The Colorado Water Plan
Posted on 2/6/2014 by Chad Lee
|The State of Colorado is creating a “state water plan” through a process intended to culminate with a final plan in December 2015. Creation of the plan was ordered by Governor John Hickenlooper in his May 14, 2013 Executive Order (D 2013-005) whereby he directed the Colorado Water Conservation Board to begin work on the “Colorado Water Plan.” This report summarizes the stated bases and process for the development of the CWP and summarizes and discusses major issues from West Slope water users’ perspectives.
The CWP initiative is perhaps intended to complete the current Inter Basin Compact Committee (“IBCC”) and Basin Roundtable (“BRT”) processes and serve as a response to increasing uncertainties about future state water supplies for projected water demands and the projected “gap” between uncertain supplies and projected demands, primarily on the Front Range. Several uncertainties have been the subject of recent and ongoing studies, including Colorado River intrastate and interstate water availability and scenarios regarding future droughts and effects of potential climate change on water availability.
The Governor’s Executive Order states that the CWP is necessary to address several specific issues, including prominently the following:
• The projected gap between the state’s water supply and water demand, including specifically the regional gap in the South Platte River basin (a/k/a Front Range municipal supply gap).
• Recent and continuing drought conditions affecting the state’s water supplies.
• Past and continuing municipal acquisitions of agricultural irrigation water rights and the unacceptability of this “buy-and-dry” method for the development of additional reliable municipal water supplies.
• “Momentum” developed by the Inter Basin Compact Committee and Basin Roundtables processes.
• A need to integrate policies concerning water quality and water quantity issues.
• Interstate water supply issues and the protection of the state’s compacted water supplies.
From that statement of the “Purpose and Need” for the CWP, the Executive Order directs that the plan “must incorporate the following water values:”
• “A productive economy that supports vibrant and sustainable cities, viable and productive agricultural, and a robust skiing, recreation and tourism industry.”
• “Efficient and effective water infrastructure promoting smart land use.”
• “Strong environment that includes healthy watersheds, rivers and streams, and wildlife.”
Based on those reasons for a CWP and the values to be incorporated, the Executive Order further directs CWCB regarding the work necessary to prepare and submit a draft plan for review by the Governor’s office by December 10, 2014.
Since the Executive Order was issued, CWCB staff has been working with the Board on a “Framework” for the CWP. CWCB created a website (www.coloradowaterplan.com) that contains key documents and update reports. The draft Framework is available on the website. The Framework iteration dated 11/07/13 shows the following schedule for drafts of its sections on several critical items:
• Water demand by sector – Sept. 2014
• Watershed health /management – Sept. 2014
• Meeting the consumptive and non-consumptive gaps – Sept. 2014
• Conservation and reuse – May 2014
• Alternative agricultural to urban transfers – May 2014
• M&I and agricultural infrastructure projects and methods – Sept. 2014
• Environmental and recreational projects and methods – Sept. 2014
• Cross-basin conceptual agreements and points of consensus – Sept. 2014
• Water quality – May 2014
• Process for plan update – Dec. 2014
The CWP process is necessarily related to the IBCC and BRT processes to incorporate an intended inter-basin consensus on supply gaps and strategies, including a “New Supply” alternative. Thus, it is important to watch particularly the IBCC process, and the BRT’s “basin implementation plans” (“BIPs”) for the development or divergence of consensus on the important issues.
The breadth of the proposed CWP and Framework raises contentious issues. These prominently include the tension about the development of “New Supply” from the Colorado River basin. They also include issues that are of concern in essentially all of Colorado’s river basins, such as the integrity of the prior appropriation doctrine and agricultural-to-municipal water right transfers.
1. Additional Trans-Mountain Diversions
This is a central issue from a West Slope perspective. Not surprisingly, West Slope organizations and Front Range water development interests have divergent views about the need for and wisdom of developing an additional transmountain diversion supply from the Colorado River basin to supply the Front Range municipal gap.
