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Administering Colorado’s Water Resource

Scarcity Rules

Colorado’s State Engineer, Dick Wolfe All in a Day’s Work

Jerd Smith heads to the field with two water commissioners from vastly differing regions

Water’s Top Cop

Policing scarcity from the State Engineer’s Office

Reservoir “Rules” A Stream of En-Gaugement

Water measurement’s ongoing evolution

Right to Remain

Non-consumptive water rights pose a worthwhile administrative challenge

Water Underground

Optimizing use of an unseen resource

Toward a Sustainable Horizon Dick Bratton,

Gunnison Water Wheel

CFWE: The Next Five Years


I have a confession. Water administration is not something I was very familiar with until now. I can’t say I had a clear picture of what the State Engineer’s job was exactly until I met with Dick Wolfe last month to find out what he expects will be his most pressing issues over the next five years. Then I got to read Allen Best’s write-up, including views from Wolfe and the previous two state engineers, Hal Simpson and Jeris Danielson, on playing the role of Colorado’s top water cop, which cleared things up even more. Next, Jerd Smith transported me to the Blue River Basin and then the lower South Platte Basin for an on-theground perspective from two of Colorado’s 114 water commissioners. These guys (and gals, if Erin Light has anything to do with it) are truly getting their feet wet implementing the nuances of delivering water to the right place at the right time in the right amount, to the extent nature allows. Their job keeps getting more complicated as the years roll by, which

George Sibley reports on in his story on administering rights for water to stay in the stream, as the non-consumptive uses of water gain perceived value and recognition. We find out through Sibley that water measurement is incredibly important to the effort of enforcing Colorado’s instream flows, bringing us back to Smith’s report on the history of Coloradans’ efforts to calculate the volume and speed of an ever-flowing, liquid target. Finally, Josh Zaffos fills us in on groundwater administration, and how the advancing understanding of this hidden resource’s connection to surface flows has been quite the brainteaser, and possibly the source of more than one migraine, for almost everyone involved in its use or its administration. So, read on and discover the myriad responsibilities of the Division of Water Resources, or State Engineer’s Office as it is also called, and you may just gain a healthy sense of appreciation, as I have, that someone else is doing the stats.

Jayla Poppleton Jayla Poppleton (left) and Nicole Seltzer ventured out to the Windsor Reservoir to check out a Rubicon Gate, the latest in stream measurement devices. (See Stream of En-Gaugement on page 12.) Read Nicole’s update on the Foundation’s mission statement and strategic plan on page 29.

Jayla Poppleton, Editor


Colorado Foundation for Water Education 1580 Logan St., Suite 410 •  Denver, CO 80203 303-377-4433 • www.cfwe.org

Board Members Matt Cook President

Justice Gregory J. Hobbs, Jr.

HEADWATERS | S ummer 2009 All in a Day’s Work Jerd Smith heads to the field with two water commissioners from vastly differing regions............................................................ 2 Water’s Top Cop Policing scarcity from the State Engineer’s Office.......................... 9

1st Vice President

Reservoir “Rules”.................................................................................. 11

Rita Crumpton

A Stream of En-gaugement Water measurement’s ongoing evolution .................................... 12

2nd Vice President

Wendy Hanophy Secretary

Taylor Hawes

Assistant Secretary

Dale Mitchell Treasurer

Alan Hamel

Assistant Treasurer

Becky Brooks Tom Cech Rep. Kathleen Curry Alexandra Davis Jennifer Gimbel Callie Hendrickson Sen. Jim Isgar Chris Piper John Porter Chris Rowe Rick Sackbauer Robert Sakata Travis Smith Steve Vandiver Reagan Waskom

Staff Nicole Seltzer Executive Director

David Harper Office Manager

Kristin Maharg Education Program Associate

Right to Remain Non-consumptive water rights pose a worthwhile administrative challenge................................................................. 15 Water Underground Optimizing use of an unseen resource.......................................... 20 Toward a Sustainable Horizon............................................................ 24 Dick Bratton, Gunnison Water Wheel................................................. 27 CFWE: The Next Five Years................................................................. 29 On the Web Please visit www.cfwe.org, the Web site of the Colorado Foundation for Water Education, for additional content related to this issue, including multimedia “All in a Day’s Work” presentations created by photographer Kevin Moloney. Headwaters is a magazine designed to provide Colorado citizens with balanced and accurate information on a variety of subjects related to water resources. Copyright 2009 by the Colorado Foundation for Water Education. ISSN: 15460584 Edited by Jayla Poppleton. Designed by Emmett Jordan. Acknowledgments The Colorado Foundation for Water Education thanks the people and organizations who provided review, comment and assistance in the development of this issue.

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Administering ColorAdo’s WAter resourCe

Scarcity Rules

Colorado’s State Engineer, Dick Wolfe All in a Day’s Work

Jerd Smith heads to the field with two water commissioners from vastly differing regions

Water’s Top Cop

Policing scarcity from the State engineer’s office

Reservoir “Rules” A Stream of En-Gaugement

Water measurement’s ongoing revolution

Right to Remain

non-consumptive water rights pose a worthwhile administrative challenge

Water Underground

optimizing use of an unseen resource

Toward a Sustainable Horizon Dick Bratton,

Gunnison Water Wheel

CFWE: The Next Five Years

On the Cover: State Engineer Dick Wolfe, usually knee-deep in paperwork, explains his vision for the future—see page 25. Photo by Kevin Moloney Mission Statement The mission of the Colorado Foundation for Water Education is to promote better understanding of water resources through education and information. The Foundation does not take an advocacy position on any water issue.


Water commissioner Brent Schantz (above and top right) oversees part of one of the fastest-changing regions of the state, Water Division 1—the South Platte Basin. Schantz is responsible for an area stretching from Kersey to Julesberg. On any given day, he drives hundreds of miles doing field inspections and checking gauges like the Kersey gauge pictured above. Scott Hummer is his counterpart in Water Division 5, which includes the headwaters of the Colorado River. Below, Hummer checks a gauge at the inlet to the Hoosier Tunnel above Breckenridge.

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All in a Day’s Work Jerd Smith heads to the field with two water commissioners from vastly differing regions

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Like many water commissioners Hummer is part historian, part sociologist, part hydrographer and part naturalist.

Story by Jerd Smith | Photos by Kevin Moloney

turn to Summit County and the Blue River Basin he oversees in Colorado Water Division 5. Here in the headwaters of the mighty Colorado River, most of the state’s largest water utilities have a major presence. Their massive transmountain delivery systems supply drinking water to millions of people on the Front Range. The utilities, farmers and ski areas have spent millions of dollars over the years battling one another over who gets how much water and when. Hummer is the water cop responsible for keeping the peace and ensuring water is being measured and delivered properly. He knows, for instance, that the Roberts Tunnel is taking about 56.6 cubic feet of water per second out of the lake, based on satellite feeds that automatically gather data from dozens of river and reservoir gauges. Later today he will visit critical gauging stations to make sure the automated readings com-

© iStockPhoto.com

A white jacket of snow covers the Continental Divide and solid ice blankets Lake Dillon, Denver Water’s largest water storage reservoir. Beneath the stillness of the ice, water, as always, is moving into the mouth of the Roberts Tunnel, destined to travel 60-some miles down the east side of the Front Range to 1.2 million Denver Water customers. Summit County water commissioner Scott Hummer has already checked stream gauges this morning from his home above Lake Dillon, eyeing reservoir levels and flow rates. By 9 a.m. he has plowed through the paperwork at his tiny office in a Silverthorne industrial park. Hummer is one of 114 commissioners who oversee the day-to-day operation of Colorado’s rivers. A 20-year veteran of Colorado’s Division of Water Resources, Hummer, 49, is well aware that when the mountain snowpack begins to melt, all eyes

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ing in via satellite to the state’s monitoring system match those he sees on the river itself. As utilities, farmers and regulators gear up for the spring melt—a time to fill reservoirs and carefully balance the flow of water between the east and west slopes—everyone goes into a sort of hyper-alert mode, a ramp-up period that has people like Hummer carefully monitoring mountain snowpacks and checking gauging stations and tunnels to ensure they’re ready for the season. Above Dillon, the snowpack on that April day was 109 percent of average, according to the Natural Resources Conservation Service, a healthy reading given the chronic drought cycle that has plagued Colorado since 2002. But to Hummer and other commissioners, a slightly above average snowpack doesn’t necessarily mean it will be a good water year. “One month ago we were still below average,” Hummer says. “This is nothing to write home about.” Still, the snow in April is heavy and wet. On a deeply rutted dirt road heading over the Continental Divide, melting water sluices down through the snow, turning clay to a deep, greasy mud. Hummer is on his way to check the Hoosier Tunnel, which delivers water from the Blue River Basin to Colorado Springs. Inside this massive, old structure, completed in 1951, water drips from the granite ceiling as Hummer checks the gauge. It’s reading about 1 cubic foot per second, barely a trickle compared with the spring rush that will occur in a few short weeks. “Things are just getting started,” Hummer says. “In another month, it will be at 1,500 cfs.” Like many water commissioners Hummer is part historian, part sociologist, part hydrographer and part naturalist. He has a degree in geography, and he loves the diversity of his work. “In a district like this,” Hummer says, “you have every type of water right that has ever been adjudicated being used, from irrigation water, to water for snowmaking, to water from a geothermal well that is being used to heat a local hardware store.” Last week, he took snow shoes and hiked up to a ridge line to check a small mountain lake on which a nearby property owner had filed for a new water right. Later, he’ll write a formal report that the water court will use to evaluate whether to approve the water right. “The process of determining what a new water right will be starts with the

water commissioners,” Hummer says. “Most people don’t even know that water commissioners exist. Yet commissioners are the individuals who are responsible for allowing the people who hold and own water rights to divert their water. Denver Water has to deal with the water commissioner just like a rancher down in Durango has to deal with a water commissioner. Pretty much what we say goes.” Later this summer, he’ll be going door-to-door in the evergrowing mountain subdivisions of Summit County, checking wells to make sure people aren’t using water outdoors on lawns and in hot tubs. Here, about 3,500 wells operate but water is allowed only for indoor use because the wells draw from the same aquifer that supplies the Blue River. If homeowners and others over-pump, they must buy extra water to replenish the river. “If anyone had told me 20 years ago that I would be going to door-to-door checking hot tubs, I would have said, ‘You must be nuts.’” Just as Hummer is gearing up for spring runoff, on the east side of the Continental Divide, water commissioner Brent Schantz is at work in his Greeley office. Schantz oversees Districts 1 and 64 in one of the fastest-changing regions of the state—Water Division 1, the South Platte Basin. At 7:30 on a cold, cloudy April morning, he’s already taken a half dozen cell phone calls in his office. Two large computer screens offer him views of a slew of gauge readings from Kersey out to the Nebraska state line at Julesberg. Stacks of records and paper charts still used to graph readings at old monitoring stations cover an ancient wooden desk. New portable electronic devices that allow commissioners to automatically download data from stream gauges during field expeditions lie around, as do batteries and cables. Schantz, 41, took over supervision of District 1 in 2002, one of the driest years on record. It was a year that had groundwater-reliant farmers battling surface water-dependent farmers day after day. Conditions created by the prolonged drought, in addition to a Colorado Supreme Court case and a new state law, have mandated that well users put more water back into the river. Problems between well users and those who rely on surface supplies were first addressed in a 1969 law that established that the aquifer that supplied the wells also supplied the South Platte. Replacement

Scott Hummer checks the gauge in the Hoosier Tunnel near Alma, which delivers water from the Blue River Basin to Colorado Springs. The flow was about 1 cubic foot per second, barely a trickle compared with the spring rush. Listen to Scott Hummer and Brent Schantz describe their work and view additional photos at www.cfwe.org.

