Brent Gardner-Smith/Aspen Journalism
KEYSTONE — A milestone in state water planning was reached Tuesday as members of the state’s Interbasin Compact Committee unanimously endorsed the latest version of a “conceptual framework” to guide discussions between East and West Slope interests about any new transmountain diversion.
“It’s not perfect, but I think we’re in general agreement this is a good starting point, and if ever there is a transmountain diversion, there will be, no doubt, additional negotiations,” said John Stulp, chairman of the IBCC.
Today in Colorado, between 450,000 and 600,000 acre-feet of water is diverted each year from the West Slope to the more populous East Slope.
The latest draft of the framework, tweaked Tuesday regarding statewide water conservation goals, will now be forwarded to the Colorado Water Conservation Board for inclusion in the final Colorado Water Plan, which is to be delivered to Gov. John Hickenlooper by Dec. 10.
“I would be surprised if it would change significantly from where we’re at today,” Stulp said of the conceptual framework.
To help satisfy the concerns of some members of the IBCC, staff from the Colorado Water Conservation Board drafted an additional introductory paragraph – during a break in the meeting – to satisfy lingering concerns of some IBCC members.
“The intent of the conceptual framework is to represent the evolving concepts that need to be addressed in the context of a new transmountain diversion as well as the progress made to date in addressing those concepts,” the new introductory paragraph states. “The conceptual framework refers to several topics, including conservation, storage, agricultural transfers, alternative transfer methods, environment resiliency, a collaborative program to address system shortages, already identified projects and processes (IPPs), additional Western Slope uses, and other topics that are not exclusively linked to a new TMD, but are related to Colorado’s water future. The conceptual framework, like the rest of the Colorado Water Plan, is a living document and is an integrated component of the plan. Many of these topics are further discussed in more detail in other sections of Colorado’s Water Plan.”
The IBCC is made up of two members from each of the state’s nine basin roundtables, six governors’ appointees and two members of the Legislature.
Since 2013, the committee has been working on the seven core principles in the framework, which spells out under what terms a new transmountain diversion might be acceptable to the West Slope.
For example, a new project should not increase the likelihood of a call from California for more water under the Colorado Compact, or preclude future growth on the West Slope.
And it “should avoid, minimize or mitigate adverse environmental impacts where possible” and address the concept of “environmental resiliency.”
“Nothing is perfect, but I think adding environmental resiliency into the water plan – which happened because we got it into the conceptual framework and now it’s also in the body of the plan in chapter six – I think that’s a big step forward,” said Melinda Kassen, who represents environmental interests on the IBCC, and was speaking during a break in the meeting.
“And I like the fact that it’s also combined and we have a much more robust commitment and description of what we need to do in regard to compact compliance,” Kassen said. “So I think there are a lot of things in the conceptual framework that we have to work on – triggers, collaborative water management program, environmental resiliency, conservation – those are the action steps for moving forward. I think the conceptual framework is a pretty good deal and we should take it and move on. And not just in terms of the conceptual framework, but in terms of the whole water plan. It’s a plan, and now we have to ‘do.’”
“A bunch of hoops”
Bill Trampe, a rancher in Gunnison County and a member of the Gunnison River Basin Roundtable, also supports the framework.
“For future transmountain diversions to occur, according to the framework, the proponent is going to have to go through a bunch of hoops,” Trampe said. “If the proponent is willing to take the gamble that there is enough water to merit the expense of the project, then go for it.”
Trampe’s suggested that if a project proponent takes a hard look at a potential new transmountain diversion, and does so through the lens of the conceptual framework, they may find that there just isn’t enough water to make a project viable.
Principle three of the framework deals with “triggers,” or the amount of water available in the larger Colorado River system, that may or may not allow water to be diverted to the East Slope.
“Triggers are operating parameters that determine when and how much water a potential new TMD could divert, based upon predetermined conditions within the Colorado River System,” a recent draft of the framework states. “Such parameters include, but are not limited to, specific storage elevations in one or more Colorado River System reservoirs, projected inflows at key Colorado River System locations, actual reservoir inflows over specific defined periods, snowpack levels, predictive models – or combinations of these – which would trigger certain actions and prevent others.”
In a brief interview after the meeting, Trampe said the water trends do not favor a new transmountain diversion.
“If hydrology does not improve, then the issues on the Colorado River are going to become worse,” Trampe said. “Mead and Powell continue to go down. They are not stabilized. They are not rising. They continue to go down. So if a proponent of a project looks at all of that, and still thinks there is water available, I guess there is not much we can do about it, except go through step four, the collaborative process, where we identify the risks and the ways we go about alleviating those risks to the various parties, particularly on the West Slope.”
Step, or principle, four in the framework discusses a proposed collaborative program to manage water in the Colorado River basin, and points out such a program is needed regardless of whether a new diversion is built or not.
“The collaborative program should provide a programmatic approach to managing Upper Division consumptive uses, thus avoiding a Compact deficit and insuring that system reservoir storage remains above critical levels, such as the minimum storage level necessary to produce hydroelectric power reliably at Glen Canyon Dam (minimum power pool),” the draft framework states. “A goal of the collaborative program is that it would be voluntary and compensated, like a water bank, to protect Colorado River system water users, projects and flows. Such protection would NOT cover uses associated with a new TMD.”
