The Green River

While the Green River, which runs through Utah, Wyoming, and Colorado, is only a tributary of the Colorado River, it has still become a major source of debate and controversy among the three states’ residents and lawmakers.  The Green River starts in the Wind River Mountains in Wyoming and then winds 730 miles downward toward the ocean running through places such as the Browns Park and Dinosaur National Monument.  Many people from all over the nation love the Green River because it carved out some of America’s most iconic canyons and is seen as one of the most beautiful waterways in the nation.  The river is also valued as home to several threatened and endangered species, including the bonytail and humpback chub, the razorback sucker, and the Colorado pikeminnow.

 

Background

Recently, serious debate unfolded over the fate of the Green River and Colorado’s ever increasing water deficit.  A new study from the U.S. Department of the Interior, Bureau of Reclamation indicates Colorado will have at least a nine percent decline in water flow by 2050.  The study projected significant impacts on fish and fishing as well as negative impacts on other recreation.  White water rafting, which brings in at least $4.2 million a year for local businesses, would be impacted particularly hard.  While Colorado has allowed more than it is legally required to flow downstream, other states are already violating the 1922 Compact for the Lower Water Basin by taking more than their legal share of water from the river.  Many politicians and water developers have put forward different ideas in recent years to deal with the water deficit, but one of the most controversial plans is constructing a pipeline to take water from the Green River.

 

Flaming Gorge Pipeline

The pipeline, proposed by Aaron Million, is known as the Flaming Gorge pipeline.  The proposal calls for a 500 mile water pipeline to pump eighty-one billion gallons of water per year out of the Green River in Wyoming for use in Colorado, which amounts to approximately twenty to thirty percent of the river’s annual flow.  At this time, the pipeline would cost between seven and nine billion dollars without including any costs to deal with the massive environmental impacts the pipeline would cause.  The State of Colorado’s Water Conservation Board (“CWCB”) initiated a preliminary study on the pipeline, but the CWCB denied additional funding in January of 2013 for a subsequent, more intensive study.

The pipeline creates several concerns, one of which is how likely Utah and Wyoming will let the project go unchallenged despite the significant potential impact on their states.   Additionally, the pipeline lacks substantial popular support in any of the three states it directly impacts.  In fact, surveys of Colorado residents show that seventy-six percent of residents prefer a solution for the state’s water issues that focuses on using existing water more efficiently rather than building a pipeline.  American Rivers, a non-profit seeking protection of the United States’ rivers and streams, listed the Green River as the second most endangered river in a 2012 national study, mostly because of the proposed Flaming Gorge pipeline.

 

Recent Developments

In the face of the recent Bureau of Reclamation study and urgings from the public to look at conservation measures, the CWCB’s decision to stop funding the second study of Flaming Gorge pipeline may forecast trouble for the project.  Some even see abandonment of the study as an implied rejection of the project.  In the next few months, Colorado lawmakers will set a future course for the state’s water usage, which will impact generations of residents.  Any measure these lawmakers choose will also set a tone for the rest of the region on dealing with this increasingly desperate water situation.  Hopefully, Colorado chooses to set a tone of interstate cooperation that places conservation and smart water use above more environmentally questional proposals.


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Heading Photo Copyright Don Cload and licensed for reuse under the Creative Commons Licence


Background

The Colorado River Basin (“the Basin”) spans parts of seven western states: Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming.  The Basin currently provides water to around 40 million people and 4 million acres of irrigated agricultural land, making it one of most important watersheds in the western United States.  Beginning in January of 2010 and lasting for three years, the Department of the Interior funded a supply and demand study of water use in the Basin through the Bureau of Reclamation and its WaterSMART program.  Completed in December 2012, the published full report of the Colorado River Basin Water Supply and Demand Study (“Study”) can be found in the links provided below.

 

The Study

The Study evaluated future imbalances in the watershed over the next 50 years, up to year 2060.  The Study, however, did not result in any decision on how exactly the future imbalances will be addressed.  Performed in four phases, the Study (1) assessed the water supply of the watershed; (2) assessed the demands for water within the basin; (3) analyzed the reliability of the computer models; and (4) developed and evaluated strategies to decrease the imbalance. The Study found the average imbalance between supply and demand for water would be more than 3.2 million acre-feet.  Most of this imbalance is due to an increase in demand from municipal and industrial users because of an estimated doubling of the population within the Basin.  The study estimated that by 2060 the population could be approximately 76.5 million people.

