After winning approval from the state water board in November, the plan to secure an important water right for the Western Slope now faces a new hurdle: water court.
Sixty-three entities have filed statements of opposition to the Colorado River Water Conservation District’s application to add an instream flow use to the Shoshone hydropower plant’s water right. Many of those are Front Range water providers, cities and counties, who say their interests could be harmed by the change.
But at least 23 of these “opposers” say in their statements that they are actually in favor of the deal and filed the documents in order to monitor and weigh in on the case. They include members of the Shoshone coalition: cities, counties, water providers and irrigation districts on the Western Slope that have pledged millions of dollars toward the River District’s purchase of the water rights.
It’s a quirk of Colorado’s water court process that interested parties must take on the misnomer of opposer.
“A lot of these people are just in there to keep their seat at the table, not that they are really opposed to what’s going on,” explained Aaron Clay, a retired attorney, water court referee and expert who teaches community courses about the basics of water law across the Western Slope. “It’s too bad we don’t have a better name for it because it’s not really opposition. It’s a statement of interest.”
Kirsten Kurath, an attorney who represents three Grand Valley parties who filed a “statement of opposition in support” — Grand Valley Water Users Association, Clifton Water District and Orchard Mesa Irrigation District – said this case has the most parties of any she has ever been in.
“This is something the Grand Valley has been working on for decades,” Kurath said. “We got into the CWCB hearing in support and we’re going to get into the water court case in support.”
Pitkin County filed a statement of opposition and has also pledged $1 million toward Shoshone.
“Obviously, we are in support of the dedication (of the water right) to the CWCB and seeing this through,” said Pitkin County Deputy Attorney Anne Marie McPhee. “But it is a really big case and so we want to be monitoring it to ensure there isn’t any injury to water rights on the Roaring Fork.”
The city of Aspen also filed a statement of opposition, saying it supports the Shoshone deal – if conditions are met that protect its own water supplies.
“Aspen supports the addition of instream flow use by the CWCB to the decreed uses of the Shoshone water rights, provided, however, that the changed rights must be operated pursuant to a final decree that has terms and conditions sufficient to prevent injury to Aspen’s water rights on the Roaring Fork and its tributaries; its Ruedi Reservoir and Maroon Creek hydroelectric interests; and the instream flows and water quality on the Roaring Fork and its tributaries,” Aspen’s statement of opposition reads.
‘Battle of the experts’
The Glenwood Springs-based River District plans to purchase the water rights associated with the Shoshone plant in Glenwood Canyon from Xcel Energy for $99 million. The water rights are some of the oldest and most powerful on the mainstem of the Colorado River and can command the river’s flows all the way to the headwaters.
The River District must now go through the water court process to add an instream flow water right to the hydropower right, which allows the water to stay in the stream for the benefit of the environment in a 2.4-mile stretch of river between where the water is diverted and the hydroplant. That means downstream cities, irrigators, recreators and endangered fish all reap the benefits. The Colorado Water Conservation Board approved the change in November and is a co-applicant on the case, along with Xcel.
River District representatives declined to comment about the water court case.
Not all the Shoshone opposers fall into the “friendly” camp. The four big Front Range water providers who objected to aspects of the River District’s plan – Denver Water, Aurora Water, Northern Water and Colorado Springs Utilities – are also parties to the case. They argued at a contentious September hearing that the River District should not have a say in controlling a new Shoshone instream flow right, an authority normally solely held by the CWCB.
Critically, because the Shoshone plant’s water rights — one that dates to 1902 for 1,250 cubic feet per second and another that dates to 1929 for 158 cfs — are senior to many other water users, they have the ability to “call out” junior Front Range water providers that take water across the Continental Divide via transmountain diversions and force them to cut back.
The water court process will resolve one key issue that has been at the heart of disagreement between the Front Range and Western Slope: How much water has Shoshone historically used? Determining past use will help set a limit for future use.The Front Range entities had objected to the River District’s preliminary estimates, saying it would be an expansion of historic use.
“What you’re going to have is a battle of the experts,” Clay said. “You’re going to have the River District’s engineers testifying about a number and you’re going to have the other folks testifying about a much lower number and the court is going to have to resolve whose numbers are more correct.”
Environmental group Save the World’s Rivers filed a statement of opposition advocating that the whole 1,408 cfs of the water rights – which works out to about 1 million acre-feet a year – should be added to the instream flow right to maximize the environmental benefits, instead of the historic use number. The River District estimated the historic use of the hydroplant at about 845,000 acre-feet a year, a number that Save the World’s Rivers Director Gary Wockner said is the floor.
Wockner said his team at the University of Denver Sturm College of Law is scouring past water court cases that involve the transfer of a water right to instream flow use.
“Is historical use the actual precedent that applies here?” Wockner said. “Normally, when you transfer a water right from one entity to another, you only transfer the consumptive use portion of it. This is a very different situation where they are transferring water for instream flow use.”
Most water court cases end up settling, with stipulations hammered out between the applicant and each opposer to address the opposers’ concerns. But if agreements can’t be reached after negotiations led by a water court referee, a case could go to a trial. It’s too early to know whether the Shoshone case is headed for a trial.
“This is probably one of, if not the biggest, water court battles in the history of the state so far,” Wockner said.
Funding hurdles
An additional hurdle the River District will have to clear is coming up with the remaining money for the purchase. The River District has raised about $37 million from local partners, $20 million from the state, and was promised $40 million from the U.S. Bureau of Reclamation through the Inflation Reduction Act. But the Trump administration has frozen that funding.
Last week at a gathering of the Colorado Water Congress in Aurora, Colorado’s 3rd Congressional District Representative Jeff Hurd said his number one water priority is reinstating this federal funding.
“These senior water rights play a critical role in manufacturing and maintaining flows through Glenwood Canyon in western Colorado, supporting agriculture, recreation, local economies, our energy economy and overall system stability during a time of changing hydrology, which has put extreme pressure on the Colorado River basin system,” Hurd said. “I’m pressing hard to deliver those funds.”
But River District General Manager Andy Mueller said even if the federal funding doesn’t come through, it won’t stop them from securing Shoshone’s flows. Western Slope communities have a history of supporting River District initiatives and Mueller is confident they would step up again. According to polling of its constituents, the River District has a high approval rating across its 15-county area, and voters overwhelmingly approved a 2020 River District ballot measure that increased property taxes to pay for water projects.
“We are not giving up on this project,” Mueller said. “We will get this thing closed. There’s no question in my mind that if we had to, we will find the money within our own local communities and get this thing done.”