The Runoff | Upper Basin MOU lays groundwork for saved-water accounting

Welcome back to The Runoff, where Aspen Journalism’s Water Desk provides insider news and water-related updates you won’t read anywhere else, with additional context and updates on our most recent reporting. 

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– Heather Sackett
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Aspen Journalism

MOU lays out first steps for saved-water accounting

The Upper Basin continues to take baby steps toward a formal conserved consumptive program. On Oct. 28, the Upper Colorado River Commission signed a memorandum of understanding with the U.S. Bureau of Reclamation establishing a provisional accounting for water saved through approved Upper Basin conservation projects. The Upper Basin states — Colorado, New Mexico, Utah and Wyoming — want to “get credit” for water they save through programs like System Conservation and potentially others, which they call “qualifying activities.” That water, thus accounted for, could be stored in Upper Basin reservoirs and tapped in the event of a future compact call or other circumstances where it would be needed.

But the MOU is still a dry run until a formal program comes about either in whatever post-2026 reservoir operation framework is adopted or with the establishment of a demand management program. 

“The important thing to keep in mind is this provisional accounting exercise is not an operational exercise,” said UCRC attorney Nathan Bracken. “It’s a paper exercise and as a result it will not change the operations of any reservoirs in the upper division states, nor will it provide actual credit itself.”

Water rights transparency push falters 

In September state Sen. Dylan Roberts made an attempt at increasing transparency regarding water rights transactions in yet another well-intentioned but failed effort to prevent speculation. Water is often treated as a property right, so Roberts’ thinking was that information about buying and selling water should be publicly available, much the same way real estate transactions are. 

“It gets recorded, it gets published in the newspaper or online so that the public can see what’s happening in their community,” Roberts said at the Sept. 18 Water Resources and Agriculture Review Committee meeting.

But the draft bill Roberts authored found little support and he pulled it without putting it before the committee for a vote. Colorado water managers and lawmakers have talked extensively in recent years about how to address water speculation, even floating a bill (which failed because it didn’t have support from water users) and convening a work group to look at the issue (which failed to reach consensus). So far, lawmakers have not been able to reconcile how to prevent purchases by investors looking to profit off the future value of the state’s water with the ability of water rights owners to sell their those rights as they see fit. 

“You know, we talk about how we don’t want water speculation in Colorado, but then we don’t really ever do anything about it,” Roberts told the committee. “It is a continued issue that I think this body and future bodies will have to take on.”

Ute Mountain Ute Tribe gets water funding

On Oct. 31, the Department of the Interior announced nearly $82 million in federal funding for 23 clean drinking water projects for tribal communities in the West. $7.5 million of that will go to the Ute Mountain Ute Tribe to plan and complete 18 miles of a 22-mile waterline connecting Cortez and Towaoc, according to a press release from Interior. Colorado U.S. Senators Hickenlooper and Bennet praised the move, which came two weeks after the senators urged the Bureau of Reclamation to explore new opportunities for Colorado’s tribes to access federal funding for drought-related projects. 

“The Ute Mountain Ute Tribe considers water and its watersheds as a sacred and vital element to life,” Ute Mountain Ute Tribe Chairman Manuel Heart said in the press release. “Stewardship of the environment allows life to flourish and is an obligation of our tribe and people. This grant is a crucial step in finishing the project that we’ve been working on for over 14 years to make sure everyone in our community has access to drinking water.”
The funding announcement comes after Reclamation, despite earlier promises of inclusion, said in September that tribal forbearance programs would not get funding from the B2W bucket.

Colorado River expert weighs in on Snake River case

A water court case with implications for many Western Slope water users could be heading to trial. In October representatives from the Snake River Water District and the state Division of Water Resources met in Denver but could not come to a resolution.  The parties are now expected to schedule a trial with the water court. At the heart of this case is whether the Summit County-based Snake River Water District is allowed to benefit from water in the Historic Users Pool in Green Mountain Reservoir. The water district is one of many Western Slope water users that rely on the HUP to replace the water they divert from the Colorado River and its tributaries. State engineers say the water district shouldn’t be a HUP beneficiary because it already has an augmentation plan to replace the water it diverts. 

Colorado River expert and former general manager of the Colorado River Water Conservation District Eric Kuhn was involved when the HUP was created in the 1980s. He has weighed in on the case with an expert opinion, on behalf of the Snake River Water District, which he says should continue to be an HUP beneficiary. 

