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Headwaters magazineLearn about planning efforts for Colorado's water future by reading feature articles below, flipping through, or downloading the online version of Headwaters.

Watermarks--Letter from the Editor

Planning for a New Year

The theme of this winter edition of Headwaters is the water supply programs and projects currently in various stages of planning across the state.

To that end, it is important to note that these articles are not meant to provide an exhaustive list of potential water projects or to suggest that they are the best or only answers to the state’s projected water shortages. Many other solutions are involved in that much larger problem, including non-structural alternatives such as conservation, legal and policy changes, as well as adjustments in Coloradans’ expectations, values and lifestyles.

Still, we wager that the number and diversity of the projects presented will come as a surprise to many readers. If most people in Colorado have no idea where the water in their kitchen faucet comes from, perhaps they might also be surprised to find out just how many water supply projects are under consideration across the state.

Combine these planning efforts with all the ongoing studies, computer models and court battles about how much water the fish need or how much water it takes to have a reasonable kayaking experience—and we can all easily get lost in the details.

At least in the process of planning we do have a chance to open our minds to bigger ideas, to listen more, to change directions or forge ahead. At least that’s one way to start the New Year.

Karla Brown

Colorado Water Law ConferenceJoin CLE International and the Colorado Foundation for Water Education, March 7 and 8 to discuss long-term solutions for acquiring, using and protecting water in Colorado. The 4th Annual Colorado Water Law Conference will be

Join CLE International and the Colorado Foundation for Water Education, March 7 and 8  to discuss long-term solutions for acquiring, using and protecting water in Colorado.

The 4th Annual Colorado Water Law Conference will be held at the Marriott City Center Hotel in downtown Denver.  The conference agenda includes a panel of diverse experts who will discuss important issues such as:

  • How Will Colorado Meet Our Water Needs in 2030?
  • Water Users’ Compliance with the Endangered Species Act
  • Integrating Municipal and Agricultural Water Supplies
  • and more…

The feature presentation, A View from the Denver Water Board, will be given by Denise S. Maes, Esq., commissioner of the Denver Water Board.

More than 100 people are expected to attend. Speakers will include representatives from Colorado State University, Colorado Water Conservation Board, Environmental Defense, Northern Colorado Water Conservancy District, U.S. Department of the Interior and the area’s top water and environmental law practitioners.

Colorado Foundation for Water Education members are also eligible for a $100 discount off the full $595 tuition for this conference.

For more information or to register for the conference, log onto www.cle.com or call (303)377-6600. Media passes for this event are available by calling CLE International.

Coalition Seeks Federal Dollars to Help Protect Colorado Rivers

DENVER—Colorado watershed groups have joined together with similar organizations in Utah and Montana to help bring federal dollars into the Rocky Mountain West for the protection of headwaters rivers and streams.

In January the Colorado Water Conservation Board is scheduled to review a proposed resolution to support this federally-funded regional initiative to help watershed groups implement water conservation projects throughout Colorado.

Supporters of the plan note that although Colorado’s rivers supply water to 19 states and Mexico, there are scant resources available to protect and maintain that water supply. Similar coalitions throughout the country have been established to protect regional bodies of water such as the Great Lakes and Chesapeake Bay, and are currently receiving federal funding.

However, building the necessary political momentum for what could be a more than $20 million funding request could be difficult for Western states because they lack the political clout of Eastern states and because the group would not focus on one specific water body, observers say. Existing bills still in committee in Congress, such as the National Drought Preparedness Act or Water 2025, could be used as a vehicle for this proposal. However, a variety of options are currently being investigated.

Colorado has more than 40 local watershed protection groups working side-by-side with government agencies and regional water districts to address a variety of issues including irrigation diversion improvements, stream and floodplain restoration, water conservation, habitat protection, water quality, acid mine drainage and community education and outreach. They receive some state and federal funding but need a higher profile and more money to be successful, supporters say.

Supreme Court Decision Will Shape the Future of Colorado’s Whitewater Parks

DENVER—The Colorado State Supreme Court heard arguments Dec. 6 in a case that could determine the minimum amount of water necessary for a “reasonable recreational experience” at Colorado’s many whitewater parks and kayaking courses.

The Colorado Water Conservation Board and the state engineer’s office, Colorado’s water law enforcer, are fighting a 2003 water court ruling that sided with the Upper Gunnison Water Conservancy District and its application for a whitewater course downstream of the City of Gunnison. The CWCB and the state engineer’s office opposed the amount of water requested by the Gunnison district, claiming it exceeded the state-mandated “minimum” flow necessary for a “reasonable recreational experience.”

Under a state statute, the CWCB reviews applications for recreational in-channel diversions and makes factual findings and recommendations to the water court. The Supreme Court will decide whether the water court’s judgment or the CWCB’s recommendation should prevail.

The water court in its 2003 decision rejected arguments that Gunnison’s recreational in-channel diversion request, which asked for more water than the board’s recommendation, was too high. The Supreme Court will also decide whether the water court was wrong when it said that limitations on the amount of recreational instream water rights infringe on the state constitution.

Want to Build a Water Project? You Better Know NEPA

By John Morton

As public concern for environmental health escalated during the 1960s, Congress introduced more than 30 environmental protection bills between 1967 and 1971. One of those most familiar to organizations involved in water supply development is the National Environmental Policy Act, or NEPA. Signed into law January 1, 1970, the act requires federal officials to study the environmental ramifications of any proposed federal government action that could “significantly” affect the quality of the environment.

