O, dear daughter, be not discomforted!

They can attempt to possess your beauty

Beyond measure, without sufficient ends

And looking glasses, frenzy, berserk, de-

Hydrate marvels they have engineered in

Fact, conveyance, deed, statute, law, decree,

Cannot substitute for the Natural Stream

Of your loving boundless intimacy.”

 –Excerpt from “Mother to Daughter,” written and read by Justice Gregory J. Hobbs, Jr. in celebration of the 40th year of Colorado’s instream flow law January 15, 2014.

Roughly 200 western water policy enthusiasts gathered in the Colorado Supreme Court’s Courtroom on January 15, 2014, to celebrate the 40th anniversary of the state’s Instream Flow (“ISF”) Program and discuss the program’s role in the future. Twenty-four entities generously hosted the cordial event including the Rocky Mountain Land Use Institute, the Colorado Water Congress, the Nature Conservancy, the University of Denver’s Water Law Review, and the law firm Kaplan, Kirsh, & Rockwell just to name a few. Several of the attendees were Water Law Review former staff, Board members, and contributors.

ISF Program Background

In 1973 the Colorado legislature integrated instream flow water rights by entrusting the Colorado Water Conservation Board (“CWCB”) with the state’s appropriation authority to preserve the natural environment to a reasonable degree. ISF water rights are non-consumptive and in-channel or in-lake uses of water held by the CWCB to ensure minimum flows on certain reaches of streams and rivers and in lakes. The CWCB consults with hydrologists, engineers, natural resource scientists, and geomorphologists, among others to make factual determinations about which lakes and stretches of stream to preserve and improve to a reasonable degree. The IFS Program helps the state protect diverse ecosystems ranging from coldwater fisheries and waterfowl habitat to glacial ponds.

A series of lawsuits challenged the CWCB’s authority to appropriate water without diverting it from streams. Several water users claimed that in Colorado, the right to use water requires a physical diversion in addition to the claimant showing the water will be put to a beneficial use. Over time, the Colorado Supreme Court clarified that ISF appropriation by the CWCB is a legal means of ensuring minimum stream flow to preserve the natural environment to a reasonable degree, the CWCB’s water right is junior, and that the CWCB has a fiduciary duty to enforce the use right in the name of the people of Colorado.

Colorado’s 1986 legislature recognized the value of marketable water rights for instream flow by allowing the CWCB to accept donations and purchase senior vested water rights. “The board also may acquire, by grant, donation, bequest, devise, lease, exchange, or other contractual agreement… water, water rights, or interests in water…The board may use any funds available to it for acquisition of water rights and their conversion to instream flow rights.”  In this state, the right holder vests water rights through beneficial use of the water. The 1986 statute permitted the CWCB to convert the beneficial use from the original right holder’s use (e.g., agricultural use, irrigation) to the CWCB’s use of preserving or improving the environment to a reasonable degree and maintaining minimum stream flows and lake levels.

Since 1973 the CWCB appropriated over 9,000 miles of stream and roughly 480 natural lakes and acquired over twenty-five water right donations or long-term contracts for water totaling 500 cubic feet per second. That means that by 2014 the CWCB appropriated either junior or senior rights to nearly one third of the state’s perennial streams for preserving and improving the natural environment to a reasonable degree.

The ISF Program’s 40th Anniversary Celebration

Colorado Supreme Court Justice Gregory J. Hobbs Jr. welcomed attendees at the ISF Program’s fortieth anniversary celebration with his keynote historical overview of the state’s water laws. For twenty-three years before joining this state’s highest court, Justice Hobbs practiced environmental, land use, and water law. Since 1996 Justice Hobbs served the people of Colorado on our Supreme Court and plans to retire in 2016. Justice Hobbs read his fortieth anniversary ISF Program poem, “Mother to Daughter.”  Hobbs spoke enthusiastically about how the advocacy that led to instream flow rights demonstrates our community’s common bond: a deep value in Colorado’s rivers, streams, and lakes. He stressed that Coloradans put their hearts, minds, and passions into the water policy shift that the ISF Program embodies. Hobbs submitted that ISF Program “is a landmark of the integration of the values of the flow into a prior appropriation water law system.”

Justice Hobbs explained that the ISF Program came about following an intense pro-development era and represents the paradigm shift of the 1970’s when many people simply wanted to protect what was left of the natural world.  During this period the United States legislature enacted the Clean Water Act, the Clean Air Act, the Endangered Species Act, and the Federal Land Policy and Management Act, along with other significant environmental legislation.

According to Justice Hobbs, the central challenge of the ISF right in Colorado was determining whether the state’s water laws allow a use-right without diversion. He explained that the 1975 Colorado Supreme Court gave deference to the legislature by upholding the ISF law because the CWCB’s water right is junior to the senior right holders and does not cause injury to prior water rights. Today, the ISF Program enables the CWCB to protect waterways and improve water quality.  Justice Hobbs concluded his introductory remarks by characterizing the ISF Program as “work well-done and work well to be done!”

A Retrospective on the ISF Program at Forty

Linda Bassi discussed the ISF Program’s accomplishments and moderated the first panel of speakers, which included Patti Wells and Eric Kuhn. After working for the CWCB for a decade, Bassi is now the CWCB’s Stream and Lake Protection Section Chief. She has extensive experience with the ISF Program both from her work at the CWCB and in the Attorney General’s office representing the Division of Water Resources and the CWCB.

Bassi explained the ISF Program has a multifaceted role in the water community. The program involves the CWCB’s (1) coordination with federal agencies to address federal resource protection goals through state-held water rights, (2) partnerships with water suppliers to enable water projects to move forward while protecting the natural environment, and (3) collaboration with Colorado Parks and Wildlife and conservation groups to protect and improve Colorado’s rivers, streams, and lakes. Bassi’s presentation included photos of stunning landscapes and waterways throughout Colorado that the ISF Program empowered the state to protect through appropriations, acquisition agreements, and donations. Boulder Creek, the Colorado River, Dead Horse Creek, and Hanging Lake are just a few of the watercourses benefiting from the IFS Program. Bassi noted that Governor Hickenlooper’s executive order compelling the CWCB to create Colorado’s first Water Plan (“CWP”) directs the CWCB to foster “a strong environment that includes a healthy watershed, rivers and streams, and wildlife.”

Patti Wells discussed the IFS Program’s elements that make it work and allow it to endure today. Wells serves as the Denver Water Board’s (“DWB”) General Counsel as she has since 1991. She also represents the City and County of Denver as a CWCB board member. Wells is a former board member of the Water Quality Control Commission and the Colorado Water Trust. Mayor Peña appointed Wells as Denver’s first female City Attorney.

According to Patti Wells, the ISF Program’s two essential elements are its “requirement for balance and the involvement of the public.” To demonstrate the balance element, Wells quoted the statute’s directive for the CWCB “to correlate human activity with reasonable preservation of the natural environment” and mentioned that over time this phrasing turned out to be brilliant. Wells maintains that the CWCB tends not to engage in extremist, absolutist discussions because the wording of the statute guides the CWCB to consider what is necessary to a reasonable degree.

Wells emphasized the ISF Program’s public notice and comment process while comparing the administrative agency setting to litigation. Wells suggested that much of the program’s flexibility is because the CWCB makes decisions in a boardroom with public input instead of in a courtroom. The fact that the CWCB’s determinations are reviewed under the Administrative Procedure Act is especially significant to Wells because it means that courts usually defer to the CWCB’s findings. In addition, when experts appear in front of the CWCB they do not duel each other as they might in a judicial proceeding.

