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Water Law

Toward a Sustainable Horizon

By Jayla Poppleton | Photo by Kevin Moloney

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

Dick WolfeDivision 1—The South Platte and Republican Basins
An ongoing challenge for the Division of Water Resources, which Wolfe oversees, has been the administration of the South Platte Basin's 8,200 or so high-capacity wells. ‘We've reached an unsustainable operation of these wells, and the 2002 drought took that mask off,’ says Wolfe. ‘We need to bring that system back into balance.’

To re-calibrate, Wolfe says two elements will be necessary. One is finding the physical supplies to replace depletions associated with the operation of wells. The other is development of rules regarding well measurement. ‘We've got an available supply out there. We've got to know how much of it we're consuming. We make estimates. But we don't know in an absolute sense exactly how much water those wells are diverting.’

Recession-related state spending and hiring freezes have imposed budget constraints on DWR that have delayed implementation of new rule-making in the South Platte for now.

In the Republican Basin, a distinct basin that also lies in Division 1, the state has been out of compliance with the governing interstate compact for the past five years. There is very little surface water diversion from the Republican. Instead, nearly 550,000 acres are irrigated by groundwater diversions, primarily from the Ogallala aquifer. In 1998, Kansas filed suit that the basin's groundwater depletions should be considered part of Colorado's compact allocation, and in a 2002 settlement, Colorado conceded. As a result, well measurement rules were implemented at the end of 2008, requiring about 4,000 wells to install a meter or acceptable measuring device by March 2009 to keep pumping. Wolfe says measurement alone may result in 5 to 10 percent conservation, simply because people know how much they are using.

In addition, the newly formed Republican River Water Conservation District has bought out the bulk of surface water rights in addition to approximately 30,000 acres of land irrigated by wells. Its goal is to take out 30,000 more. And a final proposal to achieve compliance is a $71 million pipeline project the district hopes to use to pump about 13,000 acre feet of water—bought for $50 million and associated with 10,000 acres of land—from the ground back into the river near the Nebraska state line.

‘They've spent about $90 million trying to achieve compact compliance,’ says Wolfe. ‘This is local water users trying to solve a local problem.’ But, about his own role, he adds, ‘The compact is the tail that wags the dog. And I've got to achieve compact compliance. It's what drives everything out there.’

Division 2— The Arkansas Basin
Wolfe says the Arkansas Basin is in good shape concerning compliance with its own interstate compact with Kansas, but the DWR is taking proactive steps to prevent future problems. Kansas' 1985 lawsuit against Colorado claimed injury due to post-compact well development under a compact provision called Article IV-D, which states system improvements cannot reduce the amount of water available in the river. It took a series of rules developed to govern well measurement—promulgated in 1994 and updated in 2005—and well use—instituted in 1996—to settle the case.

The current development of an additional set of ‘irrigation improvement rules’ is intended to stave off future violations of the same stipulation. As farmers make advances in irrigation efficiencies through upgrades like center-pivot sprinklers, historical return flows may be affected. Wolfe's office is not against such improvements, which many farmers are implementing both for labor savings and water quality improvement. However, historical return flows must be protected. Though not a huge problem yet—Wolfe says maybe 1,000 acre feet of diminished return flows per year is currently attributed to irrigation improvements—the goal is to ‘get it while it's small.’
He plans to submit the rules to water court for approval in June.

Division 3—The Rio Grande Basin
The Rio Grande Basin has long suffered from the dilemma of how operating wells were impacting senior water rights. As in the South Platte, the 2002 drought added more salt to the already festering wound for surface water users who had their water curtailed as wells continued operating. In 2004, the Legislature passed Senate Bill 222 to give the State Engineer authority to promulgate rules that would curtail those well users unless they demonstrated they were either under an augmentation plan or a water management plan through a newly created water management subdistrict.

The first subdistrict, under the Rio Grande Water Conservation District, provides an umbrella to about 3,000 wells out of the 6,000 operating in the basin. ‘Basically, the rules say that the State Engineer is going to curtail you unless you can demonstrate you're preventing injury to senior water rights, not impairing the state's ability to maintain compact compliance, and promoting sustainability of the aquifers,’ says Wolfe. With the input of a 55-member advisory committee, Wolfe is working on those rules now and expects to have a final draft to submit to water court by the end of 2009.

Divisions 4, 5, 6 and 7—The Gunnison, Colorado,
Yampa and San Juan/San Miguel basins

Though there is less well development in these divisions, Wolfe sees big changes for his office's future. For one, he will have to determine if and when a basin becomes over-appropriated, as has already been declared on the South Platte, Arkansas and Rio Grande. ‘For example, has the new Shell Oil filing now made the Yampa River Basin over-appropriated?’ Wolfe asks rhetorically, referring to a water right requested last December that the company would use to develop oil shale.

Though well users don't presently need an augmentation plan to operate in a basin that is not over-appropriated, Wolfe believes they will need to develop rules and regulations to deal with that eventuality. ‘Again it gets to the priority system, sustainability, compact compliance….We've got to develop those rules. Well-use rules come first, then measurement.’

A new addition to Wolfe's job description is the recent mandate that he and his office begin administering coalbed methane wells, or CBM wells. On April 20, the Colorado Supreme Court ruled that the water ‘produced’ by the industry when water is pumped out to tap the natural gas in underlying coal seams is, in fact, being put to beneficial use. The case, Vance v. Wolfe, was a result of senior well users claiming nearby CBM wells were depleting the groundwater supply. As a result of the decision, oil and gas wells are now under the DWR's jurisdiction.

Wolfe will get a time-out until early 2010 thanks to House Bill 1303, introduced by Rep. Kathleen Curry and Sen. Jim Isgar. The bill passed on April 28 and was signed by Gov. Bill Ritter on June 2. It appears the Legislature anticipated the court's decision, wisely preparing its response to avoid the chaos that may have followed. A large coalition of those who will likely be impacted supported the bill.

The legislation recognizes that there are an overwhelming 34,000 active oil and gas wells out there, says Wolfe. About 5,000 are CBM and between 3,000 and 4,000 of those are tributary, or linked to a surface stream. Most of these are in the San Juan Basin in Division 7 or the Raton Basin in Division 2. Those wells deemed tributary will have to undergo a similar process as well users did on the South Platte in 2003, obtaining well permits and temporary substitute supply plans or augmentation plans. ‘It's a new era for our office,’ says Wolfe.

The other major issue affecting the four West Slope water divisions is compliance with the Colorado River Compact. Wolfe describes an unnerving scenario in which Lake Powell, the effective water bank of the compact's four upper basin states, is essentially drained. Colorado and its neighbors get a compact call from the three lower basin states and have to curtail water users in order to pay back the bank. Wolfe acknowledges that no one envisions the state is close to being in that situation, but says, ‘The time is now to start working toward how we will address that.’ He is working with the Colorado Water Conservation Board, the Colorado River Water Conservation District and the Southwest Water Conservation District on developing rules for how to administer such a call.

Facing an uncertain future and believing what people want is certainty, Wolfe reflects on administering a limited resource: ‘Peter F. Drucker said, 'The best way to predict the future is to create it.' To the extent I can play a role in developing rules and policies that help people understand what we can do…knowing what can potentially happen and that if that happens, this is what the plan is…it gives them some certainty.’

‘What I'm doing,’ he continues, ‘and what I promised the governor, is to be looking for and trying to avoid train wrecks into the future. We need to reach a point of sustainability or our systems are going to fall apart. You can't fool Mother Nature.’

 

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.

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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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