Trampe also pointed out that the conceptual framework is only a first screen for a potential new transmountain diversion, as any project would still have to go through existing regulatory reviews at, potentially, the federal, state and county level.
“Even if you think you can get through this process, you still have to go through the normal legal channels and permitting that is in existence today,” Trampe said. “You’re still going to have the traditional things to go through, particularly if you’ve not adopted the principles within the framework.”
The conceptual framework is not legally binding, as Colorado water law still allows for a water provider to propose a new transmountain diversion without referencing the conceptual framework. But it is seen as a way for Western Slope communities to review a proposed diversion against publicly adopted parameters.
The conceptual framework has been discussed at various other roundtable meetings around the state in recent weeks.
“I think that this gives us protections that otherwise we don’t have,” said Karn Stiegelmeier, a Summit County commissioner, during a July 27 meeting of the Colorado River Basin Roundtable, shortly before that roundtable endorsed the conceptual framework.
But during the same meeting, Ken Ransford, who represents recreational interests on the Colorado Roundtable, voted against the framework.
“This agreement doesn’t have teeth,” Ransford said. “It’s not enforceable. It gives us no legal rights. And the Front Range has said they are still willing to come over here and purchase agricultural water rights as necessary to protect their existing diversions. So I keep asking myself, what are we getting out of this?”
However Ken Neubecker, the associate director of the Colorado River Basin Program for American Rivers, and the environmental representative on the Colorado River Basin Roundtable, supported the conceptual framework, arguing it gives the Western Slope more protection.
“They could come over for a new transmountain diversion and ignore all of this right now, that’s just the way Colorado water law is,” Neubecker told the roundtable. “What this does do, along with the water plan, is set a high bar that they really are going to have to look at and try and comply with if they want to have a smoother road rather than a rougher road toward that end. They still have to go through permitting processes with the local counties and with the state, and the counties and the state can all look at it and say, ‘Well, where are you with complying with this? Where is your plan with point number four, point number three, whatever?’ It does give us that element of a condition, while not legally required, is something that politically would be a good thing to pay attention to.”
After the August 25th meeting in Keystone, Eric Kuhn, the general manager of the Colorado River District, which represents 15 West Slope counties, said the framework — if deployed correctly — could help protect West Slope interests.
“The West Slope is better off under the conceptual framework if, and it’s a big if, we follow through and have the discussions that are contemplated by the framework,” Kuhn said. “If it just sits on the shelf, it’s worthless for us.”
The first of the seven principles in the framework states “East Slope water providers are not looking for firm yield from a new transmountain diversion, and the project proponent would accept hydrologic risk for that project.”
That means that a Front Range water provider who proposes a new transmountain diversion must understand that there may not be water to divert every year, depending on snowpack, weather and the amount of water stored in Lake Powell and Lake Mead, the latter because of legal minimum water guarantees for downstream states.
“It’s not just, is there enough water, it is whether there is enough reliable water,” Kuhn said of the core principle. “If you are a community, and you are providing water to people, it’s not good enough to have water three out of four years. People want water four out of four years.”
Which may mean, Kuhn said, that a big new diversion project is not worth pursuing.
After the meeting, Kuhn wrote a memo to the River District’s board of directors, in which he spelled out the divide evident at the Keystone meeting over the appropriate levels of water conservation that should be expected of municipal water providers.
“The IBCC met on Tuesday August 25th in Keystone,” Kuhn wrote. “The primary area of discussion (and conflict) was conservation. A separate IBCC committee on conservation developed what we now refer to as the stretch goal. Under the most simplified explanation, the ‘stretch goal’ is stretching the medium goal of 280,000 acre-feet of statewide conservation savings to 400,000 acre-feet. The goal timeline is 35 years, from now to 2050.
“The framework committee tried to incorporate this into the seven point framework in principle 6, but we did so in an awkward way,” Kuhn wrote. “The bottom line is that the South Platte and Metro roundtables are having second thoughts about the stretch goal. I heard three concerns: First, they could become part of the federal permitting process. Second, they’re not really attainable at this time. And third, they will undermine the ability to finance and operate new projects. The more our customers conserve, the less money they pay.
“We ultimately agreed to ‘soften’ the language, but the underlying tensions remain,” Kuhn wrote. “The West Slope roundtables remained united behind achieving the stretch goals, but expressed concern about smaller entities (which under the rules are not covered if they use less than 2,000 acre-feet per year).”
Clamoring for water
To water interests on the Front Range, a new transmountain diversion is seen as an important tool to meet growing water demands, and getting the conceptual framework into the Colorado Water Plan is seen as a victory.
“It seems to me we’ve got a tremendous opportunity,” said Sean Cronin, the executive director of the St. Vrain & Left Hand Water Conservancy District in Longmont, during an Aug. 11 meeting of the South Platte Basin Roundtable in which he urged the roundtable members to endorse the conceptual framework.