Another strength of the ISF Program, according to Wells, is that the CWCB must have a natural landscape that requires protection in order to acquire rights unlike the federal government’s methods of water right acquisition. She used the example of Hanging Lake to illustrate part of the CWCB’s decision-making with regards to water rights acquisition. The Board hiked to Hanging Lake and after seeing “the mist in which the Columbine grows” determined that the landscape needed all unappropriated water there to protect that particular environment to a reasonable degree. Wells considers the ISF Program to function well because it is a robust form of state-based environmental protection that enables Colorado to protect itself from the “heavy hand of the federal government.” Wells concluded by commending the ISF Program for its contemplation of all water uses, inherent flexibility, and great results.

Eric Kuhn followed Patti Wells in the first panel of speakers. He is the General Manager of the Colorado River Water Conservation District, (the “River District”), a former board member of the CWCB representing the Colorado River Basin, and an at-large Inter-Basin Compact Commission (“IBCC”) representative. Working for the River District since 1981, Kuhn possesses a deep understanding of the work it does in this state. The River District’s charter from 1937 empowers it to “preserve and conserve for Colorado, its Colorado River Compact entitlement.”

Kuhn outlined the River District’s “evolution” in relation to the ISF Program explaining that it originally opposed the program, then it supported the program, then it opposed the program again. Today the River District works to improve the ISF Program. A future challenge Kuhn detects for the ISF Program relates to how the state should deal with recreational activities. He clarified that providing water for recreation is outside the scope of the CWCB’s charge to protect the environment to a reasonable degree but he perceives it as a looming dilemma that requires a broader discussion.

A Forecast for the ISF Program: Its Challenges for the Future

Melinda Kassen, the Principal of WaterJamin Legal and Policy Consulting Services and member of the IBCC, moderated the second panel, which included James Eklund, Drew Peternell, and Amy Beatie. Kassen posed several introductory questions to the panel such as “what new types of water rights could the state create”; “how far should the ISF Program go”; “should we be protecting shoulder flows”; “should we be protecting more than just cold-water fisheries”; “should we be protecting peak flows”; “what else can the state do to protect current flows while looking at warmer, drier times”; “who should be allowed to hold these flows—should it always remain exclusively in the hands of the CWCB”; and “how should the state evolve the program to make it stronger and more meaningful?”

James Eklund, the CWCB’s director, said, “people think of Colorado water law as a slow, lumbering beast with little ability to change—but if you step back and squint your eyes a little bit, or maybe a lot, you could get the impression that we actually have the capacity to innovate when the conditions demand it in this state.” Eklund submitted that the ISF Program is part of Colorado’s tradition of innovation in water law and policy and asserted that the CWCB’s Water Plan is the next step.

The Colorado Water Plan represents “shaping the future of Colorado with intention” to Eklund. He warned that without a comprehensive state water plan we run the risk of chaotic consumption of our most valuable resource in a divided and inefficient way that provides certainty to water users—consumptive and non-consumptive alike. Eklund urged that the Water Plan is crucial for maintaining state ownership and control over our waterways and the habitat the waters provide. He posited that if Colorado wants to maintain control over its water, then it requires “a way to preserve, improve, and enhance—to a reasonable degree—our ISF Program.” Eklund said that the CWCB is in the business of learning more about Colorado’s rivers, streams, and lakes. He believes the future of the ISF Program involves a deeper scientific understanding of the state’s water resources that will hopefully lead to an informed and engaged public that has access to good facts about water.

Drew Peternell, the Director of Trout Unlimited’s (“TU”) Colorado Water Project, followed James Eklund. TU is a national, nonprofit fisheries organization. TU’s Water Project mission is to maintain and restore Colorado’s rivers and creeks in order to sustain healthy coldwater fisheries.  Peternell argued that the future of the ISF Program would increasingly involve the acquisition of senior water rights in order to put water back into depleted streams. Additionally, Peternell urged that the CWCB must address concerns from irrigators since they own the majority of the senior water rights.  Peternell understands irrigators’ interests because his organization regularly partners with them on projects that mutually benefit agricultural operations and coldwater fisheries. He believes that the state needs to do more to make the ISF Program attractive to irrigators. Irrigators hesitate to participate in the program because they must transfer their beneficial water use to the CWCB. The process leading to the CWCB’s acquisition of senior water rights for restoring streams is too difficult, costly, and risky for many irrigators, according to Peternell.

Peternell discussed pending legislation proposed by Senator Gail Schwartz and endorsed it as a way to make the ISF Program attractive to irrigators. Senate Bill 23 would allow irrigators who make water efficiency improvements to transfer the right to the water saved by the efficiency improvement to the CWCB for instream flow use. Otherwise, there little incentive for irrigators to implement water efficiency measures in Colorado’s prior appropriation system. This would open a new category of water for ISF use to the CWCB. This bill would also incent organizations like TU to finance repairs of irrigators’ aging irrigation infrastructure and allow irrigators to modernize their diversion structures more easily, which would ultimately keep more water in the streams. Peternell’s emphasis on making it simpler, less expensive, and less risky for senior water rights holders to transfer their water rights to the CWCB for IFS use seems well placed.

Amy Beatie, the Executive Director Colorado Water Trust (“CWT”), left attendees with a sense of urgency to protect Colorado’s waterways. As a University of Denver Water Law Review founder and current Advisory Board member, former law clerk for Justice Hobbs, and member of the Colorado Water Congress’s Board of Directors, Beatie ardently spreads her passion for water law and policy. Beatie pointed out that the CWT does not have an advocacy or policy agenda. The CWT mainly participates in projects focused on restoring streams in times of drought. Beatie said that even though the CWT does not do policy, its people can still dream about what they want Colorado’s rivers to look like. Amy Beatie emphasized the “obvious, yet understated power of people.”  She asked the audience questions about what could be accomplished if every person in the room spent five hours thinking of ways to make the program better and acting upon their ideas. Beatie stressed the power of innovation. Beatie compelled the audience to imagine what the success of the ISF Program looks like and what they could do to make the program better. Beatie then pressed the audience to “stop imagining and let’s go out the door and start doing!”

Audience Questions & Conclusion

Both panels fielded questions related to instream recreational water use and recreational in-channel diversions (“RICD”s). Patti Wells expressed concern about the prospect of legally requiring water providers to deliver recreational flows and said, “I am not sure that those flows are the responsibility of the state to provide.” Drew Peternell mentioned the RICD Program and suggested the state should protect recreational values in rivers that do not currently have RICD protection with a water right or protective measure that goes beyond RICD’s. Amy Beatie believes adequate protections for recreational flows are in place because the Colorado Supreme Court acknowledged recreational use as a beneficial use. Beatie posited to the extent that recreational flows are “important to communities, they may be appropriated just like any other water right for a beneficial use.” Justice Hobbs opined on the matter of recreational flows stating, “we should be optimistic.” Hobbs does not believe Colorado needs to amend its constitution to address issues arising from recreational flows because he trusts the minds of the next generation to create new policies that serve all water users.

Some themes emerged throughout the afternoon of speakers as they discussed the ISF Program in the context of Colorado water law. Speakers stressed the ISF Program’s balance and flexibility as its strong points and highlighted Colorado’s role in water rights innovation. The concern about recreational flows and the RICD Program demonstrates the next horizon of innovation for instream water rights. Hobbs’, Eklund’s, and Beatie’s optimism and enthusiasm for the future of water law and policy in Colorado left many attendees with a smile as they trickled downstairs for the reception.

