Category Archives: Current Events

Colorado Legislature Swimming in Proposed Water Bills

Lauren S. Joseph  ·  

Lawmakers in Colorado are considering a number of water bills for the 2013 legislative session.  The proposed bills come in the midst of a nation-wide drought that has hit Colorado particularly hard, and are aimed at increasing water conservation efforts.  According to Sen. Ellen Roberts, R-Durango, a sponsor of one of the bills, “we need the ability to respond to the drought.”  As a result, some of the proposals mark a departure from the traditional Colorado water doctrine, which involves maximizing water use and promotes a “use it or lose it” policy that has been in operation for more than a century.

BACKGROUND

Colorado has been a prior appropriations state since before statehood and during its territory days.  The prior appropriations doctrine calls for a “first in time, first in line” approach to water rights, whereby senior appropriators take priority over junior appropriators.   In other words, a person can claim a water right by being the first to use the unclaimed water, and people maintain the right as long as they are continuously using the water.  In an 1882 decision, the Colorado Supreme Court explained that the aridity of the land and the importance of irrigated agriculture was the rationale for the prior appropriations doctrine.  This is a departure from the common law riparian doctrine, which holds that running water is the property of the public and private landowners lay claim to the waters on the shores and banks of their property.   Colorado’s prior appropriations doctrine reflects the complicated nature of western water issues and some have even argued it is the most intricate system of water laws in the nation.

PROPOSED LEGISLATION

Senate Bill 19: Promote Water Conservation

Section 1 of Senate Bill 19 states that under the current system, a water user has no incentive to reduce the amount of water diverted (or consumed) because the amount of water that can be diverted is “is limited to the amount of water that was historically consumed by the original type and place of use.”  That is, there is a fixed amount of water that can be diverted or consumed which is determined by historical use.  Further, under the present system, water conservation results in a reduction of consumptive water rights—the ability to remove water from the source for agriculture, drinking water, irrigation, commercial uses, and other uses which do not return the water back to the source—because of the lack of incentive to conserve.  In other words, water conservation actually penalizes water users under the current system because it reduces the consumptive rights of those that conserve.  Senate Bill 19 aims to correct this issue by incentivizing appropriators to conserve water and allowing the diversion of water for conservation purposes without reducing water rights.

Senate Bill 41: Protect Water Storage Long-Term Use

The purpose of Senate Bill 41 is to have a long-term water storage system for firefighting and drought mitigation by increasing the definition of ‘beneficial use’ to encompass the storage of water for firefighting.  Further, the bill states that a water right is not abandoned if water is placed in storage.  This is a reversal of Colorado Supreme Court holdings which held that beneficial use does not include the storage of water.  For example, in a 2011 decision, the Court held that in order to store water there must be a demonstration that absolute storage rights have been exhausted before conditional storage rights can be perfected.  In other words, an appropriator must show that a water right which has been placed to beneficial use is complete (absolute) before the possibility of being granted the ability to store water for a conditional purpose (firefighting or drought mitigating).  But under Senate Bill 41, there does not need to be a showing that all absolute water rights have been perfected before conditional water rights can be exercised in order to ensure there is adequate water storage for firefighting and drought mitigation.

Senate Bill 75: Promote Water Conservation of Designated Ground Water

The purpose of this bill is to protect users of groundwater that conserve their water from losing their rights.  It states that “once the state engineer issues a final permit for the withdrawal of designated groundwater . . . a reduction in the amount of water used pursuant to the permit due to the conservation of water is not grounds to reduce.”  In other words, groundwater users should not be penalized through a reduction in overall rights due to the conservation of water.

House Bill 1018: Beneficial Use Produced Water Dust Suppression

This bill gives the solid and hazardous waste commission jurisdiction to regulate the groundwater used by oil and gas companies to suppress dust in rural areas and on dirt roads.  The commission is directed to promulgate regulations that would protect state waters from pollution and the public from exposure to toxic materials.  The regulations should conform to the federal environmental protection agency’s (“EPA”) standards regarding radioactive material in water used for dust suppression and should not exceed the EPA’s allowed maximum concentration for such material.

