Headwaters Winter 2006: Water Quality

C o l o r a d o F o u n d at i o n f o r W at e r E d u c at i o n | W i n t e r 2 0 0 6

Keeping it Clean

Oil and Gas: Risks & Rewards Cleaning Up Urban Runoff Water Quality 411

HEADWATERS |

winter

2006

Colorado Foundation for Water Education

1580 Logan St., Suite 410 • Denver, CO 80203 303-377-4433 • www.cfwe.org Mission Statement

The mission of the Colorado Foundation for Water Education is to promote better understanding of water resources through education and information. The Foundation does not take an advocacy position on any water issue.

Staff Karla A. Brown Executive Director Jeannine Tompkins Administrative Assistant Officers President Diane Hoppe State Representative 1st Vice President Justice Gregory J. Hobbs, Jr. Colorado Supreme Court 2nd Vice President Matt Cook Coors Brewing Company

d Woo Ted

C o l o r a d o F o u n d at i o n F o r W at e r e d u C at i o n | W i n t e r 2 0 0 6

On the Cover: Cherry Creek pours around a glass bottle used for collecting dissolved oxygen samples. Photo by Brian Gadbery.

Keeping it Clean

Risks & Rewards: Oil and Gas Cleaning Up Urban Runoff Water Quality 411

CFWE would like to thank Curtis Hartenstine with RiverWatch for the loan of the water sampling supplies used in these photos.

Acting Secretary Wendy Hanophy Division of Wildlife Treasurer Tom Long Summit County Commissioner Assistant Treasurer Chris Rowe At Large Taylor Hawes Colorado River Water Conservation District Rod Kuharich Colorado Water Conservation Board

Letter from the Editor.......................................................... 1

Becky Brooks Colorado Water Congress

In the News......................................................................... 2

Trustees Steve Acquafresca, Mesa Land Trust

CFWE Highlights.................................................................. 4

Rita Crumpton, Orchard Mesa Irrigation District

Oil & Gas: Risks and Rewards............................................. 6

Lynn Herkenhoff, Southwestern Water Conservancy District

Cleaning Up Urban Runoff................................................. 11

Kathleen Curry, State Representative

Jim Isgar, State Senator Ken Lykens, MWH Americas, Inc.

Water Quality 411.............................................................. 14

Frank McNulty, Colorado Dept. of Natural Resources

Legal Brief.......................................................................... 18

John Redifer, Colorado Water Conservation Board

Order Form......................................................................... 20

John Porter, Colorado Water Congress Rick Sackbauer, Eagle River Water & Sanitation District Robert Sakata, Sakata Farms Gerry Saunders, University of Northern Colorado Reagan Waskom, Colorado State University

Headwaters is a quarterly magazine designed to provide Colorado citizens with balanced and accurate information on a variety of subjects related to water resources.

Copyright 2006 by the Colorado Foundation for Water Education. ISSN: 1546-0584 Acknowledgements The Colorado Foundation for Water Education thanks all the people and organizations that provided review, comment and assistance in the development of this issue.

Wa†ermarks

Ted Wood

Brian Gadbery

Keeping it Clean as Development Looms

In the Citizen’s Guide to Colorado Water Quality Protection (CFWE, 2004), author Paul Frohardt of the Water Quality Control Commission identified pressures from population and development as the primary threats to water quality protection in this state.

In this winter edition of Headwaters, we reflect on the local, corporate and governmental responses to those pressures.

Development can threaten water quality in the booming metropolitan areas with its miles of asphalt, construction sites and wastewater treatment plants; it is also a concern in the cold mountain meadows of the Gunnison Valley or the generous high country reservoirs of the Fraser and Granby areas. Development is a concern in the erosive Mancos shales and hillsides of numerous Western Colorado counties looking at triple-digit increases in oil and gas production.

Correspondingly, clean water initiatives are expanding around the state. Cleaning up stormwater runoff from urban areas has become a state- and nation-wide priority. A new crop of stormwater watchdogs around Colorado are now employed to check on construction sites, look for illegal discharges, and generally ensure our streams are not hit with volatile slugs of polluted water every time it rains or the snow melts.

Local monitoring groups, concerned and knowledgeable about nearby rivers, influence how we monitor their health. It requires an enormous input of time and energy on a local level— boosted by technical expertise and sometimes funding—from state and federal agencies.

Entering into the mix is the boom and bust specter of oil and gas development. In 2005, almost 1,500 oil and gas drilling permits were issued in Garfield County alone. That’s close to double the number of permits (756) issued in 2004. With poor quality water as the primary waste stream of oil and gas production, concerned citizens, water suppliers and government agencies alike are awakening to a series of unknowns about the potential benefits or horror stories associated with this water-oil-chemical mixture coming to the surface for the first time.

We hope you enjoy this issue, learn a little something new, and take pleasure in what this winter season has to offer.

Editor and Executive Director

in the

NEWS

125th Anniversary of the State Engineer’s Office DENVER—On March 5, 1881, the Colorado General Assembly established the position of State Engineer.

This unique post was tasked with administration of water rights and measurement of water flows in the rivers and canals around the newly-minted state.

Since that time, 21 state engineers have served the State of Colorado. M.C. Hinderlider served the longest, from 1923 to 1954 and was involved in the negotiation of many interstate compacts.

The role of the State Engineer has expanded over the

last 125 years. The staff of the State Engineer’s Office is now responsible for administration of nine interstate compacts, dam safety, ground water permitting, safe construction of water wells, maintenance of water data and information, and more.

Hal Simpson, the current State Engineer, has served since August of 1992 and is the second longest serving State Engineer.

To learn more about the State Engineer’s Office go online to water.state.co.us or call (303)866-3581.

Produced Waters Workshop

Energy and Water— How Can We Get Both for the Price of One? April 4-5, 2006, Fort Collins, Colorado

Brian Gadbery

FORT COLLINS—Join policy makers, energy producers and concerned stakeholders from across the West to discuss the opportunities and challenges involved in converting water from oil and gas production to beneficial use.

Workshop sessions will: • Investigate state-of-the-art technologies for treatment of produced waters; • Initiate discussion of public policy alternatives to facilitate development of this valuable

resource; and, • Define a course of action to further evaluate and pursue these opportunities.

The workshop is co-sponsored by the Bureau of Reclamation, the National Institute for Water Resources, U.S. Geological Survey and the Family Farm Alliance.

For registration and agenda information contact the Colorado State University Water Resources Research Institute at (970) 491-6308 or Gloria.

Blumanhourst@colostate.edu.