 

It is important to note that any future water supply and demand scenarios predicted within the watershed are highly uncertain because an infinite number of possibilities exist.  While no study will be exact, the Bureau of Reclamation analyzed four different scenarios for both supply and demand.  On the supply side, four scenarios exist: (1) an Observed Resample scenario that looked at water tends over the past 100 years; (2) a Paleo Resampled scenario that looked at water trends over the past 1,250 years; (3) a Paleo Conditioned scenario that looked at water trends over the past 1,250 years but conditioned on the water values observed over the past 100 years; and (4) a Downscaled GCM Projected scenario estimating that the climate will continue to warm substantially over the next few decades.  This last scenario estimated that the natural water flow within the basin will decrease by approximately 9% over the next 50 years.  On the demand side, four scenarios also exist: (1) a Current Projected Growth model; (2) a Slow Growth model; (3) a Rapid Growth model; and (4) an Enhanced Environment Growth model accounting for enhanced environmental stewardship.  All the scenarios were then run in different combinations through the Colorado River Simulation System in RiverWare software, obtaining a range of potential future system conditions.

 

The Study next evaluated more than 150 options and strategies on how to resolve imbalances in the watershed.  The options and strategies can be generally organized into four groups.  The first group included options that increase water supply such as reuse, desalination, and importation.  The second group included options that reduce water demand from both M&L and agricultural conservation.  The third group included options that modify operations such as transfers & exchanges and water banking.  Finally the last group included options that focus on governance and implementation of water such as stakeholder committees, population control, and reallocation.

 

Finally, the Study listed ten general areas of options and strategies seeking to resolve water imbalances that are realistic to implement within the watershed: water conservation and reuse; water banks; watershed management; augmentation; water transfers; tribal water; environmental flows; data and tool development; climate science research; and partnerships.  The Bureau of Reclamation closed public comments on the Colorado River Basin Water Supply and Demand Study on April 19, 2013, and all comments will be summarized and considered in planning activities.

 

Brief Comments on the Study

The best solution laid out in the Study is water conservation.  Because irrigated agriculture is responsible for approximately 70% of watershed water use, conservation is this sphere could result in significant savings.  Effective conservation can also occur in cities by reducing water use in outdoor landscapes because half of all city water use is involved in such endeavors.  With desalination technology rapidly evolving, it could become another very attractive option.  Desalination projects do occur in other countries, but the energy cost and cost of recovery are still very high.


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Generally, all prospective plans to bring water from Wyoming to Colorado involve the Flaming Gorge Reservoir and the Green River. The most well known plan for a pipeline comes from Aaron Million and his company Wyco Power and Water Inc. Million wants to build a pipeline to bring water to the front range, store water in new and expanded Colorado reservoirs, and create hydro-electric water along the way.

Both the Federal Energy Regulatory Commission (FERC), most recently in May 2012, and the U.S. Army Corps of Engineers, in July 2011, denied Million’s plan. Both agencies denied the plan for lack of information, lack of feasibility, and basically for being a poorly presented plan. The Army Corps of Engineers also stopped reviewing Million’s plan when its primary purpose changed from water supply to electrical power generation. FERC denied Million’s permit beforehand so the July 2011 denial was at a rehearing. FERC denied Million most recently because Million did not provide enough specifics and could not demonstrate any foreseeable authorization for the pipeline’s planned route and water conveyances, which was magnified by the extensive opposition and controversy to the plan.

Other Coloradans are also looking at diverting water from the Flaming Gorge Reservoir to Colorado. These include the Parker Water and Sanitation District and a large state task force of water interests from throughout Colorado.

The main question for the pipeline proposals, that many seem to overlook, is whether the state of Colorado has the right to draw any more water out of the Colorado River system. Colorado proponents considering the issue think Colorado has a right to the water. However, those in Wyoming, including Wyoming Governor, Matt Mead, disagree.

The Colorado River Compact of 1922 predates the Federal Government’s official declaration of the Flaming Gorge Reservoir in 1968. Thus, the Colorado River Compact allocated water before the Reservoir was created. However, it is important to remember that the U.S. Supreme Court and Congress can also help resolve water conflicts between states, and that the federal government, with its current expanded powers, could begin to regulate water like other survival needs like food production, air quality, etc. Additionally, Wyoming is no stranger to pressuring the federal government to act in Wyoming’s interest. In 2010 Wyoming threatened to sell state-owned land in Grand Teton National Park to private sources spurring the federal government to pay a fair price for those pieces of land.

Wyoming residents are, by a strong majority, against this plan and see it generally as a growing and poorly designed city’s attempt to take advantage of a sparsely populated state. The pipeline would potentially take water from a much beloved and used recreational area in southwestern Wyoming and destroy the environment in the process.

Wyoming currently has a “surplus water situation” because it does not use all of its allocated water under the Colorado River Compact while Colorado, with its growing urban sprawl, sees a future of water deficit. However, some politicians and Wyoming citizens think that Wyoming does use all of its allocated water, for recreation and outdoor sports in additional to communal and farming uses.

Many environmental groups and outdoor enthusiasts also oppose the pipeline because it would do severe and irreversible damage to the Flaming Gorge Reservoir, the animal and marine life, and the Green River.