House Bill 1044: Authorize Graywater Use

Graywater is defined under Section 1 of House Bill 1044 “as that portion of wastewater that, before being treated or combined with other wastewater, is collected . . . for the purpose of being put to beneficial uses authorized by the water quality control commission.”  Graywater is water collected from sources authorized by the water quality control commission (“commission”), such as from bathroom and laundry room sinks, bathtubs, showers, and laundry machines.  However, the bill specifies that wastewater from toilets, kitchen sinks, urinals, utility sinks, and dishwashers are not permissible types of graywater.  The rationale for the bill is that the utilization of graywater for authorized purposed will maximize water conservation efforts.  Furthermore, the bill seeks to clarify under what circumstances graywater can be used.  In addition, the bill gives counties and municipalities the discretion to authorize graywater use in compliance with the minimum statewide standards that will be determined by the commission.  It also provides counties and municipalities with absolute authority to enforce resolutions and ordinances in regards to graywater use.

House Bill 1130: Reapprove Interruptible Water Supply Agreements

Under this bill, the state engineer can reapprove the operation of an interruptible water supply agreement a total of three times, whereas before the state engineer was only permitted to do so once.  Interruptible water agreements allow for the “temporary change in the point of diversion, location of use, and type of use of an absolute water right without the need for . . . adjudication.”  The underlying purpose of House Bill 1130 is to broaden water sharing agreements between private users and public users, such as between farmers and cities

CONCLUSION

Some of the proposed water bills are quite controversial because they represent a departure from Colorado’s traditional water doctrine.  For example, under the current system if a water user does not use their water they are deemed to have abandoned them and the water courts can reduce their water rights.  Senate Bill 75 addresses this matter by encouraging the users of groundwater to conserve their water without risk of reduction.  Moreover, Senate Bill 41 is in response to a Colorado Supreme Court decision which held drought mitigation and firefighting are not proper justifications for water storage.  According to Sen. Roberts, “The idea of it is to push back on those court cases and say, no, you can store water for firefighting and drought mitigation,” in order to promote better planning for  future droughts.   Another bill that encourages conservation is House Bill 1044, sponsored by Rep. Randy Fischer, D-Fort Collins, which allows for the use of graywater.  Regardless of whether the expressed objective of the bill is water storage or more broadly, water conservation, one thing is clear, water issues are a hot topic in Colorado this year.  It is likely the current drought and the prospect of another wildfire season like 2012 has prompted the legislature to dive into water issues.  With the existence of drought conditions continuing in the foreseeable future, it is also probable that we will see more changes proposed to the traditional Colorado water doctrine.

–Lauren Joseph is an Experiential Educator and has worked with corporate clients, at-risk youth and adults with co-occurring disorders in dynamic learning programs designed to facilitate positive change.  She also is an outdoor enthusiast and is excited to bring her passion for the environment to the Water Law Review.

Sources:

Marianne Goodland, Water Issues Expected to be Big in the 2013 Legislative Session, The Holyoke Enterprise (Jan. 30, 2013), http://www.holyokeenterprise.com/index.php?option=com_content&view=article&id=6643:water-issues-expected-to-be-big-in-the-2013-legislative-session&catid=34:local-news&Itemid=34.

Joe Hanel, Water Bills on Tap, The Durango Herald (Jan. 25, 2013), http://durangoherald.com/article/20130125/NEWS01/130129721/-1/s.

Justice Gregory J. Hobbs Jr., Colorado Water Law: An Historical Overview, 1 U. Denv. Water L. Rev. 1, (1997).

Lawrence J. MacDonnell, Five Principles that Define Colorado Water Law, 165 Colo. Law., (1997).

H.B. 1018, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

H.B. 1130, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

H.B. 1044, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

S.B. 19, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

S.B. 41, 69th Gen. Assemb. Reg. Sess. (Colo. 2013).

S.B. 75, 69th Gen. Assemb. Reg. Sess. (Colo. 2013).

California’s Bay Delta Conservation Plan and Governor Brown’s Tunnels

Tori Sundheim  ·  

The Bay Delta Conservation Plan (“BDCP”) has recently dominated California water news, particularly since Secretary of the Interior Ken Salazar and California Governor Jerry Brown announced the Delta tunnel plan, now coined “Brown’s Tunnels.”  However, there is little discussion of what exactly the BDCP is and how it may be seen to fruition.  The media alternately characterizes the proposals as either an excuse to increase the amount of water exported from Northern California, or the best way to restore California’s environment and preserve water supplies for municipal, agricultural, and other consumptive uses.  This inconsistent rhetoric fails to provide information to help the public understand what the BDCP is, how it relates to “Brown’s Tunnels” and why some might be for or against it.