Tax Checkoff to Support River Restoration and Local Watershed Groups Denver—Checking the box on your state income tax return next to the Colorado Watershed Protection fund helps protect the health of Colorado’s rivers and landscapes. Your contribution supports a grant program created by the Colorado Water Conservation Board and the Colorado Watershed Assembly to fund stream restoration projects and assist locally-based watershed groups in watershed protection efforts.

Colorado was the first state in the country to allow

taxpayers to “checkoff” a voluntary contribution to nonprofit organizations on their income tax form. There are currently 12 tax checkoff options on the Colorado income tax form.

In 2004, the Colorado Watershed Protection Fund checkoff raised more than $95,000 to support watershed health in the state. For more information, go to www.coloradowater.org.

C o l o r a d o f o u n d a t i o n f o r W a t e r E d u c a t i o n

in the

NEWS

Conference on

Critical Issues in Land Conservation: Water Rights and Oil & Gas Development February 27-28, 2006, Glenwood Springs, Colorado Glenwood Springs–This two-day conference will offer guidance to conservation professionals and landowners on how to protect waterdependent conservation values using conservation easements. It will also explore the implications of increasing oil and gas development on conservation easements in Colorado.

On Monday, Feb. 27, the conference will follow the information provided in the Colorado Water Trust’s new publication, “The Water Rights Handbook for Conservation Professionals.” This 130-page handbook will be included as part of registration fees for the conference. The handbook presents an introduction to analyzing water rights for conservation projects, provides guidance on conducting appropriate due diligence, determining the value of water rights, assessing the long-term stewardship

obligations of including water rights in a conservation easement, and provides recommended language for conservation easements.

Tuesday, Feb. 28 will focus on the implications of increased oil and gas development for land conservation efforts. This will include an overview of the IRS regulations regarding mineral estates, a discussion with oil and gas industry representatives regarding the state of exploration in Colorado, and more.

“This conference will tackle two of the biggest issues in conservation in the Rocky Mountain West—water and oil and gas development,” says Kris Larson, executive director of the Colorado Coalition of Land Trusts.

“Colorado has always been a leader when it comes to conservation, and this publication and conference will set the stage for how we can best use conser-

vation easements to protect our state’s important land and water resources.

We have assembled the state’s most informed experts on this issue to help guide the conservation community through this complex issue.”

Colorado is one of the most effective and progressive states when it comes to land conservation practices, ranking third nation-wide in the total amount of acres protected through conservation easements.

The conference will be held at the historic Hotel Colorado in Glenwood Springs. It is co-hosted by the Colorado Water Trust, the Aspen Valley Land Trust, the Land Trust Alliance and the Colorado Foundation for Water Education.

To register or for more information about the conference, visit the Colorado Coalition of Land Trust web site: www.cclt.org.

Now available

Water Rights Handbook for Conservation Professionals Authored by prominent Colorado lawyers and other water experts*, this 130-page handbook provides conservation professionals and landowners with guidance on how to protect water-dependent conservation values using conservation easements.

Using an easy-to-read style, the handbook presents an introduction to analyzing water rights for conservation projects, provides guidance on water rights, due diligence, and explains water rights appraisals. The handbook also contains advice on assessing the longterm stewardship obligations of including water rights in a conservation easement, and provides recommended language for conservation easements.

Co-published by the Colorado Water Trust and Bradford Publishing with support from Great Outdoors Colorado, the handbook can be purchased for $45 by

calling either the Water Trust at 720-570-2897 or Bradford Publishing at 303-292-2500 or 800-446-2831.

This handbook is a first-of-its-kind publication and will be the focus of the Colorado Coalition of Land Trusts’ annual conference on Feb. 27 and 28. *Authors— Peter Nichols, Michael Browning, Kenneth Wright, Patricia Flood, Mark Weston.

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highlights

Brian Gadbery (5)

CFWE

7NEWS Chief Meteorologist Mike Nelson introduces the water-related highlights he will use in his nightly broadcasts as part of the “Colorado’s Water” project.

The station will also produce water minutes on Comcast’s digital channel 24/7 and direct viewers to the station’s new interactive water Web site.

Mike Nelson & 7News—Your Weather, Your Watershed

(Left to right): Hamlet “Chips” Barry, head of Denver Water; Don Ament, Commissioner of Agriculture; and Rod Kuharich, director of the Colorado Water Conservation Board and CFWE board member, enjoyed a preview of the Colorado’s Water project at its premiere, Jan. 9.

Colorado’s Water Headwaters of the West

Mike Nelson officially launched the project on the 7NEWS 10 o’clock broadcast. He and CFWE Executive Director Karla Brown will be coordinating with the project sponsors, 7NEWS and state water authorities to help viewers learn more about water, watersheds, and the environment.

Colorado’s Water: Headwaters of the West made its debut Monday Jan. 9, at a premiere party at 7NEWS in Denver. This collaboration between 7NEWS, the Colorado Foundation for Water Education, Denver Water, the Northern Colorado Water Conservancy District, Aurora Water and the City of Boulder offers both online and on-air resources to help viewers learn more about water, watersheds, weather and the environment.

In addition to nightly features by Chief Meteorologist Mike Nelson, you can also go online at www. thedenverchannel.com/weather and click on “Colorado’s Water.”

This dynamic Web site, created by StormCenter Communications, Inc., allows you to access real-time data such as local stream flows and snowfall information, enter your zip code to discover which watershed you live in, check on local water-related events and activities, and much more.

Thanks to computer-aided satellite imagery, you can also fly through your watershed for a birdseye view from above. Currently only the South Platte watershed is available to fly through, but the

Find your watershed, view a computerized “fly” over the South Platte River, and more at www.thedenverchannel.com/weather. Go to “Colorado’s Water.”

C o l o r a d o f o u n d a t i o n f o r W a t e r E d u c a t i o n

CFWE

highlights

Sponsors gathered to help launch this exciting new project which has the potential to reach more than 1.4 million viewers. Sponsors include: Northern Colorado Water Conservancy District (Eric Wilkinson), Denver Water (Chips Barry and Linda Firth), Aurora Water (Meghan Hughes), and the City of Boulder (Paul Lander and Curry Rosato). Attendees were taken on a tour of the KMGH studios, including Mike Nelson’s weather set (right).

additional watersheds of Colorado will be available soon. Streaming video of Mike Nelson’s recent weather and water-related broadcasts are also available. Information in the “Learning Center” is great for

school-age kids and adults.

This is an ongoing program documenting the interplay of weather and water issues throughout the year, so be sure to tune in or log on regularly to look for new updates and features.

Once you have had a chance to check out Colorado’s Water, be sure and tell us what you think.

There is a feedback button in the upper-right corner of the Colorado’s Water page.