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ers using surface water or for out-of-priority well pumpgroundwater have access ing was required beginto satellite telemetry data ning in 1974 when the State that tells them how much Engineer’s Amended South water they are diverting Platte Rules were approved. almost instantly, not days Still, there had usually been or weeks later after hunenough water to go around dreds of acre feet of water in the South Platte, enough may have already been to keep both surface and improperly used. This near groundwater users happy. real-time data is now availBut 2002 changed that, able for all major diversion and the drought made it structures along the South clear that water demands Platte from Brighton to the on the South Platte— Nebraska state line. thanks to growing cities The slightest changes to and a massive irrigated the river’s flows may immefarm economy—had outFrom his Greeley office, Brent Schantz monitors satellite-equipped river gauges that provide instant feedback on fluctuating river conditions. diately alter whose water stripped the river’s ability rights can be exercised, to supply everyone. Since then, bitter court battles have been fought and hun- with the senior, or oldest, surface water right holders getting dreds of wells have been shut off. Well users who’ve survived their supplies first. Now the moment supplies in the river have spent millions buying water to augment their well use. change, Schantz alerts users whether they can divert more or Rules dictate that every time a well pumps out of priority, it less water or whether their surface water or well right is no automatically incurs a depletion debt to the river that has to longer in priority for the available water. In that case, well users be paid to prevent injury to senior water rights. They’ve built either need to shut down or prepare to incur a liquid debt to dozens of recharge ponds to ensure they can store extra water the river that will have to be paid out of their recharge ponds. and return it to the river as their wells draw from the aquifer. All On a good day—and there have been several this spring—the of these must be closely monitored by Schantz and his small river’s flow is abundant and “free,” and users can take whatever they need. band of deputies. Free river days are rare on the South Platte. And with each The added activity means the winter season—once a quiet time for water commissioners—has become almost frenzied year, with each new row of houses, the river’s supplies are because it is the time when well users can draw water from the further stretched. That painful reality pushes Schantz to work 12-hour days gathering data, monitoring recharge ponds, river to fill their recharge ponds. “I never thought I’d see the day when I looked forward watching for peaks and free river conditions, and informing to irrigation season starting,” says Schantz. “But I do. The well users when they must pay back water to pump. Like Hummer, Schantz spends at least part of his days in recharge periods are far more busy and hectic.” Schantz is on the cutting edge of an effort to automate April preparing for the spring runoff, verifying automated sateland publish the thousands of measurements that are made lite data. When the numbers don’t match what is actually occurdaily on this fiercely contested river. Now, many farm- ring on the river, he checks instruments and calls for repairs.

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the wheels of pioneer wagAs heavy clouds wrap ons. He travels for miles the eastern plains in a cool, on unmarked ranch roads, grey drizzle, Schantz venthoroughfares the early piotures out from Greeley to neers built along irrigation check the Kersey gauge, a ditches and across fields. critical measuring site just He’s been stuck near the below the confluence of Riverside Reservoir three the Cache la Poudre and times since becoming comthe South Platte rivers. As missioner. It’s an experihe drives, a massive set of ence he now takes pains to keys held on interlocking avoid. “On some of these silver rings cascade from roads, all you can do is the ignition of his white grab the wheel, drive as fast truck, rattling against the as you can without going steering column. There are into the ditch, and hold on. hundreds of keys to head Sometimes you make it. gates, diversion structures Brent Schantz checks diversion structures along the South Platte River to make sure water right owners are taking only what they’re allowed. Sometimes you don’t.” and well houses. If mayors Though Hummer and hold the keys to their cities, Schantz preside over widely differing river basins, each has an Schantz holds the keys to the South Platte. At the Kersey gauge, he pulls off Highway 37. First he appreciation for what the other must do in the field--educating checks gauge readings inside a small white station house, the public, calming angry water users, taking one phone call then he hikes back up to the highway and onto the bridge after another from those jockeying for position on the streams. And though Hummer is often reluctant to go door-to-door that spans the river. Semi-trucks sail by as Schantz leans over the railing to unlock a small metal box that holds a mea- to stop hot tub violations, he knows that his well-enforcement suring cable. Slowly he turns a crank lowering the cable until problems pale in comparison to those Schantz is trying to manit touches the river’s surface 20 feet below. This measure- age on the other side of the divide. “It’s hard to compare sending someone a violation because ment will help him calculate the volume of water moving they have an illegal hot tub in an accessory apartment to telling through the river that day. On the South Platte this is a tricky proposition because, a family in the South Platte that they are no longer going to be says Schantz, “The river bed is constantly moving.” One able to irrigate 3,000 acres of corn,” Hummer says. Still, Hummer’s work high in the headwaters is critical to gauge, the Balzac, is on a sand channel that is so shifty that the gauge has to be flushed daily because it becomes plugged the South Platte because much of the water the Front Range with sand. “The level at the top of the river may be the same, relies on originates in his territory. Spring “State-of-the-River” but from one day to the next, the bottom could have scoured meetings lure hundreds of people from both the West Slope and Front Range, and sometimes the gatherings turn raucous. out by a foot.” On any given day, Schantz drives hundreds of miles doing But Hummer is used to the tumult. As one sign pinned to the bulletin board in his tiny office field inspections, ghost-riding the Overland Trail, hoping he doesn’t sink into the sandy river bottom soil that also snagged reads, “There are no rules above 10,000 feet.” q

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Erin Light, pictured on the Elk River, is Colorado’s first female division engineer.

The Yampa’s First Lady Erin Light oversees the remote, lush Yampa River Basin, one of the last places in the American West where almost anyone can take water without a water right. Because of increasing use, however, the river is slowly being integrated into the state’s regulatory system, and Light, the first and only female division engineer in the state, is charged with bringing the wildcharging Yampa in line. Unlike her colleagues in the heavily-regulated Colorado River and South Platte River basins, Light doesn’t have to keep tabs on hundreds of stream gauges and measuring devices because until recently there haven’t been any, at least not on the Yampa’s mainstem. “When people from the Front Range come over here, they’re just shocked,” Light says. “The concept of being able to divert without a water right is baffling to them.” But not to Light. The Yampa Basin is a place of liquid plenty, and those ranchers whose families helped settle this stunning region have fought long and hard to keep state water commissioners from regulating how much water they divert. Light’s job is to convince them to join the regulated water world. It hasn’t, however, been easy. In the past two years she’s ordered 90 new measuring devices to be installed. At least 10 water users have failed to comply, forcing her to issue ceaseand-desist orders. “I really hope they don’t try to divert this spring because we’ll just have to shut them off,” Light says. And that’s almost unheard of on the Yampa. So are female division engineers. Light, however, grew up listening to stories of Elwood Mead, for whom Lake Mead is named, and of Howard Bunger, co-inventor of the Howell8

By Jerd Smith

Bunger valve. Both are her distant uncles, and both worked for the U.S. Bureau of Reclamation. She followed in their footsteps, earning her bachelor’s and master’s degrees in civil engineering from Colorado State University, focusing on hydraulics and hydrology. After college, she worked first in consulting, but then landed a job with the USBR in Denver before eventually finding her way to the Steamboat office of the Colorado Division of Water Resources. After working for five years as a hydrographer, she was named division engineer. After her appointment two years ago, she anguished for days over how to tell her boss, then-State Engineer Hal Simpson, that she was pregnant with her first child, though he had hired her and served as a mentor. He proved her fears groundless, taking the news well. Now Light’s staff of 11 includes seven women, five of whom are water commissioners, another oddity in the water world. Light hired one of those commissioners last fall, a 25-year-old who had been working in the Yampa as a ditch rider. Now she is overseeing a particularly contentious region of the basin. “She’ll have a lot to learn this summer,” Light says. “But I think I helped pave the way for her.” Light also paved the way for another soon-to-be mother, the water commissioner of the Piceance Creek basin of the White River. “I bet it was easier for her to come tell me she was pregnant than it was for me to tell Hal Simpson.” That so few women work in water administration beyond Light’s small universe is puzzling to her. “Sometimes I think it may be that they lack confidence,” Light says. “I really hope that’s not it, but it may be. To be a water commissioner you have to be a really tough person.” q

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Policing scarcity from the State Engineer’s Office

Water’s Top Cop

by Allen Best

If water were eternally abundant in Colorado, no dams would be needed for storage, their structural safety in annual need of inspection. Anyone could drill a well because, well, why not? Monitoring the allocation of streams, rivers and ditches would be unnecessary. Interstate water compacts—what are those? Instead, scarcity is the enduring reality, even in periods of relative plenty, which is why Colorado adopted the doctrine of prior appropriation at statehood in 1876, establishing an orderly process for who gets how much water, from where, and when.

of the law, with court decisions later rendering revisions to procedures with far-reaching consequences. In recent decades, urban growth and the emergence of new environmental values have impacted water distribution. Sustained drought in the early 21st century sobered users, administrators and policy-makers alike. Yet through these changes there has been coherence and clarity. The system has worked. At the bottom of this pyramid, but crucial in every way, are the water commissioners. Until 1969, they were deputized sheriffs, authorized to carry weapons as they carried out their duties of

other commonalities. All rose through the ranks, toiling at DWR before appointment to the top job. Moreover, all three men have lived on or near farms of the South Platte Valley—Danielson near Brush, Simpson at Severance, and Wolfe near Platteville. It’s fair to say that all three see themselves as public servants. In that respect, they have company with another State Engineer, M.E. Hinderlider, who worked out of a basement office in the Capitol from 1923 to 1954. “He was utterly, utterly devoted to Colorado,” says his granddaughter, Maureen Elliot. Today, carrying the torch as Colorado’s 21st State

“We provide stability and certainty on the river. If we didn’t have water commissioners, if there was nobody to enforce water rights, people would steal water.” —Hal Simpson, former State Engineer

