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Law Offices of Ronald W. Rutz
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March 29, 2003: Current Water Issues

Q: It has been several months since you wrote about water. What is happening?

A: In my opinion, not much. We are in the rocking chair mode where, except for several court cases, we are just rocking, talking, and "making nice."

Remember the story about Secretary of the Interior Gale Norton's attempts to wean California from its use of about 2.5 million acre-feet of upper basin unused water, with her efforts being more or less supported by the other lower basin states of Nevada and Arizona? Since these two states are nearly at or exceeding their allotments, it appears that both states are moving back to their traditional positions of partnering with California. Remember that troika of states has 62 votes vs. 11 for the upper basin states in the U.S. House of Representatives and even with a compact and a treaty in place, 2.5 million acre-feet might be a tempting target either politically or back in the Courts, especially if the Republic of Mexico gets involved. And do not be surprised to see New Mexico and Texas closing ranks with the troika to create IOUs for the future.

An appropriation of about $500,000 is working its way through our legislature to further study water problems, specifically the "big straw" concept to take water from the Colorado River and pump it to the eastern slope. Add to that whatever additional money the legislature might appropriate and also the money spent on water court cases and all those meetings and studies that various organizations are conducting. It is clear that water attorneys, engineers, and consultants are not in a drought, and the water trough that they are drinking from is flowing quite nicely, thank you.

The fallout from the case concerning pumping of water wells is now starting to settle out. For the approximately 3000 wells south and also east of Greeley involved with GASP, the State Engineer will permit about 1000 to operate without restrictions because the individual owners have filed plans and have sufficient supplemental water. Another 1000 or so wells can partially operate because the owners filed their plans but have not acquired enough water to compensate senior water right owners 100% for the water their wells are deemed to be taking. The final 1000 wells have not filed plans and will not be permitted to pump. So regardless of what our legislature does or what the Colorado Supreme Court determines, a significant amount of acreage irrigated by wells will still be productive, much to the chagrin of many senior surface owners who still will not get water because of the drought. As of Monday of this week, no surface priority after 1910 will be supplied, but that may change because of the spring storms. Most of the wells have priority dates from the '50s and '60s. Thus even though junior, these wells will pump because there is water in the ground although not enough to go around on the surface.

Each year Colorado produces on average about 16 million acre-feet of water, of which 8-10 million acre-feet must leave the state because of interstate and international compacts and treaties. Colorado has storage space for about 6.5 million acre-feet. The key (if you are in favor of more storage capacity) is providing capacity to catch water during the wet years for use during the dry years. During the last decade about 125,000 acre-feet of storage capacity has been added primarily through rehabilitating existing sites, e.g. the dredging of Windsor Lake. Work that is about to begin, such as with our own Halligan Reservoir, may add up to 75,000 more acre-feet of storage. After that it is anyone's guess what can be economically built in the most efficient reservoir locations. Estimates are that only around a total of 200,000 acre-feet at most can realistically be constructed around the state, unless major legal, political, or economic changes occur. And the attempt to instantaneously add up to 100,000 acre-feet of storage by using one or more of the federal, flood control dam sites for storage is bogged down "in further negotiations" and environmental issues. But if you compare the possible increase in storage with the existing storage, the question must be asked, where's the beef? How is this extra storage capacity going to make that much of a dent in the overall problem given our currently available space, and certainly Halligan will help us, but will it significantly help the south Denver metro area, Aurora, or Colorado Springs, even with water exchanges?

So where does that leave us, with everyone trying to be inclusive and not affect anyone else's perceived legal, locational, and political rights? For the foreseeable future just sitting and rocking unless someone steps forward and blazes a path breaking out of Colorado's current water box.

My prediction, drought or no drought, look for urban unrest to rapidly increase over water restrictions and also do not be surprised to see more movement of the 87% of water used in agricultural toward domestic (urban) uses.

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