Assistant Secretary of Water and Science Visits Denver Limbaugh appearance helps Foundation raise $17,000 DENVER—On Thursday Oct. 20, the recently appointed Assistant Secretary of Water and Science for the U.S. Department of Interior visited Denver, and spoke at a fundraising event for the Colorado Foundation for Water Education. Secretary of the Interior Gale Norton was also scheduled to attend, but had a family emergency which caused her immediate return to D.C. The event was attended by more than 125 supporters of the Foundation, and helped to raise more than $17,000 to support the 2006 Colorado Water Leader’s Course.

Mark Limbaugh was confirmed to serve as Assistant Secretary for Water and Science in July of 2005. He previously served as president of the Family Farm Alliance, watermaster of Idaho’s Payette River Basin, and executive director of the Payette River Water Users Association.

Limbaugh replaced Coloradan Bennett Raley of Trout, Raley, Montano, Witwer & Freeman, PC. In his new role, Limbaugh is helping to lead one of the most far-reaching government agencies in the nation.

The Department of Interior manages some 507 million acres of land, or about one-fifth of the land in the United

Mark Limbaugh, Asst. Secretary of Water and Science for the U.S. Department of Interior.

States. Its oversight includes the Bureau of Reclamation, Bureau of Land Management, Mineral Management Service, and U.S. Geological Survey.

The Bureau of Reclamation alone manages 471 dams and 348 reservoirs that deliver irrigation water to one of every five Western farmers and provide water

for more than 31 million people.

The event was sponsored by Coors Brewing Company; Southwest Investment Group; Colorado Rock Products; Frei & Sons; Eastman Kodak; McKenna, Long & Aldridge; Duane Woodard, Attorney at Law; and the Honorable Diane Hoppe.

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Risks

By Erin McIntyre Photos by Ted Wood

As

& Rewards

How Will Escalating Oil & Gas Drilling Affect Colorado’s W ater ?

the saying goes, one person’s trash is another one’s treasure.

In this case, the water laced with hydrocarbons, salt and minerals gushing from the earth during oil and gas drilling every day in Colorado may be part of the answer to the state’s water woes.

Some water experts would like to see this poor quality water help stretch water supplies needed for household use, agriculture and wildlife. They hate to see the equivalent of three Antero Reservoirs go to waste each year.

This mixture is called “produced water” and it comes to the surface during extraction of oil or natural gas, or one of its components, methane. In Colorado, most of the time, produced water is re-injected deep below the earth’s surface or placed in disposal wells. Produced water is the drilling industry’s largest waste stream—but every drop counts in drought-stricken Colorado which is pondering projects like the Big Straw and eradication of tamarisk to conserve water.

More than 3 billion gallons of produced water are disposed of every

day in oil and gas operations globally, and produced water amounts to 98 percent of the industry’s total waste stream, according to Oilfield Review, published by Schlumberger. Water professionals are concerned about the impacts of this produced water on other water sources – including contamination and depletion of wells and streams.

But some also hate to see the resource go to waste.

“This water is treated as waste product and in the semi-arid West we don’t tend to waste water,” says Dr. Robert Ward, director of the Colorado Water Resources Research Institute at Colorado State University.

“Someone ought to be able to put it to beneficial use.”

But putting produced water to beneficial use in Colorado is more complicated than treating the water and distributing it. A gauntlet of permitting and review by three state agencies creates a tedious process for those wanting to use produced water.

“People started first identifying this as a potential commodity in about 1998, 1999,” said Dick

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Wolfe, Colorado Division of Water Resources assistant state engineer.

“It wasn’t until 2002 that I personally had a thorough understanding of whose jurisdiction this groundwater was under depending on what you want to do with it.”

Although the water is used in energy production, the state of Colorado does not currently consider oil and gas operations’ use of the water a beneficial use. At present, energy companies do not have to obtain augmentation plans or well permits to use this water pumped out of the ground.

However, a court case currently pending in Water Division 7 (Durango) is challenging this existing scenario.

Produced water’s use is regulated by the Colorado Oil and Gas Conservation Commission, under legislation called Rule 907. Under the rule, produced water slated for disposal may be injected below ground, placed in a pit to evaporate, spread on roads, taken to commercial disposal facilities or released to a stream, with the proper discharge permits.

But if the water is used for anything besides drilling operations, a well permit is required and the water falls under the jurisdiction of the Division of Water Resources, said Wolfe.

contaminate adjoining groundwater.”

In a report released in 2002, the Environmental Protection Agency evaluated water quality in relation to coal-bed methane development in 11 major coal basins in the United States—including the Powder River Basin in Wyoming and the San Juan basin in southwestern Colorado and northwestern New Mexico.

People who live where hydraulic fracturing was done complained to the EPA of water-quality problems. They said water had a “strong, unpleasant taste and odor,” according to the study. They also complained of the effect on wildlife and vegetation, and loss of water in wells and aquifers, as well as new ponds and swamps created from water discharged by the drilling operation.

“If coal beds are located within USDWs (Underground Sources of Drinking Water), then any fracturing fluids injected into coal beds have the potential to contaminate the USDW,” the study says.

Researchers found that 10 of the 11 studied coal beds were located within underground drinking-water sources.

But even given that level of risk, in the end the EPA could find no conclusive proof of drinking water contamination. Its study found Colorado issued a record number of oil and gas drilling permits in 2005.

Beneficial Brine? that “after reviewing data and The Piceance Basin, in the Rifle-Rangely area, is one of the most rapProduced water varies incident reports provided by idly developing areas in the state. widely in quality. In shalstates, EPA sees no conclulow coal-beds, the extracted water deep underground is the most com- sive evidence that water quality degcan sometimes be used for drink- mon practice in Colorado, but some radation in USDWs is a direct result ing water. This is often the case people say it’s a dangerous practice. of injection of hydraulic fracturing in Wyoming coal beds. But deeper “There definitely have been cases fluids into CBM wells and subseformations, such as those tapped in where those injection wells have quent underground movement of Colorado, contain older water which caused problems,” says Lisa Sumi, these fluids.” can have higher amounts of minerals research director of the Oil and Gas Still, Sumi says there’s no way to or total dissolved solids, TDS. Water Accountability Project in Durango. “If understand exactly what is going on produced by coal-bed methane wells other wells tap into the formation within the Earth’s natural fractures in western Colorado can be 30 times where water is injected, there is a hole and the paths of groundwater. saltier than drinking water, according where water can travel upwards and “It’s such a black box under

to EnCana Oil and Gas. The extraction process also can put underground aquifers and surface streams at risk of contamination. When drilling companies mine coal seams and gas pockets, they use “frac’ing fluid,” most commonly a mixture of water and sand but sometimes containing hazardous chemicals and hydrocarbons.

Drillers force the fluid at high pressures into the ground, fracturing the rocks and coal beds. The sand acts as a “proppant,” holding the cracks apart so the methane gas can escape.

