Editor’s Note: This is the second part of an in-depth story published by Aspen Journalism in December.
RBC | But some experts say these proposed reservoirs are unrealistic wishes of the past, a vestige of the mid-20th century frenzy of dam building across the West that is mismatched for 21st-century conditions. They say if this scale of future development comes to pass, it would upend the system of water rights, as well as harm the environment. They say the water court system that keeps these phantom reservoirs alive is being abused and should be reformed. In the era of historic drought, climate change and crashing reservoir levels, where users already see shortages in dry years, some say this amount of water for new development simply does not exist.
The Upper Basin’s dreams of water development also highlight a central tension at the heart of the current disagreement between the Upper Basin and the Lower Basin states of California, Arizona and Nevada. The two sides have not been able to reach an agreement about how the river’s two largest storage buckets, Lake Powell and Lake Mead, should be operated in the future and how cuts should be shared in drought years. Negotiations are currently at an impasse.
Over the past 100 years, the Lower Basin has fully developed its share of the river and then some. The Upper Basin has not, but it believes it is still entitled to, despite the contradictory nature of both committing to conservation while holding on to plans for new future uses.
“It’s especially a problem when we’re trying to find more water to reduce the amount of depletion on the Colorado River,” said Mark Squillace, a natural resources law professor at the University of Colorado Boulder. “If all these water rights were developed, it would be a disaster. I think everybody understands that.”
Holding on to conditional rights
Entities can’t just hang on to conditional water rights in perpetuity. To maintain a conditional right, an applicant must every six years file what’s known as a diligence application with the state’s water court, proving that they still have a need for the water, that they have taken substantial steps toward putting the water to use and that they “can and will” eventually use the water. They must essentially prove they are not speculating and hoarding water rights they won’t soon use.
A cottage industry has sprung up around these diligence filings. Engineering firms produce studies that show a conditional water rights holder has worked to develop the water right. Attorneys file diligence applications with the water court and then see them through the sometimes yearslong process to get it renewed for another six years.
Aspen Journalism’s analysis looked at only the biggest proposed reservoirs on the Western Slope, but every year, hundreds of diligence applications are filed statewide for smaller amounts of water.
And the bar for proving diligence is low.
“It’s only limited by the imagination of the lawyer who’s filing the application about what you can claim for diligence,” said Aaron Clay, a longtime water attorney and water court referee in the Gunnison River basin, who teaches community courses about the basics of water law across the Western Slope.
The standard for reasonable diligence is much lower now than it was decades ago, Clay said, because state officials want at least some of these reservoirs to be built. The thinking is practical and political: Building more reservoirs makes it easier to control the timing and amount of water Colorado lets flow downstream.
Water court judges are hesitant to abandon these conditional water rights, even if they have been languishing without being used for decades partly because in Colorado water is treated as a fully vested property right, where the state may have to compensate water rights holders if they take it away from them. And owners of these rights believe they are valuable and are reluctant to let them go. The status quo is maintained because there’s no incentive for anyone to scrub these unused water rights from the books.
Some entities, such as Ute Water, have conditional water rights for several reservoirs, pipelines, pumping stations and other components of an integrated system. Applicants are not usually required to file separate diligence applications for each of the system’s components. For example, in Ute Water’s most recent diligence filing for Owens Reservoir, the conservancy district filed a combined application for 14 different components of an integrated system. The application, filed in August and still pending in Division 5 of water court, claims that work on one feature of the system constitutes reasonable diligence on all the features of the system.
Municipal water providers such as Ute Water are given special deference under Colorado water law through something called the Great and Growing Cities Doctrine.
“The standard for diligence for a municipality is even lower,” Clay said. “We’re going to give them a little leniency with diligence by saying if you can still show us you’re going to need that water 30, 40, 50 years from now and you’re doing something toward it — studying it, working on the environmental issues or whatever — that’s going to be enough diligence to get you by for another six years.”
