NO DECISION WITHOUT COMPROMISE
Water project permits stir controversy, calling for negotiation and smart analysis
Pulse Evaluating Rising Salinity on the South Platte Researchers and some growers fear that increasing salinity could pose a major threat to the river, damaging crops and water quality.
12 Colorado Water Plan Gets Technical A technical update to the Colorado Water Plan premiers this summer with new data and more transparency.
Inside DIRECTOR’S NOTE
4 WHAT WE’RE DOING
WEco's upcoming events, reporting and more.
5 FROM THE EDITOR
7 2019 WECO AWARD WINNERS
Contents | Summer 2019 THE PERMITTING ISSUE Reservoirs, pipelines and other water supply projects work through the permitting gauntlet seeking approval to build in order to meet the water needs of Colorado’s growing population. Permitting protects the environment and communities and has led to positive mitigation, but the process can last decades and add tens of millions to a project’s overall price tag. Now Colorado and the federal government are looking to make permitting more efficient.
9 AROUND THE STATE
Water news from across Colorado.
14 MEMBER’S CORNER
Engage, volunteer and celebrate the impact of WEco’s work.
F E AT U R E
The Evolving Process of Permitting
The 1990s veto of a massive reservoir shifted views on water supply planning and permitting. Projects in the works now rely increasingly on public input and negotiation. But will these projects get the green light?
Concerted efforts are underway at the federal and state levels to make the water supply permitting process more efficient. Where are these changes coming from, what do they look like, and do they go far enough in expediting projects—or too far? By Julia Rentsch
By Dan England
Above: Construction for Aurora’s Prairie Waters Project, completed in 2010, didn’t require NEPA permitting but it did call for a Nationwide 404 permit and various local permits. Courtesy Aurora Water On the cover: Adobe Stock
BOARD OF TRUSTEES
Jayla Poppleton Executive Director
Lisa Darling President
Jennie Geurts Director of Operations
Gregory J. Hobbs, Jr. Vice President
Stephanie Scott Leadership Programs Manager
’m privileged to work with so many incredible people, not least our 22-member WEco Board of Trustees. They’re thoughtful, astute, and dedicated to our mission. They are also active leaders beyond WEco, representing a spectrum of interests. One, Dan Luecke, working with the Environmental Defense Fund, was instrumental in putting forth a “credible alternative” to the proposed Two Forks Project in the late 1980s. Two Forks, which required a Section 404 permit under the Clean Water Act, triggered a robust alternatives analysis under the National Environmental Policy Act—legislation that, incredibly, turns 50 years old next year. As Dan outlines in his draft paper, The National Environmental Policy Act, the Path to Two Forks, and Beyond, “NEPA was intended to force the development of methods and procedures whereby ‘unquantified environmental amenities and values’ would be given appropriate attention alongside traditional economic and technical considerations in the planning process.” EPA vetoed Two Forks’ 404 permit because the project didn’t pass its environmental litmus test. We cover this important part of Colorado history in these pages and highlighted it during a live panel event at the History Colorado Center in March. WEco also supported the work of two talented graduate students this year. One, master’s candidate Kristin Green at the DU Sturm College of Law, participated in the planning session for this magazine to launch her study of permitting processes. WEco Board member and former Colorado Supreme Court Justice Greg Hobbs served as mentor for her capstone, The Emerging Role of State and Local Governments in Shaping Water Projects. Green concluded her paper with: “Not all projects are created equal and proactive strategies should be employed to establish thoughtful and thorough review at the local, state, and federal levels … By doing so, there will be adequate mechanisms in place to at a minimum ensure only projects of a certain caliber are permitted and ultimately developed.” Nearly 50 years ago, NEPA put in place requirements to assess a wide range of alternatives to any proposed project, as well as to engage the public through improved disclosure and public input. Similar to Green’s recommendations, the goal remains to get good projects that can sustain both economic and environmental benefits. That type of balanced solution, along with meaningful, transparent interaction between government and the governed, is precisely what WEco works to enable. As with all governance structures, there’s always room for improvement. Let the evolution continue with an informed Headwaters readership!
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Scott Williamson Education & Outreach Coordinator Meg Meyer Development Coordinator Jerd Smith Digital Content Editor Caitlin Coleman Headwaters Editor & Communications Specialist Charles Chamberlin Headwaters Graphic Designer
Gregg Ten Eyck Secretary Alan Matlosz Treasurer Eric Hecox Past President Perry Cabot Nick Colglazier Sen. Kerry Donovan Jorge Figueroa Greg Johnson Julie Kallenberger Scott Lorenz Dan Luecke Kevin McBride Amy Moyer Lauren Ris Rep. Dylan Roberts Travis Robinson Laura Spann Chris Treese Brian Werner
THE MISSION of Water Education Colorado is to promote increased understanding of water resource issues so Coloradans can make informed decisions. WEco is a non-advocacy organization committed to providing educational opportunities that consider diverse perspectives and facilitate dialogue in order to advance the conversation about water. HEADWATERS magazine is published three times each year by Water Education Colorado. Its goals are to raise awareness of current water issues, and to provide opportunities for engagement and further learning. THANK YOU to all who assisted in the development of this issue. Headwaters’ reputation for balance and accuracy in reporting is achieved through rigorous consultation with experts and an extensive peer review process, helping to make it Colorado’s leading publication on water. © Copyright 2019 by the Colorado Foundation for Water
Education DBA Water Education Colorado. ISSN: 1546-0584
What we’re doing
Touring the South Platte From dairy farming to drinking water treatment and from industrial hemp production to endangered species recovery, we heard about incredibly diverse topics on WEco's Lower South Platte River Basin Tour in June. Here at North Sterling Reservoir, Jim Yahn spoke about the history of reservoir construction, the irrigators it serves, and alternative transfer methods. A special thank you to our Title and Presenting Sponsors: CoBank, Colorado Water Conservation Board, Premier Farm Credit, and South Platte Water Related Activities Program. Want to get on the tour bus with us? Next June we'll explore the Arkansas River Basin. Stay tuned for details.
SUSTAINING COLORADO WATERSHEDS CONFERENCE OCTOBER 8–10, 2019 | WESTIN RIVERFRONT RESORT, AVON, CO
“The Human Element” The 2019 conference will explore the influence of The Human Element on water and watersheds in Colorado and the West. Together we will delve into our impacts and connections while we look for ways our influence can be fostered and mitigated to avoid loving our home to death. The Sustaining Colorado Watersheds Conference is cooperatively hosted by the Colorado Watershed Assembly, Colorado Riparian Association, and Water Education Colorado. Registration now open! coloradowater.org/scw-conference-2019
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What we’re doing A conversation with…
TIME ON THE WECO BOARD: Less than a year HOME: Denver
WEBINAR Did you know that we produce a webinar to expand on each issue of Headwaters magazine? Join us later this summer for a webinar on permitting water supply projects or browse recordings in our archives with recent programming on mitigating climate change, water reuse, Steamboat Springs’ stream management plan and more. watereducationcolorado.org/ programs-events/webinars
Amy Moyer is new to the Water Education Colorado Board of Trustees and is a strong addition, bringing six years of experience at the Colorado Department of Natural Resources where she’s the assistant director for water. Amy’s recent work at DNR has focused on process improvement, specifically pertaining to permitting water supply projects. She helped with the state’s three-day “lean” event in March 2016, where those involved with permitting came together to discuss potential efficiencies in their process. Lean resulted in the Colorado Water Supply Planning and Permitting Handbook, which recommends a process for project proponents looking to permit new water supply projects, complete with hints and best practices. We sat down with Amy to hear more. What was the motivation for developing the handbook? We’ve seen many projects take over 15 years to get to a permitting decision, and so from a water supply perspective we collectively agreed through Colorado’s Water Plan that there has to be a way to get through this process more efficiently to get to a decision earlier, while not compromising any of the environmental analysis needed to review these projects. When was the handbook published? We officially released the handbook in October of 2017, so it is still a relatively new document, but the tough part with any sort of “lean” facilitation process is you would hope to have a pilot project ready to go to see if you have made any difference. The difficulty with water projects is that they are very technical, have unique impacts, and ultimately they don’t happen every year. As a result, we don’t have a project that we can immediately use as a test case to see the concrete results of how or whether these ideas improve the process as a whole. Therefore, we’re relying on water providers currently in the permitting process to draw from and implement many of the recommendations in the handbook at various stages of the permitting process. How has the handbook been received to date? We’ve gotten great feedback as to the tips and lessons learned in the handbook and how vital they would be to future water providers entering the permitting process. I think those who have gone through permitting have read it and said that “yes, these are the areas we would have done differently.” Now we’re focusing on how we align the different state processes to make those as efficient and collaborative as possible. Where do you see the handbook developing in the future? One of the areas we are interested in further reviewing is the guidance coming down from the federal level through the One Federal Decision process. The key question is how we continue to align the recommendations in the handbook for early-and-often stakeholder engagement with the stricter time limits coming down from the federal level. By Jacob Tucker Read more of the interview on the blog at watereducationcolorado.org.
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PEDAL THE POUDRE Hop on your bike and join us September 20 or 21 to learn about the various uses and benefits of the Cache la Poudre River. We’ll explore this waterway by bicycle along with citizen leaders, volunteers, scientists, planners and water managers. Register online at watereducationcolorado.org.
ON THE BLOG
Solutions are ultimately more successful when they satisfy the core needs of the parties involved. Balancing competing needs, and designing solutions where all benefit in some way, is the central challenge of solving water problems collaboratively.