The BDCP and “Brown’s Tunnels”

The BDCP is a water user-driven effort initiated in 2005 with support from the California legislature, partly as a reaction to the failure of prior efforts to resolve water supply/ecosystem conflicts in California’s Sacramento-San Joaquin Bay Delta (“Delta”).  In California, the federal Central Valley Project and the California State Water Project (collectively “Projects”) divert and store water in the relatively wet northern part of the State and then release that water from storage and pump it through the Delta to the drier, more populous portions of the State.  The transportation of water through the Delta—and the resulting changes in flow, water quality, and other environmental parameters—is considered a key cause of the decline of the Delta’s environmental health.  This decline continues to occur despite the reduction of water supply for the Projects and their contractors from the operating permit’s Reasonable and Prudent Alternatives (“RPA”) to the Biological Opinions written by the Fish and Wildlife Services and National Marine Fisheries Service. Further restrictions are imposed by the State Water Resources Control Board’s (“Water Board”) flow objectives. The contractors are largely public agencies that provide water to urban and agricultural customers through the State of California whose contracts provide shortage provisions allowing for the reduction of water to meet state and federal environmental laws and permits, such as the RPAs, flow objectives and other operational restrictions.

In the face of this turmoil, the BDCP’s purpose is to provide the Projects with a comprehensive approach to address the Delta’s challenges while gaining a streamlined fifty-year take permit with “no surprises” assurances, at an estimated cost of $14 billion to comply with state and federal endangered species laws. This cost will continue to change, especially once the BDCP team releases its Chapter 8 documents the week of April 22, 2013.

The BDCP proposes to incorporate large-scale ecosystem restoration in the Sacramento-San Joaquin Delta rather than the current and former species-by-species approach using the best available science and an adaptive management and monitoring program. At the same time, recognizing that water diversions also serve public interests, the BDCP also seeks to improve water supply reliability.  At present, nine water supply and conveyance alternatives are being studied, the most controversial of which is the preferred alternative mentioned by Brown during a press conference (hence the so-called “Brown’s Tunnels”).

This “plumbing” proposal relies on a conveyance system that would circumvent water around the Delta using two thirty-five-mile-long tunnels. This proposed conveyance system is an effort to reduce the current reversal of natural flows in the Delta and increase the Projects’ flexibility.  This would in turn allow the BDCP to operate from one facility if the other must be shut down in the event of flooding, seismic activity, or increased instream requirements in the Delta.  The BDCP would continue to rely on the South Delta Pumps during much of the year, so flow reversal would only be reduced when the new pumps are operated, unless the new diversions are also large enough to cause reversal of flows and saltwater intrusion farther up the Sacramento River.  The fundamental idea of the BDCP, including the “tunnels,” is to achieve “co-equal goals” of ecosystem protection and water supply reliability.

BDCP Legal Requirements

Partly in response to the Delta environmental and water crisis, in 2009 the California legislature enacted a historic Water Reform Legislative Package, which includes the Delta Reform Act of 2009 (“Delta Reform Act”).  The Delta Reform Act lays out the legal requirements the BDCP must meet.  If successfully completed, the BDCP will be adopted as part of the Delta Stewardship Council’s (“Council”) Delta Plan.

The BDCP is a joint state and federal project designed to meet the requirements of both state and federal law. It aspires to the coexistence of agricultural and economic interests with environmental requirements (the “coequal goals”) and claims that the proposed tunnels, in conjunction with critical habitat restoration, will help recover listed species.  Specifically, the BDCP is intended to be both a Natural Community Conservation Plan (“NCCP”) and Habitat Community Plan (“HCP”) pursuant to the state and federal Endangered Species Acts.  The lead agencies are the California Department of Fish and Game, the Department of Water Resources, the Fish and Wildlife Service, and the National Marine Fisheries Service.  These agencies are working together with a consortium of other responsible agencies and the BDCP proponents.