Having a process, however, is one thing. Adhering to it is another. Hence the need for water commissioners, water division engineers and, atop the pyramid in the Colorado Division of Water Resources, the State Engineer. “Water wars. Chaos,” replies former State Engineer Hal Simpson quickly, when asked to imagine having no agency to administer the 173,000 water rights filed in the state. “We provide stability and certainty on the river. If we didn’t have water commissioners, if there was nobody to enforce water rights, people would steal water.” Blood has, in fact, been spilled in Colorado because of water. Whether the violence has been frequent enough to justify the large legend may be another matter. The prevailing story has been of quiet order and an attentive devotion to the efficient governance of every creek, ditch, and river—and, since the 1960s, every well. Yes, controversies have erupted. Opinions have differed in interpretation

fairly allocating water. When Simpson joined the agency in 1972, about half were former farmers and ranchers. Now they come from varied walks of life, although many have college educations, particularly in resource administration. More important than the degree is the skill set, says Simpson: technically competent but also peacemakers by nature, long on courage, and able to listen well and express themselves. The agency has seven water division offices, corresponding to each major river basin, with each division administered by a division engineer. As an agency, it is dominated by people with engineering degrees. This prevails, too, at the top. Simpson has master’s and bachelor’s degrees in civil engineering. His predecessor, Jeris Danielson, who served from 1979 to 1992, has the same plus a doctorate. Current State Engineer Dick Wolfe has bachelor’s and master’s degrees in agricultural engineering. All of their degrees are from Colorado State University. The three living state engineers have

Engineer, Wolfe says he couldn’t have done the job when his children were small. Most evenings he is still working from home, catching up on emails and other piled-up tasks, and he says the work is his hobby as well as his career. The State Engineer’s duties require orderly processing of voluminous paperwork and crunching staggering numbers. Division personnel process permits for 5,000 new wells each year and another 1,200 new water right filings. Just one augmentation decree can run 100 pages. But the core work lies in the field, where the division records 30,000 diversion and storage measurements annually. In 1879, when the Legislature appointed the first water commissioners, measurements were retrieved by horseback. That has changed, of course. Colorado continues to push the technological envelope to make real-time water readings available to all. More than 480 stream, ditch and reservoir gauges are monitored by satellite in a program operated in cooperation with the Colorado Water Conservation Board.

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“We can do our jobs as well as we can do because we have been given assets that I don’t think any other state has,” says Simpson. Questions now involve whether such technologies as Facebook and Twitter have a role in water administration. Yet at the end of the day—some very long days, perhaps, during irrigation season – the responsibility of water administration literally involves wet feet. The 300 full- and part-time employees of the division drive 2.4 million miles per year checking stream gauges and diversion structures, inspecting wells and evaluating the safety of dams. The State Engineer communicates weekly with his division chiefs, but occasionally gets his feet muddy himself. In some respects, laws tightly define the duties of the State Engineer, though Danielson, looking back to the 1980s, remembers a great deal of latitude in interpreting laws. Simpson believes two court decisions in the last 15 years constricted the authority of

shifted in many important ways since Danielson joined DWR in 1969. At that time, significant development of transmountain diversions from the West Slope’s headwaters remained underway. Dillon Reservoir was still relatively new. The Homestake diversions had just begun. Work continued on the FryingpanArkansas Project. Reservoirs filled rapidly, as it was a time of deep snows and cold winters. Cities planned for drought, but their worst-case scenarios assumed nothing more severe than the multi-year drought of the 1950s. Much has changed, affecting administration of water and hence the complexity of the State Engineer’s job. Most pronounced has been population growth, with the 2.2 million residents of 1970 now dwarfed by today’s 5 million-plus Coloradans. The most explosive growth has been in Douglas County, focusing attention on the south metro region’s unsustainable reliance on diminishing aquifers. Front Range urban growth has

then was shadowed by five successive years of mostly below-average precipitation. Urban districts, realizing greater vulnerabilities than they previously assumed, hastened to buy agricultural water rights. Farmers needing to buy rights for well augmentation couldn’t compete with rising prices. In total, Simpson and Wolfe have ordered 2,000 wells in the South Platte and 1,000 wells in the Arkansas Valley to cease pumping. “Everything tightened up because of that extended drought,” says Simpson. As reservoirs ebbed, threatening to dry altogether, water managers were forced to reconsider the razor’s edge between supply and demand in the Colorado River Basin. Revised calculations took into account the potential for the kind of extended droughts that visited the Colorado River Basin 1,000 years ago. Overlaying that possibility is the likelihood that accumulating greenhouse gases in the atmosphere will yield earlier runoffs, more intense summer heat and

“…my job tends to be 80 percent sociology and psychology and 20 percent engineering because so much of what we do now requires us to work with a lot of stakeholders.” — Dick Wolfe, State Engineer the State Engineer to create solutions to depletions caused by wells. Yet the job demands more than numbers and calculation. “I have found my job tends to be 80 percent sociology and psychology and 20 percent engineering because so much of what we do now requires us to work with a lot of stakeholders,” says Wolfe. He regularly speaks to groups such as real estate agents, as he perceives educating the public about water as one of his primary responsibilities. Legislators, who increasingly hail from cities instead of farms, also need education in water administration-related issues. The State Engineer is also tasked with administering the nine interstate water compacts as well as two federal apportionment decrees to which Colorado is a party. In most cases, compact requirements are treated just like another senior water right. For Wolfe, it also means communicating with corresponding officials from the relevant states. In the case of the two Colorado River compacts, the State Engineer assists the CWCB in ensuring compliance. The landscape of water use has 10

also accelerated ag-to-municipal conversions, posing large questions about economic and social tipping points in farm-dependent communities. Ascendance of environmental values further constrained the options for development of raw water resources. Instream flow rights, also called minimum streamflows, first authorized in the early 1970s, became salient in water administration in 2002 and successive drought years. Endangered Species Act requirements for flows to sustain endangered fish in the Colorado River and waterfowl on the Platte have also limited development options. Applications for decreed rights for recreational in-channel diversions, something likely unimaginable in the 19th century, have flooded water courts in recent years. Simpson and his deputies testified in several cases that applications exceeded the amount of water needed by whitewater boaters. The broader concept, however, has been upheld, adding complexity to water administration. Pivotal to the work of Simpson, and now Wolfe, was the drought of 2002. Alone, it dwarfed 1976-77 and every other drought in recorded history, but

perhaps less precipitation. The conclusion drawn from both of these potential futures is an upright-inbed-at-4-a.m. realization: It’s entirely possible at some point in the future that lower basin states could issue a call on the Colorado River. With many transmountain diversions still relatively junior in priority, the effect would be like a bug hitting a spider’s web, with ripples in the tension out to the Kansas and Nebraska borders. Coming to grips with these and other possibilities is how Wolfe defines an important part of his job moving forward. Water users without good planning in 2002 reacted, he says. Better is to produce a “very thoughtful, systematic response” to future water shortages. Within the limits of the laws prescribed by legislators, rulings by the Colorado Supreme Court, and the vagaries of weather and climate, he sees his job as delivering the maximum achievable certainty to farmers, cities and other water users. In this very fundamental way, the job of the State Engineer has changed very little since the Legislature created the post in 1881. It is all about avoiding chaos. q

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Reservoir “Rules” By Jayla Poppleton

Westerners prudently store water

from each spring’s abundant runoff to use throughout the year. Colorado now has about 2,000 reservoirs statewide, which the Division of Water Resources must administer. In an attempt to informally codify the state’s reservoir administration practices, Water Division 1 Assistant Division Engineer Claudia Engelmann and Division Engineer Jim Hall, along with Water Division 5 Division Engineer Alan Martellaro, assembled a set of guidelines intended to provide a common starting point for the many difficult decisions DWR staff must make every day. The guidelines are currently being reviewed by State Engineer Dick Wolfe. Here is a sampling of the issues covered: One-fill rule—Established by historical court opinions, the “unwritten” one-fill rule limits a storage water right to filling a reservoir once in any given seasonal year. A seasonal year typically begins Nov. 1, but for many municipal reservoirs, April 1 is the start date.

Emmett Jordan

Second fill—A decreed refill right allows the owner of the water storage right to begin to fill a second time once available space is made in the reservoir. This is only allowed when the refill right, which often has a later, more junior date, is in priority. Paper fill—Using this accounting method, division engineers document when a storage right is fulfilled on paper, even if it has not been physically filled. Some reservoirs have more than one owner or more than one decreed storage right with different priority dates. They are required to take the most senior water first. However, they may be allowed to fill first under their junior water right while division engineers use a paper fill to book the water against the senior right. That way, they keep track of how much less the owner can later call under the senior water right, if the junior right comes out of priority. Engelmann acknowledges that “the accounting gets extremely complicated when you have to track the different priorities and owners of water.” Why the complication? According to Martellaro, who has served as Division 5 engineer for almost 9 years, a common example would be if a senior water right is limited under its decree to irrigation uses but the junior water right’s decree is more flexible. In this case, the owner may consider the junior right more valuable and elect to store that water first. Martellaro says this is becoming more common as “people are coming up with good, creative ways to better use what water’s out there.”

“Owe-the-river” account—Some reservoirs are literally built on the stream. When an on-stream reservoir’s storage right is out of priority, DWR staff attempt to administer the reservoir as if it didn’t exist, says Engelmann. To mimic the natural streamflow and maintain peaks in flow through the system, they track inconsistencies through an “owe-the-river” account. If the reservoir releases too little water one day, it must release more the following day to compensate. Exchanges and substitutions—Exchanges and substitutions may be made between reservoirs or between a reservoir and a direct-flow diversion. “A substitution is when we make a release from one reservoir for the purposes of another,” says Martellaro. “It’s not done at the same time, whereas an exchange happens at the same time.” A frequently occurring substitution in his division occurs between Green Mountain Reservoir and Wolford Mountain or Williams Fork Reservoir when Denver Water’s Dillon Reservoir fills out of priority. By state statute, an upstream reservoir can fill out of priority if allowed by the State Engineer, but if a downstream reservoir with a more senior right doesn’t end up filling, the upstream reservoir must pay the water back. If Green Mountain Reservoir, downstream from the more junior Dillon Reservoir, doesn’t fill, Denver often pays back the water directly to the mainstem of the Colorado River where Green Mountain’s water would otherwise be destined. In-lieu of Green Mountain sending water there to meet a call on the river, Denver would use its Williams Fork Reservoir or its interest in the Colorado River Water Conservation District’s Wolford Mountain Reservoir to make releases to pay back Green Mountain indirectly. Division 1 has adopted its own requirements that must be met before any reservoir on the South Platte’s mainstem can store out of priority. An exchange might occur to allow a more junior water right to continue diverting even when out of priority by replacing the same amount of water at the same time from another source. Another Division 5 example is when Denver releases water from Williams Fork Reservoir into the Colorado River so that it can continue out of priority diversions through Roberts Tunnel to the city. Again, Martellaro says, “Substitutions are becoming more and more common to make better use of what we have.” q

Blue Mesa Reservoir, located on the Gunnison River, is Colorado’s largest reservoir.

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In 1884, Colorado State Engineer E.S. Nettleton (right) developed the Colorado Current Meter. In 1925, Ralph Parshall (left), a professor at Colorado State University, patented a flume now used worldwide to measure streams. (Photo courtesy of CSU Water Resources, Archive) Automated devices (facing page), such as this one on the South Platte River near Kersey, are increasingly common in Colorado.

Photo courtesy of City of Greeley Museums, Permanent Collection.

