The Runoff | Discriminatory relic survives in 75-year-old upper basin agreement

Water managers are talking tools for drought, a new conservation study, a fish kill in Aspen and reconsidering provisions laid out in a 75-year-old document that makes up the law of the river. Let’s get into the details.

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— Heather Sackett
Managing Editor and Water Desk Reporter

Upper basin compact marks anniversary

The 1922 Colorado River Compact usually gets all the ink (especially last year, which marked its centennial) but this month is the 75^th anniversary of another important governing document: the Upper Colorado River Basin Compact. One main task of this 1948 agreement was that it apportioned the water among the upper basin states using percentage allocations: Colorado 51.75%; New Mexico 11.25%; Utah 23% and Wyoming 14%. 

Colorado water officials, in comments to the Bureau of Reclamation regarding the post-2026 operations, have said that the upper basin compact, along with other compacts, should be the foundation of future reservoir operations. Water managers are beginning to discuss how the nation’s two largest reservoirs, Lake Powell and Lake Mead, will be operated after 2026 when the current guidelines expire. It’s a rare and historic opportunity to reconsider how the system is managed and perhaps make equity for tribes a priority. 

Although the Front Range Water Council, the Colorado Water Conservation Board and the Colorado River Water Conservation District often have opposing goals and a sometimes contentious history in their dealings with each other, in this instance they are all aligned in saying that these compacts provide legal certainty, form the basis of the law of the river and provide durability and stability in managing the system. 

But in a new paper, “Revisiting the Upper Colorado River Basin Compact on its Diamond Anniversary,” Colorado River experts John Fleck and Eric Kuhn say maintaining the 1948 compact as a foundation for post-2026 operational guidelines is risky. The 75-year-old agreement was based on a river that no longer exists thanks to climate change and drought; and the compact sets up unresolved issues, including discrimination against Native American tribes. 

“The legacy of the law of the river is for a river that no longer exists,” Kuhn said in an interview with Aspen Journalism about the paper. “Saying the Colorado River Compact, the Upper Basin compact and the Mexican Treaty are the foundations of the post-2026 river negotiations is a nice talking point, but what does it mean?”

The upper basin compact lumped tribes’ water use into each state’s allocation, with each state responsible for meeting tribal needs from its share of the water. The authors say this set up a potential conflict: What if water for tribes squeezed out junior uses or ended up being more than the amount allocated to the state? That created an incentive for states to prevent tribes from developing their water and using their full legal entitlements. So state representatives added provisions in project-authorizing legislation like for the San Juan-Chama and Navajo Indian Irrigation projects saying federal infrastructure could not be used to deliver water to tribes in excess of their state’s 1948 compact apportionments.

“Would they ever have done that to the Grand Valley?” Kuhn said. “No, they never would have said, ‘Oh, we are going to limit a pre-compact right by legislation.’ It’s just inconceivable to me that it’s OK to do to the Indians, but not to euro-American settlers. I’m of the view that this wouldn’t have happened to anyone else but the tribes.”

Kuhn and Fleck recommend removing this language from the federal authorizations for the water projects, saying it is a discriminatory relic that treats Native Americans as second-class citizens.

Colorado River Drought Task Force

When it comes to controversial topics (demand management, anti-speculation) Colorado likes to convene work groups and task forces. But despite a ton of time and effort from a wide swath of experts, recent history shows they have not immediately resulted in tangible new laws or programs. A two-year state investigation into demand management with nine workgroups may have laid the groundwork for, but did not actually set up a demand management program; and a task force aimed at coming up with anti-speculation recommendations failed to reach consensus or give clear direction to lawmakers. 

Legislators made it known with an Aug. 24 letter to task force members that they actually want action this time from the Drought Task Force and urged them to have tough conversations and propose bold ideas. 

“We do hope to see concrete recommendations about how we in the legislature can and should act to complement the work happening at the local and state level,” the letter reads. “That could be identifying new programs or legal tools, recommendations for how funding could be utilized and what funding needs are, changes to existing tools and programs which may need more flexibility as we face steeper challenges.”

According to Senate Bill 295, which created the task force last year, its purpose is to make recommendations for state legislation regarding implementation of demand reduction and voluntary, compensated water conservation programs.