 

The title picture is of the Colorado Supreme Court courtroom, located in the new Ralph L. Carr Colorado Judicial Center. The picture  is licensed under the Creative Commons Attribution 3.0 Unported license to Jeffrey Beall, and the use of this picture does not in any way suggest that Jeffrey Beall endorses this blog.


Colorado Water Congress Annual Conference 2014: Investing in Public Water Education

January 31, 2014

The Colorado Water Congress held its annual convention at the end of January at the Hyatt Regency. On the last morning of the convention, Nicole Seltzer, the executive director of the Colorado Foundation for Water Education, moderated a four panel discussion titled “Platform Plank V: Investing in Public Water Education.” The discussion focused around effective ways to engage citizens in the water permitting process. Seltzer explained how it is important to educate the public to help make them a partner in problem solving. The panelist included Rick McCloud, the Water Resources Manager of the Centennial Water and Sanitation District; David Nickum, the executive director of Colorado Trout Unlimited; Brian Werner, the Public Information Officer of Northern Water; and Lurline Curran, County Manager of Grand County. The four panelists represented a range of perspectives and commented on effective ways to facilitate public input. They each commented on the purpose of public involvement, the issues associated with public communication, and suggested ways to make public communication in the permitting process more effective.

Rick McCloud of the Centennial Water and Sanitation District spoke of his challenges and victories with public engagement in the Chatfield Reallocation Project, a project aimed at expanding the Chatfield Reservoir. McCloud acknowledge that the federal requirement is the underlying reason for public involvement in the water permitting process. However, his team also realizes that their projects impact people and it is in the organization’s self interest to get public input from people who have superior knowledge. McCloud admitted that it is often challenging to have meaningful public involvement because there is frequently a great disconnect in communicating some of the fundamental issues of a project. When a disconnect arises, people tend to make untrue conclusions about the plan, he noted.

To ameliorate the communication issues, McCloud suggested that agencies should engage the public more than the required federal minimum. There should be open, honest, and straightforward attempts to involve the public early because the days of backroom decisions are over. McCloud implemented his suggestions in the Chatfield Reallocation Project. Because Chatfield is such a loved and highly visited Colorado park, McCloud said they made it their mission to inform the public early and often so that their plans to alter the park would not surprise the park visitors. His team created a public relations program where they handed out flyers to park visitors, posted signs in the park, created a website, and also managed a hotline for people to call and comment about the project. McCloud also stated that they held a series of monthly meetings discussing the mitigation plans for the park, and four out of the five environmental firms found reasons to support the project.

David Nickum of Trout Unlimited represented the public interest group voice among the panelists.  He spoke about how groups like his involve citizens in the water permit process. Nickum noted that public interests groups allow a large number of people to organize and let the interest groups publicly reflect their values. He explained that involving the people who live near a proposed project in the permitting process is extremely important. Those are the people who will care the most and give the greatest insight because they see the area on a day-to-day basis, Nickum commented.

Nickum also highlighted the lack of dialogue present in the federal permitting process. He stated that the federal requirements provide a “propose and respond” kind of process, where people just submit comments and the agency responds. When asked about potential solutions to more effectively engage the public, Nickum suggested the integrated licensing process is a good model because it frontloads the public input. Getting the public involved early helps navigate what issues need to be studied. This process is also beneficial because it encourages public dialogue and helps the agency seem more credible to the public. Additionally, he noted, the more public engagement before triggering the National Environmental Protect Act (“NEPA”), the quicker the NEPA process runs.

Brian Werner of Northern Water has worked with the public agency for thirty-two years and spoke to his experience with public involvement on the Windy Gap Project. The purpose of public involvement is to figure out how to make projects better. Also, the public gets us to a place where we can build the project, Werner remarked.

For Werner, the length of permitting process is the most frustrating with regards to public involvement. He explained the difficulty of keeping the public engaged for ten years on the same project. Werner also discussed the challenges associated with public misinformation. In addition to the public often getting wrong details about a project, citizens often do not realize that the federal agencies dictate the process, and state agencies do not have as much leeway and control in the process as the public thinks.

When asked about potential solutions for the public communication struggles, Werner noted that there has to be a better way to do the Environmental Impact Statement (“EIS”) process. Werner would like to see a briefer and more simplified process as well as shorter and more easily understandable documents to facilitate public comment. Additionally, Werner thinks that there needs to be more coordination during the comment period because there is a lot of cherry picking by the various agencies.

Lurline Curran, County Manager of Grand County, primarily commented on her experience in working with the public on the Windy Gap Project. Public involvement facilitates the permitting process, Curran explained. Once the locals approve a project, the federal process flows more smoothly.

Curran also discussed some of the downfalls of the federal permitting process as well as other challenging aspects with public communication. Specifically, Curran mentioned that the EIS process eliminates the public dialogue. People send in their comments, and although the agency might answer them on one page in their report, the EIS excludes an actual interchange. She believes that Grand County found a solution to the limited dialogue present in the federal setting and set a template for how groups should work with the public. Curran credits the 1041 permitting process with helping achieve the necessary dialogue that lets all people feel like the permit issuer heard them. For example, in Grand County when the staff presents their recommendation for a project, the people in the audience get a chance to make statements in response in a town hall setting.

To Curran, the most frustrating part of public communication is trying to determine how to communicate with all groups in a way that they feel secure in a process where there can be lag time between various steps. To keep the public informed, Grand County developed a list with everyone who wants to receive information about the Windy Gap Project, and sent those individuals updated information. If you really want public input, Curran notes, you have to be willing to take the time to get it.

Despite the varying backgrounds of each panelist, Rick McCloud, David Nickum, Brian Werner, and Lurline Curran, all found that public participation, if approached right, could enhance the water permitting process.

The title picture is of downtown Denver, Colorado. The picture is attributed to George Miquilena under the Creative Commons Attribution-Share Alike 2.0 Generic, and the use of this picture does not in any way suggest George Miquilena endorses this blog.


Platform Plank VI: A Plan Must Have Money to Succeed: Managing Financial Risk to Secure Our Water Future.

Denver, Colorado. January 29-31, 2014

Building on the framework adopted at the first Colorado Water Congress in 1958, this year’s annual convention addressed six important issues affecting the development of the Colorado Water Plan in terms of “planks.” The convention featured moderated panel discussions on each plank, which included (i) ensuring a strong water program for Colorado, (ii) constant reappraisal of the strength of Colorado’s position in respect to its interstate water obligations, (iii) the importance of hydropower to Colorado’s water policy, (iv) allocating funding for flood mitigation, (v) the necessity of investing in public water education, and (vi) ideas for managing financial and political risk in order to fund water projects. Together, these planks serve as the Colorado Water Congress’s “platform for action.”

The final panel of the three-day convention tackled the issue of managing financial risk. Mike Brod of the Colorado Water Resources and Power Development Authority moderated a discussion of how calculated political and financial risks are sometimes necessary to build new water infrastructure.

The first panelist, John Entsminger, General Manager of the Southern Nevada Water Authority (“SNWA”), discussed how his agency solicits the input of the community in making short- and long-term decisions regarding the financing of water infrastructure projects. Formed in 1991, the SNWA addresses southern Nevada’s unique water needs on a regional scale. The SNWA manages the Southern Nevada Water System, which includes facilities used to pump, treat, and deliver Colorado River water from Lake Mead to the Las Vegas Valley.