NEPA was designed to provide the federal agencies that fund, issue permits or are otherwise involved with federal projects with a clear understanding of how different actions generate different environmental results. It also seeks to identify strategies to reduce those impacts.

At the heart of the NEPA process is a study called an Environmental Impact Statement, or EIS. These documents identify the “purpose and need” of the proposed action, list all reasonable alternatives (also briefly describing alternatives eliminated from consideration), evaluate current environmental conditions, estimate potential impacts to specific resources such as air and water quality, and propose mitigation strategies to reduce impacts.

In addition to evaluating environmental impacts and alternatives, an EIS provides an opportunity for public scrutiny and involvement. NEPA procedures are designed to help ensure that environmental information about a proposed federal action is available to the public before a decision is made. NEPA provides several opportunities, including public meetings and written comments, for the public and interested parties to participate.

Today’s EIS reports are thought by some officials to be easier for the public to read and understand, though they are generally much more encompassing than early statements.

“Early EISs were more of a brochure. They might have been harder to read but they were 50 pages,” says David Merritt, chief engineer for the Glenwood Springs-based Colorado River Water Conservation District, who led the district through a five-year NEPA process in the 1980s with Wolford Mountain Reservoir, a joint venture with Denver Water.

“Now, they might be easier to read but they’re 500 pages.”

“NEPA is designed to be a public process,” says Nicole Seltzer, a spokesperson for the Northern Colorado Water Conservancy District. “At several points, you’re required to show your hand to the public. You can’t get around that. Why not go ahead and embrace it fully?”

Agencies also use the EIS to show compliance with other federal environmental requirements. For example, the reports are often used to demonstrate compliance with the Endangered Species Act and to document consultation with the U.S. Fish and Wildlife Service. The EIS can also document steps taken to comply with the National Historic Preservation Act, which addresses historic properties and archeological sites.

The NEPA review process only applies to projects that require some kind of federal decision. It does not apply to private sector or state and local government actions unless those projects require an element of federal oversight and decision making. Federally-funded highways, for example, require an EIS. Reservoirs that need a Section 404 permit from the Army Corps of Engineers to discharge dredge or fill material into rivers and streams, or reservoirs that require a special-use permit from the U.S. Forest Service, are also required to complete an EIS.

Most water development projects in Colorado, especially large-scale storage projects, require an EIS because they need an Army Corps permit or because they require some other type of federal action.

“In Colorado, we’re seeing more (environmental impact statements) because there’s more going on as a result of growth and the recent drought,” says Jerry Kenny, an engineer at HDR Engineering in Denver. “Generally, most water projects will trigger NEPA. It’s not impossible, but it’s very difficult to do a water project and avoid NEPA.”

The NEPA process typically lasts two to three years, Kenny says, though it can last as little as 14 months. Merritt says Wolford Mountain took five years to get through the process, and that was considered “pretty quick.”  And the timeframe is often determined by the degree of controversy associated with a project.

Still, some water providers consider NEPA an onerous process because of its costs in time and money. “It can be viewed as a roadblock, but frankly it’s much better viewed as a way to get folks involved,” Merritt says. “In balance, ultimately you’re dealing with a public resource.”

Should It Get a FONSI?
Because some federal actions do not have the potential to cause “significant” environmental impacts, the agency or the project proponent may prepare a more limited analysis, called an Environmental Assessment. This study helps determine whether or not the project will result in significant environmental impacts—and whether an EIS is necessary.

If the EA determines the project could cause significant impacts, the lead federal agency (in conjunction with other project proponents) must prepare an EIS. If it is determined that the proposed action will not have significant impacts, the agency can conclude the NEPA review with a Finding of No Significant Impact, or FONSI, allowing the permit to be issued and construction to proceed.

Starting the Process
The EIS process begins when an organization that wants to build, for example, a water reservoir, applies to the federal agency that will fund or otherwise issue permits for their project. That federal agency—such as the U.S. Bureau of Reclamation or the U.S. Army Corps of Engineers—then publishes a notice in the Federal Register publicly declaring its intent to prepare an EIS. That notice also starts what is called the scoping process, when the public and other organizations comment to the federal agency about issues that need to be considered. Some agencies hold one or more public meetings to get comments during the scoping phase. Environmental studies of the vegetation, surface water, groundwater, wildlife and a full gamut of natural and human resources are also initiated at this time.

When the scoping process and environmental field work are complete, the federal agency prepares a Draft Environmental Impact Statement, files it with the U.S. Environmental Protection Agency and circulates it for review by interested parties, who have at least 45 days to comment. Though called a draft, this document is nearly complete and includes a full disclosure of the impacts of the action. Depending on the project, it can take months or years to move from scoping to a draft EIS.

After the end of the comment period, which usually lasts longer than the minimum required 45 days, the federal agency prepares a Final Environmental Impact Statement, files it with the EPA and makes it available to the public. The final statement must address all comments received on the draft version and include any modifications or factual corrections.

Then the federal agency must wait at least 30 days to make a decision on the proposed action. This 30-day period allows the public and interested parties to further review the final document and provide comments.

“People want to be included in the process,” Merritt says. “I don’t think (NEPA’s drafters) saw how much public involvement there would be. It changed the way we do water projects.”

Editor’s Note:
John Morton has worked for HDR Engineering for 10 years as vice president in charge of their environmental science program for the Midwest. Involved in NEPA activities for more than 30 years, Morton also was a U.S. Army Corps of Engineers employee for 20 years, working on a variety of water storage projects, including Denver Water’s Two Forks project, which was vetoed by the EPA.

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