Hosted annually in a beautiful Colorado resort location, the Colorado Water Congress Summer Conference offers excellent topical content on water law and policy.  At this year’s conference in Steamboat Springs, attorneys, citizen groups, engineers, ranchers, legislators, and others gathered to discuss the future of water and agriculture in Colorado.

As part of this year’s Summer Conference, Erin Wilson of Wilson Water Group and the Colorado Water Congress Board of Directors moderated a panel discussion on an important question: “So What Exactly Does ‘Saving Ag’ Mean?”  The five panelists shared perspectives on the future of agricultural water rights in the face of growing municipal demands.  The panel consisted of John Salazar, Commissioner of the Colorado Department of Agriculture; Marsha Daughenbaugh of the Community Agriculture Alliance; Doug Robotham of the Nature Conservancy; Terry Fankhauser of the Colorado Cattlmen’s Association; and John McClow of the Upper Gunnison River Water Conservancy District.

Commissioner Salazar began the panel discussion with a lively presentation on Colorado’s rapidly increasing population and the attendant impacts on the state’s land and water resources.  Salazar estimated Colorado’s population to increase by three to four million by 2040, a rate faster than the United States’ growth rate.  Naturally, an increased population will stress the demand for water.  Salazar estimated this growth would require an additional 190,000 to 630,000 acre-feet of water per year.  Emphasizing the significance of farm and ranch water rights, the Commissioner declared agriculture a “cornerstone” to Colorado’s economy.  In doing so, Salazar argued that agricultural water rights are vital to the growing state economy and that there is a need to ensure the continued production of agricultural goods as municipal needs grow.

Marsha Daughenbaugh, Executive Director of the Community Agriculture Alliance, focused her presentation on one of her organization’s strategic anchors: the importance of public education on agriculture.  As a third generation rancher, Daughenbaugh’s interests are vested in the partnerships developed between the Yampa Valley’s resort, business, and agricultural interests to assure agriculture’s longevity throughout the area.  The Community Agriculture Alliance seeks to preserve the agricultural heritage of the Yampa Valley by encouraging programs and policies that mutually benefit and connect agricultural producers and consumers.  Daughenbaugh and her organization believe in the continuing philosophy that the agricultural environment is a valuable part of the community and Colorado must preserve it.  To share this conviction, the Community Agriculture Alliance connects and educates various community groups with agriculture in the Yampa Valley and provides resources for other regions to build a similar connection.  Daughenbaugh’s public education work is not limited to promoting the benefits of farming and ranching.  For example, she highlighted that agricultural lands provide abundant open space, allowing unique Colorado ecosystems and wildlife to thrive.

Next, Doug Robotham discussed how The Nature Conservancy decides what lands and habitats to protect.  The Nature Conservancy works with communities and businesses to protect and preserve lands and waters vital to the diversity of life on Earth.  In Colorado, The Nature Conservancy has helped preserve more than 426,000 acres by establishing thirteen preserves statewide.  Robotham pointed to the Nature Conservancy’s historic Carpenter Ranch in the Yampa Valley as “a great example of how agriculture and conservation can come together.”  A new conservation easement project across the Yampa River from Carpenter Ranch, the Wolf Mountain Ranch, aims to permanently conserve up to 6,300 acres that (i) provide critical habitat for Columbian sharp-tailed grouse and sandhill cranes, (ii) support miles of a globally rare river forest corridor, (iii) represent historically and economically important ranchlands, and (iv) preserve historic and scenic views important to the local economy.

Terry Fankhauser, Executive Vice President at the Colorado Cattlemen’s Association (“CCA”), encouraged innovation when addressing the issues surrounding agricultural water use.  Founded in 1867, CCA is the nation’s oldest cattlemen’s association.  Beef producers voluntarily join CCA and manage it cooperatively, working together to speak on behalf of Colorado’s more than 12,000 beef producers. As a representative of cattle ranching interests, Fankhauser observed that risk-aversion and inflexibility will not save agriculture.  Instead, farmers and ranchers should be open to creativity where efficiency gains can be made in agriculture.  With confidence, Fankhauser stressed: “Agriculture does not deserve to be saved, but agriculture does deserve the opportunity to survive.”