“We have been clamoring for a transmountain diversion since the very first day of the roundtable,” Cronin said. “We now have a transmountain diversion framework sitting in a statewide water plan that’s nearly to the point of being approved and adopted.”
After Tuesday’s meeting in Keystone, IBCC member Wayne Vanderschuere, who oversees water planning for Colorado Springs Utilities, said a new transmountain diversion “needs to be in the cards,” especially to slow the practice of buying water from agricultural operations to meet growing municipal demands.
“The Colorado River has its own unique challenges irrespective of transmountain diversions, that everyone needs to take ownership of,” Vanderschuere said, referring to the state’s obligations under the Colorado Compact. “So we need to address that. But we also have an obligation to responsibly develop our portion of the compact entitlement, and to the extent we can do that, we should pursue that.”
Vanderschuere also praised the state’s existing array of transmountain diversions.
“The current transbasin diversions and the associated storage with them have done more to booster the economic, environmental, and environmental resiliency of Colorado than any other thing I can think of,” he said. “The storage, the flatwater recreation, the whitewater recreation, the environmental habitat, the economic benefits of having that water available, east and west, for recreation, for municipal and industrial – huge. Colorado would not be where it is today without those transbasin diversions that are currently in place. So we have to acknowledge that that’s been a huge success on all fronts.”
View from the CWCB
At a meeting on Aug. 21 in Vail of the Colorado Water Congress, John McClow, the general counsel of the Upper Gunnison Water Conservancy District, and a board member of the Colorado Water Conservation Board, described the conceptual framework, and the “historic conflict” in Colorado over transmountain diversions, for a ballroom full of members of the state’s professional water community.
“The most pressing question I’ve heard throughout the Western Slope is ‘What are we going to do about new transmountain diversion?’ All of the Western Slope roundtables addressed it to some extent in their basin implementation plans,” McClow said. “The South Platte Roundtable, the Metro Roundtable, talked about it in their plans. But those collective comments still reflected what I believe was conflict on the issue. It is a historic conflict – east versus west – and it’s been going on before Colorado was a state. What I’m happy to report is that the IBCC took it upon themselves to try and find a solution to that conflict.
“That group worked for over a year putting together seven principles that would create a framework around which a new transmountain diversion could be developed. It is not an agreement, it is not a regulation, it is not mandatory, but it confronts reality on every aspect of what will be necessary to consider in the event that a proponent wishes to pursue a new transmountain diversion. It’s couched in terms of seven principles, and each of them addresses one element of it. Some go a little bit beyond the strict interpretation of a transmountain diversion.
“What’s most important to remember is that it is not a rule,” McClow said. “What it does is set forth the obstacles that would occur in the event that a proponent were considering one, that it is to say, the physical and legal availability of water in the basin of origin, which is addressed by Colorado water law. But it reaches beyond that to say that if the new development occurs within the Colorado River system, which is what we’ve always identified as our source of new supply, we have to look beyond the state boundary and look at the big river system because of our obligations to other states on the Colorado River.
“We have to be careful that in developing that additional water, we don’t overdraft our entitlement under the Colorado River Compact and Upper Colorado River Compact. This framework provides a process to address those issues. And further, to say we have to have some means of evaluating the possibility of diversions by this new project through triggers. And without defining the triggers, its says there are places you need to look to figure out when and how much water could be diverted by a new transmountain diversion.
“The principles go beyond that and look at issues such as West Slope – East Slope collaborative benefits from a single project, it talks about conservation standards for the proponent of a new transmountain diversion, it talks about environmental and recreational sustainability within the state.
“I hope that we, the conservation board, will adopt this framework and incorporate it into the water plan so that we can remove this controversy because Colorado can’t move forward in conflict, we’ve got to move forward with consensus,” McClow said. “And this is a burning issue, Front Range and West Slope, and I’m hoping that for once in our history we can sit down and say ‘We’ve agreed on how this can actually happen, should it be possible, as long as it is done reasonably and responsibly and reflects the reality of our circumstances at the time.'”
The seven principles b the draft conceptual framework:
1. East Slope water providers are not looking for firm yield from a new transmountain diversion (TMD) and the project proponent would accept hydrologic risk for that project.
2. A new TMD would be used conjunctively with East Slope supplies, such as interruptible supply agreements, Denver basin aquifer resources, carry-over storage, terminal storage, drought restriction savings, and other non-West Slope water sources.
3. In order to manage when a new TMD would be able to divert, triggers are needed.
4. A collaborative program that protects against involuntary curtailment is needed for existing uses and some reasonable increment of future development in the Colorado River System, but it will not cover a new TMD.
5. Future West Slope needs should be accommodated as part of a new TMD project.
6. Colorado will continue its commitment to improve conservation and reuse.
7. Environmental resiliency and recreational needs must be addressed both before and conjunctively with a new TMD.
Editor’s note: Aspen Journalism is collaborating with The Aspen Times and the Glenwood Springs Post Independent on coverage of water and rivers. The Times published a shorter version of this story on Wednesday, Aug. 26, 2015, as did the Post.