A. West Slope and Front Range Positions
The West Slope’s position was articulated by the Colorado River Water Conservation District, the Grand Valley Entities, and the Colorado River BRT. It can be summarized as follows:
• There is risk in the development of any significant quantity of additional Colorado River basin water for a trans-mountain diversion, a risk that would be imposed upon existing water users subject to a potential Compact Call. Because water diverted to the Front Range cannot be later released to meet a Compact call, curtailment may be prematurely imposed upon existing in-basin and out-of-basin diverters if Colorado River water supply ultimately proves inadequate to sustain a reliable additional TMD project.
• No “new” reliable supply can be developed from the Colorado River. New Supply proposals essentially mean reallocation of existing West Slope supply, such as the curtailment of West Slope agricultural irrigation by purchase or otherwise.
• The West Slope’s economy depends on both certainty of existing consumptive use supplies and healthy river systems.
• For these reasons, the completion of currently-agreed TMD expansions, such as those addressed in the Colorado River Cooperative Agreement and the Eagle River Memorandum of Understanding, and the expansion of Front Range conservation and reuse efforts should be the primary objectives of “New Supply” development.
The Front Range position on New Supply was articulated by Front Range BRT’s (e.g. South Platte BRT and Metro BRT) and can be summarized as follows:
• Additional supply is needed from the Colorado River basin to prevent the continued conversion of South Platte River basin agricultural water rights for municipal uses.
• The state has remaining Colorado River Compact waters to be developed and should move forward with those needed projects to assure protection of the state’s compacted entitlement.
• The CWCB should take an active role in the analysis of new TMD projects and should consider developing “state water projects” for additional transmountain diversions.
B. IBCC Position
The IBCC’s New Supply Work Plan (revised 12/15/13) identifies a process for intended discussions to arrive at consensus on preserving a “New Supply” project in the Colorado River basin as an alternative. The IBCC Work Plan identifies “New Supply” with the following definition:
By “New Supply,” we mean any new trans-mountain diversion beyond those already contemplated under the Colorado Cooperative Agreement, Windy Gap Firming Project IGA, and Eagle River MOU. Because “New Supply,” risk management and compact curtailment are inextricably intertwined and involve complex issues that cannot be resolved in time to be fully addressed in the 2015 Colorado Water Plan, the Plan should move the “New Supply” discussion forward by defining a process to resolve those issues and refrain from either endorsing or precluding any “New Supply” project.
The IBCC has considered and “viewed favorably” language regarding risk of a New Supply TMD and is seeking BRT and other feedback by February 7, 2014. The IBCC Work Plan states its potential risk “principle” as follows:
Future supply of Colorado River water is highly variable and uncertain; therefore, any proponent of a “New Supply” project from the Colorado River Basin must accept the risk of a shortage of supply, however the shortage occurs, including compact compliance; strictly adhere to the prior appropriation doctrine, and protect existing water uses and communities from adverse impacts resulting from the New Supply project.
The IBCC Work Plan also discusses the relationship between Agricultural Transfers and development of New Supply. It identifies the following “foundational concept:” “Both West and East Slope agriculture should be preserved. Development of New Supply should not be made more difficult than the transfer of agricultural water to municipal uses.” More specifically as to the relationship between Agricultural Transfers and New Supply, the Work Plan states: “Colorado should promote viable and productive agriculture across the state, and agriculture should have the same opportunity to exist statewide. Development of New Supply should be evaluated on an equitable basis with the transfer of agricultural water to municipal uses, to the extent that the additional water supplies are available and those supplies can be developed without jeopardizing the certainty, reliability, and yield of already developed water supplies and environmental values.”
The Front Range position about the need for New Supply from the Colorado River has been promoted mostly by northeastern Colorado agricultural interests because of their fear of continued and expanded buy-and-dry municipal strategies in their area, and by Front Range suburban areas that lack access to additional supplies sufficient for their long term water demand estimates.
Major municipal providers such as the Denver Water Department, Aurora Utilities, and Colorado Springs Utilities, are not promoting an additional TMD project. This is likely because Denver made its recent agreement with the West Slope in the Colorado River Cooperative Agreement allowing expansion of its current Moffat System and resolving disputes about the scope of its Blue River water rights, and Colorado Springs and Aurora are parties to the Eagle River Memorandum of Understanding contemplating an additional TMD depletion in that basin. Indeed, the IBCC’s definition of “New Supply” specifically identifies those processes and related projects as “carve-outs” from the definition and the future evaluation of New Supply projects. They are assumed in the “base line” conditions regarding supply gap and its solutions from which Agricultural Transfers and New Supply projects are evaluated.