It may not be Aaron Million who next petitions the federal government for approval to bring Flaming Gorge Reservoir and Green River water to Colorado, but it will happen again, and in the near future.


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Garber v. Wagonhound Land and Livestock Co., 279 P.3d 525 (Wyo. 2012) (holding that evidence was sufficient to establish that a transfer of reduced water right would not exceed historic consumption or diversion under existing use or diminished return flow; transfer would not injure other lawful appropriators; and Wyoming State Board of Control reasonably reduced the right available for transfer by four percent to account for loss of tributary inflow resulting from transfer).

In the fall of 2007, VenJohn and Wagonhound (“Petitioners”) petitioned the Wyoming State Board of Control (“Board”) to change the place of use, point of diversion, and means of conveyance for water appropriations on 174.8 acres held by VenJohn for use on Wagonhound’s property. Intervening landowners (“Objectors”) objected to the petition, and the Board held a contested hearing. The Board voted to approve the transfer of water rights attached to 152.5 acres, which included reductions to account for lands VenJohn historically irrigated with contract reservoir water and a four percent loss of tributary inflow as a result of the transfer. Objectors appealed the Board’s decision to the District Court of Converse County, Wyoming. The district court upheld the Board’s decision, and Objectors appealed to the Supreme Court of Wyoming. The Wyoming Supreme Court (“court”) affirmed.

Wagonhound’s property is located approximately 30 miles upstream from VenJohn on the North Platte River. Two tributaries, LaBonte Creek and Wagonhound Creek, enter the North Platte between the historic and proposed points of diversion. These creeks are subject to low or no flow during the late summer. Wagonhound planned to use the addition of VenJohn’s water rights to irrigate crops under three central pivot sprinklers—a system very similar to the system VenJohn historically used.

Objectors first argued that granting the petition would violate the statute governing changes in place of use of water rights, Wyo. Stat. § 41-3-104, which prohibits the transfer of water rights that results in an increase in either the quantity of water used or the rate of diversion under the existing use. Objectors based their claim on the assumption that Wagonhound would divert at the maximum allowable rate under the right for the entire irrigation season and thereby exceed VenJohn’s historic diversion and use by 328 acre-feet. The court applied the substantial evidence standard of review and rejected this assumption, noting that such maximum diversions would be highly unlikely or impossible. The court held that the Board correctly determined the amount available for transfer based on the acreage VenJohn historically irrigated consistent with the duty of water.

Objectors next argued that the transfer would violate the § 41-3-104 prohibition against increasing the historic amount consumptively used under the existing use. Objectors based their claim on the fact that Wagonhound’s complex irrigation system could apply water from the VenJohn right to any of the fields fed by the system, regardless of whether the land was attached to a VenJohn right. The court rejected Objector’s argument as speculative and dismissive of the ability of authorities to regulate water resources. Instead, the court held that on-the-ground factors such as climate and soil type provided evidence to support the Board’s decision.

Objectors further argued that transfer of the VenJohn right would violate § 41-3-104 by reducing return flows. Objectors supported their argument by claiming that Wagonhound diverted water into lined ponds that would allow less return flow than VenJohn’s unlined ponds. The court held that the Board’s decision was reasonable, considering evidence that both VenJohn and Wagonhound’s systems allowed similarly low amounts of return flows.

Objectors also argued that the transfer would violate § 41-3-114 by causing injury to the rights of other appropriators. Objector’s claimed that any negative change in flow resulting from the transfer would injure junior appropriators by increasing the likelihood of an allocation year and regulation of junior rights. The court upheld the Board’s decision that, based on expert testimony, the transfer would not result in measureable changes to the flow of the North Platte that could injure other appropriators.

Objectors also argued that the transferred right should be reduced by 7.6 percent to account for lost tributary inflow resulting from the transfer, as opposed to the four percent reduction approved by the Board. The Objectors based their reduction calculation on an historic average of annual flows at VenJohn’s diversion point, while Petitioner’s expert consultant espoused a calculation based on historic median flow to better account for the disparity between dry months and flood events. The Court deferred to the Board’s expertise and applied a 4 percent reduction, noting the complexity involved in such inflow calculations.

Finally, Objectors argued that the court should reverse the Board’s decision to allow amendment of the petition to meet the §41-3-114 requirement that a petition fully identify ownership of an appropriation or establish sole ownership by the petitioner. The original petition failed to identify the ownership interests of three individuals, and the Board directed Petitioners to amend the petition maps to reflect these omitted interests. The court upheld the Board’s decision, noting that Objectors failed to explain how the Board’s process was inappropriate, in violation of statutory or Board rules, or injurious to other landowners.

Therefore the court rejected Objectors’ arguments and affirmed the decision of the Board allowing for the transfer of the VenJohn right to Wagonhound.