Pursuant to California’s Natural Community Conservation Plan Act, a NCCP is designed to protect multiple species comprehensively and restore their habitats; in return, signatories obtain exemption from liability for “take” of listed species. Participants who adhere to an approved plan are to some degree protected from future land or monetary requirements caused by subsequent species listings, often termed “Babbit’s no surprise policy,” which is viewed as an attractive opportunity for the water contractors. The NCCP lead agency is the state Department of Fish and Game.  The NCCP must be consistent with the California Environmental Quality Act (“CEQA”), and pursuant to CEQA an Environmental Impact Report (“EIR”) will be prepared.  This EIR must include feasible mitigation measures and alternatives related to the biological impacts on covered species and their habitat, including: “flow criteria, conveyance alternatives, climate change effects, effects on migratory fish and aquatic resources, potential effects on Sacramento and San Joaquin River flood management, natural disaster recovery and potential effects on Delta water quality.”

The federal equivalent to the NCCP is a Habitat Conservation Plan (“HCP”).The HCP lead agencies are the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (“NMFS”).  The National Environmental Policy Act (“NEPA”) requires an Environmental Impact Statement (“EIS”).  These agencies will work with the BDCP team to prepare a joint EIS/EIR. If all goes well, that process will result in an approved NCCP/HCP.

The Tunnels’ Potential Effect on Water Supply and Species Protection

It is difficult to determine the potential effects of “Brown’s Tunnels” on water supply and species protection until certain details are determined, including the number of intakes, the diversion capacity of the intakes, the conveyance capacity of the “tunnels,” and approved operating criteria.  But by law, these details cannot be addressed until after the environmental review (including the EIS/EIR) is complete.  Options being considered for study in the EIS/EIR are the intakes (which have been reduced from an initial five to three) and the capacity (which has been reduced from 15,000 cubic feet per second (“cfs”) to 9,000 cfs).  By some calculations, a 9,000 cfs tunnel could divert over 6.5 million acre-feet per year. However, that figure is misleading, because water projects rarely divert at full capacity; instead, intake and conveyance facilities are designed so projects can adjust to permit requirements and also divert during wet periods and store that water for release during dry periods.

The Projects’ current average annual yield is 4.7 million acre-feet, but not all of this water is “Delta” water.  Moreover, only a portion of the water is delivered through the Delta, so only a portion of this water would be affected by the BDCP.  The rivers flowing into the Delta include the Sacramento, San Joaquin, Mokelumne, Cosumnes, and Calaveras.  These rivers and their tributaries carry about half of the State’s total annual runoff.  The south of Delta projects are supposed to divert a portion of this water to Exchange Contractors, Kern County, Santa Clara Valley, Metropolitan Water District and San Luis Contractors, which also includes Westlands Water District.

Project contractors do not currently receive all of the water promised to them during dry years.  For example, SWP deliveries have ranged from 1.4 million acre-feet in dry years to over 4.0 million acre-feet in wet years. But even in a year like 2011 where there were record exports totaling 4,545,937 acre-feet, south of Delta diversions still only received 80% of their contracted amount; Westlands received 1,529,200 acre-feet/ 1,911,500 acre-feet and Metropolitan 920,000 acre-feet/ 1,150,000 acre-feet. This inconsistency results from two factors.  The first factor is drought—California has seen a string of multiple dry years, as it often does.  The second factor is restrictions on water diversions designed to protect aquatic and riparian species and ecosystems pursuant to ESA permits.

One of the purposes of the BDCP, including “Brown’s Tunnels,” is to address this second factor.  To the extent that deliveries are currently restricted for environmental protection, those deliveries can be increased once environmental concerns are addressed.  The media often mischaracterizes the BDCP on this issue; the BDCP does not promise the Projects new water rights and the Tunnels are not intended to increase diversion beyond the Projects’ existing rights.  Instead, the idea is that the Projects will receive more of the water already promised to them under their existing rights, and they in turn will be able to deliver this water to their contractors, who deliver the water to municipal and agricultural customers throughout the State.

Habitat restoration is another Project feature under scrutiny, as there are questions about what the historic Delta looked like and how to change the landscape to recapture that historic state. What is clear is that the degradation of endangered species has resulted from loss of critical habitat.  Habitat loss has resulted from multiple stressors, including but not limited to: water quality, flow, predation, habitat barriers, entrainment, hydrologic changes, hatcheries, climate change and change in nutrient loads.  Habitat restoration requires addressing these stressors collectively and providing space for species to recover. Another problem is that science does not provide guarantees that this restoration will contribute to species growth.  A recent study by the National Research Council found efforts to eliminate any one stressor are unlikely to reverse the decline in species population.  Of course, this study does not mean that efforts to eliminate these stressors will fail or should not be attempted, but the uncertainty is a concern for those who would provide the several billion dollars of funding for the BDCP, including the public and Project contractors.