FROM THE EDITOR
he premise of this issue is that permitting water supply projects is necessary to balance impacts as Colorado’s water providers work to ensure sufficient supply for a growing population. While the following pages tell many stories of permitting, we don’t weigh the merit of the projects themselves—they’re the reason behind permitting, the “purpose and need” for this issue. Does Colorado need new, large water supply projects for its future? Many would say yes. But beyond localized impact, we should perhaps also be asking if proposed projects increase or decrease the big-picture risk to existing supplies. Are they sustainable? The results from Phase III of the Colorado River Risk Study were rolled out in June. The study reveals a 45 percent chance that the Upper Colorado River Basin may not have enough water to meet its Colorado River Compact obligations over the next 25 years. That’s already high, but if we increase upper basin water use by just 11.5 percent, the risk doubles. Substantial Colorado River supplies are diverted east of the Continental Divide, so this impacts Coloradans across the state. “There is an identified risk right now in the Colorado River Basin that we will at some point in the future have a problem with compact compliance,” says Anne Castle, a senior fellow at the Getches-Wilkinson Center at the University of Colorado. “As you add new demand to the system in the upper basin, that risk increases.” New demand could come in the shape of a new Colorado River project, intended to serve new development and growing population. While permitting evaluates and mitigates many risks, it may not get at the risk of compact violation. “The permitting process at this point isn’t designed to consider that particular parameter,” Castle says. “It’s partly because we don’t have a terrific handle on it.” This new risk study provides some of the only data out there. But proponents of new water projects today don’t all presume that raising a dam means they can divert more water for growth. For many, new projects are about reducing demand and risk. Plus, water providers aren’t just looking to river diversions for future water. Other options include conservation, better integrating land use and water planning, reusing water, and creating watersharing projects—some of which will still call for permitting. Water supplies will need to evolve, which calls for planning and new projects to ensure a sustainable, low-risk water future. But as water providers propose water supply projects and stakeholders consider and engage with them, an effective and efficient permitting process is as important as ever to limit risk.
—Ryan Golten and Dan Birch, CBI Read the full post on the blog at watereducationcolorado.org.
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Announcing Coloradosmp.org Twenty communities are creating or implementing Stream Management Plans in Colorado
The Yampa Valley Sustainability Council leads volunteer-driven efforts to shade the Yampa River. The City of Steamboat Springs’ recently completed SMP suggested more of this work for both water quality and fish habitat benefits.
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Learn about the plans and the basics of stream management planning at this new online guide.
2019 WEco Award Winners
o celebrate water leadership in Colorado, Water Education Colorado annually recognizes two individuals who demonstrate above-and-beyond commitment to water resources stewardship and education. In 2019 we proudly recognized Jennifer Pitt of Audubon with the Diane Hoppe Leadership Award for lifetime achievement in water education and Celene Hawkins of The Nature Conservancy with the Emerging Leader Award. The awards were presented during WEco’s annual President’s Reception on May 3 at Balistreri Vineyards. Thank You To Our 2019 Peak And Torrent Sponsors For Their Generous Support
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as a whole. She’s now a member of the Colorado Water Conservation Board, dedicated to working with the water plan as a “living document in the face of water scarcity, funding volatility, and increasing pressure on the Colorado River.” She sees water conservation, water user security, critical infrastructure, and environmental protection measures as priorities Coloradans must address together.
Celene Hawkins 2019 Emerging Leader Award
At Home in the Southwest
By Greg Hobbs
elene Hawkins learned to practice law with the Ute Mountain Ute Tribe. At the University of Colorado Law School, she spent her law clerk summer of 2007 with the tribal environmental programs in Towaoc, drafting oil and gas regulations. She distinguished herself at CU with both a law degree and a master’s in Environmental Studies. Graduating in 2008, she accepted a prestigious job offer from a large Phoenix firm, Snell & Wilmer. Celene had family ties to Arizona. Her mother, Kate, was a Professor of Nursing at the University of Arizona. She grew up in northern California’s Feather River country with her family in a solar-powered house near Quincy. Their backyard was the Plumas National Forest. Both her father, Sim, a custom jeweler, and her mother were volunteer firefighters. “My mother, who possessed a high degree of medical training, was sort of a big deal at the department.” Within a year of moving to Arizona, Celene was back in southwestern Colorado helping the tribe and all its members. “They have such a long tenure on the land, they pass on information by oral tradition. I learned to listen well.” She tackled everything there was to do, concentrating on environmental, water, renewable energy, and cultural resources protection. From June of 2009 to December of 2015, she had a running load of water and other cases, as many as 30 at a time. Working closely with technical and engineering consultants, the Tribal Council, and Peter Ortego, general counsel for the Ute Mountain Ute Tribe, she waded
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2019 Diane Hoppe Leadership Award into the complexities of the San Juan Recovery Implementation Program, the Ten Tribes Partnership in the Colorado River Basin, and water rights for the Animas-La Plata Project. She most enjoyed the “one-on-one relationship” with tribal members. “I got to know how they felt.” She points out the example of the Tribal Park, into which the tribe carefully guides small groups of visitors into the other half of the Mesa Verde region’s treasury of cliff dwellings, petroglyphs, and water storage vessels. “They’ve taken the lesson of their ancestors to leave it alone while educating the rest of us about what it means to be history’s caretakers.” Celene became a member of the Southwest Basin Roundtable in 2010, helping to formulate the Colorado Water Plan. Since January of 2016, she’s been the director of the Western Colorado Water Project for the Colorado Chapter of The Nature Conservancy, coordinating with community groups and the tribes. Her sense of place for the small town, farmland, river and canyon country of the southwest shows in the way she met her husband, Tim, kayaking on the Animas River in 2007 in Durango. They have a one-year-old child, River, destined, as Celene says, to enjoy “desert moonrises.” “Keep your head down and do good work,” epitomizes Celene’s commitment to southwestern Colorado and the state
Source to Delta Visionary By Greg Hobbs
ennifer Pitt made the first long leap to her career on the Colorado Plateau from Manhattan to Mesa Verde National Park in 1990. She’d been working with the New York City Department of Parks and Recreation following her graduation from Harvard University in 1988. Her undergraduate studies had focused on how artists and novelists depict urban parks. Once you’ve been on the river, the river always calls you home. Jennifer’s graduation gift in 1988, planned as a celebration of her mother’s 50th birthday, was a Colorado River float trip in one of Martin Litton’s wooden dories. In the summers of 1990 and 1991 she headed to Mesa Verde National Park to serve as an interpretive ranger. There, in the canyons and the alcoves, she learned how the Ancestral Puebloans had arranged access to water. “I led visitors into Spruce Tree House and Balcony House. On my own time, I discovered springs the people had used and water catchment structures they had built. To survive, they had to learn how to share scarce water fairly with each other.” Her 1993 Yale School of Forestry master’s program in Environmental Studies
took her back to the Hudson River. She concentrated on water quality and land use challenges in a 100-mile reach upstream of the five New York boroughs. This led to Washington D.C. work in the office of Congressman Mike Kopetski of Oregon from 1993 to 1994, then to the National Park Service as a conservation planner from 1994 to 1998. From her Potomac River moorings, she ranged out to the Pacific Northwest organizing technical studies and community meetings for conservation organizations in Idaho. During this time, she helped develop the White House Council on Environmental Quality’s American Heritage Rivers Initiative. In 1999, she went to work with her finest mentor, Dan Luecke, then the regional director of the Environmental Defense Fund based in Boulder, Colorado. “‘You can be an advocate and have disagreements about values,’ he advised me,” Jennifer says. “‘But never waiver in treating people with respect and dignity. You can have a discussion on their terms and look for alternatives.’” At EDF, she immediately stepped into co-authorship of Delta Once More, an influential report which concluded that modest water deliveries into desiccated sections of the Colorado River Delta in Mexico could significantly revive and maintain critical wetlands and riparian ecosystems. This could be accomplished, said the report, through “cooperation, accommodation and creativity” while respecting the water supply interests of the seven U.S. basin states and two states of the Republic of Mexico within the parameters of the “law of the river.” How to convince water managers in the United States and Mexico that NGOs had a place at the table suitably involved Jennifer and a 2004 raft trip. In “Water is for Fighting Over and Other Myths about Water in the West,” author John Fleck relates how Coloradan, Bennett Raley, then Department of Interior Assistant Secretary for Water and Science, invited her, “the token environmentalist,” to run the Colorado River through the Grand Canyon with a group of federal officials and state water managers. In the teeth of what has turned out to be two decades of prolonged drought in the Colorado River Basin, Raley’s goal was to “come up with a
nifer her immediate family. At a Tucson, Arizona water law conference meeting in 1999, she met her future husband, Michael Cohen, then living in Oakland, California. His long affiliation with the Pacific Institute focuses on Salton Sea restoration. Jennifer continues her Colorado River work with the National Audubon Society. Together with their 14-year-old daughter, Hannah, they make Colorado, the headwaters state, their home. “Jennifer is imaginative, committed, quick, and fearless,” says Dan Luecke. “What she and her bi-national colleagues have accomplished is awe inspiring. It was clear, almost from the beginning, that she was going to make a difference. There are few like her.”
much more durable solution” than the federal government could impose. When Sid Wilson, a senior Arizona water manager, began to talk amicably with Jennifer along the river, says Fleck, “a change in attitude had taken place that rippled out through Colorado River Basin problem solving for years to come.” Jennifer gives credit to many others for the pulse flow of 2014 that brought water into dried-up stretches of Colorado River Delta across the border. Through a highly collaborative process memorialized by Minute 319, Mexico and the United States had agreed to storage of a significant portion of Mexico’s treaty water in Lake Mead for release all the way downstream. Jennifer was there that day in the Delta watching Mexican families play in water they hadn’t seen for a generation. As if by magic, though the release was carefully timed to germinate native willow and cottonwood seeds, Delta restoration through base flows and periodic pulse flows has become an objective of national and international Colorado River water policy. Non-governmental organizations help to lease or purchase water as part of their restoration commitment. Jennifer has especially enjoyed working with Mexican citizens Osvel Hinojosa, Yamilett Carrillo, Francisco Zamora and Carlos de la Parra, along with Peter Culp, who hails from Arizona. The river also brought home to Jen-
Thank you also to our 2019 Cascade and Ripple Level Reception Sponsors AECOM Audubon Brown and Caldwell Cheryl Benedict City of Thornton Collins Cockrel & Cole Colorado River District Denver Water Dolores Water Conservancy District Ducks Unlimited Forsgren Associates George K. Baum Jacobs Kogovsek & Associates Mallon Lonnquist Morris & Watrous Pueblo Board of Water Works Rio Grande Water Conservation District South Metro Water Supply Authority Southwestern Water Conservation District Special District Association SWCA Environmental Consultants The Nature Conservancy United Water & Sanitation District Water Demand Management Wilson Water Group
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An agricultural ditch off the South Platte River winds through fields near Sterling, Colorado.