This frac’ing fluid can taint the water pumped out during the process. The fluid can also potentially contaminate the remaining ground water aquifers.

Re-injection of this tainted water

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Risks &

ground,” she says. “Even though they say that (injecting) won’t (cause problems), it has.”

In one case of wells contaminated by production gas near Silt, the Colorado Oil and Gas Conservation Commission’s staff recommended a fine for EnCana Oil and Gas. Hearings for the commission to make a decision have been postponed until spring 2006, says EnCana spokesman Doug Hock.

The company was fined $371,000 in August 2004 in relation to a naturalgas seep in and around West Divide Creek in the Piceance Basin. The money paid for a waterquality study scheduled for completion in January 2006 and a moratorium on drilling within a twomile radius of the seep.

Water resource engineers say that in the scope of total river flows, the amount released is negligible but likely supplies some junior users with a portion they might otherwise be without.

The plant is scheduled to start treatment in January 2006. Stewart says the regulatory hurdles were immense.

It took 1 1/2 years for Stewart’s team to prove to the Colorado Division of Water Resources that the produced water pumped to the surface by the oil and gas production

ect can produce 165 acre-feet per year for 1,000 years. If the water was extracted at a faster rate, Stewart estimates the field could produce 500 gallons per minute. At that rate, it could yield up to 750 acre-feet per year for 300 years.

“Nobody’s done it before,” he says. “I think probably the biggest driver is…the value of water.”

Brian Gadbery

Water for Industry EnCana Oil and Gas is leading the industry in produced water treatment in Colorado, and has found a financially viable way to treat produced water and re-use it in its operations.

The company built its Mamm Creek water treatment facility in 2003 to treat water produced through naturalWater for Homes gas extraction and in Engineer Dave September started a pilot Stewart specializes program to treat coalin taking one person’s bed methane produced EnCana Oil and Gas employee Gary D. Werito works at the company’s Mamm Creek problem and turning it water. The treatment water treatment plant—one of the first of its kind in the state. The plant allows EnCana into an asset for someplant, located five miles to recycle all of its produced water for reuse in its operations. Discharge permits are in place for the day when the facility treats more water than needed, and the excess one else. For more than southeast of Rifle, allows will be released to the local river system. three years, his firm, EnCana to recycle all of Stewart Environmental Consultants, was not contained in aquifers which its produced water in the Mamm has worked with its clients near also help support flows in a surface Creek field area. The water is de-conWellington to get approval to treat stream. After that came a string of taminated with a membrane filtration produced water from drilling opera- negotiations and permits with the process, with the final membrane tions using a membrane-treatment Colorado Oil and Gas Conservation performing reverse osmosis. plant to remove contaminants. Commission and the Colorado Water EnCana has 24 test wells explorThe resulting treated water is then Quality Control Commission. ing for coal-bed methane in the used to compensate for well water “The government should not be a Piceance Basin. Each one of those consumed in about 1,000 northern hindrance to this and it’s been a huge wells can produce between 12,600 Colorado homes. The treated water hindrance,” Stewart says. “We’ve and 126,000 gallons of water per is not actually used in the homes. had numerous issues with the Oil day, says Mark Thrush, EnCana water It is used to make up for the water and Gas Commission just because systems engineer. pumped from their wells which pre- it’s a brand-new paradigm.”

The coal-bed methane produced viously would have contributed to Despite the difficulties, Stewart water is actually easier to treat than local stream flows. feels this project is embarking on a the hydrocarbon-laced produced The treated water is released to drought-proof source of water that water coming to the surface during Box Elder Creek, which converg- will be valuable after it is mined from natural gas drilling, says Thrush. es with the Poudre River 11 miles the oil fields.

The coal-bed methane produced south of Wellington near Fort Collins.

He estimates the Wellington proj- water has a TDS of around 700,

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Rewards

still too high for drinking-water stan- sidered a liability for energy develop- stream, the Colorado Water Quality dards, but, “I don’t think we ever ers, some water users would like to Control Commission must approve a envisioned that the water would be convert those barrels to something discharge permit. If the water is benused for drinking water,” says Hock, everyone can use. eficially used and subject to adminisEnCana’s spokesman.

Pat O’Toole, a Wyoming rancher tration as a water right, the Division Before EnCana built the treatment sees produced water as an asset, of Water Resources gets involved. plant, Thrush says it injected the if managed correctly. It may serve With such daunting legal hurdles, it water underground and sent water as a possible buffer to help citizens is not surprising that most oil and gas unfit for drilling or frac’ing to dispos- make long-term decisions about production companies use only the al wells. Their new treatment plant is water use and stave off demands current methods of disposal acceptdesigned to function with at least 80 from thirsty cities. ed by the Oil and Gas Conservation percent efficiency, meaning only 20 “Really, it’s almost a gift,” he says. Commission. It’s easier at this point percent of the water must be sent to As president of the Family Farm for the industry to just inject the disposal wells now.

Alliance, he’s watching water trans- produced water below ground than Using recycled water deal with the regulatory in its drilling operations issues of putting it to benallows the company to eficial use. But people like avoid using fresh sources O’Toole want to find an of water for production. incentive for the industry It also reduces truck trafto help make produced fic and operating costs. water usable.

“Otherwise we’d be “Clearly it needs to be paying to inject that water an integrated approach down hole, so it definiteand it’s not cleanly a water ly saves us money,” says issue,” says O’Toole. “It’s Thrush. a water-mineral-taxationWhile EnCana has a environmental issue.” demand for all the recyCSU’s Robert Ward Oil and gas drilling also produces waste drilling muds and cuttings. Among other iscled water in its operaand O’Toole are trying sues, many landowners are concerned about proper disposal of these wastes, as well as effective reclamation of the drill pads and roads that cross the landscape. tions at the moment, to tap into the bigger the company has obtained dis- fers from agricultural to urban uses picture of produced water and are charge permits and in the future and wondering how farming will be organizing a workshop at the univercould release the recycled water to kept alive. sity in April where representatives local rivers for beneficial use.

Ironically, energy development from Colorado, Wyoming, Montana, “We may get to a point ... where in rural areas, which is causing California, Texas and other places we have an excess of water, and at towns to boom and increasing water will gather to discuss produced water that point we would be in a posi- demands, may end up helping agri- usage. Ward says it’s a first step to tion to release [it] to the waters culture survive if its “waste” can be figuring out how people in the West of Colorado (River),” says Thrush. put to new uses. can put this water to use.