From what I can tell, the task force hasn’t yet made a ton of progress, but work is ramping up and members seem to finally be getting down to brass tacks. Four tools have been up for discussion: demand management, system conservation, water banking and a strategic water reserve, which River District General Manager and task force member Andy Mueller has pointed out are all essentially the same: they are aimed at reducing consumptive use and making that water available for a different purpose. A sub task force for tribal matters has been formed and upcoming meetings are scheduled for an entire day instead of the four-hour window of earlier meetings. 

The task force is supposed to present its findings and recommendations to the legislature in December.

River District opposes HH

The Colorado River Water Conservation District is opposing Proposition HH, which will be put to voters on Nov. 7 and is aimed at limiting property tax increases over the next decade. Home values in Colorado have exploded since the pandemic, rising by a median of 40% since 2021. In Pitkin County, the cumulative value of all properties increased 72% since the last reassessment cycle in 2021, triggering more than 4,700 protests with the assessor’s office.

Last month, the River District’s board adopted a resolution opposing HH, which they say if passed would undermine the district’s long-and short-range planning efforts. In 2020, voters approved a property tax increase for the district which now raises millions for its Community Funding Partnership, a water project grant program that has funded about 100 projects over its three years. “The board of directors concludes that Proposition HH diminishes the ability of local governments and special districts within the River District’s jurisdictional boundaries to provide the vital services and infrastructure that the public needs, expects and demands; and, therefore, the board strongly urges a NO vote…” the resolution reads. 

System conservation numbers

Even though the effort has its skeptics and it hasn’t been proven that water saved makes it to Lake Powell, the Upper Colorado River Commission (UCRC) decided last month to continue the System Conservation Program in 2024. Read more of Aspen Journalism’s reporting on the topic. Since that meeting, UCRC officials have provided numbers about projects in the other three upper basin states: Wyoming (20), Utah (20) and New Mexico (1). There was one project on the border of Colorado and Wyoming. 

Although Colorado had the highest number of projects (22), it received the least amount in total federal payments and had the least amount of conserved consumptive use. Officials have said this is because most of Colorado’s projects involved a small number of acres. There were 64 projects total across the upper basin, which conserved almost 38,000 acre-feet of water at a cost of nearly $16 million. See graphs below for a comparison across states.

Ag water users study

A new study from the University of Wyoming and the Western Landowners Alliance told us what we already knew: agricultural water users in the Colorado River basin remain skeptical of and not very interested in conservation programs to address shortages. Unsurprisingly, their major concerns are related to losing their water rights and insufficient financial compensation. And they like formal conservation programs even less when they are administered by state or federal agencies instead of local organizations. These findings point to challenges the UCRC will have to overcome if it hopes to increase participation in system conservation. They also support the River District and Southwestern Water Conservation District’s belief that they should have a more prominent role in the system conservation program to ensure a measure of local control, instead of the UCRC having sole authority.

Aspen fish kill

Officials are still trying to figure out what may have killed fish in an area of the Roaring Fork River near North Star Nature Preserve in late August. Colorado Parks & Wildlife and the Roaring Fork Conservancy took water quality samples. According to April Long, who left her position as an engineer and stormwater manager at the city of Aspen, but is still working on water quality issues with the city, about 100 fish died over the course of about a week. Complete water quality sampling results are not back yet, but Long said early results showed high copper levels, which could be toxic to fish. Lincoln Creek, an upstream tributary of the Roaring Fork, has had water quality issues in the past and the Environmental Protection Agency is working on a report based on sampling done there last fall.

Water Trust

The Colorado Water Trust has set up another project to get more water into dwindling streams, this time in Grand County. Cocoa Cola is putting $24,000 a year into a project that will pay the Grand County Irrigated Land Company to release water they have stored in Meadow Creek Reservoir to boost flows in the Fraser River. Grand County’s headwaters are the most heavily diverted in the state, with a large portion of the water going across the Continental Divide to thirsty Front Range cities. “The Fraser is a hot bed for TMDs,” Water Trust Project Manager Tony LaGreca said. “There are a lot of straws taking water out of the headwaters and putting it over the divide. That has caused problems with the river in the past.” According to LaGreca, the project can happen five out of 10 years and will add at least an additional 50 acre-feet a year, at a rate of about 3 cfs, to the Fraser River through Winter Park and downstream.

Since the last edition of The Runoff, Aspen Journalism’s Water Desk has reported the following stories. If you are not already, subscribe to The Roundup to get our weekly rundown of new news and insights: