This story first appeared at coloradosun.com.
By Shannon Mullane, The Colorado Sun
State water officials debated a controversial proposal to use two powerful Colorado River water rights to help the environment, weighing competing interests from Front Range and Western Slope water managers.
Almost 100 water professionals gathered in Durango this week for a 14-hour hearing focused on the water rights tied to the Shoshone Power Plant, owned by an Xcel Energy subsidiary.
Members of the Colorado Water Conservation Board (CWCB) were originally set to make their final decision on the proposal this week, but an eleventh-hour extension pushed their deadline to November.
Board members peppered presenters with questions during the hearing, weighing thorny issues like who has final authority to manage the environmental water right and how much water is involved.
Their decision could make a historic contribution to the state’s environmental water rights program and impact how Colorado River water will flow around the state long into the future.
“It’s pretty hard to anticipate all of the ways that ‘in perpetuity’ may play out,” said Greg Felt, who represents the Arkansas River on the board. “Building in representation for flexibility … is not a bad idea for an acquisition like this.”
The Shoshone Power Plant, next to Interstate 70 east of Glenwood Springs, has used Colorado River water to generate electricity for over a century.
In May, the Colorado River District, representing 15 counties on the Western Slope, shared a proposal to add another use to the water rights: keeping water in the Colorado River channel to help the aquatic environment.
The change requires approval from the CWCB, which runs the state’s environmental water rights program, and other entities like the water court and the state’s Public Utilities Commission.
The Colorado River District wants to add the environmental use as part of a larger plan to maintain the “status quo” flow of water past the power plant, regardless of how long the power plant remains in operation.
Western Slope communities, farms, ranches, endangered species programs and recreational industries have become dependent on those flows over the decades.
“What we’re presenting here today is an offer of a historic partnership,” Andy Mueller, Colorado River District general manager, said. “We believe that this sets the state up for a truly collaborative future on the Colorado River.”
But any change to Shoshone’s water rights could have ripple effects that would affect over 10,000 upstream water rights, including those held by Front Range water groups, like Denver Water, Northern Water, Colorado Springs Utilities and Aurora Water.
These water managers and providers are responsible for delivering reliable water to millions of people, businesses, farms and ranches across the Front Range.
They raised concerns in the hearings about how their water supply could be impacted by the Western Slope’s proposal.
For board member John McClow, who represents the Gunnison-Uncompahgre River, one key question came down to authority.
“I just want to make sure we have adequate legal justification for doing what you suggest we should do,” McClow told CWCB staff during the hearing.
When the Colorado River is too low to meet Shoshone’s needs, its owner, Public Service of Colorado, a subsidiary of Xcel Energy, can call on upstream water users with lower priority water rights to cut back on using their water so that Shoshone has enough.
Whoever manages this “call” impacts thousands of upstream users, including Front Range providers.
Under the proposal, the Colorado River District will own the water rights. The district has an agreement with Xcel to buy the rights for about $99 million.
Generally, the CWCB is supposed to be the sole manager of environmental water rights under state law.
The Colorado River District says it should have a say, giving examples of other agreements with similar arrangements between the water board and water rights owners.
Northern Water said the state should have exclusive authority. This is the most important issue for the conservation district, Kyle Whitaker, water rights manager for Northern Water, said Thursday.
If the state agency hands over any amount of control, then the district would push for the water court to approve a smaller amount of water available to Shoshone. That would send less water to Western Slope communities.
If the River District controlled the environmental right, they could conceivably max out the amount of water passing by the power plant year-round, which would impact upstream water rights.
“We have to protect our systems under all future potentialities,” Whitaker said. “This will have a chilling effect on collaboration and cooperation amongst all involved and is likely to result in an outcome that is not only less desirable but also less beneficial to the Colorado River.”
The River District has said it plans to maintain these flows without changing how other water users are impacted.
For board members, this question of authority is just one of many sticky legal and management issues they have to weigh as they make a decision about the Shoshone water rights while tasked with representing the interests of the entire state.
“As far as I’ve been able to understand it, I agree with you about what the statute and the rules say we may do,” Felt told CWCB staff. “I believe we’re here to determine what we should do.”
Editor’s note: This story is a product of Fresh Water News, a nonprofit news organization.