At the beginning of the 1900s, the small community of Las Vegas claimed it had an inexhaustible artesian supply of water in an attempt to persuade people to move there. Eventually, growing population and limited water supplies required significant steps to address growing water shortages. In response, Las Vegas predominantly turned to the Colorado River to supplement the city’s diminishing groundwater supply.

In 2000, southern Nevada had nearly exhausted its share of water from the Colorado River. When drought struck in the 2000s, the people of southern Nevada watched as their primary water supply, the Colorado River, dramatically diminished in flow. The water level of Lake Mead dropped more than one hundred feet from 2000 to 2014, with current levels around 1106 feet. The SNWA anticipates water levels to drop an additional twenty feet in 2014. Consequently, the first water intake (located at 1050 feet) will likely be out of service in the near future. When this happens, the second intake (located at 1000 feet) would be insufficient to continue uninterrupted delivery of water to the Las Vegas Valley. As a result, in 2008 the SNWA began installing a third intake at 860 feet.  This bit of engineering, however, comes with an $850 million price tag. Entsminger stated that neither the federal nor state government showed a willingness to assist in covering this cost, which placed the financial burden for the project squarely on southern Nevada consumers.

According to Entsminger, the key to gaining community support for water infrastructure projects such as the Lake Mead intake is to involve stakeholders in policy and program directives. In 2012, the SNWA created a committee of residents, business owners, school directors, and representatives of the gaming and golf industries to help guide future water resource planning. The task given to this “Integrated Resource Planning Advisory Council” (“IRPAC”) was to figure out the best way to allocate costs for the Lake Mead intake and other water-related projects. For example, one of the biggest concerns for the committee was ensuring that Las Vegas’ large population of fixed-income seniors could adjust to any proposed increases in their water bills.

For years, developers essentially subsidized these sorts of water infrastructure projects through new connection and construction fees. When recession hit in 2008, these subsidies dried up. For example, in 2005–06, the SNWA collected $188 million in connection fees from developers. By 2011, this income dropped to $11 million. As a result, it became imperative to find new funding sources. In 2012, at the recommendation of IRPAC, SNWA instituted an infrastructure charge that charged every water user regardless of their level of consumption.

Entsminger added that, in addition to the infrastructure fee, a significant amount of funding comes from sales taxes, commodity charges, and connection charges. Despite the addition of the infrastructure charge and other fees, SNWA is proud to offer its customers lower water rates than many large metropolitan areas, including Santa Fe, San Diego, Phoenix, and Seattle.

SNWA is also employing conservation measures to address the water shortage. For example, SNWA is currently paying people to remove turf from their yards. SNWA has spent $195 million on this project since 1995. According to Entsminger, conservation is a double-edged sword and an upside down business model. On the one hand, the water authority has spent millions of dollars encouraging people to stop using the product they are selling. However, in return the SNWA experienced the benefits of reducing consumptive use of the Colorado River by one-third even as the population grew by 25%.

Next, Steve Hogan, Mayor of the City of Aurora, discussed his city’s approach, which focused less on direct citizen input and more on leaders who are willing to make tough political decisions for the benefit of the city as a whole. Mayor Hogan explained that much of Aurora’s past mirrors that of Las Vegas. Aurora draws water from three river basins and stores it in a dozen different reservoirs in the plains and mountains. In addition, Aurora’s water system, like SNWA’s, is only about fifty years old.

In 2002, as a result of rapid population growth and a multi-year drought, Aurora found itself with just a nine-month supply in its system. As a result, the Aurora City Council directed Aurora Water to ensure it was capturing all of the water that the city legally owned. The challenge was to find the most sustainable, cost-effective way to deliver water to the city. The result was Prairie Waters, a state-of-the-art water recycling and purification system that allows the city to draw water from the South Platte River, which is then filtered through sand and charcoal filters and eventually piped thirty-four miles to a treatment facility. Prairie Waters delivers an additional ten thousand acre-feet of water per year, an increase of approximately 20%.

The Prairie Waters Project took five years to complete and cost the city $660 million.  Much like the Lake Mead project, neither federal nor state government contributed financial support to the project. To fund the project, the city raised residential water rates and tap fees and also issued $450 million in bonds. Unlike SNWA, however, elected officials, rather than water consumers, made most of these decisions regarding how to finance the project.

Hogan pointed out that, unlike some municipal water suppliers, Aurora Water is a part of the city government. This means that eleven citizens sitting on the City Council have control over water policy decisions. According to Mayor Hogan, while the Prairie Waters project had some community input, overall it was a political decision to go ahead with the project. While Mayor Hogan recalled debates over whether developers should pay their own way, he noted that the city ultimately paid for most of the Prairie Waters Project through increased water rates. The Aurora City Council has since received numerous complaints about increased water rates. According to Mayor Hogan, there are ongoing discussions about water rates in Aurora, but he noted that opinions on what constitutes an appropriate water infrastructure charge vary with changes in the city’s political landscape.

Hogan further explained that while government staff input and recommendations are important, politics still play an important role in these decisions.  Mayor Hogan emphasized the importance of having “project-specific leadership.”  In other words, having a knowledgeable spokesperson who can deliver accurate information to the public will make these tough political decisions easier on the community as well as on the City Council.

Overall, Entsminger and Hogan provided a helpful discussion of the differences, but also similarities, of their financial approaches to infrastructure improvements. Their discussion highlighted the major methods of securing funding for such projects but also exposed the need for each water district or agency to tailor their methods to their specific situation and needs.

 

The title picture is a photo of Hoover Dam and Lake Mead in 2009.


Environmental Entrepreneurs (“E2”) is an independent non-partisan organization uniting business and environmental leaders to shape state and national policy.  E2 is an affiliate of the Natural Resource Defense Council (“NRDC”).  Donations supporting E2 go through the NRDC, and the two organizations share staff.  Due to the close affiliation between the two non-profits, the NRDC and E2 both value environmental advocacy and sustainability; however, E2’s mission expressly seeks engagement of business leaders to achieve the shared goals of the affiliated organizations.  E2’s mission is “[t]o create a platform for independent business leaders to promote environmentally sustainable economic growth.”

On October 29, 2013, at Deloitte Consulting’s office in downtown Denver, E2 hosted a panel to discuss the topic “Water Wise: Meeting Colorado’s Water Challenges.”  Panelists included Will Sarni, Director of Enterprise Water Strategy at Deloitte; Jerry Tinianow, Chief Sustainability Officer of the City of Denver; Greg Fisher, Chief Planner for the Denver Board of Water Commissioners (“Board”); and James Eklund, Director of the Colorado Water Conservation Board (“CWCB”).  In light of E2’s recently released report titled “Colorado Water Supply and Climate Change: A Business Perspective,” each speaker addressed questions relating to water conservation and efficiency in Colorado.

Will Sarni discussed three categories of value that he contemplates when consulting with a wide variety of companies to strategize their water management.  Sarni asserts that the three risk categories for business value are physical risks, regulatory risks, and reputational risks.  Physical risks could be the temporary unavailability of water, for instance.  Regulatory risks range from the reallocation of water away from business production to meet more urgent needs during times of drought to the suspension or withdrawal of the supplier’s license or permit.  Reputational risks refer to the potential for negative exposure or public outcry against a business for its water-use practices.  Among other things, when Sarni consults with a business about the location of manufacturing plants, he asks whether the business will have access to water in twenty years at that location and from where the water to support growth projections will come.  Will Sarni’s role at Deloitte Consulting led him to encourage business leaders to incorporate water stewardship into their corporate risk management plans.