“With coal-bed methane, it’s really O’Toole, a former Wyoming “If there’re significant volumes going to create more water than we state legislator, realizes putting of this kind of water and it can have a need for.” contaminated water to beneficial mesh with the river systems in use won’t be easy from a legal an appropriate water quality per‘Almost a Gift’ standpoint. Recycling projects like spective, then maybe it will serve In the oil and gas industry, water the one in Wellington invoke new to ameliorate the transfer of agriis measured in barrels – equal to 42 laws and new science. In Colorado, cultural water to growth,” says gallons – an unfamiliar term to ranch- there are at least three state agen- O’Toole. “The (energy) companies ers and hydrologists alike, who deal cies that have to work together to have been talking about water and in acre-feet, cubic feet per second, or regulate produced water’s treat- using the word ‘disposal’ and I think the less formal second-foot. ment and use. water is too valuable a commodity While barrels of water can be conIf the water is released to a to think of it as disposable.” q

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Regulators Just Say No

Colorado Oil and Gas Commissions should handle oversight.

Earlier this year, the Colorado Oil and Gas Association and the Colorado Petroleum Association sued the state, claiming it couldn’t contradict the federal exemption.

EPA Regional Stormwater Coordinator Greg Davis told the commission the agency didn’t intend to prevent states from enacting their own water quality regulations.

The issue attracted an unusual amount of public attention—including more than 2,300 individual comments.

Nine water districts, 13 municipalities, more than 20 state legislators and U.S. Congressmen Ken Salazar and John Salazar also asked the commission to keep its oversight.

Proponents said the industry should not be exempt from the same basic stormwater and erosion control requirements Colorado builders must meet, and asked the commission to protect waterways.

“We’re not only concerned with

just erosion or sediment,” says Eileen List, Grand Junction’s environmental regulatory coordinator. “We’re also concerned about any stormwater coming into contact with any production or drilling fluids.”

Supporters also said the Oil and Gas Conservation Commission was too close to the industry to protect water quality.

“The program has to be both responsible and effective, and we weren’t seeing that at the COGCC,” says water quality commissioner Martha Rudolph.

And the oil and gas industry is booming in the state—Colorado ranks sixth in the nation in gas production and 11th in oil production, according to the COGCC. COGA attorney Ken Wonstolen says their suspended lawsuit does not apply to the latest decision and says it’s “too early to tell” whether his clients will pursue the issue. The lawsuit’s stay expires in February. q

Ted wood

Colorado’s water-quality regulators decided to retain oversight of stormwater runoff at oil and gas construction sites, instead of turning regulation over to another state agency which oversees the industry.

By unanimously deciding to regulate stormwater runoff at small oil and gas sites, the Colorado Water Quality Control Commission put the state in the lead nationally in enacting more stringent water-pollution regulations than the federal government, despite protests from oil and gas industry associations.

The rules require construction stormwater permits for one- to fiveacre sites. Opponents protested the rules, meant to prevent erosion and sedimentation of waterways.

They argued that the state Water Quality Control Commission had no authority to regulate stormwater at any oil and gas well construction sites dues to language in the 2005 Energy Bill, and maintained that the

The state’s rules require stormwater permits for one- to five-acre oil and gas sites. But small acreage oil and gas development sites had been recently exempted from stormwater regulations by the federal government. Opponents protested the state’s rules, meant to prevent erosion and sedimentation of waterways, claiming it couldn’t contradict the federal exemption.

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Emmett Jordan

Oil, gas industry must follow tighter water quality rules

Cleaning Up Urban Ru n o f f

By Lori Ozzello

I

n most towns in Colorado, rain and melted snow flow untreated down the gutter, into the storm drain and directly to the nearest river. Recently however, because of stricter federal and state regulations, even small Colorado cities are making an effort to clean up their stormwater before it hits the gutter.

“We have six years to get everything done and it’s a lot of work,” says Jennifer Powell, Montrose’s stormwater coordinator.

Part of her job is to see to it that the city of 14,000 complies with the state’s amended Phase II stormwater regulations to bring small cities into line with EPA rules. Phase II applies to small cities, generally those with populations above 10,000, and it is an extension of Phase I, instituted for larger cities in the 1990s.

In 2001, Colorado adopted Phase II, which is designed to ensure that when it rains or snows, healthy rivers and streams don’t suffer jolts of contaminated runoff. This necessitates more aggressive construction permitting, discharge controls, education, policies on roadway de-icing and street cleaning, and establishing long-term monitoring programs.

Stormwater, for the uninitiated, isn’t just rain or snow.

“Stormwater is runoff from rain or snow on urban surfaces that

discharges to the nearest creek,” says Donna Scott, Boulder’s stormwater quality specialist. “There is a witch’s brew included in that—car oil, brake pad particulates, air pollution. It’s really dirty.”

Which is exactly why water quality experts, scientists, the EPA and others think stormwater rules are necessary and timely. EPA’s industrial discharge standards go back more than 30 years. In 1987, Congress amended the Clean Water Act to require the EPA to address stormwater discharges. Phase I, initiated in 1990, applied to cities of 100,000 or more. Phase II regulations came out in December 1999 and went into effect in March 2003.

“Our intent is to improve the environment, not just meet the regulations,” Scott says. “That makes a difference in our program. We’re not just checking off a box. We want to protect our creeks.”

Cities across the state, depend-

When it rains or snow melts, concrete and asphalt in cities can’t absorb the runoff. Instead, it flows untreated—along with any pollutants it’s picked up— into storm drains and may go directly into rivers.

ing on funding, location and personnel, take different approaches to fulfilling the stormwater requirements.

Fort Collins and Boulder established separate stormwater utilities and fees.

Montrose, Durango and unincorporated Douglas County pay for theirs out of their respective general funds.

Some cities, like Fort Collins and Boulder, anticipated the changes and started work in advance of changes in state and federal laws. Smaller cities piggybacked with larger neighbors, making programs more affordable. But some, like Montrose and Durango, are on their own.

Watching over it all is Nathan Moore, an environmental protection specialist for the Colorado Department of Public Health and Environment.

“Our job is to assist cities to implement the program with the least resources and best results,” Moore says. “It’s going to vary from city to city and county to county…Everyone is moving forward. Some small cities have fallen a little behind. A lot have found innovative solutions to comply.”

Some cities have examined other programs to see if anything can do double duty. Water festivals, for instance, fulfill part of the education requirement. Stormdrain stenciling— marking the gutter drains with decals or spraypainted stencils—has been a hit in a lot of places where school-

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Keeping it Clean Around the State Stormwater cleanup is an unfunded mandate, and many smaller cities have had to get creative to implement the new rules. In Montrose, Jennifer Powell is not only the stormwater coordinator, she’s also the construction inspector. To help meet the rules’ education requirement, she designs and publishes brochures to educate citizens. She’s an instructor at the annual children’s water festival. Powell will be the one to order bumper stickers and refrigerator magnets for the upcoming public outreach campaign and to plan special events. Right now, she’s also the one to explain to contractors why they need to build berms, put up silt fences and obey the stricter rules to protect waterways.