As the final panelist, John McClow offered a perspective on saving agriculture in the Upper Gunnison River Water Conservancy District, which uses easements in the Gunnison County area to conserve agriculture.  McClow questioned what would happen to agricultural lands if such land could actually be “saved” by conservation groups.  He illustrated two contrasting possibilities amongst others in a spectrum of options: (i) easements protect the lands in perpetuity, or (ii) easements protect the lands only until the farmer wants to retire and sell his water to a municipality (jokingly referred to as the “401(k) plan”).  While perpetuity is the preferred option for conservation groups, increased land values in much of Colorado, especially surrounding resort communities, make it difficult for conservation groups to incentivize ranchers to preserve agricultural land rather than sell the land to developers.  One suggestion posed by McClow involved state funding for a more sustainable water project to match population growth and demand, diverting attention away from ecologically special high-country areas.

The panel concluded with a brief discussion on three relevant and timely topics:  The Walton Family Foundation Report, agricultural water conservation, and Leasing/Fallowing under Colorado House Bill 1248.

The Walton Family Foundation funded a collaborative effort, working with interested stakeholders, to identify innovative ways to allow water transfers from agriculture to urban use while avoiding or mitigating damages to agricultural economies and environmental values. The report evaluated novel water sharing strategies and developed actionable recommendations to improve water-sharing opportunities in the Colorado River Basin and throughout the West.

Discussion on agricultural water conservation centered first on the issue of how to define such conservation and, second, whether agricultural water conservation can contribute to insteam flows or municipal supply.  The panel had difficulty in answering some of the hard questions on the topic but agreed the problem is still a work in progress.

This discussion lead to the topic of House Bill 1248, which authorizes the Colorado Water Conservation Board to administer a pilot program consisting of up to  three pilot projects, each up to  ten years in duration, in the Lower Arkansas River Basin.  The projects intend to experiment with fallowing agricultural irrigation land and leasing the associated water rights to municipal users in years of shortage.

Overall, the panel spoke positively about the Walton Family Foundation Report, agricultural water conservation, and HB 1248, and viewed each as progressive support for building a creative new approach to Western water management.


Greeley water officials are once again concerned about the effects of wildfire on the city’s water supply.  The Galena fire that started on March 15, 2013 burned 1,348 acres of land west of Fort Collins before full containment five days later.  This fire was reminiscent of the nearby High Park fire of last June that burned 87,284 acres, destroyed 259 homes, killed one person, and cost millions of dollars to clean the Poudre River.

The major concern for Greeley, located about 50 miles away from the Galena fire, centers not on the damage from the blaze itself, but the effects of runoff washing ash and fire debris into the city’s water supply.  The fire burned parts of Lory State park that drain into the Horsetooth Reservoir; a reservoir that provides up to 35% of Greeley’s water supply.

Northern Water, a public agency established to build the Colorado-Big Thompson Project and provide supplemental water to northeastern Colorado, immediately stepped in after the Galena fire to mitigate the effects on the area’s water.  Northern Water installed ten debris booms throughout Lory State Park at areas that drain into the Horsetooth Reservoir.  The debris booms consisted of mesh bags filled with wood chips to filter the water and catch any ash and debris before reaching the reservoir.  Northern Water used similar debris booms during the June High Park fire cleanup.

Because the forecast predicated rain only a few days after the fire, Northern Water wanted to act quickly and place appropriate mechanisms before any significant runoff occurred.  Northern Water completed the debris boom installation in two days and spent $15,000 on the project.

