Fort Collins, Colorado February 4, 2003
Zack Weingartner (ZW): …Ok, this is Mr. Bill Brown, president of the Cache la Poudre Water Users’ Board, correct?
Bill Brown (BB): Well actually, no, I’m the attorney for the Cache la Poudre Water Users Association.
ZW: Attorney for the Water Users Association?
BB: Cache la Poudre Water Users Association. And that organization consists of the major water users on the Cache la Poudre River.
ZW: Ok. So mostly businesses and large farms?
BB: Primarily agricultural interests, although the organization also has municipal users and industrial users. There are four major ditch and irrigation companies on the Cache la Poudre River, who are all members of the association. They would be the Cache la Poudre, eh, New Cache la Poudre Irrigating Company, the Larimer-Weld Irrigation Company, the Water Supply and Storage Company, and the North Poudre Irrigation Company. And then some of them have other companies that are affiliated with them. They are the primary members, and their
membership selects the board of directors, essentially, to the association. But other members include the cities of Fort Collins and Greeley, Platte River Power Authority, Eastman-Kodak, and the State Board of Agriculture that governs CSU, because they have interests in the Poudre as well.
ZW: Ok. When did you first become involved? Has your firm been in that position for quite a while?
BB: I came to this firm in 1969 and the firm at that time was representing this association. The association obviously was much, much newer then and had been formed just a few years earlier over some concerns that arose in a case, I think it was named Green versus Chaffee Ditch, and this was a case in which the City of Fort Collins sought to change some water rights under the Coy Ditch. And so it gets a little confusing, but it’s possible to change water rights in Colorado. Other entities were concerned about the amount of water Fort Collins was taking credit for, and it was this big court case. And after that case, I think, there was a recognition that people could get further on the Poudre without fighting each other by cooperating. And so the association was formed for two purposes, essentially: one was to try to foster this cooperative relationship and to enable communication among the ditch companies, and the second was to be a protective
association, to be sure that the regimen of the Cache la Poudre river was not injured adversely, so that the water rights of these entities would not be affected.
ZW: Ok, ok. You came in 1969. What region did you come from?
BB: I came…I grew up primarily in North Dakota and in northern Minnesota, although I’ve lived in other places in the country; a few years in California ‘cause my family moved around a fair amount. I graduated from the University of North Dakota’s law school in 1963, and then went in the Air Force. Getting out of the Air Force in 1967, I then came to Colorado and had to pass the bar. I worked in Denver for a year or so, not as a lawyer but with Allstate Insurance Company as a claims supervisor. And then I found this position up here and joined the firm that was then known as Fischer and Beatty as an associate. And the firm had an active water law practice at that time. Nowhere near as extensive, frankly, as it is now in this firm. We have three
lawyers in this firm that practice essentially nothing but water law. ZW: Wow, and yourself included.
BB: Um hum.
ZW: Was water law what you were primarily interested in before coming here?
BB: No, I’d never even taken a course in it in law school. We had a choice between water law and oil and gas, and I took oil and gas. The first ten years of my practice were devoted more toward personal injury work…I was a personal injury defense lawyer, kinda utilized the training I got at Allstate, and they were a major client of mine back then. But in Colorado, we have a system of water rights, the priority doctrine, that basically is a judicial system. We have water courts that are regular district courts. But water matters are decided in court in trials, and because I did that kind of work and my other partners Ward Fischer and Albert Fischer, needed some help from time to time on water matters, I’d go over there to water court and do it. And just gradually over the years I got doing more and more of it. I haven’t focused exclusively on it until probably the last six or seven years.
ZW: Now, your position now, as president of the Water Users Association, is that something that primarily takes place in the courtroom, or is that more of a board meeting situation?
BB: Uh, good question. I’m really not the president, uh, the president is a fellow named Bob Stieben, and there is a board of course. I’m not on that, I’m just an appointed attorney. But…and others in our firm also work for the Cache la Poudre Water Users Association. So my job is to provide the legal advice, and I do that, I attend the board meetings, and I do other things for them. Each month I review what is called the water court resume, the water court in Greeley sends out to anyone that pays them twelve dollars a…that’s an annual subscription, a monthly listing of all the applications that have been filed in water court, for new water rights or to change water rights or the things called plans for augmentation. I read that and I advise the association as to whether there’s anything in there that I think would be of concern to the interests of the association’s members, and if there is we get involved in that case, and I do that for them. And typically these matters are resolved in negotiation and stipulation, but from time to time we have gone to court for the association, and sometimes in rather protracted trials. A good example of that would be when the City of Thornton bought 104 farms, and sought to change those water rights and do other things. The association participated in that trial and we have in others. So I do that for them. And that is the primary thing that I do; I confer periodically with the president of the association. Our office also works with what is called the Cache la Poudre Water Users Association plan for augmentation. Back in the mid-‘70s, the association
adjudicated an augmentation plan that keeps the wells in this area that are members of the plan that were in existence as of June 7, 1969, and are used in the basin, pumping legally. The plan for augmentation allows them to continue to pump, even though under the priority system without the augmentation the plan provides, they would not be able to do so. So that gives added stability primarily to the agriculture irrigation economy.