Construction applicants in Montrose sign a form stating they are compliant with the state’s stormwater act, and that they’ve submitted their state paperwork and site plan. Powell said she’s able to do some inspections, but, “We don’t have the manpower to do a lot.”

Montrose pays for stormwater coordination through its general fund, which in turn is supported by a city-wide sales tax. Durango’s done the same thing, says the city’s environmental engineer Kinsey Holton, and so far has avoided raising rates, charging permit fees or seeking additional funding.

Right now, he says, the city is focused on making certain developers and contractors follow the 12

construction rules and on fulfilling education requirements.

“A local boy scout, Travis Campbell, helped us to mark all our storm drains as his Eagle Scout project,” Holton remembers. “He and his buddies pretty much knocked out the whole city over the summer.”

The round, plastic markers adhere to concrete curbs above the storm drains. Each one declares, “Drains to river, no dumping” and has a picture of a fish. Holton says only a few have been pried off, and then only because the concrete, not the adhesive, gave way.

At the opposite end of the state,

the requirements.

“We got a head start,” McBride explains. “There were council people at the time who were interested and tuned in. They had already formed a stormwater utility. What an excellent situation that was to work in.”

Instead of inventing a whole new program, McBride says, the staff looked for ways to integrate stormwater quality issues with programs that were already in place. The extra time the city had also gave them the leeway to develop a couple of new programs, add some extra databases and hire people.

To the south, at about the same

Brian Gadbery

children have volunteered to do the work. Not only are the students learning, they’re teaching the public at large at a savings to their cities.

Contractors, for their part, must put up silt fences to prevent erosion and stop soil from being washed into streams or rivers. In short, everyone’s got to be doing something to protect water.

Boulder Stormwater Coordinator Donna Scott helps developers create plans to control erosion and keep sediment out of creeks and wetlands. State and federal regulations also require the Boulder Stormwater Utility to conduct public education, monitor illicit discharges and keep the public involved in preventing polluted runoff from entering local streams.

Fort Collins city council members in 1990 saw the federal handwriting on the wall. The city, according to its Web site, began charging a stormwater fee in 1976. Today its $12 residential charge is aimed at continued maintenance and system improvements.

Thinking the city would be in the first group, or Phase I, to have to comply, it hired Kevin McBride in 1991. But, Fort Collins fell just below the 100,000 population cutoff at the time, so it had until 2003—a full 12 years—to meet

time, the city of Boulder was doing the same thing. It put together a comprehensive drainage master plan in 1989 and recognized stormwater should be included, says Donna Scott, Boulder’s stormwater quality specialist.

The program, paid for by stormwater utility fees, continues and includes an education component and a household hazardous waste program.

“Boulder for years has had an education program,” says Curry Rosato,

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the city’s watershed outreach coordinator. A former teacher, she and her staff are involved in a variety of education efforts, including classroom activities and children’s water festivals.

Boulder teamed up with some of its county neighbors—Longmont, Louisville, Erie, Superior and Boulder County itself—to form WASH, or the Watershed Approach to Stream Health Project, an education project aimed at helping its member-cities share costs and meet the regulations’ first two requirements, public education and outreach and public involvement. In 2004, the Colorado Association for Environmental Education recognized WASH as the best new educational program.

Douglas County is coming from a different angle altogether. Most of its rapid growth has occurred in the last 25 years. Its infrastructure, installed by developers then handed over to the county for maintenance, is relatively new. And the county could, and did, make its regulations more stringent than national and state standards, says Douglas County hydrologist Jim Dederick.

The county developed a construc-

tion manual to ensure homebuilders, developers and designers understood and adhered to its measures.

“We spent a lot of time developing it,” Dederick says, “meeting with homebuilders, the public. They all had an opportunity to comment. We developed a manual that’s very user friendly. It’s … broken out for design engineers, contractors, etc. For the most part, feedback’s been pretty positive. We worked hard. Didn’t sneak up on people.

“Would they rather not have the criteria? Sure. It would be cheaper and easier. But this helps us to be consistent. When folks come to Douglas County, they know they’ll all be treated the same. Several other land use managers are adopting these measures— Arapahoe County, Lone Tree, Castle Rock, other entities nationwide. We’re sharing it. It’s free on our Web site.”

This points to an interesting, often unnoticed practice: The people who run these programs are talking to one another and sharing ideas and solutions. Dederick says he called his counterparts in Denver and Aurora who had been required to meet the criteria earlier. They gave him advice.

“Sharing is born out of necessity,” Dederick says. “The state encourages sharing. But it goes unnoticed by most people.”

Durango’s Holton credits the state’s department of public health and environment with the coaching and guidance that made the difference. And others mentioned casually who they’d met at meetings, who they’d called, who pointed them in the right direction.

“Phase I cities helped the Phase II cities,” Dederick says. “It’s really a good network. Everybody’s working to help everyone out.”

Although all the stormwater coordinators interviewed for this story agree the stormwater regulations are likely to become tighter, none complained.

But they did note that making these programs work comes at a price.

“This is unfunded,” Dederick says.

“We have to do it [all], it’s not multiple choice. We have to figure out how to pay for it.”

Says Boulder’s Scott: “There’s a cost to growth. If we want healthy streams and clean water, we have to pay for it, one way or another.” q

Stormwater—Phase II Colorado’s stormwater program mirrors EPA regulations meant to reduce pollutants entering streams, lakes and rivers from urbanized and commercial areas.

In Phase II, cities with populations greater than 10,000 were required to implement six minimum provisions of the program: • Public education and outreach—Distribute educational materials or conduct outreach activities to explain to people the impact of stormwater pollution.

• Public participation and involvement—Give people in the community the opportunity to participate in the development and implementation of stormwater plans.

• Illicit discharge detection and elimination—Stop illegal discharges or disposal of waste into the storm sewer system. This includes plans to detect discharges and

telling people what the hazards are of, for instance, pouring used motor oil on the ground.

• Construction site stormwater runoff control—Develop, implement and enforce an erosion control program for construction.

• Post-construction stormwater management—Develop, implement and enforce a program to protect wetlands and waterways from stormwater runoff once building is complete.

• Pollution prevention and good housekeeping for municipal operations—Prevent or reduce polluted runoff from municipal operations. This includes training staff in prevention measures and techniques.

—from the EPA and Pollution Engineering

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By Marcia Darnell Photos by Brian Gadbery

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Water Quality

Just Ask a Local

Volunteers and staff from the Big Thompson Watershed Forum monitor the health of their local rivers year-round.