Funding

Water users’ and contractors’ willingness to pay for the tunnels depends greatly on the eventual capacity of the conveyance system.  The proposed conveyance system criteria, including the number of intakes, how many cubic feet per second the facility would divert and what kind of decision tree would be used to incorporate the best available science, will be announced later this year. Once the Implementation Costs and Funding Sources chapter is released, it will contain the costs related to primary components of the BDCP as well as potential funding sources. The cost of the BDCP is currently estimated at $14 billion.  BDCP funding for the habitat component will largely come from the $11 billion water bond (which was scheduled to be on the 2012 ballot but was delayed until 2013-2014) as well as other public funds pending the BDCP’s inclusion in the Delta Stewardship Council’s Delta Plan.

However, the funding related to the “plumbing” must come directly from Project contractors; their willingness to pay may depend in large part on the ultimate size and operational details of the new “Tunnels” conveyance system because these details will determine the scope of water supply benefits from the BDCP.  In this regard, Project contractors are typically public agencies that deliver water for municipal and agricultural purposes.  These agencies must justify expenditures to their constituents.

The BDCP’s Uncertain Future

Although the BDCP is a legally recognized process and constituents have worked tirelessly through the planning stages, it is an increasingly complex, expensive, and controversial process.  Many key components must still be developed before success might be achieved.

First, the BDCP will have to incorporate the new flow standards the Water Board will set within the next few years.  The Board has been mandated to set new flow standards as a result of increased litigation over protecting Delta fish species.  These new standards may impose drastically different requirements, which will have a direct impact on the amount of water the Projects can divert and the options for managing Delta water resources.

Second, several specifics of the tunnels have yet to be legally proposed, including the capacity and design of the pumps and conveyance systems, where they would be located, and how they would be built and operated.  There are no guarantees that the current proposals will remain viable, and the willingness of Project contractors and the State to help fund the BDCP depends on the final numbers.  The water bond delay increases this uncertainty.

Finally, there is disagreement about the balance of costs and benefits, economic and otherwise, of implementing (or failing to implement) the BDCP. The BDCP recognizes that agricultural and economic interests may coexist with environmental requirements so long as California can develop the infrastructure necessary to provide key habitat restoration.  As this process develops, California continues to devote its best efforts to provide a workable solution for ecosystem and water supply reliability concerns.

For more information, visit the Bay Delta Conservation Plan website at www.baydeltaconservationplan.com.

Tori Sundheim will finish her J.D. this spring at the University of the Pacific McGeorge School of Law. She is also a legal intern at the Delta Stewardship Council. This article does not represent the views of Delta Stewardship Council or the State of California.

Sources:

Administrative Draft BDCP, EIR-EIS Chapter 3 – Description of Alternatives 2-29-12, (Feb. 29, 2013, 10:00 AM), http://baydeltaconservationplan.com/Library/DocumentsLandingPage/EIREISDocuments.aspx.

Anne Parker, Natural Community Conservation Planning: California’s Emerging Ecosystem Management Alternative, 6 U. Balt. J. Envtl. L. 107, 108 (1997).

Brian Thomas, BDCP Presentation Metropolitan Water District Oct. 3, 2012 (Oct. 12, 2012, 5:00 PM), http://www.mwdoc.com/filesgallery/01b_BDCP_Presentation_MWDOC_10_03_12_v2.pdf.

Cal. Water Code §§ 85054, 85320(e), 85302(b)(2)(A)-(G) (West).

Fish & G. Code, § 2820(e) (West).

U.S.C. §§ 1531 et seq. (West).

CALFED Bay-Delta Program Ecosystem Restoration Program, Minimizing impact of Mercury from BDCP Restoration Activities (Oct. 14 2012, 9:00 PM), https://nrm.dfg.ca.gov.

Doug Obegi, Record Bay-Delta Water Exports = 80% of Maximum Contract Allocations (Oct. 14, 2012, 6:14 PM), http://switchboard.nrdc.org/blogs/dobegi/record_bay-delta_water_exports.html.