Denver’s Chief Sustainability Officer, Jerry Tinianow, discussed the city government’s sustainability agenda.  Denver’s plan encompasses twelve areas: air quality, climate change, energy, food, health, housing, land use, materials, mobility, workforce, water quantity, and water quality.  For each of the twelve resources, Tinianow has specific goals for the government with a separate, but complementary, set of community goals.  Tinianow expressed Denver’s goal to reduce irrigation of parks and golf courses by 22% to an eighteen gallon per square foot average and to reduce use of potable water in city buildings by 15% from a 2011 baseline.  Tinianow stressed that half of the water used in Denver currently goes toward watering golf courses and parks, and he seemed optimistic about meeting Denver’s conservation goals by 2020.

Greg Fisher, the Chief Planner for Denver Water, outlined how the Board supplies the Denver area with sufficient clean water and how it plans to do so in the future.  As Fisher explained, Denver Water serves 25% of Colorado’s population while only using 2% of the state’s water.  Fisher claimed there are still conservation opportunities but acknowledged Denver Water’s successes thus far.  Fisher asserted that Denver Water serves 30 to 40% more people than it did in 1980, yet Denver Water uses the same amount of water as in 1980.  One contributing factor for this conservation success was the dramatic reduction in household use that occurred when Denver Water installed meters on all homes in 1990.

In terms of future conservation, Denver Water’s current goals involve a push for innovation of WaterSense-labeled indoor fixtures and higher water efficiency levels for households.  Since multifamily homes use half as much water per household on average than single-family homes use, Fisher encouraged thoughtful land use planning as a tool to achieve higher efficiency.  Denver Water will continue employing their four-tiered rate scale in the future, which incentivizes conservation.  The affordable first tier rate ($2.59 per 11,000 gallons per month) accounts for most households’ entire water use, but the cost of water increases sharply above that tier because using more than 11,000 gallons per month indicates outdoor watering.  Fisher argued that this tiered scale is a practical and equitable solution because it allows everyone to have cheap access to the amount of water they need to live, and it discourages water uses views as inefficient, such as watering grass.  While Denver Water seems poised and ready for Colorado’s water future in the short term, Fisher predicted that more extreme solutions may be required if the state’s population doubles from five million people to ten million by 2050, as many people expect.

Finally, James Eklund, Director of the CWCB, discussed the context of Colorado’s water situation and the creation of a comprehensive water plan.  He asserted that in certain settings – education, healthcare, and transportation, for example – we fear the unknown; however, with water issues, we fear the known because there are so many studies and statistics predicting a dry future for the American West.  Eklund encouraged the audience to trust the state demographers’ accuracy in their projections of an additional two million people in Colorado by 2030.  Eklund stressed how critical it is for Colorado to have its intrastate water agreements in order due to Colorado’s status as a headwater state with many binding compacts.  Arizona, Colorado, and Washington are the only states in the West without comprehensive water plans.  Through an executive order in May 2013, Governor John Hickenlooper directed the CWCB to commence work on the Colorado Water Plan, which Eklund is currently working on.

The CWCB’s comprehensive water plan will be a dynamic document amended every two to five years.  Eklund stated that the CWCB’s goals include addressing the gap between supply and demand, incentivizing quicker regulatory processes for businesses wanting to establish in Colorado, and devising a statewide comprehensive water plan.  Eklund also called for the need to formulate alternatives to “buy and dry,” which refers to users (typically municipalities) in one location buying water rights from other users (typically farmers), resulting in the drying up of vast swaths of farm land.  Eklund concluded by reminding the audience that Mother Nature and hydrology require that we move quickly.

The E2 conference served as a platform to begin an informed conversation between entities that value a strong economy built on responsible water use and conservation.  A predictable and secure water future for the West is in the best interest of the community and the economy, so E2’s effort to engage a wide array of participants in the discussion is a step in the right direction.

 

The title picture is of downtown Denver, Colorado.  The picture is attributed to George Miquilena and is covered by the Creative Commons Attribution-Share Alike 2.0 Generic license. The use of this picture does not in any way suggest that George Miquilena endorses this blog.


As part of its two-day conference, the South Platte Forum hosted a panel that discussed Colorado agriculture and the effects of the September 2013 floods on livestock and crops in the South Platte Basin.

The first speaker, David Petrocco, a local vegetable farmer in Adams and Weld Counties, discussed the basics of local agriculture, including methods of applying water to crops, water conservation, and the beneficial uses of water.  As Petrocco explained, timely irrigation is every farmer’s main concern.  Without adequate water, certain crops would stress, thus affecting their marketable quality.  Irrigation wells were useful resources for timely irrigation prior to 2006.  However, due to severe drought in 2006 the State of Colorado shut down many irrigation wells, which impacted the production of crops.

Most importantly, Petrocco discussed the challenges of water conservation.  Noting the importance of agriculture, Petrocco suggested that, along with improving irrigation efficiency, water conservation efforts should focus on cities and municipalities decreasing the watering of golf courses, parks, and road frontages in order to provide more water to agriculture.  Petrocco also relayed the problems of pondweeds, aggressive vegetation that grow on the bottom of rivers, that raise water levels, restrict the water’s flow, and ultimately consume a great amount of the water in which they grow.  Even though the South Platte River’s water quality has improved greatly, Petrocco argued these pondweeds were a growing concern deserving immediate attention.

Next, Adrian Card and Keith Maxey discussed the on-the-ground impacts of the September 2013 flood on the Colorado farming community.  Card serves as Boulder County’s Agricultural and Natural Resources Extension Agent with Colorado State University in Boulder County.  Maxey is the Weld County Director and Livestock Extension Agent with Colorado State University.  Their presentation started with a video showing aerial footage of the flooding and its subsequent destruction in Longmont and other areas of Colorado.

In addition, Card and Maxey spoke on how the flooding greatly affected mountain communities by destroying roads and restricting access.  In Weld County, the flood closed over one hundred roads.  Even a month after the flooding, crossing over the Platte River was cumbersome for children to get to school and for farmers to make product deliveries.

Card and Maxey then discussed floodwater contamination on local crops.  Concerned with floodwater mixing with various contaminants like raw sewage, oil and gas spills, and pesticides from agricultural fields, the United States Food and Drug Administration declared that any crop touched by floodwater was adulterated and thus unmarketable.  This had a dramatic and expensive toll on the affected Colorado farmers.  In the South Platte Basin, crop loss from floodwaters is estimated between $3.5 and $5.5 million.

The last speaker, Sean Cronin, discussed what water providers focused upon in the aftermath of the flood.  Cronin is the executive director for the St. Vrain and Left Hand Water Conservancy District.  Cronin reported that in District Five of the Conservancy District the flood damaged 101 ditches and reservoirs, amounting to almost ten million dollars of estimated damage.  Cronin mentioned, however, that this estimate may go down as water levels subside and the infrastructure shows less damage than previously feared.

