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Water Law

All in a Day's Work: Water commissioners

Story by Jerd Smith | Photos by Kevin Moloney

Early on a bright April morning winter still sits lightly on Silverthorne, Colorado. A white jacket of snow covers the Continental Divide and solid ice blankets Lake Dillon, Denver Water's largest water storage reservoir. Beneath the stillness of the ice, water, as always, is moving into the mouth of the Roberts Tunnel, destined to travel 60-some miles down the east side of the Front Range to 1.2 million Denver Water customers.

Summit County water commissioner Scott Hummer has already checked stream gauges this morning from his home above Lake Dillon, eyeing reservoir levels and flow rates. By 9 a.m. he has plowed through the paperwork at his tiny office in a Silverthorne industrial park.

Scott HummerHummer is one of 114 commissioners who oversee the day-to-day operation of Colorado's rivers. A 20-year veteran of Colorado's Division of Water Resources, Hummer, 49, is well aware that when the mountain snowpack begins to melt, all eyes turn to Summit County and the Blue River Basin he oversees in Colorado Water Division 5.

Here in the headwaters of the mighty Colorado River, most of the state's largest water utilities have a major presence. Their massive transmountain delivery systems supply drinking water to millions of people on the Front Range. The utilities, farmers and ski areas have spent millions of dollars over the years battling one another over who gets how much water and when. Hummer is the water cop responsible for keeping the peace and ensuring water is being measured and delivered properly.

He knows, for instance, that the Roberts Tunnel is taking about 56.6 cubic feet of water per second out of the lake, based on satellite feeds that automatically gather data from dozens of river and reservoir gauges. Later today he will visit critical gauging stations to make sure the automated readings coming in via satellite to the state's monitoring system match those he sees on the river itself.

As utilities, farmers and regulators gear up for the spring melt—a time to fill reservoirs and carefully balance the flow of water between the east and west slopes—everyone goes into a sort of hyper-alert mode, a ramp-up period that has people like Hummer carefully monitoring mountain snowpacks and checking gauging stations and tunnels to ensure they're ready for the season.

Above Dillon, the snowpack on that April day was 109 percent of average, according to the Natural Resources Conservation Service, a healthy reading given the chronic drought cycle that has plagued Colorado since 2002. But to Hummer and other commissioners, a slightly above average snowpack doesn't necessarily mean it will be a good water year. ‘One month ago we were still below average,’ Hummer says. ‘This is nothing to write home about.’
Still, the snow in April is heavy and wet. On a deeply rutted dirt road heading over the Continental Divide, melting water sluices down through the snow, turning clay to a deep, greasy mud. Hummer is on his way to check the Hoosier Tunnel, which delivers water from the Blue River Basin to Colorado Springs. Inside this massive, old structure, completed in 1951, water drips from the granite ceiling as Hummer checks the gauge. It's reading about 1 cubic foot per second, barely a trickle compared with the spring rush that will occur in a few short weeks. ‘Things are just getting started,’ Hummer says. ‘In another month, it will be at 1,500 cfs.’

Like many water commissioners Hummer is part historian, part sociologist, part hydrographer and part naturalist. He has a degree in geography, and he loves the diversity of his work. ‘In a district like this,’ Hummer says, ‘you have every type of water right that has ever been adjudicated being used, from irrigation water, to water for snowmaking, to water from a geothermal well that is being used to heat a local hardware store.’
Last week, he took snow shoes and hiked up to a ridge line to check a small mountain lake on which a nearby property owner had filed for a new water right. Later, he'll write a formal report that the water court will use to evaluate whether to approve the water right.

‘The process of determining what a new water right will be starts with the water commissioners,’ Hummer says. ‘Most people don't even know that water commissioners exist. Yet commissioners are the individuals who are responsible for allowing the people who hold and own water rights to divert their water. Denver Water has to deal with the water commissioner just like a rancher down in Durango has to deal with a water commissioner. Pretty much what we say goes.’

Later this summer, he'll be going door-to-door in the ever-growing mountain subdivisions of Summit County, checking wells to make sure people aren't using water outdoors on lawns and in hot tubs. Here, about 3,500 wells operate but water is allowed only for indoor use because the wells draw from the same aquifer that supplies the Blue River. If homeowners and others over-pump, they must buy extra water to replenish the river.

‘If anyone had told me 20 years ago that I would be going to door-to-door checking hot tubs, I would have said, 'You must be nuts.'’

Just as Hummer is gearing up for spring runoff, on the east side of the Continental Divide, water commissioner Brent Schantz is at work in his Greeley office. Schantz oversees Districts 1 and 64 in one of the fastest-changing regions of the state—Water Division 1, the South Platte Basin. At 7:30 on a cold, cloudy April morning, he's already taken a half dozen cell phone calls in his office. Two large computer screens offer him views of a slew of gauge readings from Kersey out to the Nebraska state line at Julesberg.

Brent SchantzStacks of records and paper charts still used to graph readings at old monitoring stations cover an ancient wooden desk. New portable electronic devices that allow commissioners to automatically download data from stream gauges during field expeditions lie around, as do batteries and cables.

Schantz, 41, took over supervision of District 1 in 2002, one of the driest years on record. It was a year that had groundwater-reliant farmers battling surface water-dependent farmers day after day. Conditions created by the prolonged drought, in addition to a Colorado Supreme Court case and a new state law, have mandated that well users put more water back into the river. Problems between well users and those who rely on surface supplies were first addressed in a 1969 law that established that the aquifer that supplied the wells also supplied the South Platte. Replacement for out-of-priority well pumping was required beginning in 1974 when the State Engineer's Amended South Platte Rules were approved. Still, there had usually been enough water to go around in the South Platte, enough to keep both surface and groundwater users happy.