14 C o l o r a d o f o u n d a t i o n f o r W a t e r E d u c a t i o n

Not so long ago, four state, federal and local agencies were extracting water quality samples from the same place in the same West Slope river. They didn’t always share what they found, or what they knew.

Now,

locally-driven water quality monitoring groups have sprung up all over Colorado. Environmental groups, cities, towns and water managers, as well as businesses and individuals, are coming together to help avoid duplication and claim a stake in the water quality of their local rivers and lakes.

“These local groups got going because they wanted to identify [water quality] issues in their own communities and have some say in how to fix them,” says Dan Beley of the Colorado Department of Public Health and Environment.

To help get started many of the groups formed partnerships with the U.S. Geological Survey, which has been testing water and monitoring stream flows across the nation for over a century, and which also helps fund the watershed groups’ efforts. The grass-roots groups also have gone to the state and local donors for help.

While the state is involved and interested, points out Beley, they simply can’t take a lead role in each watershed. “It just comes down to a matter of resources, and [the state] can’t sample everything everywhere.”

So, local watershed groups team up to collect and interpret information about the health of local rivers, then share it with their communities and the state.

The state then offers up technical assistance and participation from the likes of Beley and the other watershed coordinators at the state department of health and environment.

A Holistic Grand County Approach Granby is home to the Grand County Water Information Network, established in April 2004, when Director Sarah Clements helped consolidate the efforts of several groups engaged in water quality monitoring and education.

The network’s 42 overall members include towns, water districts, Denver Water, the Colorado River Water Conservation District, Climax Molybdenum Mine, Winter Park Resort and private individuals.

Among its associate members are the state health department, U.S. Bureau of Land Management and the USGS. Member fees help fund the fledgling organization.

“We provide [water quality] information to our members and the general public so the land use managers and the county and the different entities can make decisions,” says Clements.

The cumulative water quality effects of diversions, development, roads and agricultural runoff are some of the group’s primary concerns. These activities can increase sediment and

nutrient levels in nearby rivers and creeks, to the detriment of fish habitat and overall stream health. The group also keeps an eye on potential problems caused by the large diversions of water taken from the Fraser River by Denver Water and others. The resulting low flows, says Clements, contribute to higher water temperatures, algae and weed growth.

“We’re not a political group. We can’t lobby, and because we have members on both sides of the table, we’re trying to strive for water quality solutions by providing data and looking at the systems holistically.

What we can (do is) help decision makers make wiser choices.” To see collected data visit, www.co.grand. co.us/water quality.

Upper Gunnison Stakeholders Take Root Farther south, a similar locally-run water quality monitoring network is entering its 10th year. Here, 11 local and federal government agencies plus private individuals and the USGS sponsor the Upper Gunnison Basin Water Monitoring Stakeholder Group.

Tyler Martineau coordinates the sponsors’ monitoring activities, facilitates several meetings each year and distributes data. The federal government provides 40 to 45 percent of the organization’s funding, and local cooperators come up with the remainder.

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Concerns about the effects of land development, stricter environmental regulations, and mining impacts drive the monitoring agenda. “Every year we decide what we’re monitoring, where we’re monitoring, and coordinate that,” Martineau explains.

In the Gunnison area, the USGS collects the samples and does the lab work. Jim Kircher, director of USGS Colorado Water Science Center, stresses how these cooperative agreements benefit both the USGS and local interests.

“We get increased knowledge of water quality and stream flow,” he says. “Our interest is a better understanding of water quality and quantity in the nation. Through these partnerships we can gather data that contributes to our national network of information.”

In the Upper Gunnison, the stakeholders prepare summaries of conditions and trends in the basin, then post the data on the USGS Web site co.water.usgs.gov/cf/gunnisoncf.

“That data has a lot of different possibilities,” says Martineau. “It

Sarah Clements (right) and Grand County Watershed Information Network member Kirk Klancke collect samples on a single-digit Fraser Valley day. GCWIN provides holistic watershed information to a wide range of local decision-makers, private interests and the public.

16

Motivated, diverse stakeholders are critical to effectively tracking watershed health and resolving controversial issues, says Big Thompson Watershed Forum Executive Director Rob Buirgy.

can be used by counties; it can be used by the state (for development, water management, grants). In one instance it’s been used to designate Coal Creek [near Crested Butte] as a federal Superfund site.

“It’s being used in another part of the [Gunnison] basin as part of an overall plan to remediate pollution from mine waste. A watershed plan is being developed for that clean-up at Henson Creek, near Lake City.”

Martineau’s group has been around for 10 years, and he’s headed it for seven. A biologist and civil engineer, Martineau emphasizes the cooperation and local involvement at the core of the organization’s function.

“Our group is an informal coalition of local and federal government entities that have gathered together to collect data cooperatively, because we feel that cooperation maximizes the cost-efficiency of the program and it maximizes the benefit for the community,” he says. “It’s a heckuva lot better than everybody running out and doing it on their own.”

The stakeholders also keep their eyes on the future. “Every three years we look at our program and see where we need to go next,” says Martineau.

“We hope to continue what we have been doing. We’re actively recruiting new sponsors to include other constituencies, other interests in the basin. We’ve been working to make our data more accessible to the public and decision makers, and making the best use of our water quality monitoring dollars. Are we collecting the data that will be the most useful for the money we’ve expended?

That’s a perennial issue.”

Martineau has high hopes for the stakeholder group. “When the program started, we pulled together a group of very diverse governments to support this program,” he recalls.

“At its outset it included a county, a

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water conservation district and three municipalities. I thought that was unique and exciting, getting these entities together whose interests are different …They’ve all stuck with it for 10 years, and others have joined in.

And I think that’s what’s noteworthy about this program—the diversity of interests that have come together and cooperated in this effort.”

Testing the Big Thompson Not every watershed gets its own forum, but some watersheds get lucky.

The Big Thompson Watershed Forum has been around in various forms since 1997. Based in Loveland, the forum is also a USGS partner, funded primarily by the cities of Loveland, Fort Collins and Greeley, the Soldier Canyon Treatment Plant, and the Northern Colorado Water Conservancy District.

About 10 years ago, almost a dozen different agencies were monitoring water quality in the Big Thompson River Valley. When the forum started, one of its major directives was to eliminate that duplication of effort, says executive director Rob Buirgy. Now those same agencies may still collect water samples, but they monitor in different locations or focus on specific issues of interest.

Water quality issues in the Big Thompson watershed include elevated inputs of nutrients like phosphorous and nitrogen, sediment and pathogens (disease causing organisms). “Nutrients are our number one priority, particularly phosphorus,” Buirgy says. “It’s a pervasive, serious issue.”

Across the state and nationwide, high levels of nutrients are tied to algal blooms and fish habitat loss.

