Our top five after the jump…
[Update: as you're going through these, keep in mind that while change decrees may be final, you can generally re-open them if there has been an expansion of the right under the change, according to current law.]
[Update 2. We recognize there are other expansions out there, but these were chosen based on (1) the actual impacts to local water users and (2) the hegemony of the parties.]
1. City of Loveland. Loveland has a series of cases changing various rights on the Big Thompson river arising out of its 82CW202A decree. There are no guarantees of return flow obligations on the changed rights, no volumetric limitations, and no limits on the use of the rights. Loveland just uses the rights. Accounting submitted to the State Engineer’s Office? None.
2. City of Fort Collins. Fort Collins has a number of old decrees transfering portions of various senior rights on the Poudre to its municipal pipeline, including the Boyd & Freeman Ditch, Pleasant Valley and Lake Canal, Lake Canal, Yeager Ditch, John Brown Ditch, and the Larimer County Ditch No.2 . With limited exceptions there are no conditions on the use of these water rights. Fort Collins also got a decree in Case No. 92CW192 changing its so called “South Side” ditch rights. That case included the usual terms and conditions, but the decree authorized accounting for lawn irrigation return flows. The problem is that since entry of that decree, Fort Collins’ irrigation use within the City has vastly improved in terms of efficiency, meaning the actual amount of return flows is probably far less than what they are calculating. Accounting submitted to the State Engineer’s Office? None.
3. Bijou Irrigation District. In what turned out to be great foresight, Bijou got one of the earliest court-approved augmentation plans. Bijou wrapped up its update to the augmentation plan in 2006. The problem? The plan relies on bypass flows (i.e., bypasses of its senior direct flow rights) at certain times to augment well depletions. The problem with this is that in order to truly bypass its direct flow rights, Bijou cannot simply reduce its river diversion attributable to its direct flow rights – in other words, if Bijou is entitled to 10 cfs, it cannot simply divert 8 cfs and take credit for the 2. To prevent an expansion, the reduction must be based on its actual diversions based on demand. For example, if Bijou has a demand of 8 cfs, if it reduces diversions to 6 at such times, it can get credit for 2 without causing an expansion. But that’s not what they do, and so Bijou has and is causing injury to others on the mainstem. Accounting? Bijou had until June 23 this year to address problems with their accounting; to our knowledge nothing has been submitted.
4. City of Boulder. What’s good for the goose is good for the gander. Boulder went after the Jones Ditch based on an expansion of use beyond the original intended acreage. First, Boulder’s situation is quite similar to Fort Collins’ above, with early transfers of senior rights to its municipal pipeline without conditions. Boulder also has original rights decreed to its pipeline decreed early in the last century. Now, the question is when those rights were appropriated, what uses – or more importantly where and to what extent – were those appropriations intended for? Were then intended for the whole of Boulder as it exists today? Probably not. Accounting? Unknown.
5. Harmony Ditch Company. Not an expansion per se, but we think it’s funny that with all the trouble they’re causing low on the river that they are in violation of their own aug plan decree. Their decree requires accounting submitted monthly, and we tend to think that what accounting they do provide shouldn’t show net negative values to the South Platte River. Well, Harmony was subject to an order to submit accounting (even served via certified mail) in December last year. Nothing has been submitted. And the sporadic accounting that was submitted prior to then shows lots of net depletions to the South Platte River without replacement.
Does anyone know the procedure for starting an investigation of the expanded use? I called the State Attorney Generals Office and couldn’t get past the watch-dog that answers the phone. She said the AG’s office does not get involved in water issues, where did the cease and desist letters for the irrigation wells come from? I could have sworn it was the AG’s office. Do we need to go to the District One Engineers office? the Dept. of Natural Resources? Just what is the proper procedure? Where do we go for answers? Is the State Engineer”s Office bound by law to help, or answer questions? In cases of expanded use involving c-bt water what then? The State of Colorado clearly wants to pick off one small group at a time, I would like to see enough people involved to cause a stink they would notice in Denver. Maybe we can get enough people involved to demonstrate little used laws to Justice Hobbs like impeachment.
The place to start is with research. (okay, maybe that’s too obvious). You have to ascertain the original intent of the appropriator at the time the appropriation was made. Sometimes that’s easy (Jones Ditch), sometimes that’s hard (FRICO/Barr system). This means looking at statements of claim and original testimony, if you can find it.
Otherwise you look at the accounting. Of course no one does accounting, so you can’t just call up the Division Office and ask for it.
So that leaves you with a couple options. One: use open records acts to request water use accounting from the cities. Two: look at the recorded diversion records oneline, and compare the two. Finally, pull all the decrees and start listing (1) specific provisions which they are in violation of, and (2) an increase in actual consumptive use over historical operations.
This is all doable, just takes some time and effort.
Oh yeah, on C-BT water. We’ve got a little issue here. Anyone on the mainstem forced into the District because you are “benefiting” from return flows from C-BT water use? Does the District have any idea how much return flows are actually “benefiting” you? We’re told the District is working on this, but it seems like before forcing you into the District they ought to have some idea. And, as you pointed out, is there increased consumption, and decreased return flow, from municipalities these days as they increase their efficiencies as part of “water conservation” programs?
It would be interesting to see who’s in contention for “honorable” mention. What about the inverse situation where groundwater is exchanged for surface water, such as for Reuter-Hess. Could Parker and Castle Rock be sitting on a bunch of worthless paper? There are a few things here to consider such as the lag effect, where there is a time frame for water that isn’t removed from the aquifer, and moisture that runs off, or enters the aquifer to migrate to the stream. Which is contingent upon a whole bunch of compounding factors such as porosity and distance from the stream. While it would be difficult to determine right now point and timing could be a concern. They might very easily wind up with more Cherry Creek flow than gets returned.
I don’t quite understand Bijou’s aug plan, maybe someone can let me know if I got it right:
If the wells under the Bijou plan, for example, are depleting the river at 10 cfs then the Bijou canal must divert 10 cfs less than it’s entitled to divert.
But if everyone under the Bijou got more efficient over the years, converting from flood to pivot irrigation, then there is no pain among Bijou irrigators from diverting less, they still have enough water.
The thing that will change is that there will be less return flows.
So is it that Bijou has a painless aug plan and if so, how can it be attacked?