But 2002 changed that, and the drought made it clear that water demands on the South Platte—thanks to growing cities and a massive irrigated farm economy—had outstripped the river's ability to supply everyone.
Since then, bitter court battles have been fought and hundreds of wells have been shut off. Well users who've survived have spent millions buying water to augment their well use. Rules dictate that every time a well pumps out of priority, it automatically incurs a depletion debt to the river that has to be paid to prevent injury to senior water rights. They've built dozens of recharge ponds to ensure they can store extra water and return it to the river as their wells draw from the aquifer. All of these must be closely monitored by Schantz and his small band of deputies.

The added activity means the winter season—once a quiet time for water commissioners—has become almost frenzied because it is the time when well users can draw water from the river to fill their recharge ponds.
‘I never thought I'd see the day when I looked forward to irrigation season starting,’ says Schantz. ‘But I do. The recharge periods are far more busy and hectic.’

Schantz is on the cutting edge of an effort to automate and publish the thousands of measurements that are made daily on this fiercely contested river. Now, many farmers using surface water or groundwater have access to satellite telemetry data that tells them how much water they are diverting almost instantly, not days or weeks later after hundreds of acre feet of water may have already been improperly used. This near real-time data is now available for all major diversion structures along the South Platte from Brighton to the Nebraska state line.
The slightest changes to the river's flows may immediately alter whose water rights can be exercised, with the senior, or oldest, surface water right holders getting their supplies first. Now the moment supplies in the river change, Schantz alerts users whether they can divert more or less water or whether their surface water or well right is no longer in priority for the available water. In that case, well users either need to shut down or prepare to incur a liquid debt to the river that will have to be paid out of their recharge ponds. On a good day—and there have been several this spring—the river's flow is abundant and ‘free,’ and users can take whatever they need.
Free river days are rare on the South Platte. And with each year, with each new row of houses, the river's supplies are further stretched. That painful reality pushes Schantz to work 12-hour days gathering data, monitoring recharge ponds, watching for peaks and free river conditions, and informing well users when they must pay back water to pump.

Like Hummer, Schantz spends at least part of his days in April preparing for the spring runoff, verifying automated satellite data. When the numbers don't match what is actually occurring on the river, he checks instruments and calls for repairs.

As heavy clouds wrap the eastern plains in a cool, grey drizzle, Schantz ventures out from Greeley to check the Kersey gauge, a critical measuring site just below the confluence of the Cache la Poudre and the South Platte rivers. As he drives, a massive set of keys held on interlocking silver rings cascade from the ignition of his white truck, rattling against the steering column. There are hundreds of keys to head gates, diversion structures and well houses. If mayors hold the keys to their cities, Schantz holds the keys to the South Platte.

At the Kersey gauge, he pulls off Highway 37. First he checks gauge readings inside a small white station house, then he hikes back up to the highway and onto the bridge that spans the river. Semi-trucks sail by as Schantz leans over the railing to unlock a small metal box that holds a measuring cable. Slowly he turns a crank lowering the cable until it touches the river's surface 20 feet below. This measurement will help him calculate the volume of water moving through the river that day.

On the South Platte this is a tricky proposition because, says Schantz, ‘The river bed is constantly moving.’ One gauge, the Balzac, is on a sand channel that is so shifty that the gauge has to be flushed daily because it becomes plugged with sand. ‘The level at the top of the river may be the same, but from one day to the next, the bottom could have scoured out by a foot.’

On any given day, Schantz drives hundreds of miles doing field inspections, ghost-riding the Overland Trail, hoping he doesn't sink into the sandy river bottom soil that also snagged the wheels of pioneer wagons. He travels for miles on unmarked ranch roads, thoroughfares the early pioneers built along irrigation ditches and across fields. He's been stuck near the Riverside Reservoir three times since becoming commissioner. It's an experience he now takes pains to avoid. ‘On some of these roads, all you can do is grab the wheel, drive as fast as you can without going into the ditch, and hold on. Sometimes you make it. Sometimes you don't.’

Though Hummer and Schantz preside over widely differing river basins, each has an appreciation for what the other must do in the field--educating the public, calming angry water users, taking one phone call after another from those jockeying for position on the streams.

And though Hummer is often reluctant to go door-to-door to stop hot tub violations, he knows that his well-enforcement problems pale in comparison to those Schantz is trying to manage on the other side of the divide.
‘It's hard to compare sending someone a violation because they have an illegal hot tub in an accessory apartment to telling a family in the South Platte that they are no longer going to be able to irrigate 3,000 acres of corn,’ Hummer says.

Still, Hummer's work high in the headwaters is critical to the South Platte because much of the water the Front Range relies on originates in his territory. Spring ‘State-of-the-River’ meetings lure hundreds of people from both the West Slope and Front Range, and sometimes the gatherings turn raucous. But Hummer is used to the tumult.

As one sign pinned to the bulletin board in his tiny office reads, ‘There are no rules above 10,000 feet.

Water Law Resources

Guide to Colorado Water Law explores the basics of Colorado water law--learn how it has developed and how it is applied today. This, WEco's most popular Citizen's Guide, was authored by Colorado Supreme Court Justice, and WEco Board Vice President, Gregory Hobbs. Take a look or purchase a copy.


Law Supplement Headwaters magazine a special edition of Headwaters that provides an in-depth look at Colorado water law. Browse the magazine to supplement our Citizen's Guide and your knowledge. View it here

Administration Headwaters magazine read how enforcing the law in our water-scarce state can get tricky and meet the men and women who allocate Colorado's most precious resource. Browse the issue here.

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