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Water measurement’s ongoing evolution By Jerd Smith

A Stream of En-Gaugement In 1881, Colorado’s first State Engineer, Eugene Stimson, rode 30 miles each way on horseback between the Big Thompson River and the Cache La Poudre checking gauges he had set in the rivers. He carried a tent and a portable drafting table. Even then, the public need for accurate water measurements was clear, especially in those regions on the Front Range where settlers, miners and farmers were battling over streams as demand for water was already outpacing supplies. And though the prior appropriation doctrine was incorporated in the new state constitution in 1876, establishing Colorado’s system of water rights, little was known then about how to measure the precious liquid and guarantee each water right holder received the correct amount. In 1878, counties began hiring water commissioners, according to Dick Stenzel, water historian and former South Platte division engineer. They were paid $5 a day. Three years later, the State Engineer’s position was created, and by statute, was handed responsibility for computing the amount of water in each stream and providing each water commissioner with a copy of the results. The water commissioners then determined who could divert. Colorado was the first state to provide for such public oversight of water distribution, but it wasn’t easy. “The State Engineer was constantly moving during the irrigation season,” says Stenzel. “He tried to hire an assistant, but the state wouldn’t pay for one.” Early measuring devices were crude and famously imprecise. Miners’ inches were among the first measures used. They were calculated by forcing water through a 1-inch square opening in the floor of a box placed in the stream. As water flowed through the opening, it was timed, establishing the flow rate. With each passing decade, Colorado’s efforts to quantify water rights and dis-

tribute them fairly improved. The state’s groundbreaking efforts helped lead the world into a modern era of measurement. One of the first mechanical water meters was developed here by the second State Engineer, E.S. Nettleton, in 1884. Known as the Colorado Current Meter, and now housed in the Smithsonian Institute, the device consisted of three cups that hung from the bottom of a rod. The State Engineer or his staff would wade into a stream, lowering the meter at different points across the channel. It was considered an advancement because the cups could clear themselves of debris as they spun, where previously-used meters would quickly become clogged and cease operating. Nettleton also installed continuous recorders on stream gauges so that commissioners and irrigators didn’t have to manually measure flows multiple times a day. In 1925, Ralph Parshall, an engineering professor at Colorado State University, patented a flume now used worldwide to measure streams. Known as the Parshall flume, it is sturdy and simple to construct. Today, the flumes are typically made from sheet metal. They are three-sided, with two walls and a floor. When the flume is installed in a stream, water is forced through in a consistent pattern that allows hydrologicallyengineered rating curves to be applied to physical water measurements. The uniformity of the structure and the use of rating curves made field measurements much more precise. Despite such advances, gauges and flumes were still installed at very few locations statewide. And Colorado’s small band of water commissioners— there were only 70 in 1939—scrambled to take measurements and record data in places without such devices to ensure they could deliver water equitably.

Several regions of Colorado still wrestle with outdated water systems. In the Yampa and White River basins, for instance, stretches of the rivers’ mainstems lack measuring devices, both on diversion structures and in the river. The state is pushing water right holders to install them in order to protect reservoir releases intended to reach endangered fish. The need for sufficient measuring devices will only increase if the Yampa is tapped by the Front Range or by major oil companies hoping to develop oil shale on the West Slope. Water commissioners in the Yampa, working on remote tributaries, still sometimes calculate cubic feet per second manually, measuring stream depth by hand and calculating water speeds by tracking how long it takes a floating twig to travel between two fixed points. Because there has always been plenty of water in the Yampa, there’s been little need to determine the mechanics of the river, such as how long it takes to deliver water on certain stream segments. To solve that problem, commissioners use special dyes that color the water and allow its travel time to be visually tracked. These days, 114 water commissioners monitor streams across Colorado’s seven water divisions. The Division of Water Resources, the state’s primary water regulator, has an annual budget of $27 million and nearly 300 employees. A significant part of that budget - more than $850,000 annually – is spent installing satellite telemetry on gauging stations, a technology that allows water level readings to feed into state databases at 15-minute intervals. “All the major diversion structures from Denver down to the state line are equipped with these devices,” says State Engineer Dick Wolfe. “That’s real-time monitoring. It’s live on our Internet. Our

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“…all of these devices have some inaccuracies. And though you’re always going to have people who want more precision, it’s good for all water users to understand there is an inherent inaccuracy in water measurement.” — Stephen Smith, president, Aqua Engineering water commissioners and our users utilize that on a daily basis.” In 1881, when Stimson began work, he installed Colorado’s first gauging station. Now the state owns and operates more than 480, Wolfe says, and each has a satellite telemetry system. Another 270 stream gauging stations are operated by the United States Geological Survey. Today, Colorado is awash in water data and is racing to employ new technologies and the Internet to make it widely and quickly available. Data that was once distributed monthly in the South Platte Basin is now available to water users continuously online so that everyone who has an interest in a given stream segment, from farmers to city utility managers, can find out how much water is moving through the system and who is diverting at any given time. “People expect transparency of government and they like this transparency,” says Wolfe. “They can see what their neighbors are diverting. But now we like to say that the division has 114 water commissioners and 3,000 volunteers, which include all the users looking at things on the Internet.” Pressure continues to build to do more. “The opportunity and the demand and the need is greater now than it ever was before,” says Stephen Smith, president of Fort Collins-based Aqua Engineering. New automated measuring and control devices known as SCADA systems are helping streamline water deliveries. The term stands for Supervisory Control and Data Acquisition. “It’s kind of a catchall phrase,” Smith says. It brings together sensors, processors and actuators into a computerized, radio-controlled system. Once seen only in industrial settings, the systems are now being used in high-stakes water regions like the South Platte, where millions of dollars worth of water must be carefully shared between fast-growing cities and farmers. “About seven years ago, we began taking these systems out to ditch companies and saying, ‘Here’s a way you can read this 14

“The fact is that all of these devices flume remotely and not have to drive five have some inaccuracies,” says Smith. miles twice a day to read it,’” Smith says. New automated gates can also be “And though you’re always going to have run via SCADA systems so that when a people who want more precision, it’s good gauge reading shows the river has fallen for all water users to understand there is an and a user no longer has the right to inherent inaccuracy in water measurement divert, the gate can be closed immedi- and you just have to deal with it.” For every stretch of stream that has ately. Water users without this technology must wait for a gauge reading and a 2009 technology on it, there are several water commissioner’s call before physi- more whose diversion structures date cally going out to the field to either shut back to the late 1800s. It is these strucoff or turn on a diversion structure. In the tures that Wolfe says are likely to cretime that takes, thousands of gallons of ate issues in the future. “Irrigation and reservoir companies are going to have water can be lost downstream. “The sociology of all of this is very big challenges just to meet the cost of interesting,” Smith says. Many canal replacing these structures. If you’re trymanagers, for instance, have never ing to manage water with them, it’s very seen SCADA systems. “They’ve always difficult. They have cracks in them, or opened head gates, then read the flume, they seep water. You really don’t know then traveled back and adjusted the head how much water you’re ultimately getting gate again. They’re quite skilled at it.” But down the river,” he says. Upgrading these structures and bringwhen they see these systems work, they realize how quickly and efficiently the ing record-keeping practices up to modwork can be done, Smith says. “I call it ern standards is critical as water supplies continue to tighten in Colorado. the ‘Oh, duh’ moment.” “We’ve measured water for centuries As year-round, hour-by-hour water management gains ground, water man- in the world,” says Wolfe. “I don’t think agers continue to worry about preci- there are questions about data collection sion. Even with satellites and hundreds of itself anymore. I think the bigger challenggauges, determining exactly how much es are to maintain the structures and to water is flowing through a head gate or transmit the information quickly and accupast a gauge at any given moment is still rately. These records are our legacy.” q difficult. A Parshall flume, for instance, has an accuracy rating of plus or minus 5 percent. New automated Rubicon Gates, manufactured in Australia, have an accuracy rating of plus or minus 2 percent, Smith says, and they have been installed in some locations on the Real-time flow information, including gauge height and discharge, is available at South Platte. www.dwr.state.co.us/SurfaceWater/Default.aspx.

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“It’s a work in progress.” That’s how water commissioner Richard Rozman describes Colorado’s ongoing efforts to fit a river’s instream flow rights into a legal system originally designed to govern the removal of water from rivers. Rozman fits the traditional image of the water commissioner, the guy responsible for administering water law in the sometimes contentious social environment of a head gate. Rozman is a big man, for one thing, which sometimes helps in that environment. But he is also a friendly and reasonable man, which helps a lot more. He also grew up in the valley where he is now water commissioner, son of a rancher on the Slate River branch of the Upper Gunnison River. For most of the 20th century, it was practically required that a water commissioner know well the majority of the people on whom he might have to impose some hardship in the name of the law. But over the past half century, Rozman’s District 59 in the Upper Gunnison watershed has gone from a mining and ranching economy to a resort and recreation mecca, changes reflected by new water uses. Similar evolutions statewide have forced changes in Colorado’s water law, and the water commissioner’s job has gotten more complex accordingly. Commissioners still primarily administer agricultural water—more than 90 percent of the water used

Right to Remain

in the Upper Gunnison —but new mandates and rules have elbowed their way into the sacred precincts of priority.

Non-consumptive water rights pose a worthwhile administrative challenge © iStockPhoto.com

By George Sibley

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But after World War II, with the West increasingly urbanized, much of the non-urban West, with its mountains, rivers and deserts, became the playground for city-dwellers.

If the many changes impinging on Rozman’s job could be summarized in one sentence, it would probably be this: Water today is at least as valuable economically in the river as it is out of it. Prior to World War II, the right to use water required the user to put it to beneficial use in the human economy. With the exception of hydropower, this meant taking it out of the stream for irrigation, domestic use or industry under the 1876 constitutional promise that “the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.” But after World War II, with the West increasingly urbanized, much of the nonurban West, with its mountains, rivers and deserts, became the playground for city-dwellers. There was also a growing national awareness of environmental deterioration following a century of heavy industrial development. These cultural changes were resolved with a kind of seismic lurch of federal and state legislation during the mid-1960s and mid70s. The cultural perception of beneficial uses for water resources lurched along with everything else. Relatively suddenly, non-consumptive uses of water—water for instream recreational and environmental needs, from fishing to rafting to ecosystem maintenance—were seeking parity with traditional consumptive uses, primarily irrigated agriculture.

One important new law was Colorado’s 1973 Senate Bill 97, which created the West’s first legislated instream flow protection program “to correlate the activities of mankind with some reasonable preservation of the natural environment.” The concept of allocating rights for water to be left in the stream for environmental purposes, with no diversion required, was fairly revolutionary. Ownership of such rights was limited to the state, through the Colorado Water Conservation Board. According to Steve Sims, a former Colorado Assistant Attorney General for resource issues, proponents of the instream flow program hoped this step would “alleviate the fears of the water development community.” Instream flow rights enter the administrative system in priority, junior to all prior decrees, meaning that senior users upstream can dry up a protected instream flow in water-short years. Given the fact, however, that many protected segments are in the headwaters reaches of Colorado’s rivers, above most senior users, calls from senior users downstream are no hardship since leaving the water in the stream is the instream flow right’s purpose. And, according to Colorado Supreme Court Justice Greg Hobbs, despite its junior status, the primary purpose of an instream flow right is to preserve stream conditions existing at the time of the water right’s appropria-

Chaffee County obtained a recreational in-channel diversion water right on the Arkansas River in 2006. There are now 14 RICDs in Colorado, with another pending for Carbondale.

