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Water Blog

A blog that focuses on legal developments affecting the water community in Colorado and other western states.  We also post news about water rights, water quality, and natural resources.  If you have a suggestion for a post, please contact us.


A national and local pattern of groundwater depletion

Posted May 30, 2013

On May 20, the USGS released a report that detailed groundwater depletion in the United States from 1900−2008.  The USGS found that between 1900 and 2008, U.S. groundwater reserves have depleted by a volume of water sufficient to fill Lake Erie twice. 

The USGS studied 40 major aquifer systems including the High Plains (or Ogallala) Aquifer, Dakota Aquifer, western alluvial basins, and deep confined bedrock aquifers like the Black Mesa Aquifer.  Four groundwater systems in Colorado were studied: the High Plains, Dakota, Denver Basin, and San Luis Valley aquifers.  Of those, only the Denver Basin and San Luis Valley aquifers are located exclusively in Colorado.  The USGS found that the High Plains Aquifer experienced a rate of depletion between 2001 and 2008 equal to 32% of the cumulative depletion during the entire 20th century!  The greatest depletions occurred in Texas.  The total depletion of the Dakota Aquifer was determined to be 20.3 cubic kilometers (km3) between 1900 and 2008, or 16,457,478 acre-feet.  (This volume is equal to approximately 400,000 Olympic-size swimming pools.)  The Dakota Aquifer was analyzed separately from the Denver Basin since it extends across five states.  Depletions in the Denver Basin totaled approximately 1.30 km3 between 1900 and 2008 (equal to approximately 1,053,927 acre-feet).  The San Luis Valley experienced a net depletion of about 3.6 km3 between 1900 and 2008 (approximately 2,918,568 acre-feet).  In short, Colorado’s large aquifers that were studied by the USGS are all part of the national trend of substantial depletion.

The USGS concluded that national groundwater use is on an unsustainable course, with water removal outpacing water recharge.  During the 20th century the volume of groundwater depletion totaled approximately 800 km3 (approximately 648,570,555 acre-feet), which increased by an additional 25% between 2001 and 2008.  This recent spike in groundwater withdrawal may be due to changes in weather such as more severe droughts, which cause communities to use more groundwater.  The report stated that “[i]n addition to widely recognized adverse environmental effects of groundwater depletion, the depletion also impacts communities dependent on groundwater resources . . . . the observed rates of depletion must eventually decrease as economic and physical constraints lead to reduced levels of extraction.”  However, the USGS noted that the rate of depletion was “leveling-off” and “self-limiting” in a few areas, particularly smaller western alluvial basins.

Instream flows protect Upper Colorado River fish habitat

Posted May 16, 2013

A broad-based stakeholder initiative to preserve natural resource values in the Upper Colorado River achieved a milestone when a state water court decreed three instream flow water rights to the Colorado Water Conservation Board.  The year-round water rights range in flows from 500 cubic feet per second (cfs) to 900 cfs and cover approximately 70 miles of the Colorado River from the Blue River to the Eagle River.

Together, these instream flow rights will help ensure that the Colorado River’s minimum flows “preserve the environment to a reasonable degree.”  These instream flow rights will directly benefit fish species, including wild trout. 

An annual survey conducted on this stretch of river between 2010 and 2012 revealed upwards of 700 greater-than-14-inch brown and rainbow trout per mile for each survey each year.  

Mottled sculpin are also present in this stretch of the river.  Although these small fish are not a threatened species, they are sensitive to adverse environmental changes.  As biological indicators, their presence indicates a healthy stream system.

“This is good news for a stretch of river that is beloved by generations of anglers,” commented Mely Whiting, counsel for Trout Unlimited.  “It’s an example of what can be accomplished when working together.”

Busk-Ivanhoe ruling re change of transmountain water right

Posted April 29, 2013

On April 18, 2013, the Division 2 Water Court entered an order in Case No. 09CW142, which addressed what constituted an applicable historic use analysis for Busk-Ivanhoe, Inc.’s (owned by the City of Aurora) water rights in the Busk-Ivanhoe System.  In 2009, Busk-Ivanhoe filed an application for a change of water rights in Case No. 09CW142―after years of uses for undecreed purposes in Division 1. 

The Busk-Ivanhoe System exports water from Water Division 5 to Water Division 2.  The Pueblo Board of Water Works (“PBWW”) owns one-half of the System’s water rights; Busk-Ivanhoe, Inc. owns the other half.  In 1993, PBWW received a decree in Case No. 90CW340, which granted PBWW a change of water rights from irrigation to municipal use.  This decree included a finding regarding the average yearly historical diversions of the Busk-Ivanhoe System.  

Last week, the Division 2 Water Court issued an order that determined three questions of law with respect to Busk-Ivanhoe, Inc.’s historic use: 

1. Whether the change of the Busk-Ivanhoe System water rights adjudicated in 90CW340 resulted in a system-wide quantification of water rights, which bars re-litigation by Busk-Ivanhoe, Inc.

2. Whether claim or issue preclusion bars litigation of Busk-Ivanhoe, Inc.’s historical consumptive use of its water rights in Case No. 09CW142.

3. If claim and issue preclusion do not apply, should years of undecreed use be excluded entirely from the historical use analysis, rather than being counted as zero.

The court ruled: (1) the 90CW340 decree did not quantify the water rights of the entire System, but only PBWW’s one-half interest, and changes of transbasin water rights are subject to the same decreed beneficial use standards as changes of in-basin water rights; (2) neither claim or issue preclusion barred the litigation of Busk-Ivanhoe, Inc.’s historical consumptive use in the instant case; and (3) the representative period of historical use for Busk-Ivanhoe, Inc.’s water rights is a factual determination―an analysis of undecreed use cannot be excluded as a matter of law.

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