An over-abundance of algae makes for increased maintenance of ditches and lakes, and poor recreation. Blue

algae can be toxic and has even been tied to livestock and pet deaths.

Just like a suburban lawn, algae need nitrogen and phosphorus to grow. On the Front Range, phosphorus is the limiting element, meaning that even slightly elevated inputs of phosphorus to a river system can trigger significant growth of algae.

Jeffrey Boring is the forum’s monitoring program manager, responsible for coordinating the forum’s water monitoring programs, data analysis and reporting strategies.

Will buying low-phosphorus detergent help? Not necessarily, says Buirgy. “This isn’t just about dishwashing detergents,” he explains.

“Mammal feces are just naturally loaded with phosphorus.” Part of the answer is advanced wastewater treatment, a costly proposition.

To make it more difficult, the state doesn’t yet regulate phosphorus in the Big Thompson watershed, or in many areas of the state. It’s going to take time, more monitoring and many hours of collaborative effort to reach community-level agreement about how best to clean up these local waterways.

That’s what the forum is for. Local

water quality monitoring networks offer an opportunity for local people to take initiative and have a say in what’s important for the health of their rivers and lakes.

“Unless you have a basin with a highly interested group of stakeholders, or you get on the state’s list of impaired waters, there is rarely any good quality baseline data for an unregulated pollutant like phosphorus,” Buirgy notes.

Like other networks, the forum aims to provide unbiased information to assist local decision-makers. Water quality reports and data are provided on the forum’s Web site, www.btwatershed.org. Forum staff is available to make presentations about their findings and projects to interested groups all over the state.

And it seems to be making a difference. The group just received an EPA 2005 Environmental Achievement Award for significant achievements in the protection of public health and the environment.

Monitoring Groups in Your Area In addition to the three groups mentioned here, there are many local water quality monitoring networks around the state. Contact the Colorado Watershed Assembly at 970-484-3678 for more information about local water quality monitoring networks in your watershed. q

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Elevated nutrients in streams or lakes are often the byproduct of point source (end of pipe) discharges from wastewater treatment plants and/or some industrial sites. Nonpoint (diffuse) nutrient sources may include runoff from fertilizer, pet waste or feedlots.

17

LEGAL

brief

C olorado S upreme C ourt D ecisions

High Plains and ISG Cases Change of water rights application requires an identified place of use Both of these court cases decided by the Colorado Supreme Court in October 2005 address issues of speculation in water rights. Under current law, speculation in water rights is prohibited. An appropriator must have its own use for the water or have a contract to serve customers that the water will benefit. The appropriator must have a plan to divert, store, or otherwise capture, possess, and control the water for beneficial use.

In the High Plains case, a water investment company purchased shares of the Fort Lyons Canal Company which services multiple counties in southeastern Colorado.

In the ISG case, a group of individual shareholders already owned shares of the Fort Lyons Canal Company.

The two groups sought to change their water rights from irrigation to a variety of potential municipal uses. However, their applications did not specify the end users of the water, or where the water would be put to use.

The water court ruled that the application was so expansive and vague that the court could not determine if other water-rights holders would be injured. Water rights are perfected (made real) by putting water to actual use in a specific place.

Even in cases involving changes in the use of the water (from irrigation to municipal use, for example), the Supreme Court explained that a water court cannot approve an application that does not clearly delineate a place of use.

In the ISG case, the Supreme Court discusses water leases and water banks as an alternative to per-

18

manent changes of water rights. The Supreme Court ruled that because the application did not specify a place of use, the lower court had properly dismissed the ISG application.

Issues on Appeal Harmony Ditch Company Case Augmentation plans and selective subordination In this case, the Groundwater Management Subdistrict of the Central Colorado Water Conservancy District received water court approval for an augmentation plan.

This plan was designed to replace water consumed by approximately 1,000 agricultural wells pumping water out of priority in the South Platte River Basin.

In July 2005, two separate appeals were filed with the Colorado Supreme Court regarding this case, addressing two separate issues.

The first appeal was brought by a large group of municipal and agricultural objectors regarding whether an existing statute [C.R.S. 37-92-305(8)] allows the State Engineer, in the normal process of administering water rights based on senior and junior priorities, to curtail out-of-priority diversions allowed by court-approved augmentation plans. The issue at hand is whether the administrative powers of the State Engineer to curtail junior water users can trump courtapproved augmentation plans.

No ruling on this specific issue was made by the trial court, but the appellants are appealing to the Colorado Supreme Court for resolu-

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tion of this important legal issue.

The second appeal is being made by the State Engineer and the city of Englewood. Their appeal deals with selective subordination of water rights. Selective subordination occurs when the owner of a water right agrees to subordinate the priority date of that right to a specific junior water right (or group of junior water rights).

In the Central case, the water court held that selective subordination is not explicitly prohibited, and that subordination may be legally permissible if the subordination agreement contains terms to prevent injury to intervening water rights holders.

The appellants question whether selective subordination agreements can legally be incorporated into the prior appropriation system without a change in existing statutes.

Recent Water Court Cases and Settlements Recreational In-Channel Diversions Steamboat Springs In December 2005, District Water Court Judge Michael O’Hara released his official ruling in favor of water-rights claims by the city of Steamboat for its boating park on the Yampa River. The city was awarded flow rates ranging from 95 cubic feet per second (cfs) in August to 1,400 cfs during peak spring runoff. City officials had filed in December 2003 for recreational in-channel diversion, or RICD, water rights for two kayaking holes: Charlie’s Hole and D-Hole.

Many of the initial opposers to

the filing were able to come to a settlement in the case before it went to court, including the Routt County Board of Commissioners, local water management agencies, Trout Unlimited, Routt County Farm Bureau and a variety of other individuals and organizations. The remaining objectors at the time of the trial included the Colorado Water Conservation Board and the State and Division Engineers.

According to Colorado Water Conservation Board staff member Ted Kowalski, the board intends to discuss whether it will appeal the decision to the Colorado Supreme Court during its January 24-25 board meeting in Denver.

brief

Brian Gadbery

LEGAL

Gunnison In 2002, the Upper Gunnison River Water Conservancy District applied for a recreational in-channel diversion water right to support its kayak course on the Gunnison River. Originally, the conservancy district applied for water rights ranging from 270 to 1,500 cfs. In 2003, a water court ruling awarded the district the amounts of water requested. The Colorado Water Conservation Board and others then appealed the decision to the Colorado Supreme Court.

In March 2005, the court ruled that both the CWCB and the water court erred in the case, and remanded the case back to water court.

However, in December 2005, the CWCB and the Upper Gunnison River Water Conservancy District were able to come to a settlement in the case, with the district agreeing to reduce its requested flows to between 270 and 1,200 cfs.

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