“I was there during the negotiations, and I believe the Bureau of Reclamation, the River District and even the state officials that were involved at the time made a commitment to those users that were benefiting from Green Mountain as of Oct. 15, 1977 that as long as they were using their water rights for domestic and irrigation purposes, they would never lose their benefits.”

Alternative forage project

A lot of ink has been spilled on whether growing thirsty alfalfa in the Colorado River basin is the best use of the precious little water in this arid region. Scientists at Colorado State University’s field station in Fruita are experimenting with growing alternative forage crops so that farmers and ranchers can have options to stay in production while adapting to a future with less water. The Fruita location is part of a larger statewide project growing drought tolerant crops like Kernza, which is a wheatgrass, and sainfoin, which is a legume. The project is a partnership among Colorado State University, American Rivers, The Nature Conservancy, Trout Unlimited and The Land Institute.

“The grand theory is that if we can find less thirsty crops, it will take some pressure off the system and off rivers,” said Hannah Holm, associate director of policy with American Rivers. “And if they are more drought resilient, there’s some benefits to that because a lot of people have a lot less reliable water than they used to.”

15-mile reach study

The Colorado River Endangered Fish Recovery Program is re-evaluating flow recommendations in the 15-mile reach, a chronically dry section of river in the Grand Valley downstream of big irrigation diversions. Despite some success in recovering two of the four species of endangered fish, meeting the late season flow targets in the 15-mile reach has been challenging in some years. 

Here’s an anecdotal example from this year (2024 was considered average-dry). Every Wednesday between late July and the end of the irrigation season in late October, water managers participate in a phone call to discuss releases of water from Green Mountain’s Historic Users Pool. The email that proceeds these weekly calls includes a flow chart that shows the flow target in the 15-mile reach and the flows at the stream gauge near Palisade just downstream of the diversions. This is a snapshot in time of essentially how much water is left in the reach after agriculture takes its share. According to those flow charts, the 15-mile reach target of 1,240 cfs was met on just one of these Wednesdays between Aug. 7 and Oct. 23. Sometimes it dipped to near 600 cfs, less than half the flow target.

The team evaluating these nearly 30-year-old flow targets is proposing 36 new studies to look at four different areas: hydrology and water supply; peak flows, low flows and channel habitat; biological response; and habitat manipulation options. Nine of the 36 studies are considered essential. 

According to the draft study plan, a thorough evaluation of the 15-mile reach flow targets could take a decade or more, but at least some valuable information should be available by 2028.

Free River loophole paper

This topic is going back a couple months, but a paper by researchers from the University of Virginia and others ruffled some feathers in Colorado in September. The study is called “Closing Loopholes in Water Rights Systems to Save Water: The Colorado River Basin,” and the loophole is free river conditions. Under Colorado water law, during times when there’s plenty of water to satisfy everyone and no calls are on a river, water users are allowed to take as much as they want, even more than their water rights decree. This also applies to people who don’t have any water rights at all. It’s a free-for-all.

The paper’s authors say the free river loophole resulted in 87,577 acre-feet in excess diversions beyond water users’ decreed rights in Division 5 in 2017. 

“The free river loophole is a classic case of improperly defined and/or enforced property rights under the theory of ‘no harm no foul,’ which we contend is no longer valid,” the paper reads. “Given the specter of a compact call, it can be argued that ‘unappropriated water’ — the basis of the free river condition — no longer exists within the Upper Basin because all surplus water is needed for compact deliveries.”

The authors of the paper might not have known it, but they touched on the third rail of Colorado River politics. A main talking point of state officials is that Colorado water users are already suffering from shortages and have never violated the Colorado River Compact, and therefore future cuts should be the responsibility of the Lower Basin. Pointing out that there are in fact times when there is plenty of water to go around and that during these times it is perfectly legal for water users to take more than their decree — and that perhaps closing this loophole could be a way to create a pool of conserved water — undermines the official Upper Basin stance. Upper Basin officials do not want to conserve water just to allow the Lower Basin to use this water to continue what they say is overuse. They believe any conserved water in the Upper Basin should be for the benefit of the Upper Basin.

Officials from CWCB made the rounds at September roundtables to remind attendees of the state’s position and to suggest the study’s authors don’t have a clear understanding of the compact or Colorado water administration. The study was covered by KUNC and Newsweek, and Colorado water managers really didn’t like the Newsweek article, with a member of the Yampa/White/Green roundtable wondering if they should ask for a retraction to set straight the “misinformation.”