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tion. The General Assembly gave a boost to instream flow seniority in 1986 when it amended the instream flow statute to allow the CWCB to acquire existing water rights through purchase, donation or grant and change them to instream flow rights, assuming no damage to other users. In 2006, this was expanded to enable even temporary loans of water for instream flows. Since 2001, the Colorado Water Trust has actively scouted out and facilitated such opportunities for the CWCB as part of a larger mission “supporting and promoting voluntary efforts to protect and restore the state’s streamflows.” e

Anyone can propose a stream or lake for instream flow protection, but it then enters a rigorous CWCB vetting process, in consultation with the Colorado Department of Wildlife and the U.S. Department of Agriculture and Department of the Interior.

© iStockPhoto.com

Anyone can propose a stream or lake for instream flow protection, but it then enters a rigorous CWCB vetting process, in consultation with the Colorado Department of Wildlife and the U.S. Department of Agriculture and Department of the Interior. It must be demonstrated that “there actually is a natural environment that can be preserved to a reasonable degree with an instream flow, if granted;” that the decreed right would help maintain that environment; and that the decreed right is only for the minimum flow necessary to “maintain the environment to a reasonable degree.” Despite efforts to ease it gently into the

appropriations system, the instream flow law was challenged—first, on its premise that a water right could be created with no diversion structure at all. The Colorado River Water Conservation District argued in court that this was unconstitutional. But the state Supreme Court backed the instream flow law, concluding that the statement “the right to divert shall not be denied” does not say that no right can exist without a diversion. There were also disagreements in establishing the minimums for protecting streams and lakes “to a reasonable degree.” From the start conservationists did not find the idea of limiting instream flows to minimum amounts to be particularly reasonable. But then some highaltitude water users—primarily ski resorts faced with snow-making needs—found that the minimum instream flows for stream segments whose water they needed seemed unreasonably large, given the small size of the streams that high. And because the minimums were often calculated for the streams at a lower elevation, after they had accumulated some inflow, the CWCB agreed that those flows were too high for the upper reaches. It tried to correct that error by remeasuring the streams above the inflows and adjusting the minimums accordingly. When the agency adjusted an instream flow right on Snowmass Creek, following a complaint from the new Snowmass

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© iStockPhoto.com (2)

Meanwhile, the struggle to establish non-consumptive use rights in the pecking order of water administration has moved on to a new front: recreational in-channel diversions, or RICDs.

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Ski Resort, the Aspen Wilderness Workshop challenged the action, saying it was illegally reducing a water right that belonged to the people. The citizen’s group lost at first, but the case went to the state Supreme Court, which held that the CWCB did, in fact, have a “fiduciary duty” to the people to enforce rights appropriated in their behalf. The General Assembly then passed legislation requiring the CWCB to publicly announce any proposed decrease, factually justify the decrease, and delay adjustment for up to one year so the public can collect scientific data pertinent to the agency’s decision. Underscoring Rozman’s observation that the instream flow program is a work in progress, Snowmass Creek now has a very complicated set of season-specific instream flow appropriations on four different segments of the 22-mile stream. Despite such difficulties, the CWCB has, as of early 2009, developed lakelevel rights on 480 natural lakes and instream flow rights on 8,679 miles of Colorado streams, with more entering the system every year, according to Jeff Baessler, deputy director of the CWCB’s Stream and Lake Protection group. Conservation groups have played a significant role in advancing the program’s success. The Colorado Environmental Coalition, for example, banded together with 90 partner organizations, including Trout Unlimited, to support passage of HB08-1280, last year’s bill removing the historic consumptive use penalty for owners considering long-term instream flow leases with the CWCB. The same was done for short-term leases one year earlier. Becky Long, the CEC’s water caucus coordinator, believes that legislation was one of the biggest changes to the instream flow program since its inception. “It was the biggest boulder that needed to be moved. The penalty was blocking the work of the Colorado Water Trust and the CWCB because it didn’t make economic sense for someone to lease their water to the state for income,

but then watch the ratchet effect of their historic consumptive use credit getting smaller and smaller every year.” e Meanwhile, the struggle to establish nonconsumptive use rights in the pecking order of water administration has moved on to a new front: recreational in-channel diversions, or RICDs. This began in Fort Collins on the Cache la Poudre River. In the early 1990s, city park managers wanted to modify an existing diversion dam by adding a boat chute for kayakers, and they applied for an instream water right, claiming the chute constituted a new diversion structure for an economically beneficial recreational use. The water court granted the decree, which was challenged by the City of Thornton. But the Colorado Supreme Court decided the structure did, in fact, meet the criteria of controlling the flow of the river and affirmed the water court. The City of Golden followed by filing for a substantial 1,000 cubic-foot-persecond water right for its own recreational park in Clear Creek, adding and rearranging rocks to provide challenges for kayakers and other boaters. When the water court also approved its full request, the State Engineer challenged, perhaps fearing the edge of a slippery slope. Again, the Supreme Court affirmed the decree, and Vail, Breckenridge, Aspen and Littleton jumped in with similar requests. At that point, the legislature stepped in to bring some governance to what traditionalists decried as water rights based on moving rocks around in the river. First came Senate Bill 216 in 2001, which was strengthened in 2006 as part of Senate Bill 37. The legislation gave the CWCB input into the water court’s adjudication on all such applications to evaluate whether a RICD would 1) promote the maximum beneficial use of Colorado’s water, 2) impair Colorado’s ability to fully develop its compact entitlements, or 3) adversely impact CWCB instream flow water rights. The statute also limited the RICD to the minimum flow necessary for “a reasonable recreational experience” —language growing familiar regarding non-consumptive water uses. Thus does the world become a more complicated place on the ground, especially in mixed traditional and amenity economies like Rozman’s district on the Upper Gunnison or District 38 across the

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Pueblo’s half-mile long whitewater park benefits from a recreational in-channel diversion water right.

Elk Mountains in the Roaring Fork valley, administered by Rozman’s counterpart there, Bill Blakeslee. e Blakeslee has been the Roaring Fork water commissioner for eight years, but like Rozman, has known most of the traditional users for much longer. He speaks respectfully about the extent to which ranchers and other longtime valley residents make his job easier by essentially “running the rivers themselves, sharing it out” in dry times rather than asking him to impose strict priority with senior calls on juniors. But instream flows make his job more interesting—especially when compounded by a transitory population of newcomers in the valley’s upper reaches. Last fall, for example, when streams dropped dramatically in a dry autumn, the CWCB placed calls six different times for instream flows on Hunter Creek, a heavily used stream that joins the Roaring Fork in the immediate Aspen area. Several irrigation ditches draw from Hunter Creek, but Blakeslee observes that condos and castles have replaced crops and cows on much of the stream. On one of the ditches, he says, “The new gold is ponds,” and

they’re not ponds to be used for augmentation in dry times but “purely aesthetic ponds, and they don’t want them dried up in August and September.” Hunter Creek is also one of the feeder streams for the Fryingpan-Arkansas Project, which exports water from the Roaring Fork valley under the Continental Divide to the Arkansas River Basin in the east. It was, in fact, the threat that the FryArk Project might dry up Hunter Creek that led to some prototypical bypass flows for habitat protection in the 1950s. Today—to show how complex this can get on a heavily used stream— Hunter Creek has 23 instream flow rights on the 10 miles of stream below the Fry-Ark diversion, ranging in volume from less than 1 up to 16 cfs, on stream segments from one-tenth of a mile long to 6 miles long. The task of administering instream flow rights in such a situation is complicated by a couple of factors, noted by both Blakeslee and Rozman, who also had an instream flow call to administer last October on his own Slate River. One problem is an inadequate number of stream measuring gauges. Most of the satellite-monitored gauges on instream flow segments are in the lower reaches, which often makes administration affecting junior users above the gauge an educated guess at best, a prospect not appreciated by those whose water is being curtailed. And Amy Beatie, executive director of the Colorado Water Trust, reports the absence of sufficient gauges has foiled some of her efforts to get existing rights changed to instream flows due to concern from those who might consider contributing additional water to the program. Baessler acknowledges this problem, noting that “data is the core of water administration.” The agency has been pushing hard to address the problem over the past five years since the legislature created a stream gauge fund. But the fund’s annual allocation of $250,000 doesn’t go far. The satellite-monitored gauges are expensive—$20,000 to install and as much as $14,000 a year to operate and maintain each one—and the CWCB has 1,473 instream flow segments to monitor. Baessler is currently exploring new, more affordable cell phone technology for stream gauges, but there are also considerable expenses associated with maintaining existing gauges in coopera-

tion with the U.S. Geological Survey and the state’s Division of Water Resources. Another challenge stems from the fact that the commissioners in the Upper Gunnison and Upper Roaring Fork tributaries are administering rights in an environment of exurban subdivisions rather than irrigated farmland. Curtailing a junior water user on an irrigation ditch is a simple matter of dropping the slide on a head gate. But most of their junior users now are homeowners served by wells rather than ditches—dozens of wells instead of a few ditches. Rozman hopes “it never comes down to having to go house-to-house, knocking on doors and telling people I’m there to turn off their pumps.” Property owners with non-exempt wells must have augmentation plans to replace water they use out of priority with water from some other supply. But augmentation water can be expensive—in Rozman’s District, $3,500 for one-twentieth of an acre foot, enough for indoor use with no outdoor watering. Not all property owners have complied with the law or even understand the reason for it. Blakeslee says, “It takes a while to educate newcomers.” The impetus toward more attention to non-consumptive uses will undoubtedly continue. The Interbasin Compact Committee basin roundtables are currently developing non-consumptive needs assessments, a major undertaking to identify the most valuable recreational and environmental segments of the state’s rivers and lakes and to determine how to protect those segments. Additional instream flow rights and RICDs that may stem from this effort will likely add to the burden of water administration, while at the same time rendering the obvious benefits. Long is quick to remind that such rights should be seen as a tool rather than an inconvenience that must be worked around. And commissioners like Blakeslee and Rozman are generally stoic about the degree to which the effort to adjudicate, measure and protect nonconsumptive uses continues to complicate the administration of water rights. “It’s to protect the river,” Blakeslee says, and he has no problem with that. But—it is clearly “a work in progress.” q The process for developing instream flow rights is outlined on the CWCB Web site: http://cwcb. state.co.us/StreamAndLake/LawsRules.

