Colorado Water Congress: What’s On Our Plate for 2013

COLORADO WATER CONGRESS 2013 ANNUAL CONVENTION

Denver, Colorado   January 31, 2012

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

Colorado River Basin Study

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

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

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

Drought

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

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

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

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

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

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

Good Samaritan Legislation

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

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

Public Trust Special Project

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

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

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