Governor Brown And Obama Administration Outline Path Forward For Bay Delta Conservation Plan: California, Interior, NOAA Reaffirm Commitment To Comprehensive Solution To California’s Water Supplies And A Healthy Ecosystem (July 25, 2012), http://baydeltaconservationplan.com/news/news/12-07-25/Governor_Brown_and_Obama_Administration_Outline_Path_Forward_for_BDCP.aspx.

Nancy Vogel, No Guaranteed Delta Diversions (Oct. 14, 2012, 5:29 PM), http://baydeltaconservationplan.com/blog/blog/12-09-26/No_Guaranteed_Delta_Diversions.aspx.

University of the Pacific Eberhardt School of Business, Benefit- Cost Analysis of Delta Water Conveyance Tunnels (July 12, 2012), http://forecast.pacific.edu/articles/BenefitCostDeltaTunnel_Web.pdf.  

Endangered Razorback Sucker Returns to Grand Canyon Waters

Rob Bullard  ·  

Background

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

Significance of the Razorback’s Return

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

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

Conclusion

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

Sources:

Wildfires and the Impact on Water Quality

Aaron Brunskill  ·  

Background

In the summer of 2012, several major wildfires burned thousands of acres of Colorado forests.  The National Interagency Coordination Center reports that nearly 1.2 million acres have been burned in the Rocky Mountain region in 2012 alone.  Wildfire risk will increase in the near future, according to Colorado Senator Mark Udall in a recent letter to the United States Department of Agriculture, asking the department to help reduce the wildfire risk in the state’s overgrown forests through increased logging.  Senator Udall, who serves on the U.S. Senate Energy and Natural Resources Committee, cites drought, high rates of pine beetle kill, and higher population in fire risk zones as significant contributors to the increased wildfire risk.  Additionally, an article recently published in the Ecological Society of America journal, Ecosphere, estimates increased risk of wildfires in temperate zones, like Colorado, over the next few decades in response to global climate changes.

Compounding the immediate damage done by wildfires to public and private property is the subsequent negative effect on the water flow and quality downstream when the fires occur in forested watersheds.  Water users downstream of burned areas experience an increased risk of flash floods during rainstorms as well as dramatic declines in water quality for several years after the fire.  These effects pose problems for water utilities in particular.  Water utilities are obligated to meet federal regulation for safe and clean drinking water for their customers despite source water quality.  With an increased risk for wildfires in the future, they must look for possible solutions to the water quality problems.

Effects on Water and Soil

The Colorado State Forest Service lists several latent effects of wildfires on soil and water conditions.  With the associated loss of vegetation after wildfires, there is very little to slow water runoff during rainstorms.  In particularly severe wildfires, the burning of certain plants releases a waxy substance that settles in and coats the soil, making it more difficult for the soil to absorb water.  These two conditions substantially increase the rate of erosion in watersheds, along with the risk of flash floods downstream.  Simultaneously, fast-moving water can sweep up debris, sediment, and ash— turning the water black and transporting a large amount of material downstream.  This sediment and debris can eventually clog smaller streams and rivers or begin to fill-in reservoirs.

A 2012 report from the U.S. Geological Survey measured the effects of the September 2010 Fourmile Canyon Fire on the water quality of the Fourmile Creek Watershed.  The report showed large increases in turbidity, nitrate concentrations, and dissolved organic carbon (“DOC”) concentrations during the light rainstorms shortly after the fire.  The increases were less substantial during the spring snowmelt, but heavy summer thunderstorms increased turbidity, DOC, and nitrate concentrations well above the levels following the initial precipitation, and moved a large amount of sediment from hillsides into the creek.  Because of the presence of mine waste in the Fourmile Creek Watershed, the Survey also detected slightly elevated levels of metal concentrations downstream.  The report indicates that these increased levels are likely to increase operation and maintenance costs for water utilities that are dependent on burned watersheds for source water.  Also, increased levels of sediment can fill-in and compromise water reservoirs.  Nitrates exacerbate algae growth, creating negative effects on water taste and odor.  Higher turbidity and DOC concentration complicates the chemical treatment process and results in more hazardous byproducts, such as chloroform and trihalomethanes.  The report cites other studies that have found similar water quality problems from burned watersheds for up to ten years after the fire.

Addressing the Problems

The U.S. Geological Survey report suggests that water utilities measure surface water quality after wildfires to determine when to divert water or when to change water sources.  For many utility companies, though, there are very limited alternatives to potentially degraded source water.