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Water Underground

Optimizing use of an unseen resource

By Joshua Zaffos [groundwater] rules is incredibly complex,” Knox says, “because you’re talking about people’s livelihoods.” There’s another reason groundwater administration is complex—the movement and replenishment of groundwater itself is complex. The Rio Grande Basin, for instance, sits in a rift valley with multiple aquifer systems. One is a deep, confined source that runs more than 1,000 feet below the surface. There are also relatively shallow alluvial aquifers that feed into the Rio Grande and Conejos rivers. And there is a shallow, unconfined aquifer in a closed basin. These sources are all partially interconnected, and their interactions must be understood to provide accurate administration. The movement of groundwater in other river basins, like the Arkansas and the South Platte, isn’t quite as complicated, but determining the impacts from

Emmett Jordan

Growing up on his family’s ranch along the Rio Grande River near Alamosa, Ken Knox got an early education in the contentious field of groundwater use. The San Luis Valley is a high-altitude desert that averages just 7 inches of precipitation a year, so every drop of water—from the sky or the ground—is precious. Knox recalls neighbors fighting over rights to one-quarter of a cubic foot per second of water, equal to about 180 acre feet per year. The argument landed in court, and by the time it was resolved, the only way the families could pay off their legal bills was to sell their land. From ranch kid to chief deputy state engineer, Knox has spent much of his life thinking about groundwater. Today, after 24-plus years in the Colorado State Engineer’s Office, Knox works for URS, a private engineering corporation. “The development of every set of

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Kevin Moloney

Ken Knox uses a map of the Republican River Basin to explain the dominance of groundwater use in some areas. In Colorado, the Republican Basin is located entirely within the Northern High Plains Designated Ground Water Basin. (Read more about the Republican Basin in Toward a Sustainable Horizon on page 24.)

groundwater use on stream flows is hardly straightforward. Figuring out how to simultaneously protect senior water rights, meet interstate compact conditions and utilize groundwater resources is no simple affair, legally or hydrologically. “There isn’t a rule of thumb” when it comes to groundwater administration, says water attorney David Robbins, who has represented the State of Colorado in river compact litigation and groundwater users in additional court proceedings. Groundwater administration has developed by “fits and starts,” a function of science and technology, nature and necessity, Robbins adds. “It’s sort of a coming-of-age story.” Tapping Wells and Passing Laws Groundwater regulation was something of an administrative afterthought until 1953, when the Colorado General Assembly passed the Underground Water Act. Up until that time, when someone wanted to drill a well, they just went ahead and did so without much consideration of its effects on the underlying aquifer or nearby stream.

From 1953 until 1957, the law stipulated the Colorado Water Conservation Board would issue well permits. Although the CWCB required well drillers to file a license, it was more of a registration system than any meaningful regulation. Four years later, the 1957 Colorado Ground Water Law put the State Engineer’s Office in charge of these permits and acknowledged that a well license was not a water right, but only a permit to drill the well itself. Despite these first steps at administration, water users with senior surface rights in the Arkansas, South Platte and Rio Grande basins faulted the expansion of groundwater use, a response to drought and lower stream volumes, for depleting river flows. Studies backed these assumptions, but there was little regulatory muscle to effectively manage the impacts. The state legislature responded by passing the 1965 Ground Water Management Act, which provided new laws for application procedures and an injury evaluation standard for highcapacity wells. For the first time, state

law enabled the State Engineer to consider—and potentially deny—well applications on the basis of injury to senior surface water rights. The law recognized the tributary connection between surface and groundwater in certain basins, a major hydro-legal epiphany that still makes Colorado stand out among other states. The law also created the Ground Water Commission, which could declare Designated Basins where surface water is scarce and/or groundwater is the predominant source of water. There are currently eight Designated Ground Water Basins in Colorado. A few years later, the 1969 Water Rights Determination and Administration Act represented another advancement in the state’s groundwater administration. Kevin Rein, assistant state engineer for intrastate water supply development and litigation, says the 1969 law is significant for two reasons: It recognized that previous laws did not adequately address injury to senior water rights holders, and it established augmentation plans as the preferred avenue for allowing out-of-priority groundwater

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pumping under the prior appropriation system, which orders both the use of surface flows and groundwater. According to Rein, augmentation plans include terms and conditions for obtaining groundwater while protecting against the depletion of river flows that could affect senior water rights. The plans demonstrate how much water will be pumped and consumed and how much will be returned to an aquifer or stream. Each plan must be approved by the water court and stand up to any individual objections. The state continues to tweak its groundwater administration, but the framework developed in the 1960s still guides tributary groundwater use today. Nontributary groundwater, on the other hand, has minimum or no connection to surface flows and is mostly regulated by state statutes adopted between 1973 and 1985. Those rules allow landowners to use nontributary resources, including those within the Denver Basin, at a rate of 1 percent a year for 100 years to pace the depletion. Additionally, the Ground Water Commission regulates non-tributary groundwater as designated groundwater if it’s within a Designated Basin. “I really applaud Colorado,” says Knox, “because even in that time [dating back to the 1950s], they said we need to manage these resources for the future, in balance with economic development. We are literally decades ahead of some of our surrounding regions.” Compacts and Models Just as Colorado was hammering out its groundwater policies, another challenge presented itself. In 1966, the states of Texas and New Mexico sued Colorado because it was failing to meet the con-

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ditions of the 1938 Rio Grande River Compact. The interstate compact divides the annual flows of the Rio Grande between the states it runs through, and Colorado must ensure its downstream neighbors receive their allocated flows. Other compacts also dictate the use of river flows—and groundwater—in the South Platte, Arkansas and Republican river basins. Water users in the upper Rio Grande began drilling more wells during the 1950s drought to supplement diminished flows in the river and its feeder streams. The fulfillment of senior surface rights and the increased use of groundwater meant Texas and New Mexico weren’t getting their legal share of water. Later lawsuits— by the state of Kansas with regard to Colorado’s overuse in the Arkansas River Basin and by Nebraska in the Republican River Basin—made similar claims. “We had no rules or regulations that dictated use of groundwater up until that time,” says Steve Vandiver, manager of the Rio Grande Water Conservation District in Alamosa and a former division engineer for that region. “The science hadn’t really caught up to us.” A tangle of legal action ensued over the following decades—and continues today—to determine the connections between groundwater and surface flows. The State Engineer’s Office instituted a 1972 moratorium on new wells in the unconfined aquifer that feeds into the Rio Grande and Conejos rivers. Well drillers targeted the deep, confined aquifer until another moratorium was put in place in 1981. Small, home wells were exempted from the ban. Legal and regulatory fixes were limited by the understanding of the Rio Grande Basin’s intricate hydrogeology,

Vandiver says. “Impacts are not onefor-one,” he adds, meaning that tapping an acre foot of groundwater from a well in the Rio Grande Basin won’t directly deplete an acre foot from the river. Engineers worked to develop groundwater models, both to determine what was going on underground and to figure out how to address depletions for users in Colorado and downstream. Groundwater modeling, however, remains an evolving science and perhaps something of an art. Prior to the 1980s, electric analog models replicated aquifers using plywood fitted with a grid of resistors to simulate flow and capacitators to simulate storage. Computers replaced paper spreadsheets and slide rules in the 1980s, and modeling went digital, providing a more sophisticated understanding of groundwater’s movement. “The parallel with the technological advancement is the need to have more effective groundwater management tools,” says Knox. Not that computer models have prevented groundwater administration from being debated in courtrooms. The U.S. Supreme Court has had to settle disputes over water use and depletion according to the compacts for the Rio Grande, Arkansas and Republican. South Platte water users in Colorado have looked to the courts to handle in-state quarrels. That’s because on top of all of the legal bounds, there is another great limiting condition, Knox says: “We live in a dynamic hydrologic environment.” Drought and Disruption Drought initiated the first wave of Colorado groundwater regulation half a century ago, and dry times are influencing current management.

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in the South Platte Basin. Rio Grande groundwater users have also suffered since 2002, Robbins adds, “but we’re trying to avoid the economic destruction and social dislocation” that has occurred on the South Platte. To that end, users have discussed buying out existing wells while preventing the drilling of new wells to create sustainable aquifer conditions. “Our job is to solve the problem in the least disruptive way,” Robbins says. Groundwater Management Matures In the Arkansas River Basin, resolution trumps disruption these days, according to Robbins. After Kansas sued Colorado over the Arkansas River Compact in 1985, a decades-long court battle ensued until the U.S. Supreme Court backed Kansas’ claims of depleted flows. Wellmeasurement rules followed, to monitor Colorado groundwater users’ impacts on river flows. Like the South Platte, the Arkansas is an alluvial stream where groundwater depletion can be directly detected in lower surface flows. All groundwater users there are now required to have plans to replace depletions resulting from groundwater use, and group associations have formed to lease augmentation water supplies from cities and other water districts. Groundwater use in the Arkansas Basin has undergone “intense scrutiny,” Robbins says, due to the compact litigation and subsequent regulation. “The rules have been successful.” In the Rio Grande Basin, Vandiver describes the region as still “maturing in the groundwater arena.” Surface and groundwater users have spent decades in court, and Vandiver

says engineers have finally devised a computer model that accounts for the complex relationship between groundwater use and surface flow depletion there. Groundwater users have developed a plan of water management— instead of a plan of augmentation—that will enable many current well operators to continue pumping while guarding against injury to senior surface flow rights. After a degree of encouragement, some users have agreed to cease their water consumption, and managers will measure impacts to surface flows. Vandiver says the Rio Grande district will also create its own subdistrict to manage wells locally. The subdistrict should enable more flexibility and hopefully prevent well curtailment from being the primary means of regulating groundwater use. If it’s a successful model, the district would form other subdistricts, but so far surface water users have objected to the plan and are in court to make sure the priority system is enforced. The maturation process continues. Recently, the State Engineer’s Office has fielded an increased number of requests to mine or utilize geothermal resources, says Rein. In some cases, projects will remove water while others might return flows but at different temperatures, so the state must determine what constitutes an injury to other water users. The small but growing industry is a prime example of how and why groundwater administration will continue to adapt and change. “It’s the right thing to do,” says Knox, of the continuing efforts to refine groundwater administration, “to optimize use of this resource for short-term gain and long-term benefit.” q “The development of every set of [groundwater] rules is incredibly complex,” Ken Knox says, “because you’re talking about people’s livelihoods.”

