Confluence: Colorado River depletion weighs on multi-state region

LOVELAND — A century after adoption of the Colorado River Compact, drought, diminished flows and rapidly expanding usage threaten not only the Western Slope and other states, but also communities in Northern Colorado.

That was the message at the Water Law panel at BizWest’s Confluence — Colorado Water Summit Thursday at the Embassy Suites in Loveland.

Kyle Whitaker, water rights manager for the Northern Colorado Water Conservancy District, said the Colorado River basin affects a broad region, including Northern Colorado.

The Colorado River Compact divided the river into two basins: the Upper Basin, which includes Colorado, New Mexico, Utah and Wyoming, and the Lower Basin, which includes Arizona, California and Nevada.

The compact set allotments for each basin, with policies aimed at managing the river depending on water availability and regulating the flow of the river.

“So, what is the Colorado River basin, and why are we all sitting here in Northern Colorado on the east side of the Continental Divide? Why do we care about the Colorado River?” Whitaker said.

The answer, he said, is that areas east of the Continental Divide receive significant amounts of Colorado River water via 28 trans-mountain diversions.

“All told, it represents about 20% of the flows and the supplies of the South Platte Basin [that] come from the Colorado River,” Whitaker said, irrigating, in part or in whole, 630,000 acres of the South Platte region.

“Millions of people are served with Colorado River supplies outside of the natural basin, as well as providing recreational, environmental benefits and opportunities.”

But prolonged drought conditions are prompting low levels in Lake Powell and Lake Mead, prompting drought-mitigation measures.

“It’s important to all parts of Colorado,” Whitaker said. “It’s important to Colorado River supplies, and there’s a lot of attention on it right now, because of hydrology, because demand and uses do not align very well with supplies.”

One requirement of the Colorado River Compact is that the flow into the Upper Basin will not be depleted below a certain level based on a 10-year running average.

The federal government declared a Tier I Colorado River shortage in 2021, the first such declaration in the history of the compact. Reservoir releases began in 2021, with reservoirs in Colorado, New Mexico and Utah/Wyoming releasing water to prop up Lake Powell.

“When demands outstrip supplies, something has to change,” Whitaker said.

Kate Ryan, program director and senior staff attorney for the Colorado Water Trust, who served as moderator for the panel, noted that water diversion in Colorado began even before Colorado became a state, with diversion for mining and agriculture.

Water in Northern Colorado had been fully appropriated by the early 1900s, she noted, with conflict occurring over water in the South Platte River and Cache la Poudre River.

Recent developments in Colorado water law include:

• A 2020 statute, Senate Bill 20-048, commissioned a study to consider strengthening the prohibition against speculative appropriations of water. Speculation refers to acquisition of water rights that might be purchased for disallowed purposes, such as investment. The commission that was created concluded that speculation is not a big problem, she said, with no recommendations submitted to the state.
• Another bill, House Bill 1379, allocated $15 million for the Colorado Water Conservation Board to grant to local governments for watershed restoration and flood mitigation, as well as to help local governments apply for federal grants related to wildfire mitigation.
• A 2020 bill, Senate Bill 1037, which concerns the Colorado Water Conservation Board’s authority to augment stream flows with acquired water rights that have been previously decreed for augmentation use.
• The Colorado Plan will be reissued in 2022, which provides a framework for short-term and long-term water planning throughout the state.
• Proposed 2022 legislation, which did not pass, would have allowed certain public entities to create additional recreational in-channel diversions to support recreational activities.

James Eklund, member, Sherman & Howard, said Colorado wields enormous influence on water policy in the West.

“We punch above our weight when it comes to water,” Eklund said, comparing Colorado’s seven-million population to California’s 40 million.

Eklund said one potential effect of prolonged drought — with potential loss of agricultural production in places such as California — could force Colorado to grow crops that might otherwise have come from California, or, perhaps, do without.

“When we talk about winners, losers, trade offs, ‘the Lower Basin has got to solve this whole problem,’ that may all be true, but we’re going to have to get used to maybe growing our own stuff and going without strawberries in February,” Eklund said.

“What happens out there matters to you, sitting here in Northern Colorado,” he added.

Additionally, as water levels in Lake Powell and Lake Mead drop, hydropower generation could become threatened, potentially threatening power generation for millions of residents, and even raising power costs for areas such as Colorado, he said.

He noted that data going back for years point to a prolonged, significant reduction in Colorado River flows.

“Should you freak out, or is this a ‘boy who cried wolf’ kind of thing?” Eklund said. “I’m going to argue that the wolf is here. It’s at the door, and it’s real.”

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