Evaluating Rising Salinity on the South Platte
BY SHAY CASTLE he fields of Sterling in May are a dependable trio of colors: yellow with the dried remnants of last year’s harvest; the deep brown of freshly tilled earth, or green from new growth. Another unwelcome hue mars this palette: white. The color of salt. To crops, it’s the color of death. There aren’t many patches of dead land. But there are enough to worry farmers and water officials that the same fate that felled civilizations could befall cities along the South Platte River: that the land will become too salty to support plant life. “Salinity is always a concern in agriculture,” says Grady O’Brien, a Fort Collins-based hydrologist who has been
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tapped to lead a salinity study, initiated by Colorado Corn, along the South Platte. It’s too soon to tell if salinity is a problem on the South Platte. Preliminary sampling by Colorado Corn in September showed worrying signs. Measures were taken at a dozen points along the river from above Denver to the Colorado state line. As the water flowed downstream, its purity dipped. Salt is actually a catch-all term for total dissolved solids (TDS), which can include a number of things other than what most know as salt, sodium chloride. “Salt” can be magnesium chloride, uranium, selenium—any minerals, salts, metals, and ions that have dissolved in the water.
In samples taken last year near Waterton Canyon, TDS was measured at 191 parts per million. Samples taken near Julesberg, farther down the river on the Eastern Plains, came in at 1,275 parts per million, according to data provided by O’Brien. “Once the testing got down around Sterling, it was pretty darn toxic in terms of salt,” says Mark Sponsler, chief executive officer of Colorado Corn. The data was concerning enough to take a more indepth look. The full study will review historical datasets and look to decades of information to reveal if the South Platte has gotten saltier over time, identify seasonal variations, and uncover potential sources of increased salt. All water, even rainwater, contains salt. When applied to crops or lawns, plants absorb the water and leave the salts behind, which accumulate. Agricultural runoff contributes to salinity, as does the use of de-icing compounds on roads. And as water is used and reused in its journey downstream, each use increases salinity. On its way to Nebraska, the South Platte winds through crops and stockyards, past thousands of oil and gas wells, and near towns. It all “keeps adding to that salt load,” O’Brien says. “Salinity is increasing all the way through the basin.” By some measures, water coming from upstream has improved, says Jim Yahn of the North Sterling Irrigation District. He credits increased regulation on wastewater treatment plant effluent. And despite the few crusty fields near Sterling, he says farmers aren’t yet worried because conditions are no different than in years past. Still, they’re looking forward to what the data says. The study is scheduled to be completed in late October. H •
This story originally appeared in Fresh Water News, an initiative of Water Education Colorado. Read Fresh Water News online at watereducationcolorado.org. Shay Castle is a Boulder-based journalist. Find her online at boulderbeat.news or @shayshinecastle.
Colorado Water Plan Gets Technical
BY LINDSAY FENDT n 2002 an unprecedented drought struck Colorado. It spurred water shortages across the entire state, but while state officials scrambled to stave off an even bigger water crisis in the future, they quickly found that they lacked critical information to do the job. This realization led to the Statewide Water Supply Initiative (SWSI), an analysis of water data for the state of Colorado. There have now been three SWSI reports, with each one bringing in new data to form a picture of water use in the state. The report was last updated in 2010, prior to the completion of the Colorado Water Plan. As directed in the water plan, the Colorado Water Conservation Board (CWCB) began working on the latest study in 2016 and plans to release the report on July 18, 2019 with a revamped design and reams of new data. The redesign extends all the way down to the report's format, which will be delivered as a "technical update" within the Colorado Water Plan rather than a stand-alone report like past SWSIs. According to Greg Johnson, chief of the CWCB’s Water Supply Planning Section (and a Water Education Colorado board member), this rebranding of SWSI is an effort to integrate all aspects of statewide water planning and make the data more publicly accessible. Aside from its delivery, the biggest change in the technical update will be its use of scenario planning
Although Colorado’s population has grown, population projections have decreased in comparison to the 2010 Statewide Water Supply Initiative analysis. The 2019 SWSI update, or technical update, will use these updated population numbers to determine future shortages.
to show different possible water futures in Colorado. Previous work by the Basin Roundtables and Interbasin Compact Committee, which includes representatives from each roundtable, resulted in the selection of five possible scenarios that could play out in Colorado’s future. For the technical update, the team at CWCB and its Technical Advisory Groups, comprised of local water representatives and technical experts, built out those scenarios with data, considering different variables that could affect water use in the state. These variables included things like population growth, climate change and even how much the future public will value conservation. The report also includes
Courtesy Colorado Water Conservation Board
updated population projections from the State Demography Office. The population projections were lower than what was included in SWSI 2010 and may lead to a slight decline in the projected future gap between supply and demand in some of the report’s scenarios. The plan will also include a swath of new data that was collected through House Bill 1051, which required large water providers to report water use and conservation data to the state starting in 2014. "Generally, the water supply gaps are shaking out to be pretty similar to where they were in the past,” Johnson says. “We just have a whole lot more nuance.” With more refined projections in hand, the CWCB
plans to move immediately from producing the state-level technical update to working with stakeholders regionally through Basin Roundtables to update their Basin Implementation Plans. To assist with planning projects on a local scale, the CWCB has included a financial planning tool within the technical update that can give water planners a rough estimate of the costs for possible water projects. The roundtables can use this information to start making firmer plans for addressing their communities' future water needs. H Lindsay Fendt is an awardwinning freelance journalist and photographer. She covers the environment, health and policy from Denver, Colorado.
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Around the state | BY JERD SMITH “A lot of people don’t think of heat as a pollutant because it is not toxic like ammonia or metal. However, heat can have just as much of an impact on an aquatic life community.” Barbara Bennett, water quality scientist in the Water Quality Control Division of the Colorado Department of Public Health and the Environment ARKANSAS RIVER BASIN
GUNNISON RIVER BASIN
If you haven’t seen those adrenalinefilled rafters hitting the water in the upper Arkansas River, it’s not too late. Thanks to the heavy winter snows, rafting on the Arkansas this summer is expected to be the best in more than 20 years, according to the Colorado Springs Gazette. Long-time river guides said the flows in 1985 hit 6,700 cubic feet per second, and this year, they will likely hit at least 4,000 cfs.
Blue Mesa Reservoir, Colorado’s largest, is expected to see storage levels rise significantly this year, after hitting a near-historic low during last year’s drought. According to the U.S. Bureau of Reclamation’s spring forecast, the reservoir will see inflows of 910,000 acre-feet by the end of July. These inflows should allow the storage pool to nearly fill by the end of the summer. REPUBLICAN RIVER BASIN
COLORADO RIVER BASIN The Colorado River Water Conservation District, thanks to an ongoing erosion of commercial and residential property tax revenues, is researching whether to ask voters to increase the district’s mill levy to ensure enough operating cash in future years. The district represents 15 counties on the West Slope. No final decision has been made, but the district is examining whether to place a measure on the ballot in 2020.
RIO GRANDE BASIN Thanks to a snowpack that hit more than 150 percent of average this spring, the parched Rio Grande Basin is no longer among the top dry spots in the state. According to the U.S. Drought Monitor, the entire San Luis Valley—and the entire state—is completely out of drought. Compare that to the start of the calendar year when the whole valley was in extreme or exceptional drought. SAN JUAN/DOLORES BASIN The U.S. Environmental Protection Agency will work to restore four areas in the Animas River Basin near Silverton beginning this summer. The agency, according to the Durango Herald, has been studying the area for years and has determined that several stream reaches are impaired due to low pH and heavy metals. SOUTH PLATTE BASIN
This year Colorado lawmakers approved a bill that redraws the boundary of the Republican River Water Conservation District in southeastern Colorado to include more wells that reduce the flow of the river in violation of a compact with Kansas and Nebraska. House Bill 1029 allows the district to assess the same fee on those well owners that it does on all irrigators in the district to pay for a pipeline that transports water to the river to ensure compact compliance.
The Metro Wastewater Reclamation District in Denver is among the first in the state to be required to cool the wastewater it discharges to the South Platte River to improve habitat for fish. To achieve those temperature reductions, the district, which processes wastewater for 2 million residents every day, will begin burying giant waste pipes and capturing that heat to help warm the new National Western Center. YAMPA-WHITE BASIN
2019 Statewide snowpack
93% of median as of January
2019 Peak snowpack in Colorado
133% of average
2019 Percentage of state in drought
82% as of January 1
0% as ofJune 1
Percentage of snowpack remaining As of June 10, 2019, 43% of Colorado's peak snowpack remained. Normally, on the same date, only 6% of peak snowpack would be left.
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Irrigators on the Yampa River who have not already done so, will be required to install measuring devices to help better monitor diversions and to help state water regulators administer water. Last summer, for the first time ever, flows in the river were so low that 65 percent of water users had to cut back or stop using their water because they didn’t have devices, according to the Steamboat Pilot. H
The Evolving Process of Permitting BY DAN ENGLAND
Waterton Canyon is the scenic site on the South Platte River where the Two Forks Dam would have been built. EPA, in its recommended determination to prohibit construction of Two Forks, wrote that the reservoir would eliminate about 90 percent of the Gold Medal reach of the South Platte River, result in the loss of wildlife, and inundate areas of the river that receive the most intense recreational use.