Cronin then discussed flood recovery.  First, Cronin mentioned the availability of Federal Emergency Management Agency Public Assistance to those who apply.  Second, Cronin mentioned Colorado Water Conservation Board (“CWCB”) loans and grants, which apply to individuals who experienced approximately one to two million dollars in damages.  The loan carries no interest and no payments for three years.  Third, Cronin mentioned partnerships forming between many different agencies interested in helping support the affected water users.  Lastly, Cronin described local “stream teams,” which consist of local volunteers, engineers, and water experts.  The CWCB headed the state “stream team,” which provided technical assistance to local groups by coordinating and aiding them with financial assistance and permits.  However, aiding water users without creating conflicts and obstacles proved challenging.  Justifiably, water users want to make long-term repairs immediately even though it might be more beneficial and financially prudent to make incremental short-term repairs.

Cronin commended the emergency response teams and acknowledged the heroism, human kindness, and leadership during the devastating floods.  However, he also stressed that Colorado lacked any kind of emergency flood plan and argued Colorado needed to address this and plan for future floods.

Overall, the panel extensively addressed the concerns of the September flooding, the affects of the flooding, and what Colorado could do better for the future.

 

The title picture is of the north fork of the South Platte River, located in Buffalo Creek, Colorado.  The picture is attributed to Jeffery Beall and is protected by the Creative Commons Attribution 3.0 Unported license.  The use of this picture does not in any way suggest that Jeffery Beall endorses this blog.


As part of its twenty-fourth annual proceedings, the South Platte Forum hosted a discussion on fish in the South Platte Basin.  Titled “Swimming In,” the three-part discussion focused on the heritage of Colorado’s state fish, fish management by flow management, and improvement of urban streams for native warmwater fishes.

Dr. Kevin Rogers, a fisheries scientist and member of the Aquatic Research Group for Colorado Parks and Wildlife (“CPW”), spoke about the greenback cutthroat trout (the “greenback”), Colorado’s state fish since 1994.  Often referred to as the blackspotted trout and once believed to be extinct, in 1973 the greenback was one of the first species listed as endangered under the Endangered Species Act (“ESA”).  Downlisted from endangered to threatened in 1978 and currently poised for delisting entirely, Dr. Rogers noted the greenback is one of the “shining stars” of the ESA due to the success of multiple conservation efforts.

Genetics probably is not the first thing that comes to mind when one ponders fish, but Dr. Rogers described recent research and scientific analyses of the greenback’s DNA that revealed much about the greenback’s lineage.  For example, in the mid-1850s, William A. Hammond, a Civil War surgeon and eventual Surgeon General of the United States Army, served as medical officer on an expedition from Fort Riley, Kansas that attempted to find a pass to the Oregon Trail.  Dr. Rogers obtained copies of Hammond’s notes sent to the National Archives at Philadelphia after his expedition.  In these notes, Hammond mentioned the blackspotted trout.  Dr. Rogers plotted Hammond’s notes on a timeline and determined that Hammond made his notes regarding the blackspotted trout in what is now Colorado.  Hammond also managed to collect and send trout specimens to the National Archives.  Dr. Rogers reported that scientists analyzed DNA taken from these preserved specimens and confirmed that the fish that eventually became Colorado’s state fish derived from around sixty populations of Colorado River cutthroat trout on the Western Slope.

Dr. Rogers stated that Colorado has been home to six distinct lineages of greenbacks, but a fire near Pagosa Springs in the summer of 2013 wiped out one of these populations.  Another of these six lineages, which Dr. Rogers considers “the true greenback cutthroat trout” due to its lack of hybridization, is native to the South Platte Basin on Bear Creek near Colorado Springs.  In mid-September 2013, historic rains increased the flow on this creek from a normal flow rate of five cubic feet per second (“cfs”) to an estimated 169 cfs.  According to Dr. Rogers, the September 2013 flood might actually improve these fishes’ habitat on Bear Creak, “assuming they are still there.”

In a discussion entitled “Managing Fish by Managing Flows:  A Wild Rainbow Story in Elevenmile Canyon,” Ken Kehmeier, Senior Aquatic Biologist in the Platte Basin for CPW, discussed recent successes in wild rainbow trout management.  Elevenmile Canyon lies southwest of Lake George in Park County, Colorado.  CPW manages the upper section of the canyon as a self-sustaining wild rainbow trout fishery, which means no stocking is required.

Since 2003, the rainbow trout population in this area consistently declined.  In light of this realization, Mr. Kehmeier and his associates began studying the factors that might have contributed to this decline.  According to Mr. Kehmeier, rainbows in this area tend to spawn in mid- to late-April depending on the temperature of the water, which can be altered by warm-water releases from the Elevenmile Canyon Dam.  After studying years of data, Mr. Kehmeier’s team determined that in years with sustained populations of rainbows, flow rates downstream of Elevenmile reservoir and Spinney Mountain reservoir were stable.  However, in recent years with demonstrated low rainbow population growth, overlapping data suggested that flows created by “untimely” releases from these reservoirs were responsible for the population decline.  Mr. Kehmeier said releases from the reservoir in April and June simply “washed out” trout eggs and fry and depleted the populations.

As a result of his team’s findings, CPW met with officials from Denver Water and Aurora Water in March 2011 and February 2012 to discuss possible changes to releases and flow rates downstream of Elevenmile Canyon to attempt to increase the wild rainbow trout population.  According to Mr. Kehmeier, the existing population of rainbows in the upper section of the canyon increased by only seventy fry in 2010.  As the result of collaboration with the pertinent water authorities, the existing population in the upper canyon section grew by a total of 672 fry in 2011 and 2012.  In 2013, demands on Denver Water prevented it from mimicking the improvements in the previous two years.  As a result, the population of trout fry declined once again, thus strengthening the relationship between flow rates and wild rainbow trout populations in the upper section of Elevenmile Canyon and the need for continued collaboration between water managers and fisheries managers.  Mr. Kehmeier stated that even with losses in 2013, “if the wild rainbow trout population can increase two to three years out of every five, the overall population will tend to improve.”

With respect to the September 2013 flood, Mr. Kehmeier said river fish populations experienced virtually no changes.  In fact, from a fisheries standpoint, Mr. Kehmeier said the flood was “almost an ecological reset on a lot of our rivers,” essentially a cleaning of the rivers.

In the final discussion of “Swimming In,” Ashley Ficke discussed how to improve urban streams for native warmwater fishes.  Ms. Ficke, a doctoral candidate in fisheries biology at the University of Colorado at Boulder, described the South Platte as an “urban stream,” a transition zone between the mountains and the plains.  According to Ficke, “transition zone streams” in Colorado are highly modified because of their spatial relation to urban areas, differing greatly from mountain and plains streams in terms of geomorphology, physicochemical characteristics, and hydrology.

Ms. Ficke described urban streams as home to a unique combination of species that tend to have a large diversity of body size, lifespan, and reproductive strategy.  Accordingly, urban stream species have “impressive physiological tolerances” to large temperature ranges, dissolved oxygen levels, and salinity levels.  As illustrations of their ability to adapt to changing needs, urban species tend to be omnivorous and can make wide changes in habitats if compelled to do so by flooding or seasonal changes.

Despite a high tolerance to urban environments, Ms. Ficke stated that assemblages of fish in urban streams are declining.  These declines are due to “extensive human modifications” in and around the streams such as alterations of flow rates, sedimentation, changes to water quality, fragmentation, channelization, and introduction of nonnative species.  According to Ms. Ficke, changes in flow patterns caused by dams and diversions can adversely affect opportunities for foraging, spawning, and refuge.  Changes in sediment regimes can suffocate incubating eggs and increase competition for food and predation amongst existing populations.  “More water is not always beneficial,” according to Ms. Ficke, and refuge can be limited during spates and floods, and habitats can become limited for spawning and rearing. Hence, urban fish have “nowhere to hide” in channelized systems.  Ms. Ficke concluded by stating that the persistent introduction and growth of nonnative species in urban streams will continue to pose significant challenges to existing and future populations of urban fish species.