In Colorado, intergovernmental Burn Area Emergency Response (BAER) teams have begun addressing the problems created by wildfires, and continue to take action to prevent watershed erosion and improve water quality.  These teams include specialists from the Natural Resources Conservation Service, the Colorado Department of Transportation, the U.S. Forest Service, and local governments.  The BAER teams mulch and seed the worst burn areas to promote vegetation recovery, and attempt to slow water runoff and erosion through the construction of culverts, silt fences, and log terraces.  A large amount of funding for these teams comes from the federal government through the Emergency Watershed Protection program.  However, the amount of funding has not been adequate to fully address the damage done.  In response, Senator Udall has requested additional relief money from the Federal Emergency Management Agency, in part to help water utilities recover from the high cost of repairing source watersheds and infrastructure.

Professor Tom Meixer and Pete Wohlgemuth, a US Forest Service hydrologist, suggested a more proactive means of lessening the impact of wildfires on water quality in an article which found similar negative effects as the U.S. Geological Survey report.  Meixner, with a Ph.D. in Hydrology and Water Resources, worked with Wohlgemuth to analyze several burned watersheds.  Their research showed that the levels of sediment runoff and nitrate concentrations were substantially lower in areas that had previously been the subject of prescribed fires.  These controlled burns would reduce the amount of fuel available in wildfires.  With less fuel comes less sever burning in the watershed, and thus less negative effect on downstream water.

Conclusion

As the risk for wildfires increases in areas like Colorado, it’s important to recognize the potential resultant issues with water quality, and to take appropriate steps to maintain the efficient supply of clean drinking water.  Much of what is being done today is reactive in nature, such as seeking to speed up the process of watershed recovery and reduce the rate of erosion.  However, proactive alternatives are available and should be implemented as well.  As Senator Udall mentioned in his letter to the USDA, many Colorado forests are overgrown.  The added potential fuel for wildfires is a significant contributor to water quality problems downstream.  With the reduction of fuel through logging and controlled burns, it might be possible to reduce the undesirable latent effects of wildfires on forested watersheds and water quality.

Sources:

Real Estate Water Looting

Alan Kitchen  ·  

Background

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

Points of Controversy

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

United’s Defense

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

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

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

Sources:

Feeding a Thirsty World: What the Stockholm International Water Institute Really Said

Patrick Peluso  ·  

Background

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

Points in Controversy

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

The Facts

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

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

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

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

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

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

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

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

Conclusion

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

 

Sources:

Colorado Water 2012: The Year of Water

Austin Rueschhoff  ·  

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

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

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

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

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

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

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

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

Shipman noted that Water 2012 was not an effort made possible by a few individuals, but the ongoing dedication and effort from hundreds of partners and volunteers was the true strength of the campaign.  To honor and cheer the hard work of the campaign, Colorado Water 2012 invites all members of the public to attend a celebratory luncheon on January 30th, 2013.  Registration and further information for the luncheon can be found at www.water2012.org.

Sources

  • Colorado Water 2012, http://www.water2012.org/ (last visited Nov. 30, 2012).
  • Colorado Waterwise – Value of Water Campaign, http://coloradowaterwise.org/campaign (last visited Nov. 30, 2012).
  • E-mail Interview with Nona Shipman, Assistance Project Coordinator, Colorado Water 2012, in Denver, Colo. (Nov. 19, 2012).

EPA Places Value on U.S. Water Supply

Shannon Love  ·  

Introduction

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

Background Report

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

Conclusion

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

Sources:

  • CH2MHILL Develops Report on Changing Value of Water to U.S. Economy & Implications from Five Industrial Sectors, CH2MHILL (Sept. 25, 2012), http://newsroom.ch2mhill.com/pr/ch2m/ch2m-hill-develops-report-on-changing-239045.aspx.
  • OFFICE OF WATER, U.S. EPA, THE IMPORTANCE OF WATER TO THE U.S. ECONOMY, PART 1: BACKGROUND REPORT (2012).
  • Alan Kovski, EPA Works Towards Synthesis of Information on Evolving Economics of U.S. Water Supply, 43 ENV’T  REP. 2478 (2012) (discussing EPA project on the value of water for the U.S. economy).
  • Paul Quinlan, Panel Weighs Water’s Economic Impact as EPA Girds for Political Combat, E&E PUBLISHING LLC (Jan. 23, 2012), http://www.eenews.net/public/Greenwire/2012/01/23/3.