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n 1991 Bill Reilly visited Cheesman Canyon on a well-deserved vacation. It had been a year since his veto of what would have been the biggest dam and reservoir project in Colorado, and he was reminded yet again what the landmark decision meant to local residents. He and a buddy were shoving a truck out of the snow when he saw a bumper sticker reading “Two Forks” with a red slash through its middle. Reilly’s buddy nudged the truck’s owner and told him that he was standing next to the guy who rejected the proposed dam. Reilly was the administrator for the U.S. Environmental Protection Agency under George Bush Sr. His decision in November 1990 to veto Denver Water’s proposal to build a dam on the South Platte River did more than make him a local hero to some. The groundbreaking decision, and the permitting process that led to it, ushered in the modern era of water supply planning and water conservation, influencing both the water projects Coloradans depend on and the way utilities approach planning. The resulting impact has touched not only water providers and the millions of people who rely on public water systems, but also rivers that have seen benefits like higher flows, habitat restoration, and fish recovery programs because of agreements and mitigation requirements that may not have come about otherwise. While embattled water projects such as Two Forks that resolved into more holistic water supply solutions have, perhaps, bettered Colorado, the state’s population is continuing to grow, creating an impending gap between water supply and demand. Can Colorado continue to effectively develop and implement holistic water supply solutions to meet that growing demand? According to the Colorado Water Plan published in 2015, within the next few decades, even with aggressive water conservation and the completion of dozens of water projects, the state could still be short some 500,000 acre-feet annually. To meet future water needs, Coloradans need to plan. “Any municipal water supplier plans ahead,” says Mark Koleber, water supply director for the City of Thornton. “They know that the state is growing, our region is growing, and the city, like the rest of the area, is growing. We need to plan for that.” Water providers, municipalities and regions are looking toward water sources of all kinds to meet or limit future demand including water conservation, new reservoirs, water recycling, sharing or buying agricultural water, and more—many of which depend on built projects like pipelines and
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Dan Luecke (left) and Dave Little (right) were adversaries when the Two Forks Project was under consideration in the 1980s, with Little representing Denver Water’s interest in constructing the dam and Luecke advocating for alternative water supply options on behalf of the Environmental Defense Fund. Looking back, Little says the Two Forks veto made Denver Water a better organization.
reservoirs. “Whether it’s fixing existing infrastructure, enlarging existing infrastructure, or building new infrastructure, as a growing society, we need that, ” says Greg Johnson, chief of the Water Supply Planning Section at the Colorado Water Conservation Board (and a member of the Water Education Colorado Board of Trustees), the agency that coordinates work on the water plan. “And you definitely need permitting on top of that to make sure things are done efficiently and effectively,” Johnson says. In this context, “effectively” permitting projects means avoiding or mitigating undesirable impacts to the environment, water quality and communities. Projects that have been working through the permitting process, such as the Windy Gap Firming Project, Gross Reservoir Expansion Project, and others, have been leading the way in effective mitigation through years of negotiation to address the concerns and needs of
he National Environmental Policy Act (NEPA) in 1970 was among the first in a set of statutes that gave the environmental era its name. The rules include amendments to the Federal Water Pollution Control Act in 1972, the Endangered Species Act in 1973, and many others. They completely altered the water supply permitting and planning landscape by forcing utilities to consider environmental impacts in their plans and requiring federal agencies to involve the public in decision making. Other state and local laws came into play around the same time. This all meant new permits, processes and negotiations. That was true for the pioneering project under the new rules, Windy Gap Reservoir, which, completed in 1985, now pools Colorado River water in Grand County to be pumped under the Continental Divide and delivered to Front Range cities. The permitting process forced Northern Water’s Municipal Subdistrict to negotiate for years, from 1971 to 1985, with various federal agencies, the Colorado River District, and Grand County. The project moved forward when the subdistrict agreed to mitigation measures that included $550,000 for biological research in the Colorado River headwaters area and $10.2 million toward the construction of Wolford Mountain Reservoir, a compensatory storage reservoir near Kremmling meant to protect West Slope water rights and future development against water diverted to the Front Range.
Getting the permitting process wrong has consequences on both sides.
stakeholders and the environment. But permitting hasn’t been particularly efficient recently, Johnson says. Many of the projects identified in the water plan are moving through an uncertain, expensive, and decades-long permitting process. As those water supply projects encounter additional complications, some wonder if the next generation of water needs will be met through the style of negotiation that Coloradans have come to rely on—the results will matter for all Coloradans. “Getting the permitting process wrong has consequences on both sides,” says Karlyn Armstrong, water project mitigation coordinator for Colorado Parks and Wildlife. “In the face of unmet water demand, permit denials exacerbate water supply insecurities. Yet projects that are approved without the benefit of serious negotiation and holistic approaches can result in unparalleled adverse impacts to our environment and communities.” Will Colorado get this generation of water supply permitting negotiations right?
—Karlyn Armstrong Colorado Parks and Wildlife
When it came to Two Forks, Denver Water chose to push the project through the permitting process instead of taking the time to listen and negotiate with stakeholders. For years, with initial water rights filed in the early 1900s, Denver Water planned to build a dam at the confluence of the South Platte River and a major tributary, the North Fork. In 1986, it began permitting for Two Forks—a proposed 615-foot-high dam to hold 1.1 million acre-feet of water and meet the needs of 400,000 expected new residents in Denver and 42 surrounding suburbs. A coalition of environmental groups that called themselves the environmental caucus, armed with the requirements of NEPA and the Clean Water Act, came out in droves to public hearings. Members of the caucus agreed on principles they would use to develop realistic alternatives to the dam—among other things they decided that their proposal would assure a dependable supply of water and include significant new storage on the South Platte. Their proposed alternatives included conservation, smaller projects, and the expansion of existing reservoirs that could be combined to supply the same quantity of water without flooding Cheesman Canyon. On Nov. 23, 1990, EPA vetoed Two Forks under Section 404(c) of the Clean Water Act, after Reilly found that Two Forks would have been more damaging than the alternatives. For Denver Water, Two Forks would have been a continuation of big water projects that, up until that time, had been accepted without much opposition, says Dave Little, who retired in 2015 as Denver Water's director of planning after 35 years as a water supply planner. But the world was changing and the veto forced the utility to re-evaluate the way it provided water to the metro area. “It was so good that we were challenged. [Denver Water] is now a much better organization,” Little says. Without a new, massive water storage project, Denver Water better defined its service area boundaries—it would no longer regionally provide water to all surrounding suburbs, which meant different supplies were needed for other parts of the metro area. In years since, Denver Water has implemented most of the alternatives proposed by the coalition. It now boasts nationally recognized environmental mitigation, water conservation and water recycling programs. “We had Denver Water admit what it could accomplish,” says Dan Luecke, a retired hydrologist who worked for the Environmental Defense Fund and led the caucus opposed to Two Forks (he’s also a member of the Water Education
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Colorado Board of Trustees). “We just needed to help Denver Water move to a different path than the one it wanted to take.” The utility is also working on a “new” supply project, one that was already on its planning list at the time of the Two Forks review and that the caucus made part of its alternative to the big dam—the expansion of Gross Reservoir. The project has been moving its way through permits and approvals since 2003. However, this time Denver Water’s approach was far different than its attitude with Two Forks—negotiations, conversations and public input have shaped the reservoir expansion and mitigation to the point where representatives from Grand and Summit counties, home to the West Slope communities impacted by the diversion, publicly support Denver Water’s work. But it has encountered recent lawsuits and challenges with permitting, which could still halt the expansion. PERMITTING REQUIREMENTS
ifferent water projects require different permits. For big water projects that have a federal nexus, the gauntlet of permitting begins with NEPA, which aims to ensure that federal agencies and project proponents consider the environmental impacts of the proposed project before undertaking any major federal action. NEPA is designed to take the time to look at other ways to solve a problem. That’s partly why Phil Strobel, the director of NEPA compliance for EPA Region 8, which includes Colorado, calls it a planning process, not a permitting process. The key NEPA document in most Colorado water supply projects is an Environmental Impact
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Growth and new development demand water. Numerous cities along the northern Front Range plan to receive water from the Windy Gap Firming Project or the Northern Integrated Supply Project. Others are working on their own water projects, like Greeley’s Milton Seaman Reservoir expansion or Fort Collins’ Halligan Water Supply Project.