Emmett Jordan

Compared with the hydrology of the Rio Grande region, the South Platte is a pretty simple system. Robbins describes the river as “a trough in bedrock,” meaning it’s a shallow and fairly narrow stream with water moving relatively easily between the ground and the channel. As a result, well drilling has a direct impact on river flows. Farmers and others along the South Platte have relied on groundwater for several decades. Some users had obtained decrees for augmentation plans, but Ground Water Appropriators of the South Platte and others relied on annual substitute supply plans. Both water court-approved augmentation plans and State Engineer-approved substitute water supply plans aim to ensure that depletions caused to the river by well pumping are replaced by some other source of water. That became a front-and-center problem when the 2002 drought kicked in, and surface and groundwater flows couldn’t measure up to past uses. In 2001, the Colorado Supreme Court decided the State Engineer didn’t have the authority to approve substitute water supply plans, ruling that plans for replacing depletions to the stream system must be approved by the water court. Known as the Empire Lodge case, the decision forced groundwater users in the South Platte and other basins to obtain approved plans of augmentation or shut down their wells, says Robbins. The state legislature later passed a law allowing the State Engineer to approve substitute water supply plans if an augmentation plan is concurrently filed in water court, but hundreds of farmers have essentially lost their ability to legally pump their wells, wreaking havoc on communities

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State Engineer Dick Wolfe gets his feet wet at Confluence Park on the South Platte, just one of many river systems he aims to bring into balance. 24

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Much like the current recession has forced Americans to think about living within their means, Colorado’s brush with drought and past interstate river compact violations have led its top water administrator to preach sustainability. In every water division, no matter the diversity of water’s interplay between surface and groundwater or the various river compacts that must be considered, sustainability is State Engineer Dick Wolfe’s overarching goal. Here’s Wolfe’s take on how to get there.

Toward a Sustainable Horizon By Jayla Poppleton | Photo by Kevin Moloney Division 1—The South Platte and Republican Basins An ongoing challenge for the Division of Water Resources, which Wolfe oversees, has been the administration of the South Platte Basin’s 8,200 or so high-capacity wells. “We’ve reached an unsustainable operation of these wells, and the 2002 drought took that mask off,” says Wolfe. “We need to bring that system back into balance.” To re-calibrate, Wolfe says two elements will be necessary. One is finding the physical supplies to replace depletions associated with the operation of wells. The other is development of rules regarding well measurement. “We’ve got an available supply out there. We’ve got to know how much of it we’re consuming. We make estimates. But we don’t know in an absolute sense exactly how much water those wells are diverting.” Recession-related state spending and hiring freezes have imposed budget constraints on DWR that have delayed implementation of new rule-making in the South Platte for now. In the Republican Basin, a distinct basin that also lies in Division 1, the state has been out of compliance with the governing interstate compact for the past five years. There is very little surface water diversion from the Republican. Instead, nearly 550,000 acres are irrigated by groundwater diversions, primarily from the Ogallala aquifer. In 1998, Kansas filed suit that the basin’s groundwater depletions should be considered part of Colorado’s compact allocation, and in a 2002 settlement, Colorado conceded. As a result, well measurement rules were implemented at the end of 2008, requiring about 4,000 wells to install a meter or acceptable measuring device by March 2009 to keep pumping. Wolfe says measurement alone may result in 5 to 10 percent conservation, simply because people know how much they are using. In addition, the newly formed Republican River Water Conservation District has bought out the bulk of surface water

rights in addition to approximately 30,000 acres of land irrigated by wells. Its goal is to take out 30,000 more. And a final proposal to achieve compliance is a $71 million pipeline project the district hopes to use to pump about 13,000 acre feet of water—bought for $50 million and associated with 10,000 acres of land—from the ground back into the river near the Nebraska state line. “They’ve spent about $90 million trying to achieve compact compliance,” says Wolfe. “This is local water users trying to solve a local problem.” But, about his own role, he adds, “The compact is the tail that wags the dog. And I’ve got to achieve compact compliance. It’s what drives everything out there.” Division 2— The Arkansas Basin Wolfe says the Arkansas Basin is in good shape concerning compliance with its own interstate compact with Kansas, but the DWR is taking proactive steps to prevent future problems. Kansas’ 1985 lawsuit against Colorado claimed injury due to post-compact well development under a compact provision called Article IV-D, which states system improvements cannot reduce the amount of water available in the river. It took a series of rules developed to govern well measurement—promulgated in 1994 and updated in 2005—and well use—instituted in 1996—to settle the case. The current development of an additional set of “irrigation improvement rules” is intended to stave off future violations of the same stipulation. As farmers make advances in irrigation efficiencies through upgrades like center-pivot sprinklers, historical return flows may be affected. Wolfe’s office is not against such improvements, which many farmers are implementing both for labor savings and water quality improvement. However, historical return flows must be protected. Though

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not a huge problem yet—Wolfe says maybe 1,000 acre feet of diminished return flows per year is currently attributed to irrigation improvements—the goal is to “get it while it’s small.” He plans to submit the rules to water court for approval in June. Division 3—The Rio Grande Basin The Rio Grande Basin has long suffered from the dilemma of how operating wells were impacting senior water rights. As in the South Platte, the 2002 drought added more salt to the already festering wound for surface water users who had their water curtailed as wells continued operating. In 2004, the Legislature passed Senate Bill 222 to give the State Engineer authority to promulgate rules that would curtail those well users unless they demonstrated they were either under an augmentation plan or a water management plan through a newly created water management subdistrict.

industry when water is pumped out to tap the natural gas in underlying coal seams is, in fact, being put to beneficial use. The case, Vance v. Wolfe, was a result of senior well users claiming nearby CBM wells were depleting the groundwater supply. As a result of the decision, oil and gas wells are now under the DWR’s jurisdiction. Wolfe will get a time-out until early 2010 thanks to House Bill 1303, introduced by Rep. Kathleen Curry and Sen. Jim Isgar. The bill passed on April 28 and was signed by Gov. Bill Ritter on June 2. It appears the Legislature anticipated the court’s decision, wisely preparing its response to avoid the chaos that may have followed. A large coalition of those who will likely be impacted supported the bill. The legislation recognizes that there are an overwhelming 34,000 active oil and gas wells out there, says Wolfe. About 5,000 are CBM and between 3,000 and 4,000 of those are tributary, or linked to a surface stream. Most of these are in the San

“To the extent I can play a role in developing rules and policies that help people understand what we can do…knowing what can potentially happen and that if that happens, this is what the plan is… it gives them some certainty.” —Dick Wolfe, State Engineer The first subdistrict, under the Rio Grande Water Conservation District, provides an umbrella to about 3,000 wells out of the 6,000 operating in the basin. “Basically, the rules say that the State Engineer is going to curtail you unless you can demonstrate you’re preventing injury to senior water rights, not impairing the state’s ability to maintain compact compliance, and promoting sustainability of the aquifers,” says Wolfe. With the input of a 55-member advisory committee, Wolfe is working on those rules now and expects to have a final draft to submit to water court by the end of 2009. Divisions 4, 5, 6 and 7—The Gunnison, Colorado, Yampa and San Juan/San Miguel basins Though there is less well development in these divisions, Wolfe sees big changes for his office’s future. For one, he will have to determine if and when a basin becomes over-appropriated, as has already been declared on the South Platte, Arkansas and Rio Grande. “For example, has the new Shell Oil filing now made the Yampa River Basin over-appropriated?” Wolfe asks rhetorically, referring to a water right requested last December that the company would use to develop oil shale. Though well users don’t presently need an augmentation plan to operate in a basin that is not over-appropriated, Wolfe believes they will need to develop rules and regulations to deal with that eventuality. “Again it gets to the priority system, sustainability, compact compliance….We’ve got to develop those rules. Well-use rules come first, then measurement.” A new addition to Wolfe’s job description is the recent mandate that he and his office begin administering coalbed methane wells, or CBM wells. On April 20, the Colorado Supreme Court ruled that the water “produced” by the 26

Juan Basin in Division 7 or the Raton Basin in Division 2. Those wells deemed tributary will have to undergo a similar process as well users did on the South Platte in 2003, obtaining well permits and temporary substitute supply plans or augmentation plans. “It’s a new era for our office,” says Wolfe. The other major issue affecting the four West Slope water divisions is compliance with the Colorado River Compact. Wolfe describes an unnerving scenario in which Lake Powell, the effective water bank of the compact’s four upper basin states, is essentially drained. Colorado and its neighbors get a compact call from the three lower basin states and have to curtail water users in order to pay back the bank. Wolfe acknowledges that no one envisions the state is close to being in that situation, but says, “The time is now to start working toward how we will address that.” He is working with the Colorado Water Conservation Board, the Colorado River Water Conservation District and the Southwest Water Conservation District on developing rules for how to administer such a call. Facing an uncertain future and believing what people want is certainty, Wolfe reflects on administering a limited resource: “Peter F. Drucker said, ‘The best way to predict the future is to create it.’ To the extent I can play a role in developing rules and policies that help people understand what we can do…knowing what can potentially happen and that if that happens, this is what the plan is…it gives them some certainty.” “What I’m doing,” he continues, “and what I promised the governor, is to be looking for and trying to avoid train wrecks into the future. We need to reach a point of sustainability or our systems are going to fall apart. You can’t fool Mother Nature.” q

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Colorado Foundation for Water Education’s 2009 President’s Award Recipient

Dick Bratton, Gunnison Water Wheel by Justice Greg Hobbs

The annual CFWE President’s Award honors a Coloradan whose character and career in water resources have yielded lasting benefits for the citizens of Colorado. The award also recognizes this individual’s commitment to the dissemination of balanced and accurate information, as well as the advancement of geographical, gender, ethnic and constituency diversity. This year’s Award was presented to Dick Bratton during a gala reception held at the Cableland Mansion in Denver on April 3.

Sara, and three grandchildren. They have a beautiful home overlooking Tomichi Creek, where Bratton loves to fish.

Community Mentor Bratton benefited from a fine mentor in leadership, education and the law, Ed Dutcher, who brought the young University It’s July, and you’re going to the of Colorado law graduate of 1957 back Gunnison Water Workshop at Western to Gunnison in 1958 after a short stint in State College. Rolling off Marshall Pass Denver practice. “Dutcher was the legal on the western side, you’ll glide along and political brains for Dan Thornton, the the mountain hay meadows of Tomichi Colorado governor from 1950 to 1954,” Creek, along the riffles, the pools and says Bratton. “Thornton put Dutcher on the lovely curving bends of dancing the Colorado Water Conservation Board light into Gunnison. and the Upper Colorado River Compact This is the water conference all of Commission. When Dutcher became a Colorado comes to. Dick Bratton and Harper’s Weekly, 1886, depicting a water-happy Grand Junction district judge in 1961, I homesteader, a water wheel on the Gunnison Duane Vandenbusche started it up in the inherited his law practice.” River and the “Badlands” with no irrigation water. mid-1970s, hoping to center Coloradans In April 1963, Republican Gov. John on the virtues of Gunnison, Western State College and water. Love appointed Bratton to the board of trustees of the State Vandenbusche, historian, teacher and writer; Bratton, lawyer, Colleges of Colorado that include Colorado State, Adams entrepreneur and member of the college board of trustees; State, and Western State colleges. Bratton was 31 at the time. both seeing an opportunity for open dialogue with other people Others on the board called him the “teenage trustee.” He engaged with water. served 12 years in that office. Dutcher had preceded Bratton A multitude of water topics have been discussed and on the same board. When Dutcher went to the bench, Bratton debated at the workshop during the past four decades. State succeeded him as chief counsel for the Upper Gunnison Water and federal legislators, county commissioners, city councilper- Conservancy District. sons, water utility directors, lawyers, Indians, environmentalBratton worked to build his real estate, business, and ists, representatives of the U.S. Bureau of Reclamation and water law practice; invested in Gunnison Valley property, parother federal agencies, paleo-hydrologists and other citizens ticularly along Tomichi Creek; and actively pursued local and interested in their neighboring watersheds all confabulating statewide politics as a Republican—Gunnison’s counterpart to inside the meeting hall and outside on the courtyard for after- Durango water lawyer and community leader, Sam Maynes, a hours barbeques. The idea, says Bratton, “all responsible posi- Democrat. In October 1983, Gov. Richard Lamm, a Democrat, tions fairly represented.” appointed Bratton to the Colorado Water Resources and Bratton grew up in Salida, on the opposite side of the pass Power Development Authority, which he chaired between from Gunnison. His mother, Mary, was teaching in a one-room 1989 and 1990. schoolhouse on the east side of Marshall Pass, in Monarch, Bratton attributes much of his success in the law practice when the Great Depression hit in 1930. Lyle Bratton, Dick’s to fine colleagues. In addition to Dutcher, he mentions Tom father, was working as a miner at the Colorado Fuel and Iron Whittington, Chuck Alexander, Jim Richards, John McClow and limestone quarry at Monarch. His parents met, married in 1931, John Hill. And he credits his wife Donna with a business sense and welcomed Dick in 1932. and graceful manner that has helped the firm enjoy a good During summer vacation from Western State College in the practice and leading presence in the community. early 1950s, Bratton worked as a miner in the same Monarch quarry his Dad had. During the school year, he played football, Water Worker wrestled, ran track, and majored in accounting and econom- Under Dutcher, Bratton worked with the Colorado River Water ics, graduating in 1954. Prior to graduating, he married Donna Conservation District to transfer the Blue Mesa, Crystal, and Howard, daughter of a third generation ranching family from Morrow Point water rights from the River District to the outside Lake City. Now they have two daughters, Susan and United States for construction of what is now the Aspinall H e a d w at e r s | S u m m e r 2 0 0 9