Owens Reservoir is just one of several Ute Water plans to develop. Williams said they are currently working to enlarge Monument Reservoir No. 1 and will then explore building Buzzard Creek Reservoir, Willow Creek Reservoir and Big Park Reservoir, all on the Grand Mesa.
“It remains to be seen the timing of when those reservoirs would be developed,” Williams said. “But our intent would be to continue developing each one of those sources.”
Squillace said that although he understands cities may need more leeway when it comes to long-term water planning, there is a lot of abuse of the conditional water rights system. The state water courts should be tougher on denying claims of diligence and stop granting extensions to water rights that haven’t been developed despite having had decades to do so, he said.
“You’re not supposed to sit on them for 20, 30, 40 years before you develop them,” he said. “It’s the failure of the state water courts to take diligence requirements seriously. They just apparently seem to give out these extensions of water rights without a whole lot of showing that there’s actually any kind of diligent work toward developing the water. I think it’s a huge problem.”
One way in which these conditional water rights could present a problem is the uncertainty they create for the state’s other water users, especially those who have put their water to use in the past 60 or so years.
Andrew Teegarden is a fellow at the Getches-Wilkinson Center for Natural Resources, Energy and the Environment at the University of Colorado School of Law. The University of Denver Water Law Review plans next fall to publish his paper “Uncertain Future: How Conditional Water Rights Have Created Unintended Consequences in Colorado.” When the owners of conditional water rights with older priority dates finally begin diverting water that they have not used for decades, they may cut off junior water users who began using water between the conditional right’s older date and the present day. Teegarden calls this “line-jumping,” and if all these proposed reservoirs were developed, it could upend the entire priority system.
The solution, he said, is for Colorado to stop treating conditional rights as property rights. Lawmakers could also reform diligence standards and impose a strict time limit, such as 50 years, for applicants to put their water to beneficial use. Otherwise, these conditional rights should be abandoned.
“Clearly, the history and precedent surrounding conditional rights were well-intentioned on giving users within the system flexibility to implement large-scale projects and the security to hold their place in priority,” the paper reads. “These rights, though, come with unintended consequences and it is vital that reforms be implemented before people begin seeing their water rights curtailed or diminished.”
If these proposed dams are built, they could also have a negative impact on the environment. Western Resource Advocates and several other nonprofit and government organizations within Colorado work to improve riparian habitats and keep water flowing in rivers for the benefit of fish and ecosystems. Many of the groups’ projects try to mitigate the effects of cities and agriculture taking too much water out of rivers.
John Cyran, senior attorney with WRA’s Healthy Rivers Program, said this 2.6 million acre-feet of proposed reservoirs is a time bomb.
“Given that so many streams are already in stressed positions, it’s a big problem for the environment,” Cyran said. “We’re trying to look at the river as it is now and figure out how we can make it healthier. If a bunch of new claims come on the river, that work will be for nothing.”
Cyran brings up another potential issue with conditional water rights: They are able to be bought, sold, changed and transferred to another owner, another location or another type of use. In October, the Middle Park Water Conservancy District transferred conditional rights for a 20,000 acre-foot reservoir on Troublesome Creek near Kremmling to a private ranch for just $10. Some worry that this Western Slope water could be sold to the Front Range. And WRA is opposing another instance in the White River basin where an oil and gas company wants to transfer its storage rights to a new location.
“The idea is supposed to be a conditional right saves your place in line,” Cyran said. “There should be restrictions on water users trying to change those rights to some new purpose while retaining their senior priority. If you can’t use it for what you intended, it goes back to the river. You don’t get to use it for something else, and you don’t get to sell it to somebody to use for something else.”
(For the full story with graphics, please visit https://aspenjournalism.org/colorado-has-big-dreams-to-use-more-water-from-the-colorado-river-but-will-planned-reservoirs-ever-be-built/)
By HEATHER SACKETT
ASPEN JOURNALISM