Statement (EIS) which details the impacts of the proposed action and considers reasonable alternatives. The project proponent works with a lead federal agency to explain why the project is needed, how environmental effects will be minimized or avoided, and that a reasonable range of alternatives has been considered. The public is invited to comment, and eventually the agency issues a decision stating whether the project will be permitted. A project triggers NEPA when it needs a federal permit or authorization, uses federal funds or involves federal lands. Many water projects, of course, fit these criteria. But it’s possible to skirt federal lands, bore under wetlands, and take other steps to avoid NEPA. That’s now a goal that some water utilities have achieved to save time and money in permitting. Permitting and planning doesn’t end with NEPA. Section 404 of the Clean Water Act created a program to regulate the discharge of dredged or fill material into “waters of the United States,” which itself is currently being debated. These permits are reviewed by the U.S. Army Corps of Engineers, though EPA enforces section 404. A project won’t be permitted if a less damaging alternative exists or if the waters would be “significantly degraded.” Most projects must also receive state permits and certifications. This includes working with Colorado Parks and Wildlife (CPW) and the Colorado Water Conservation Board on a state Fish and Wildlife Mitigation Plan focused on mitigation for fish and wildlife resources of state interest—which are often broader than the resources addressed in federal mitigation programs, says Karlyn Armstrong with CPW. “We work with the project proponent to implement a wide range of avoidance, minimization and mitigation tools so that impacts of water projects on fish and wildlife resources can be limited,” Armstrong says. Project proponents must also receive 401 certification, which falls under the Clean Water Act but is issued by the Colorado Department of Public Health and Environment’s Water Quality Control Division and is required before a section 404 permit can be issued. A 401 certification provides reasonable assurance that water quality standards and other criteria won’t be exceeded during the life of the project and that the project won’t “significantly degrade” water quality. CDPHE’s role ensures that technical assessments and mitigation efforts align with state requirements, which can be more specific than federal requirements, says Aimee Konowal,
Clean Water Program manager for CDPHE. “It’s important to us because we have an opportunity to look at water quality impacts and determine if mitigation is on the table and is adequate to address those impacts,” Konowal says. Finally, counties and local governments often require additional approvals such as 1041 permits. Colorado House Bill 1041 gave local governments powers to identify, designate, and regulate areas and activities of state interest through local permitting processes. Local governments typically include municipal and industrial water projects as activities of state interest that require 1041 permits. 1041 permits are issued or denied by elected officials such as county commissioners and often involve public hearings. NEGOTIATING POSITIVE OUTCOMES
hen Windy Gap Reservoir was completed in 1985, Northern Water’s Municipal Subdistrict already held the water rights for it to become a larger project—the Windy Gap Firming Project. To enable that expansion, the subdistrict, which consists of nine municipalities, two water districts and a power provider, hopes to build Chimney Hollow Reservoir in southern Larimer County, to store 90,000 acre-feet of water. The firming project should "firm up” a reliable water supply of 30,000 acre-feet a year using Colorado-Big Thompson Project infrastructure. That supply isn't guaranteed now despite the original Windy Gap because the subdistrict’s junior Colorado River water rights don’t yield water in dry years, while in wet years there isn’t storage space for the subdistrict’s water, says Jeff Drager, director of engineering for Northern Water. Cities in the subdistrict—which include the rapidly growing Greeley, Longmont and Loveland—need more reliable water for the northern Front Range’s explosive growth. According to November 2018 projections from the State Demographer’s Office, the region’s population, estimated at 554,760 in 2010, is projected to more than double by 2050. Permitting the Windy Gap Firming Project has led to years of studies, public comments, mitigation efforts and eventual settlements—and it’s still ongoing. Initially, environmental groups and Grand County opposed the project because the original Windy Gap Project, an on-channel reservoir, severed the Colorado River to enable the diversion of more water out of the headwaters, impacting habitat, recreational opportunity, and the Grand County community. The firming project
Jeff Drager, director of engineering for Northern Water, has been working to permit the Windy Gap Firming Project for more than a decade. He sits among thousands of pages of permitting paperwork including Environmental Impact Statements, alternatives analyses, fish and wildlife mitigation plans, and more.
would divert even more water to the Front Range. But after years of negotiating, Grand County, environmental advocacy groups, and the subdistrict agreed on a mitigation package that should improve the health of the Colorado River. Mitigation efforts include restructuring the river with a connecting channel that will go around Windy Gap Reservoir, and water stored in Granby Reservoir that can be released into the Colorado to boost flows and cool temperatures in late summer. It also includes a partnership between East and West Slope water stakeholders called Learning By Doing that aims to maintain, restore and enhance the aquatic environment in Grand County, and allows mitigation to be adjusted if needed in the future. Now, Trout Unlimited and Grand County endorse the project. “The bottom line is, this leaves the river healthier than it is right now,” says Mely Whiting, an attorney for Trout Unlimited who helped lead a coalition of environmental groups to negotiate the settlement. The 1041 permitting process gave Grand County the power to negotiate a mitigation package to address concerns from the first Windy Gap Project, says Lurline Curran, the county’s longtime manager who retired in 2015. “This was a unique opportunity to revisit the first [Windy Gap] permit,” Curran says. “We had the history, and now we felt like we were better informed about the impact of the first project.”
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That mitigation package and support from all involved led to permitting success for the Windy Gap Firming Project, which received its 1041 permit from Grand County in 2012. The Bureau of Reclamation issued its NEPA Record of Decision in 2014, CDPHE issued its 401 certification in 2016, and the Army Corps of Engineers issued its final 404 permit and Record of Decision in 2017. Because permitting went on for so long— 14 years passed from the start of NEPA to the issuance of a final Record of Decision—the Corps had to reevaluate many of the basic assumptions in the subdistrict’s application such as need for the firming project, changes to water demand, and impacts to wetlands. Initially the project was projected to cost around $300 million, but costs have risen to more than twice that at $600 million, due in part to the long timeline. Some of the same groups such as Trout Unlimited, Grand County, and others were party to negotiations around Denver Water’s Gross Reservoir Expansion Project, which also aims to divert more water out of the headwaters of the Colorado River to store it in an enlarged Gross Reservoir in Boulder County. After years of negotiating, more than 40 partners agreed to the Colorado River Cooperative Agreement (CRCA) in
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Jessica Alexander (left), an environmental scientist with Denver Water, evaluates river improvements on the Fraser River after completion of the Fraser Flats River Habitat Project in 2018, along with Kirk Klancke (right), president of the Colorado River Headwaters chapter of Trout Unlimited. This work restoring 0.9 miles of the Fraser was completed through Learning By Doing.
2013. Through the CRCA, Denver Water protects river flows and water quality, and will restore habitat in the headwaters area. Among other mitigation efforts, Denver Water will monitor and adjust its actions through Learning By Doing. In exchange, West Slope partners vowed not to oppose the expansion project. That project now has all but one federal permit, an amendment from the Federal Energy Regulatory Commission to modify its existing hydropower license, and one local 1041 permit from Boulder County. On Oct. 26, 2017, a bevy of environmental groups, including Save the Colorado, Save the Poudre, WildEarth Guardians, Waterkeeper Alliance and others filed suit against the Bureau of Reclamation and the U.S. Army Corps of Engineers for approving the Windy Gap Firming Project. The lawsuit questions the need for the firming project and says that the impact of taking another 30,000 acre-feet of water out of the Colorado would be devastating (project proponents disagree with this figure and confirm that an additional 9,000 acre-feet will be taken out of the river to firm 30,000 acre-feet of water). The suit essentially questions whether the NEPA process was conducted correctly. The following year, on December 19, 2018,
Courtesy Denver Water
many of the same environmental groups filed another lawsuit, this time seeking to halt Denver Water’s proposed Gross expansion. Again they claimed that federal permitting didn’t comply with environmental laws. The suit was filed against specific federal agency staff: Lieutenant General Todd Semonite with the U.S. Army Corps of Engineers; then-Secretary of the Interior Ryan Zinke; and Margaret Everson with the U.S. Fish and Wildlife Service. The lawsuits endanger the agreements that Grand County, West Slope cities, environmental groups, Northern Water’s Municipal Subdistrict, Denver Water, and others worked to secure for more than a decade. Further extending already long timelines drains the resources of both water providers and the conservation groups who have been negotiating on behalf of the public and the environment. Maybe that’s the point: If the projects are tied up in court, they can’t proceed, period. “It’s a delay for delay’s sake,” Whiting says. Using lawsuits to delay projects isn’t a new tactic. “It’s no more than it ever was,” says Dan Luecke who led the environmental caucus’s charge against Two Forks. “If you go back 20 years or more, the environmental community was accused of just playing for time.” But starting with Two Forks, environmental groups tried to do things more cooperatively, Luecke says. “Our approach was to develop an alternative rather than play for time.” Two Forks was different because all environmental groups agreed to proceed by developing alternatives that would still assure a dependable water supply. They spent more than six years in biweekly conversations with the Army Corps of Engineers, EPA and others. Ultimately, EPA agreed that the environmentalists’ alternative was technically and economically feasible and less environmentally destructive than Two Forks. AVOIDING NEPA
n the wake of Two Forks, Northern Water staff asked Denver Water about lessons learned. “What did we learn [from Denver Water]? Don’t get tunnel vision,” Drager says. For the subdistrict launching into the Windy Gap Firming Project, avoiding tunnel vision meant a $2 million study examining alternative water supplies and project locations. They even tried to avoid triggering NEPA, but in the end, the study verified that Chimney Hollow was the best option. The Two Forks veto forced water utilities to critically examine their projects, be more proactive, to collaborate, find water supplies in
Courtesy Aurora Water
Construction and planning for Aurora’s Prairie Waters Project was completed in 2010, ahead of schedule and under budget, largely because the project avoided NEPA permitting.
creative ways, and to have conversations. The veto resulted in many positive outcomes, but had Two Forks been built, it would have provided a reliable water supply in semi-arid Colorado. “I think you could draw a fairly direct line from that decision to the agreements and conversations we are having now,” says Lisa Darling, executive director of the South Metro Water Supply Authority (SMWSA), which serves about 80 percent of Douglas County. (She is also president of the Water Education Colorado Board of Trustees). “On the other hand, you’ve got to look at where we would have been had [Two Forks] gotten constructed.” The dam, though distasteful to many, would have provided the metro area with a reliable water supply and resulted in very different water portfolios among Front Range utilities today. It also might have helped Front Range communities who struggled through the devastating 2002 drought. That year was the first that Aurora couldn’t meet its water demands, and Darling,
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time and uncertainty of permitting. WISE could have developed as part of Prairie Waters, with Aurora regionally partnering with SMWSA from the start, Pifher says. But Prairie Waters was constructed before WISE because Aurora feared that as a larger project, a massive EIS could have been required for all WISE partners. “We just said woah, that’s a little scary,” Pifher recalls. “So again, we just concluded that it would be best if we put any partnership off to the future.” 1041 AND THORNTON
We knew that if we could avoid tripping NEPA, we’d shave, literally, years off the timeline.