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…he has participated as an attorney in some of the most important Colorado Supreme Court cases of his day.

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Propelled by colleagues and a genuine concern for Colorado water users, Dick Bratton’s water wheel of a career has kept on turning.

ranching roots of the Gunnison Valley. In the pits of the 2002 drought he counseled a newcomer, who had bought up one of the old ranches and its water rights, to let his water pass to the neighbors. Why? Because “helping those who helped make this place is a good thing to do.” Water Educator Being an educator flows in his lineage. Characteristically, Bratton stepped forward in 1991 when a broad-based coalition of Colorado water, environmental and civic interests formed the Colorado Water Education Foundation, CWEF. The first of its kind, the non-profit had a 33-member board of trustees and described its mission as “to provide a wide range of waterrelated information from various viewpoints with no advocacy position taken on any issues in order to foster a broader understanding of water challenges among the general population and aid in the informed and timely discussion of water issues.” Bratton served from the start as a member of the executive committee, as by-laws chair and later as president. Carmine Iadarola, co-founder of CWEF, described Bratton as bringing “credibility, stature, knowledge, and expertise” to the foundation during its six years of existence. In 1996, CWEF suspended meetings due to a lack of an executive director and stable funding. In the horrendous drought year of 2002, some former CWEF trustees, the Colorado Water Congress, and other organizations and interested persons met to plan for the new Colorado Foundation for Water Education. Rep. Diane Hoppe and Sen. Lew Entz had successfully carried House Bill 1152 in the just-concluded 2002 Colorado legislative session, which included a provision to establish a water education foundation “to promote a better understanding of water issues through educational opportunities and resources so Colorado citizens will understand water as a limited resource and will make informed decisions.” The General Assembly appropriated a start-up grant and annual monies from the Colorado Water Conservation Board Construction Fund that, paired with other grants and contributions, funds the Foundation and its ongoing educational programs. As a result, the water education legacy of Dick Bratton and so many others lives on in the CFWE. q

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© iStockPhoto.com

Unit on the Gunnison River. In the ensuing decades, Bratton has worked to preserve the interests of Upper Gunnison and Uncompahgre Valley water users and to develop Colorado’s share of the 1922 Colorado River Compact and 1948 Upper Colorado River Basin Compact. Along the way, he has participated as an attorney in some of the most important Colorado Supreme Court cases of his day. For example, in the 1992 Arapahoe County case, he strategized and secured a refill right for the Taylor Reservoir upstream of the Blue Mesa Reservoir. He then obtained a pioneering Supreme Court opinion authorizing use of reservoir releases to enhance fish habitat and rafting flows down a long stretch of stream to Blue Mesa. This showed that water rights could be obtained by others than the Colorado Water Conservation Board to produce instream benefits. In subsequent cases, Bratton helped ranchers, the River District and the United States prove that only 15,700 acre feet of unappropriated water was available annually for Arapahoe County’s proposed Union Park transmountain diversion upstream of Blue Mesa Reservoir, rendering that proposed project infeasible and protecting water appropriations in the Gunnison River Basin. On behalf of the Upper Gunnison District, Bratton joined with lawyers for the River District, the State of Colorado, and the United States in arguing that the Aspinall water rights had been subordinated to 60,000 acre feet of in-basin Gunnison use above Blue Mesa Reservoir, and up to 240,000 acre feet of Blue Mesa storage water might be used through USBR contracts to benefit both the West and the East Slope as part of Colorado’s compact entitlements. Coming full circle on his early collaboration with Dutcher, Bratton helped through this work to solidfy the local, state and federal partnership that built the Aspinall Unit for Colorado and the United States. Bratton’s knowledge of Colorado River matters, his focused analytical ability, and his reputation as a listener and a learner led President George W. Bush to appoint him as the federal representative and chair of the Upper Colorado River Compact Commission in July 2002. This commission plays an essential role in preserving the 1922 Colorado River Compact entitlements of Colorado, New Mexico, Utah and Wyoming. Bratton and the commission were instrumental in forging a seven-state Colorado River water shortage agreement, approved by the U.S. Secretary of the Interior in December 2007, which includes annual coordination of Lake Powell and Lake Mead operations. The shortage plan also includes cloud seeding, agricultural to municipal leases, desalination, conservation, and water importation into the Colorado River Basin to cope with drought and climate change. As federal representative, Bratton has acted as a facilitator, mediator and senior counselor on Colorado River matters. In the midst of everything, Bratton has never forgotten the


The Colorado Foundation for Water Education

The Next Five Years Often, when people hear the phrase “strategic planning” they roll their eyes and hope they have a conflict on their calendar. Personally, I find value in stepping back and taking a look at how day-today activities fit into a larger set of goals. After all, how do you know when you’ve arrived if you don’t know where you are going? I am lucky that one of the first tasks the Colorado Foundation for Water Education set its mind to was the creation of a strategic plan. This first plan, adopted in 2003, laid out goals centered on program development, membership recruitment and fundraising. The programs we are best known for, including Headwaters, the Citizen’s Guide series and our annual River Basin Tour, are a direct result of this planning effort. Many of the goals that the Foundation outlined in that plan have been accomplished, due to a large amount of hard work and the support of our members. The simplest path for me, as Executive Director, would be to continue along the Foundation’s current trajectory, publishing Headwaters and an annual Citizen’s Guide, putting on events such as Water Leaders and the Tour, and maintaining our historic membership base. Continued participation in these programs by our members has demonstrated their utility and desirability, and the Foundation is proud that these products and events are so suc-

organization’s work and furthers the intent of creating mechanisms to measure the impact that our programs have. Our vision is that Coloradans, through an improved understanding of water’s complexities and trade-offs, will make more informed water resource decisions. We will make progress toward this vision by working towards five new goals in the following areas: • Audience: CFWE will target its programs at Colorado decision-makers to help them make more informed water resource decisions. • Partnerships: CFWE will partner with key “gatekeeper organizations” to ensure that their staff and constituents have appropriate knowledge of basic water resource concepts. • Engagement: CFWE will deepen the value and awareness of our programs by building feedback and measurement mechanisms into the work we do. • Accessibility: CFWE will strengthen its capacity to ensure that all Coloradans have access to unbiased water education programs. • Financial stability: CFWE will diversify its funding base to maintain the reliability of its educational programs.

Our vision is that Coloradans, through an improved understanding of water’s complexities and trade-offs, will make more informed water resource decisions. cessful. But, I know I would be doing a disservice to Colorado’s water community if I did not expand upon the Foundation’s past success and grow the organization to its next logical level. With that goal in mind, the CFWE staff and Board met in Frisco on a rainy Saturday in May to chart our course for the next five years. With help from the experts at Conservation Impact and consideration of input received from interviews with over 50 members and stakeholders, we grappled with questions such as, “Who is our primary audience?” and “To what end are we educating the people of Colorado?” We realized that answering these key questions would be critical to our longterm success. After a long discussion, the CFWE Board adopted its 2009-2014 Strategic Plan on May 27, 2009. The new plan brings a more defined focus to the

In the near term, those not involved in the dayto-day operations of the Foundation will not notice a significant difference in the programs and products that we offer. However, over the next year, staff will oversee an evaluation of all programs, making changes where needed to better target our new goals. This is an exciting time for the Colorado Foundation for Water Education, and I am happy to lead the organization through this transitional period. As the staff and Board refine the above goals and grow our understanding of the implications for our programs, I will be sure to keep you in the loop. Thank you for all of your support and encouragement thus far. We couldn’t do this without you.

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Nicole Seltzer, Executive Director 29


1580 Logan St., Suite 410 • Denver, CO 80203

4th Annual Friends of Water Education Golf Classic Bring the family! Golf f Tennis f Swimming Support water education in Colorado

New this year! Golf is just one option. Your family—and extended family—can enjoy an afternoon of tennis, swimming and socializing at Denver’s Pinehurst Country Club.

by joining the Colorado Foundation for Water Education for an afternoon of swimming, golf and tennis. Please come to the Foundation’s 4th annual golf tournament on Aug. 3 at Pinehurst Country Club in Denver. This family-friendly event is a fun networking opportunity, as well as a great way to experience beautiful Pinehurst Country Club. The event is not just for golfers anymore! It will also be an enjoyable afternoon for tennis buffs or those who’d like to lounge at the pool. Registration opens at 12 noon, and the tournament’s shotgun start will follow at 1 p.m. We will round out the evening with a prime-rib awards dinner and silent auction, beginning at 6 p.m. Registration, as teams or individuals, is open to the first 144 players. Sign up before July 27 for early-bird pricing. Those who do not wish to golf, children or adults, can also register separately for a swim/tennis package and for the awards dinner. For more details and to register online go to www.cfwe. org/2009Golf/2009GolfHome.asp.

Early registration discounts available —www.cfwe.org

August 3, 2009 | Pinehurst Country Club | Denver

Profile for Water Education Colorado

Summer 2009 Water Administration  

In this issue of Headwaters, CFWE explores water administration in Colorado. In a water scarce environment, enforcing the law of "first in...

Summer 2009 Water Administration  

In this issue of Headwaters, CFWE explores water administration in Colorado. In a water scarce environment, enforcing the law of "first in...

Profile for cfwe