The wildfire increase of recent years, combined with the extremely early-season Galena fire, causes concern for Greeley water officials.  Accordingly, the city began exploring new ways to reduce fire damage and seeks partnering with the United States Forest Service to achieve this goal.

While the Galena fire’s effects on Greeley’s water supply still remain unclear, the fire’s smaller acreage and reduced devastation suggest that the impacts on the water supply and quality will not be as great as after the High Park fire.


Sources:

Fire Burning Northwest of Fort Collins, The Greeley Tribune, Mar. 15, 2013, http://www.greeleytribune.com/news/crime/5570876-113/fire-homes-friday-reservoir.

Alex Ruiz, Galena Fire Has Greeley Water Officials Concerned, Northern Colorado 5, March 19, 2013, http://www.noco5.com/story/21694538/greeley-water-supply-hit.

John Orr, Galena fire: Northern Water installs debris booms to mitigate effects to Horsetooth Reservoir #codrought, Coyote Gulch (Mar. 24, 2013, 7:24 AM), http://coyotegulch.wordpress.com/2013/03/24/galena-fire-northern-water-installs-debris-booms-to-mitigate-effects-to-horsetooth-reservoir-codrought/.

Galena Fire in Larimer County 100 Percent Contained at 1,348 Acres, Denver Post, Mar. 20, 2013, http://www.denverpost.com/breakingnews/ci_22833790/galena-fire-larimer-county-100-percent-contained-at.

Northern Water, http://www.northernwater.org (last visited Sept. 4, 2013).

 


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law.

 

In re Tonko.

“The remedies and procedures in a district court right-of-way condemnation proceeding are substantially different from those of a water court application proceeding. The condemnation action involves issues such as necessity and valuation in determining the compensation award for a ditch or pipeline right-of-way needed for water transport in the exercise of a water right. The prerequisite for maintaining the condemnation action, pursuant to section 7 of article XVI of the Colorado Constitution and section 37-86-104(1), C.R.S. (2006), is an adjudicated conditional or absolute water right, but the adjudication of such a right is not within the district court’s jurisdiction. Adjudication of water use rights belongs to the water court.

The water court process involves a division engineer’s consultation report, a referee’s investigation, discovery, and a trial regarding contested issues of fact involving claimed water use rights. A water court applicant has incentives and the opportunity to try water use questions that a condemnation proceeding lacks.

The existence or non-existence of the Tonkos’ water use rights by reason of the 1908 decree and coterminous conveyance by Picco and Milano to Delisa of a 2/7ths interest in the Tatman Ditch water rights is not identical to the condemnation of a ditch right-of-way issues the district court had before it. The Tonkos’ immediate predecessors-in-interest did not have the same incentive or opportunity to litigate water use matters in the condemnation proceeding as they are provided by statute in the water court.

We conclude that the Tonkos’ predecessors-in-interest did not have a full and fair opportunity to litigate their water use rights in the condemnation action. The fourth element of issue preclusion is not satisfied.

The Tonkos argue that irrigation of their land is within the 1908 decree and that an undecreed invalid enlargement has not occurred in regard to the Delisa interest in the Tatman Ditch water rights. The Tonkos have asserted facts in support of this contention that are properly triable in the water court, not the district court.

Whether Mallow lawfully extinguished the Delisa Ditch right-of-way across his land and whether the Tonkos proceed with a condemnation action turn on the outcome of their change of water rights application. Because the Tonkos’ application to confirm their water use rights comes within the exclusive jurisdiction of the water court, it must be allowed to proceed.”

In re Tonko, 154 P.3d 397, 407 (Colo. 2007) (case citations omitted).

Click here for a PDF of the entire article: 13 U. Denv. Water L. Rev. 389, 2009-2010.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.

View the fourth update to Colorado Water Law: 8 U. Denv. Water L. Rev. 213, 2004-2005.

View the fifth update to Colorado Water Law: 10  U. D. Water L. Rev. 391, 2006-2007.