who managed the South Platte River Program for Aurora Water at the time, had to help the city keep taps running. If the drought had persisted in the same severity for another year, Aurora would have used all of its reservoir water. “There would be no water in storage. For a major municipal city, that’s unthinkable,” says Mark Pifher who was deputy director, then director of Aurora Water from 2005 to 2012. The drought highlighted the need for Aurora’s own project: Prairie Waters. “It was imperative to get that project rolling ASAP,” Pifher says. Prairie Waters recaptures the city’s water after it has been used by residents, treated, and discharged into the South Platte River. The water is captured in wells near the river where it’s filtered and piped back 34 miles to a purification facility near Aurora Reservoir. This water is used by Aurora residents and shared with SMWSA members through a project known as Water Infrastructure Supply Efficiency (WISE). Aurora developed Prairie Waters ahead of schedule, in only five years, and $100 million under budget at $660 million. Darling credits Aurora Water’s staff and some luck for the low budget and quick timeline. But Prairie Waters’ expedited timeline wasn’t a mistake. “We knew that if we could avoid tripping NEPA, we’d shave, literally, years off the timeline,” Pifher says. So the project was designed to avoid an Individual 404 permit and the related NEPA review by drawing water from wells beside the South Platte, rather than from the river itself, and by tunneling under drainages. “That saved us, what do you think, five or 10 years?” Darling asks. Aurora needed a Nationwide 404 permit, but that was a fairly minor process, Darling says. Nationwide permits are meant to streamline the Army Corps of Engineers’ authorization of projects that will have a minimal impact, whereas individual permits are required for more significant impacts. Aurora also needed local permits but easily obtained authorization. Avoiding federal NEPA processes allowed Aurora to quickly develop its project. “It’ll never happen this way again,” Darling says. Prairie Waters, along with growing water demands, a shrinking groundwater table in the south metro area, and the absence of the regional water supply that Two Forks would have provided, all led to the WISE partnership. WISE was established in 2009 to help transition south metro cities from groundwater to reusable supplies with Prairie Waters’ infrastructure and water from Aurora and Denver Water. That reusable supply meets many needs without the expense,
—Mark Pifher Aurora Water
ut avoiding the NEPA process doesn’t always result in smooth permitting, or so one might infer from the February 11, 2019 denial of a Larimer County 1041 Permit which the City of Thornton had hoped to obtain for its longplanned pipeline project. Thornton has been planning for population growth for years—back in the 1980s it was the biggest non-Denver participant in the Two Forks Project. In the mid ‘80s, when Two Forks faced some opposition, Thornton looked at potential water projects and purchased agricultural land with senior water rights in Weld and Larimer counties. Thornton planned to change that water from agricultural to municipal use and pipe it south to supply its population. In 2014 Thornton reexamined its plan along with various alternatives and confirmed that a pipeline was its best option to deliver this water to its residents. The city designed a 72-mile-long pipeline that would avoid triggering NEPA by boring under wetlands, ditches and creeks rather than trenching through them, just as Prairie Waters did. Still, the utility would need permits from Larimer and Weld counties. Thornton worked with county staff and hosted open houses in 2016, then began public and targeted meetings in 2017 to hear concerns. To address concerns, it developed a mitigation package that included conservation easements on the land, improvements to diversion dams and habitat along the Poudre River, and instream flows to prevent dry-up spots on the river, among other things. “We felt we had a winwin with the package we put together,” says Mark Koleber, water supply director for the City of Thornton. “[Larimer County] staff indicated that we had met all of their criteria and we had been working diligently to make sure that we did.” So it came as a surprise when, in February 2019, all three Larimer County Commissioners denied Thornton a 1041 permit for its pipeline. Thornton expects to need new water by 2025, when the population is projected to grow beyond
158,000 residents, which is the current capacity of its system. If built, the new pipeline should supply the city through 2065, when the population is projected to reach 242,000 residents. “We started planning in the 1980s,” Koleber says. “Now it’s time to put in the infrastructure to move [the water] here.” But with the 1041 permit denial, will Thornton meet its 2025 deadline or be able to build the project at all? Perhaps. The City of Thornton has filed a lawsuit against Larimer County, claiming that the commissioners disregarded their own rules, the facts presented, and state law when they denied Thornton’s 1041 application. If the case goes Thornton’s way, the court will overturn the decision or require the commissioners to approve the pipeline. There’s no telling how that court timeline will look, Koleber says. In the meantime, Thornton is beginning construction on seven miles of pipeline and is working through permitting with Weld County this summer. Some say the same challenge of obtaining a 1041 permit could be looming for other pending water supply projects. Northern Water’s Northern Integrated Supply Project (NISP), which would supply 15 northern Front Range water providers with 40,000 acre-feet of new, reliable water, is also planning a pipeline with portions that were designed alongside Thornton to follow the same route through Larimer County. Other northern Colorado cities are planning other projects that will call for permits, like the City of Fort Collins’ Halligan Water Supply Project and the City of Greeley’s Milton Seaman Water Supply Project—though both have many permitting
Timothy Hurst, The Coloradoan
Fort Collins resident Karen Spencer reacts to Larimer County Commissioner Tom Donnelly’s vote against Thornton’s proposed pipeline following votes against the proposition by the other two commissioners at a 1041 hearing on February 11, 2019.
steps to work through before considering 1041 permitting. Meanwhile, Denver Water recently sued Boulder County, arguing against the county’s determination that a 1041 permit is required for the Gross Reservoir Expansion Project. Only time will tell if these projects, with the aid of holistic permitting and negotiations, will yield positive outcomes or if the demands and voices involved in permitting will push project proponents and stakeholders to find fresher ways to satisfy public demands along with the water demands of growth. “There have been many examples of high cost and high uncertainty involved in the permitting process,” says Greg Johnson with the CWCB. “I think that the desire is to decrease those unknowns, decrease the costs, and decrease a lot of the uncertainties of it all. To make sure that things are getting done, and done responsibly.” H DAN ENGLAND is a freelance writer who lives in Greeley. He writes about music, environmental issues, fitness, and outdoor activities including ultrarunning and mountaineering. He has won more than 100 state and national awards, including many for feature writing. He is a father of twin girls and a teenage boy and enjoys running, dogs and listening to heavy metal even though he should have outgrown it by now.
TAKE THE NEXT STEP Search the EIS database to find records of all EISs filed since 1987 and EPA’s comments on them: https://bit.ly/2gDevqz.
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How does a project move through the process? Follow the flow to see how different projects might move through the NEPA process. Then increase your understanding by matching the red numbers in certain steps with definitions to the right. But NEPA isn't the only process that assesses and mitigates the impacts of proposed water supply projects. Our short list of other federal, state, and local permits (blue numbers) includes some other common permitting requirements.
Does the proposed action have a federal nexus?
No NEPA decision making required
Are there extraordinary circumstances?
YES Is proposed action on agency list of categorical exclusions?
NO Is proposed action on 2 agency list of Major Federal 3 Actions or is there a known or suspected significant impact?
Are the impacts significant?
YES Environmental Impact Statement (EIS) • Notice of Intent • Draft EIS/Notice of Availability • Final EIS/Notice of Availability
Record of Decision (ROD)
NO Finding of No Significant Impact (FONSI)
Permitting the Windy Gap Firming Project The Windy Gap Firming Project took 14 years to permit and is now 16-plus years in the making. Explore some turning points and refer back to the NEPA process and our lists of permitting steps (the red and blue numbers) to see how some fit into the project's timeline.
2003 February: The firming project participants complete and publish a self-funded Alternative Plan Formulation Report examining 171 alternative project elements. After spending two years evaluating alternatives, participants find that Chimney Hollow Reservoir is their best option. April: Windy Gap Firming Project’s 12 participants enter NEPA federal permitting and the U.S.
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Bureau of Reclamation becomes the lead agency on the NEPA process. 2005 September: The U.S. Bureau of Reclamation publishes the Purpose and Need Report 2 stating that “... firm water deliveries from the Windy Gap Project are needed to meet a portion of the existing and future demands of the Project Participants.” September: Reclamation publishes an Alternatives
Report 3. In this report, Reclamation and the Army Corps of Engineers evaluate and identify alternatives to the project based on the purpose and need statement. The alternatives report identifies four reasonable alternatives. 2008 August: Reclamation publishes the Draft EIS 4, evaluating those four alternatives plus one no-action alternative. The publication of the Draft EIS
launches a public comment period that remains open through Dec. 29, 2008. 2009 April: Northern Water’s Municipal Subdistrict and Northern Water offer voluntary enhancement benefits to the West Slope. Negotiations begin to develop a mitigation package that will meet the needs of West Slope headwaters communities. 2010 August: Grand County publishes its stream
OTHER FEDERAL, STATE, and LOCAL PERMITS
1 Categorical Exclusion (CE) a category of actions that the agency has determined doesn’t have a significant effect on the quality of the human environment. If an action is included in the agency’s CE list, the agency must check that no extraordinary circumstances could cause the action to have a significant effect.
1 State Fish and Wildlife Mitigation Plan and Voluntary Enhancement Plan—Developed using the anticipated impacts of the preferred alternative as outlined in the Draft EIS. Mitigation plans are submitted to the Colorado Parks and Wildlife Commission by the project applicant, and, if agreed to by the Commission, the plan is forwarded to the Colorado Water Conservation Board for approval as the state’s final position on mitigation for submission to the NEPA lead federal agency. Applicants may also submit enhancement plans to voluntarily improve fish and wildlife resources over and above the levels impacted by the project.
2 Purpose And Need Statement explains why an action is necessary and creates a basis for identifying alternatives that could meet that purpose and need. 3 Alternatives Report evaluates all reasonable alternatives to meet the purpose and need, evaluates a “no action” alternative, and discusses reasons why any alternatives are eliminated. 4 Environmental Impact Statement (EIS) is required if a proposed federal action is projected to significantly affect the quality of the human environment. As the lead agency begins work on an EIS, it must prepare a Notice of Intent, alerting the public. It then submits a Draft EIS for public comment, publishing a Notice of Availability. The Draft EIS uses the statement of purpose and need to evaluate reasonable alternatives to meet that need. A public comment period extends for at least 45 days. After receiving public comments, the agency analyzes feedback, responds to comments, and prepares the Final EIS. When complete, EPA publishes a Notice of Availability in the Federal Register. A minimum 30-day waiting/public comment period must pass before the lead agency can make a decision on the proposed action. 5 Environmental Assessment determines the significance of the environmental effects of a proposed project and looks at alternative means to achieve the objective. This assures compliance with NEPA when no EIS is necessary or facilitates EIS preparation. 6 Finding Of No Significant Impact (FONSI) presents the reasons why the agency has concluded that the action has no projected significant environmental impacts. If the type of proposed action has never been done before by the agency or if the action would typically require an EIS, the FONSI is made publicly available for 30 days. 7 Record 0f Decision the lead agency identifies their decision, explains the alternatives considered, and discusses mitigation plans.
management plan, identifying the most critical river health issues in the area. This data informs mitigation negotiations.