“Swimming In” proved to be a useful mix of history, biology, and reality.  From tracing the roots of Colorado’s state fish, to fisheries scientists collaborating with water managers to spur trout populations while maintaining domestic needs, to the challenges faced by fish that prefer the city to the country, these speakers fascinated and educated the attendees of the twenty-fourth annual proceedings of the South Platte Forum.

 

The title picture is of the north fork of the South Platte River, located in Buffalo Creek, Colorado.  The picture is attributed to Jeffery Beall and is protected by the Creative Commons Attribution 3.0 Unported license.  The use of this picture does not in any way suggest that Jeffery Beall endorses this blog.


On August 29, 2013, the University of Denver Sturm College of Law was honored to welcome Associate Professor Alex Gardner of the University of Western Australia (“UWA”).  Professor Gardner began his legal career as a solicitor in Melbourne, Australia, before receiving his Master of Laws in natural resources law at the University of British Columbia.  Professor Gardner has been on the UWA Faculty of Law since 1988, working with numerous research centers including the UWA Centre for Mining, Energy and Natural Resources Law; the National Center for Groundwater Research and Training; and the Cooperative Research Center for Water Sensitive Cities.  Professor Gardner also holds an Adjunct Professorship at the Australian National University College of Law.

Following a warm welcome, Professor Gardner introduced his presentation, entitled Climate Change and Water Resources Law: A Looming Adaptation Crisis.  He began with a brief overview of the impacts of climate change on southwest Australia, specifically within state of Western Australia, and the correlated decline in precipitation and rise in temperatures.  These impacts will have serious ramifications for management of water resources in the state and adaptation will be necessary in order to secure enough water for both human consumption and environmental preservation.  According to Professor Gardner, an important part of that adaptation for Western Australia will ineludibly require reformation of its water law, especially the right to take and use water.

Professor Gardner then gave a brief overview of the foundations of Australian water law.  Australia is a federation of six states whose constitution is a marriage of English parliamentary democracy and American federal democracy.  The Australian Constitution distributes legislative power and sovereignty over natural resources between the states and the Commonwealth Parliament.  The Commonwealth Parliament, like the United States Congress, has a specified list of legislative powers.  Importantly, those powers do not include the power to legislate with respect to natural resources, while the states retain the residual power to make laws regarding natural resources and water.  The Australian Constitution also gives the states sovereignty over natural resources, granting them the power to regulate water use.

Professor Gardner explained that current Australian water laws are based on a mixture of the English common law riparian tradition and more modern licensing traditions emanating from state statutes.  Under this system, landowners have the right to take and use water for domestic purposes, including livestock watering, while water for commercial purposes requires procurement of a state license.  According to Professor Gardner, the general goal of water management laws in Australia is ecologically sustainable development.  This translates to a heavy emphasis on setting aside sufficient water to maintain the environment before determining the amount available for consumptive use.

Professor Gardner next described the current scientific understanding of climate change impacts on southwest Western Australia.  Specifically, a recent report by the Australian Climate Commission shows that declining rainfall and increasing average temperatures are beginning to have serious negative impacts on agriculture and urban water supplies in southwest Australia.  Even during the recent La Nina event, which saw much of the country inundated with heavy rainfall, the southwest remained dry.  Likewise, recent projections for annual rainfall over the next twenty years almost unanimously predict continued drying in southwestern Australia.  Furthermore, Professor Gardner pointed out that recent studies by the Indian Ocean Climate Initiative all but confirm that rainfall reductions in southwestern Australia are consistent with human-induced climate change.

Professor Gardner then described the water infrastructure and water needs of the southwest.  Southwest Western Australia has a rapidly growing population of roughly two million with an economy historically rooted in agriculture and mining.  Traditionally, the southwest relied on surface water but is now heavily reliant on groundwater in order to compensate for declining precipitation.  Total water consumption in the southwest increased steadily during the last decades of the 20th century.  However, Professor Gardner highlighted the fact that recent data show stabilization of total consumption in the region, population increase notwithstanding.  This trend reflects the growing recognition of water scarcity and the success of reductions in per-capita consumption.  In spite of this, per-capita consumption remains relatively high by both Australian and international standards.  In fact, without further adaptation, growing demand coupled with shrinking supply due to climate change will produce a water shortage of 365 gigaliters by 2060.

Professor Gardner then focused specifically on the effects of climate change on the water supply serving Perth, Western Australia’s largest city.  Traditionally, Perth relied primarily on surface water, especially for its public water supply.  As surface water supplies began to dry up in the late 1970s, Perth began to increase its reliance on groundwater resources, finally resorting to desalination in the early 2000s.  However, according to Professor Gardner, even with increased reliance on desalination, these combined sources are proving insufficient in the face of a rapidly drying climate.  Other sources will be needed in the future to meet the water demands of a rapidly growing population.

Professor Gardner, with input solicited from the audience, then proffered several possible supplementary supplies that Perth can possibly look to in the future.  For example, Professor Gardner suggested wastewater recycling, increased conservation, and inter-basin transfers.  However, due to various obstacles to these supplies, including ecological concerns and political opposition, Professor Gardner identified “managed aquifer recharge” as one of the more promising avenues.

Professor Gardner next discussed each of Perth’s current main water supplies, beginning with the Perth Hills Dams, the major source of surface water for the city.  Distressingly, over the past century, average runoff into these damns has fallen by more than 50% to an all-time low of thirteen gigaliters in 2010, representing a paltry 3% of the historic average.

Groundwater is another major water source for Perth.  Originally seen as a backup to the Perth Hills Dams, the use of the major aquifers underlying Perth, called the Gnangara Groundwater System, has steadily increased over the past decade.  Now the Gnangara supplies roughly 60% of Perth’s water supply.  Increased pumping has led to a steady drop in the level of the aquifer to such a degree that the upper, or superficial, aquifer is now at its lowest level on record.  This drop, in turn, has led to increased drilling into the lower aquifers of the system, the Leederville and Yarragadee aquifers.   Though these lower aquifers contain relatively large amounts of water, increased use of the Leederville and Yarragadee has in fact precipitated the drop in the level of the superficial aquifer due to the hydrologic connection between the superficial and the Leederville and Yarragadee aquifers.

Professor Gardner highlighted Perth’s current groundwater over exploitation with a newspaper article featuring Loch McNess, a lake in Perth’s northern suburbs.  As a boy growing up in Perth, Professor Gardner remembered rowing boats on Loch McNess with his family, an activity that would be impossible now that the lake is essentially dry.  Making the situation worse, Professor Gardner explained how the state water utility has consistently failed to abide by the legal limits on groundwater drawdown already in place.  Unfortunately, it is difficult to tell whether climate change or overuse is the primary factor leading to such low aquifer levels.  Further complicating matters are the large number of other, non-municipal water rights holders, including agricultural and industrial users as well as a significant number of unlicensed users.

In the face of these issues, Perth has increasingly turned to desalination.  Though approximately half of the city’s water now comes from desalination, Professor Gardner predicted that the climate is drying faster than the city can build desalination capabilities, thus requiring increased reliance on other sources such as wastewater recycling.