The predicate for the continuing New Supply investigation is the identified Front Range municipal demand “gap.” That gap is substantially based upon predictions presented in the State Water Supply Initiative (“SWSI 2010” report). CRWCD staff recently presented an analysis of the SWSI 2010 gap analysis and identified three specific reasons why the gap analysis from which the need for New Supply projects are projected is flawed. 
In summary, the CRWCD staff point out that the SWSI analysis is a “reconnaissance” level analysis that is not appropriate to guide the policy questions to be addressed in a CWP, and they persuasively suggest that the Front Range gap is very overestimated because of analyses projecting low success rates for ongoing and expected conservation and other efforts. The exaggeration of the gap has caused the IBCC and CWP processes to prematurely focus on a future trade-off between Agricultural Transfers and a New Supply TMD, and within that discussion a trade-off between East Slope and West Slope Agricultural Transfers and a Colorado mainstem versus a Gunnison or Yampa TMD project.
CRWCD and the Grand Valley Entities believe that uncertainty about current and projected drought conditions, as well as effects of potential climate change on hydrology, indicates that additional reliable supplies cannot be developed and therefore new TMD’s would risk compact curtailment for existing in-basin users and existing TMD’s. Some of the Front Range interests, as mentioned above, have a contrary view but without explaining why a new TMD would not be risky.
In addition to the uncertainties about existing and future water supply for an additional substantial TMD from the Colorado River system, proposals about development from the Gunnison or Yampa Rivers raise past contentious issues about the intra-state allocation of Compact delivery obligations from the West Slope’s Colorado River tributaries. One Front Range statement proposes that the CWCB be charged with studying New Supply projects in the Colorado River mainstem as well as in the Gunnison River and Yampa River basins.
2. In-stream Flows and Environmental Values
The Executive Order’s statement of “Purpose and Need” for a CWP mentions environmental impacts in its discussion of the “unacceptability” of conversion of irrigated agricultural lands to municipal water supplies. Otherwise, environmental values are not mentioned in that statement. Nevertheless, the Executive Order identifies “a strong environment” as one of the three “water values” to be incorporated into the CWP.
Evaluation of environmental water needs (a/k/a “non-consumptive” needs) was prominently less focused in the Basin Roundtables’ effort to identify their future needs assessments and in their Basin Implementation Plans. Protection of those values seemingly still resides mostly with West Slope and environmental organizations.
3. Appropriation Doctrine
The integrity of the appropriation doctrine and of existing appropriative water rights has long been a concern when suggestions about creating a state water plan have arisen in the past. A standard and effective response to such proposals always has been “the appropriation doctrine is our state water plan.” That response worked well to deflect planning efforts going back into the 1970s, but its persuasiveness has eroded as the river basins in Colorado mostly have been recognized to be over-appropriated and as the State’s Colorado River Basin Compact entitlement has been increasingly drafted and its remaining un-appropriated pool has been questioned.
Thus, the state water planning effort is a logical political culmination of the Inter Basin Compact Committee and Basin Roundtables processes, and there has been little focused opposition to the Governor’s direction for creation of a CWP.
Nevertheless, owners and users of senior appropriative water rights are legitimately concerned whether the CWP Framework, including proposals for implementing legislation, would intrude upon water rights property interests. Certainly, that is a concern worthy of careful and ongoing consideration.
About the Author: David C. Hallford is an attorney in the water rights practice at Balcomb & Green, P.C., with offices in Aspen and Glenwood Springs, Colorado. Mr. Hallford has extensive experience advising private and government clients in developing dependable water supplies, and in water court litigation at the trial and appellate levels. He can be reached at (970) 945-6546.
 See CRWCD Draft Memorandum 1/8/2014 re: SWSI 2010 Reality Check and crwcd.org (SWSI 2010 Reality Check, the M& I +SSI Gap Metro, S. Platte and Arkansas). The Memo states that a companion analysis will be presented for the Colorado, Gunnison, and Yampa White basins. Staff are projecting mid-February for presentation of that analysis.