65 government agencies and officials, 18 organizations, 44 businesses, and 1,026 individuals.
June: Colorado Parks and Wildlife officials accept the Windy Gap Firming Project’s State Fish and Wildlife Mitigation and Voluntary Enhancement Plan 1.
March: U.S. Fish and Wildlife Service issues the Fish and Wildlife Coordination Act Report 2.
November: Reclamation publishes the Final EIS 4 after considering written and oral comments from
June: The subdistrict files a 1041 permit application 3 with Grand County. August: 1041 application hearing is held and public
2 Fish and Wildlife Coordination Act Report—Documents the proposed project’s impacts on fish and wildlife resources and recommends measures that should be taken to conserve those resources. Federal agencies must consult with the U.S. Fish and Wildlife Service and Colorado Parks and Wildlife when a proposed action may impact threatened or endangered species, their critical habitat, or fish and wildlife resources in general. 3 Local Government 1041 Permit—House Bill 74-1041 allows counties and municipalities to regulate a variety of development activities including new or major extensions of water projects. These regulations aim to mitigate environmental and socio-economic impacts of a designated matter of state interest. Local governments adopt permit procedures tailored to protect their communities. 4 401 Water Quality Certification—Issued, issued with conditions, or denied by the Colorado Department of Public Health and Environment’s Water Quality Control Division (WQCD) to ensure with reasonable assurance that the project will be conducted in a manner that won’t violate applicable water quality standards. In the process, the WQCD assesses chemical, biological and physical data to determine water quality impacts from the construction and operation of the project. The Colorado 401 Certification Regulation applies to projects requiring a 404 permit, Federal Energy Regulatory Commission license for hydropower projects, and other federal permits or licenses that discharge into Colorado water. 5 404 Clean Water Act Permit—Projects involving the discharge of dredged or fill material into waters of the U.S. require an Army Corps of Engineers permit under Section 404 of the Clean Water Act. EPA works with the Army Corps of Engineers to assure that Clean Water Act regulations are met.
meetings for deliberation begin. December: Grand County and the subdistrict sign off on the 1041 permit 3 and related mitigation agreements. 2014 December: Reclamation issues its Record of Decision 7 stating “Based upon the Final EIS and other considerations, the Regional Director has decided to implement Alternative 2—Chimney Hollow Reservoir.”
2016 March: CDPHE issues the project’s 401 water quality certification 4. 2017 May: U.S. Army Corps of Engineers issues its 404 Clean Water Act Permit 5 and final Record of Decision. This is the final permit needed for the project.
Alliance, and Sierra Club file a lawsuit in federal district court against the U.S. Bureau of Reclamation and U.S. Army Corps of Engineers aiming to stop the Windy Gap Firming Project. 2019 June: Project design completed. RFP for construction issued.
October: Save the Colorado, Save the Poudre, WildEarth Guardians, Living Rivers, Waterkeeper
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Are new efficiencies in state and federal permitting processes for large water projects changing our government for the better?
t’s been 16 years in the making. The Gross Reservoir Expansion Project, which aims to divert more water from the Colorado River for use by Denver residents, obtained most permissions to start construction in 2017. Yet, in 2019, it’s still waiting on one last federal permit (an amendment to Denver Water’s existing hydropower license from the Federal Energy Regulatory Commission) and is working through local permitting with Boulder County. Permitting water supply projects helps protect natural and cultural resources and communities and creates a venue for public comment and engagement around projects like dams and reservoirs which, if not mitigated, can have a major impact. While permitting itself is crucial, the process through which it’s achieved, more often than not, is repetitive, time consuming and costly. Different projects require different permits, but many large water projects with a federal nexus must undergo environmental review under the National Environmental Policy Act, or NEPA, to, in many cases, produce an Environmental Impact Statement (EIS), a document that typi-
By Julia Rentsch
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cally runs thousands of pages and takes the better part of a decade to complete. EIS documents include field studies, alternatives analysis, and public comment periods to provide a basis for both the public’s review of projects and a federal agency’s ultimate decision on whether to issue permits. In addition, many projects must also receive a biological opinion from the U.S. Fish and Wildlife Service on impacts to endangered species and a 404 permit from the U.S. Army Corps of Engineers under the Clean Water Act, which means a 401 certification from the Colorado Department of Public Health and Environment (CDPHE) is also necessary. Project proponents often also develop a state-level fish and wildlife mitigation plan with Colorado Parks and Wildlife and the Colorado Water Conservation Board (CWCB). And, that’s not even an exhaustive list of requirements—many proponents must apply for other federal, state and local permits. In 2015, the Colorado Water Plan identified permitting reform as a state priority, calling on state employees to take a look at shortening permitting timelines without reducing their environmental analyses’ scientific soundness and credibility. In the plan, the CWCB
acknowledges the permitting process is “extremely difficult due to the complexity of the projects, the challenges in understanding and reducing environmental impacts, and the condition of many of the aquatic systems.” Yet water supply projects, coupled with other actions and strategies, are necessary to ensure there’s enough water for decades to come. At the federal level, the One Federal Decision policy implemented via executive order by the Trump administration in August 2017 calls for permitting reform by requiring federal agencies to process environmental reviews as a unit: That means that all federal agencies involved in permitting a project will work under one schedule and will sign a single record of decision, rather than doing so individually by agency. The rule sets the goal of reducing the average time of processing such reviews and decisions at the federal level to a maximum of two years—a much
Courtesy Colorado Department of Natural Resources
Stephanie Ackerman with EPA led a “lean” meeting in March 2016, where representatives from federal, state and local agencies, water utilities, environmental groups and other stakeholders shared their experiences with permitting and suggested improvements to the process.
shorter timeline than the Gross Reservoir Expansion’s 16-year effort. A more abbreviated permitting timeline may open opportunities for smarter collaboration and more efficient work, but it also has the potential to place undue burden on water providers to get their analyses done quickly; in so doing, it may demand more staffing and money up front than some entities can afford. While water permitting experts have impressions of what the new policies and rules will do for the permitting world, it is too soon to tell whether this new guidance will make a substantive difference in the world of water project permitting, for better or for worse. State processes Eleven years elapsed between the kick-off of Gross’s EIS process in 2003 to the publication of a final EIS in 2014. It then took another three years before the U.S. Army Corps of Engineers issued its Record of De-
cision that allowed the project to proceed. After the draft EIS was completed in 2009, Denver Water worked on the Colorado River Cooperative Agreement, which took four years of mediated negotiations with water districts and cities on the Western Slope. At the same time, Denver Water joined forces with Northern Water and the Northern Water Municipal Subdistrict (responsible for the Windy Gap Firming Project) to develop a voluntary Fish and Wildlife Enhancement Plan to address impacts of ongoing operations on local species. From Denver Water’s perspective, there was a lack of coordination on all those review processes. “We were rehashing the same issues; the same resources were getting reevaluated by each independent process,” says Paula Daukas, manager of environmental planning for Denver Water. She says recent efforts at the state level to identify “pain points” in the permitting process and to develop better ways to com-
municate and coordinate between project proponents, permitting authorities and stakeholders will help future projects avoid suffering some of the same inefficiencies. If all of the state and federal agencies were able to come together and coordinate their permitting processes from the beginning, projects would be much more efficient, Daukas says. “There’s a benefit to trying to streamline the communication as much as possible,” Daukas says. “It should, ideally, knock years off the process.” In response to the recommendations in the water plan, state officials and representatives of EPA Region 8 convened a meeting in 2016 with the goal of identifying ways to make the water supply permitting process “leaner,” or more efficient. “Lean” refers to a discussion facilitation method participants used to identify places to trim fat. Colorado’s lean meeting allowed representatives from state, local and federal agencies, water utilities, environmental
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Colorado Parks and Wildlife employees Katie Birch, instream flow coordinator, and Jeff Spohn, northeast region senior aquatic biologist, take flow measurements on the North Fork of the Poudre River in October 2018 to study potential impacts of the City of Fort Collins’ proposed Halligan Water Supply Project.