Professor Gardner then discussed the current state of Western Australia’s water law.  The current licensing scheme in Western Australia includes a landholder eligibility requirement, a fixed term generally ten years in length, and the right to renew the license after the term has expired.  Each license specifies the land upon which the water can be used and the annual maximum water use on that land.  However, the licensed maximum water use is subject to scarcity reductions at the direction of the state water minister.  Though there are limits in place to protect the environment, Professor Gardner explains that limited metering and poor enforcement have severely reduced their efficacy.

Though climate change has hit Western Australia particularly hard, the other states of the Commonwealth have also experienced similar problems.  To deal with these problems, the Commonwealth developed a national water policy.  As Professor Gardner explained, the key principles of the national water policy include transitioning to transferable water rights without landholder requirements, improving metering and reporting, national oversight of states’ water markets, proportional sharing of scarcity, and a comprehensive water planning system.  Western Australia has recently accepted the national water policy, despite initial resistance, and is moving toward implementation of a water property rights regime based on a system of proportional sharing among licensees during water scarcity.

In closing, Professor Gardner compared the changing nature of Australian water law with Colorado water law.  Western Australia is moving towards a property rights regime much like that in Colorado.  However, unlike in Colorado, the new Australian scheme will incorporate a system of central planning that will first provide adequate water for environmental flows.  Another major difference between the Colorado system and the emerging Western Australian system is the formula for sharing scarcity.  Instead of a hierarchy founded on historical priority as used in Colorado, the new system in Western Australia will require proportional sharing of scarcity.

 

The title picture is a photo of Perth, Western Australia.


The heavy rainfall and flooding that occurred in the second week of September brought devastation to many families, homes, and businesses in Colorado.  With 374 families remaining in temporary housing, recovery from the storms has been a slow process for those acutely affected.  After the rain subsided and the flood levels receded, another concern emerged for Coloradans: damage to oil and gas operations in the floodway.

The Colorado Oil and Gas Conservation Commission (“COGCC”), a state agency in the Colorado Department of Natural Resources, is responsible for the regulation of oil and gas development in the state.  During the extensive rainfall and following the destructive flooding, the COGCC worked with the Federal Emergency Management Agency (“FEMA”), the Colorado emergency response operations, the United States Environmental Protection Agency (“EPA”), and other organizations to oversee the response to spills and oil and gas operations damaged in the flood.

Alan Gilbert, an attorney with decades of experience in energy and environmental law, was appointed Special Assistant to the Executive Director for Flood Response to monitor the inspection and cleanup of oil and gas operations.  On Friday, November 8, Mr. Gilbert gave a presentation to the Natural Resources Section of the Colorado Bar Association to outline the COGCC’s ongoing response to the flood damage.

Mr. Gilbert noted that Colorado has many wells that operate within floodplains of the St. Vrain and Platte Rivers in central and northeast Colorado.  Often, these well sites were chosen to keep drilling operations off of valuable agricultural land.  During the first few days of heavy rain, when it became clear that massive flooding was imminent, oil and gas companies with wells in the floodplains preemptively started to shut-in wells.  Mr. Gilbert explained that when a well is shut-in, valves are closed to stop production, which creates a seal between the well bore and the land surface.  This process contains any oil or gas underground if surface operations are damaged.  Fortunately, a majority of wells today can be shut-in remotely, but some still require employees to manually shut-in the well at the well site.  In total, oil companies shut-in 2,603 wells during the flooding.  Today, 691 of the wells remain shut-in, awaiting inspection or repairs before resuming operations.  However, with these wells closed and not in production, leaseholders, including many families that depend on the income, will not receive any royalty payments.

Fortunately, Mr. Gilbert explained, the shut-in wells withstood the flooding with almost no damage or leaks reported to the well structures themselves.  However, many storage tanks, soil and metal berms around wells, and pipelines sustained damage from water flow or debris carried by the water.  As many media pictures reported, the flooding toppled some tanks; unanchored pipelines and caused leaks; lifted some underground tanks to the surface; and caused oil, condensate, and produced water to escape in certain areas.  While the rain continued to fall, the COGCC began discussing how to address the problems.  The COGCC, with EPA assistance, took aerial surveys of affected areas and began traveling to the areas to inspect damaged wells.  The COGCC brought in and trained many additional teams of inspectors to handle the increased workload.

The COGCC, through inspections and operator reports, immediately began to compile and assess spill data.  As of November 8, the COGCC reported total spills of 1,149 barrels (48,250 gallons) of oil and condensate and 1,035 barrels (43,479 gallons) of produced water originating from storage tanks and leaking pipelines.  These totals came from forty-nine total spills, fourteen of which were in excess of twenty barrels.  Twenty spills only comprised produced water, and the single largest spill amounted to 323 barrels.  Mr. Gilbert reported that there was no single catastrophic spill and no significant buildup of spilled material in any area.

A major concern of Coloradans revolved around the effects of flooding on hydraulic fracturing (“fracking”).  However, the COGCC reported that no fracking operations were active in the floodplains during the flooding, and thus no fracking fluid spillage.  Mr. Gilbert explained that fracking is not a continuous operation in oil and gas production and only takes place during limited times at each well site.  While the initial staging of two fracking operations started at the beginning of the rainfall, operators moved both of them safely out of the affected areas before significant flooding occurred.  Although many media outlets speculated about discovering fracking disasters when the water receded, these fears were unnecessary as all fracking had terminated prior to the flooding.

Since the floodwaters have receded, the COGCC has taken many steps to respond to the damage, including assisting operators to inspect and repair damaged equipment, cleaning up any spilled toxic substances, and continuing evaluations of damage and response efforts.  The professional, technically trained staff of the COGCC has researched and written many reports to assist the industry in safely cleaning up, repairing, and returning affected oil and gas operations to normal production.  These reports include start-up procedures for undamaged shut-in wells, worker health and safety information for workers exposed to floodwaters containing E. coli and other hazards, recommended practices for flood impact zone reconstruction, and a notice to operators of new reporting requirements  for wells in flood impact zones.  Finally, the COGCC has requested a formal report from the oil and gas industry outlining all spills and damage.  In addition, an interim committee has been formed in the Colorado General Assembly to provide further oversight of the cleanup operations.

Mr. Gilbert reported that the COGCC has learned many lessons from the flooding that will better prepare them for future floods.  First, while both soil and metal berms should be built around wells to contain any material in case of a spill, the flooding and debris from this flood demonstrated that the metal berms stood up to the damage much better than soil.  Second, the anchoring systems for tanks and pipelines need better design and construction to keep tanks in place during violent weather.  Third, wells with remote shut-in capabilities are very beneficial to control wells inaccessible due to dangerous weather.  The COGCC is planning to hold future workshops to discuss COGCC action in response to these lessons.

In summary, no form of energy production is without risk, and it is important that oil and gas operations in Colorado are well prepared to prevent spills, even in the face of the most violent natural disasters.  While all spills of toxic materials are significant and serious, the quick action by the oil and gas industry and immediate response to the flooding by the COGCC kept Colorado lands free from any major threat to the environment or public health.

 

Additional Resources

The COGCC has documented and published all reports about the flooding and response on their website at http://cogcc.state.co.us/Announcements/Hot_Topics/Flood2013/Flood.htm. The website includes the COGCC map showing wells in the flood impact zone; COGCC start-up procedures for undamaged shut-in wells; COGCC health and safety information for workers exposed to floodwaters containing E. coli and other hazards; and COGCC recommended practices for flood impact zone well reconstruction.