groups, and other stakeholders to share their experiences with large water supply project planning and permitting in Colorado and to weigh in on potential improvements to the process. One of the group’s primary findings was that better up-front coordination between local, state and federal agencies has great potential to create efficiencies in the permitting process, says Amy Moyer, the Colorado Department of Natural Resources’ assistant director for water (and a member of the Water Education Colorado Board of Trustees), who participated in the meeting. The group specifically thought that including more collaborators at the table earlier, particularly during the scoping and initial phases of the NEPA process, would make the permitting more meaningful by de-siloing and fostering collaboration from the get-go. The practice could also lead to better public comments, says Rob Harris, senior staff attorney for Western Resource Advocates, who was part of the lean group. “As a practitioner in the nonprofit world, my comments are stronger if I understand where the agency is coming from and I understand their concerns,” Harris says. Many permitting processes, including those at the state level, require similar steps and studies, so under an efficient mechanism, agencies and project propo-
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nents can consider the various requirements together, Moyer says. That’s easier to do when stakeholders are brought together early; it can eliminate the necessity of re-doing studies based on the requests of an agency brought into the conversation later. The intent is to combine or run steps in parallel, rather than eliminate anything, Moyer says. For example, CDPHE’s technical requirements and standards for 401 certification are more specific than those for the EIS, says Aimee Konowal, the Clean Water Program manager for CDPHE. If a project proponent does not know this in advance, they may collect data via one method for the EIS, then find that they must do it differently for the 401 certification. “If you were looking at temperature impacts in a stream that the EIS may have looked at, there are different ways you can look at thresholds of what might be considered to be an impact to the stream,” Konowal says. “With the EIS process you have more flexibility as to how you set thresholds, whereas in [CDPHE’s] regulations, we specify specific methodologies and certain thresholds that our commission has adopted for that segment … The goal is always that the technical work is consistent in both processes and that we can use all of the
technical work and documentation done previously for the EIS.” It’s simple process tweaks, like getting informed about what different permitting processes require far in advance, that the lean method is trying to identify, Moyer says. “When we talk about making the permitting process more efficient, I cannot stress enough that it’s not about lessening the analysis,” Moyer says. “The solutions hinge on how you engage stakeholders— you really need to have the right people at the right table early on in these water supply projects to seek agreement on methodologies, data needs and understanding impacts.” However, early engagement could create its own problems, too. Project timelines may significantly shift under the One Federal Decision, says Stephanie Phippen, senior geoscientist and project manager for Tetra Tech, a water, infrastructure and environmental resources consulting and engineering firm. Since the clock starts with the publication of the Notice of Intent in the Federal Register, projects may now just complete more analysis up front before the notice, and before public input, in order to meet the two-year timeframe, Phippen says. “Some speculate that projects may be further along and less open to change
Courtesy Colorado Parks and Wildlife by Mindy May
based on public input when they do finally publish the [notice of intent],” Phippen says. “If true, the end result could be that projects are front-loaded but overall take about the same time, and are less open to incorporating ideas brought forward by the public input. Time will tell!” To put the lean lessons into action, the group developed a stakeholder engagement framework, interagency guidance documents, and the Colorado Water Supply Planning and Permitting Handbook. The handbook, released in October 2017, became the collaborative’s flagship item, Moyer says. The book is intended to be a resource for entities planning large water supply projects in Colorado and aims to help them incorporate local, state and federal regulatory requirements into initial water supply planning phases, long before they ever submit a permitting request. The handbook describes relevant regulations and their triggers; a timeline and details about efficiencies gained by integrating planning; and guidance on avoiding duplicitous assessment efforts. Now, Colorado officials are making an effort to promote the handbook and keeping an eye on new federal guidance for how it will impact the handbook’s recommendations, Moyer says. Consultants for the proposed White River Storage Project are using the handbook as a reference as they navigate the early stages of building a dam and reservoir on the White River near Rangely to increase water storage during the frequent droughts experienced on the lower White River. The project began in 2014 and is in the initial phases of working through NEPA. State staff recommended that the White River Storage Project staff take a look at the handbook; it provided some good general information but fell a little short on addressing some of the complexities associated with navigating the multiple internal permitting requirements at the state and federal levels, says project manager Brad McCloud with EIS Solutions. Nevertheless, the handbook helped give the team a different view of some of the goals the team was trying to accomplish: making their project as effective, efficient and streamlined as possible. “Cost and timeline are always on your mind,” McCloud says.
HELPFUL PERMITTING HINTS The Colorado Water Supply Planning and Permitting Handbook walks project proponents through the steps of permitting and offers suggestions to help proponents incorporate regulatory requirements into the early phases of their water supply planning work. Hints include: • Start the planning process without preconceptions about how a water supply need will be met. Then identify the proposed action and alternative actions in a way that’s consistent with regulatory processes. • Involve agencies and community stakeholders in the earliest stages of planning. • Consider how to minimize environmental impacts from the beginning and consider a range of options that meet the need for the project with the least adverse effect on the environment. • Minimize environmental impacts through project design. Some smaller water supply projects that have minimal impacts may only require an environmental assessment rather than an EIS. • Consider and integrate federal, state and local statutory and regulatory requirements together at the early planning stages to help permitting go more smoothly. • Reduce duplicative efforts regarding data analyses through collaboration. • Consult with federal and state agencies early in the process to identify data needs. • Identify data gaps early in the process and begin data collection to document baseline environmental conditions and to enable impact analyses. • Data and analyses should be robust enough to answer regulatory questions and to inform decision making. Collecting data before entering formal planning and permitting processes will support strong technical documents and should expedite decision making for permits. One of the aftereffects of lean has been to help CDPHE get to the table earlier to build relationships with project proponents and federal and state agencies, Konowal says. In June 2017, the Colorado Department of Natural Resources and CDPHE signed a memorandum of understanding that represents a commitment by the agencies to work together on the Fish and Wildlife Mitigation Plan and 401 certification, when both entities are looking at impacts of a water project. “A key piece for me has been working with Colorado Parks and Wildlife more closely on how do we not duplicate efforts,” Konowal says. “How do we move forward and have a comprehensive review, but make sure we’re touching base with each other and making sure that we’re being consistent with our regulations?” Federal processes In addition to the One Federal Decision’s new two-year timeline, the 2017 executive
order requires all federal authorizations for the construction of projects to be completed within 90 days of the issuance of a Record of Decision. In light of these changes, 12 federal agencies, including the Environmental Protection Agency, the Army Corps of Engineers and the Department of the Interior, signed a memorandum of understanding in April 2018 agreeing to cooperate on the timely processing of environmental reviews and authorization of decisions for proposed projects. Harris, of Western Resource Advocates, finds the two-year timeline for completing environmental reviews problematic, and not just because he worries the One Federal Decision will diminish EPA’s role in reviewing, and potentially vetoing, permitting decisions under the Clean Water Act. “I think it’s going to be very difficult to craft an EIS that meets all the existing laws,” Harris says. “[NEPA, the Clean Water Act, the Endangered Species Act] … All those laws are basically intact. Their requirements
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A ribbon-cutting ceremony celebrates the opening of the Watson Lake Fish Bypass in May 2019 at a diversion dam adjacent to Watson Lake and the Colorado Parks and Wildlife fish hatchery on the Poudre River. The bypass was built by participants of the Northern Integrated Supply Project, Morning Fresh Dairy, Noosa Yogurt, and Colorado Parks and Wildlife to improve habitat on the Poudre River and fulfills one of the promises made by NISP participants in the NISP Fish and Wildlife Mitigation and Enhancement Plan.
“From the perspective of a group that’s working on a project that we feel very good about, anything that can help us get through the process and save on time and money … that’s our priority.” Brad McCloud | EIS Solutions
are as strict as ever. And simply hurrying things up won’t necessarily result in more efficient decision making, but could result in lower-quality documents that are more susceptible to challenge in federal court.” Nevertheless, Harris gets the desire for more efficient permitting. “I desire that, too—I want to see more focused, higher-quality analyses that really address the core conflicts. The documents spend a lot of time on stuff that’s not essential to the decision making.” In 2012, the Obama Administration launched “A More Modern, Effective, and Efficient Federal Infrastructure Permitting Process,” a government-wide initiative to cut permitting decision-making timelines. The initiative created a committee whose duty was to coordinate and streamline agency reviews, it also designated senior officials as central points of accountability for meeting timelines, and made other changes as well. There was also the Fixing America’s Surface Transportation Act, signed into law in December 2015; its 41st title was designed
30 • W A T E R E D U C A T I O N C O L O R A D O
to improve the timeliness, predictability and transparency of the federal environmental review and authorization process for covered infrastructure projects. Project proponents can comply on a voluntary basis with FAST-41, which created a Federal Permitting Improvement Steering Council (FPISC) composed of agency Deputy Secretary-level members and chaired by a presidential appointee. FAST-41 also established new procedures for inter-agency coordination and communication, codified the use of the Permitting Dashboard to track project timelines and, importantly, gave agencies new authority to regulate the collection of fees, which would allow the FPISC to direct resources to the most critical functions within the inter-agency review process. The process for redefining the project permitting regulations and guidance is still in flux. In June 2018, the Council on Environmental Quality (CEQ) requested public comment on potential ways to revise the NEPA process for better efficiency. The council has not yet made a determination;
the CEQ has substantively amended its NEPA regulations only once since 1978. The interactions between the executive order from the Trump administration and previous permitting reform attempts by the Obama administration are still a bit unclear, but it should be noted that streamlining permitting has been a goal for many previous administrations. The latest attempt by the Trump administration appears to have more teeth than those previous, due to its triggering of the inter-agency memorandum of understanding and the related changes to underlying laws such as NEPA and the Clean Water Act. However, like all executive orders, the One Federal Decision and its effects could be undone by the next administration. However the rules shake out, project proponents hope to see a system that allows them to get the necessary work done, while hopefully avoiding a drawnout process full of pitfalls. “From the perspective of a group that’s working on a project that we feel very good about, anything that can help us get through the process and save on time and money … that’s our priority,” McCloud says. “It really is exciting to see people working on the process, trying to make it better.” H JULIA RENTSCH has a degree in Journalism and Global Environmental Sustainability from Colorado State University and is based in Fort Collins. When not writing about water, she is the city reporter for the Loveland Daily Reporter-Herald.
TAKE THE NEXT STEP Read the Colorado Water Supply Planning and Permitting Handbook and learn more about the lean event at https://bit.ly/2F7PulM. Courtesy Northern Water
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Our members advance awareness This issue we’re featuring Melinda Kassen, who joined WEco as an individual member after we launched Fresh Water News last year. “I think it’s important to have quality, unbiased information about water available both to the water community but also to the greater state of Colorado...all those millions.” Melinda is senior counsel at the Theodore Roosevelt Conservation Partnership, which serves as the national voice for a coalition of 59 organizations dedicated to preserving opportunities for quality hunting and angling. Melinda supports TRCP in its work in D.C. and with a variety of public entities on policy issues ranging from Clean Water Act protections to Colorado River Basin water management. “We need to make sure money and policy can keep water in streams,” she says. Melinda hails from Ohio, but has made Colorado home since 1983. She has dedicated much of her career to Western water issues, and served as the Interbasin
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