ZW: Was that a result of the drought in the ‘70s?
BB: No, it was a result of the 1969 Water Rights Determination and Administration Act, which among other things provided for the integration of tributary wells into the priority system. Beginning probably in the ‘30s, and certainly in the ‘50s, the drought in the ‘50s, a lot of wells came into being all over the South Platte area, including our basin but clear out to Julesburg and Nebraska. And these wells had an opportunity to go into court and to adjudicate their priorities. The priorities that they adjudicated however were still junior in nature, and as a consequence the wells would seldom be able to pump under their priorities. They just, the system you know…it’s
gonna treat the wells just like any surface rights or storage rights, those rights have been obtained, the good ones, back in the late 1800s. And by the time the wells came along, they would be so junior they couldn’t pump at all. The other concern with them of course is unless they’re located right close to the river, the pumping doesn’t impact the surface stream right away, but it will at some later point, and the Cache la Poudre River and the South Platte downstream are over appropriated and have been declared so by the Supreme Court. They’re over-appropriated in the sense that most times there is gonna be a call by a senior water right that will preclude those with more junior water rights from exercising their water right. Sometimes, in times that we call free water and during flood conditions in the spring, no call exists because all the water rights are being satisfied, and then junior rights can divert. But wells again have the added burden of nobody knows, if you’re pumping a well that won’t affect the stream for
months, what the call condition’s going to be. This 1969 act that I’m referring to contained provisions for something called a plan for augmentation. The plan for augmentation basically enables one to, if they can find water to replace the depletive effect of the out of priority
diversion to continue to pump. Not all that is pumped needs to be replaced, but just what is lost to the atmosphere. If they can find a replacement for that, they can continue to exercise that junior right even though otherwise they’d be curtailed. The idea is that the augmentation water makes the stream regimen the same, so when the depletion occurs, it’s being replaced from another source, and that source too has to have been historically fully consumptive. Plans for augmentation are adjudicated in this water court I was telling you about, and what we did, what we recognized is that we needed to do something to keep all of our wells pumping, so we got an overarching plan for augmentation that essentially allows the wells under the plan to keep…to continue to pump as alternate points of diversion for surface decrees on the Poudre that may not then be fully used because water’s not in the river or for other reasons, but the wells can pump as alternate points. The Cache la Poudre River is blessed by the fact that many of our decrees are senior to those downstream. Development occurred here first, and then moved on out into the plains. Basically, and this is a generalization, but the priorities get more and more junior as they move on out toward Julesburg. So we had the senior decrees, and this enabled…that is what enables the wells under the plan to continue to pump. Right now, you may be aware of this, there is tremendous controversy because of the drought over how wells are gonna be able to keep pumping out on the South Platte that are under augmentation programs. Those programs are, sometimes it’s called GASP, but it stands for Groundwater Appropriators of the South Platte, they have a big program that covers thousands of wells out further east. And the Central Colorado Water Conservancy District also has some. Their programs provide augmentation water, but have not gotten court decrees yet, and as a consequence they have to be approved year to year by the state engineer. He looks at the mix of augmentation water and has in the past given his blessing. The Colorado Supreme Court, December before last I believe it was, in a case called Empire Lodge versus Moyer, held that the state engineer did not have authority to approve these substitute supply plans. And as a consequence of that, the annual approval that people in GASP and Central and others had been getting is at real risk right now. The state engineer has tried to develop some rules and regulations that would allow him to exercise his enforcement discretion to enable these wells to keep pumping, but they’ve been challenged in court by senior surface users who think that the wells are injuring them and everything is at sixes and sevens right now. But that controversy really is not impactive on the Cache la Poudre Water Users wells because we did go, go into court, and get a decree to allow that to occur. The issue in regard to the GASP and Central wells is that they haven’t done that yet, and the push is to get them to do
it.
ZW: Are these the kind of problems are associated with the kind of drought that we’re in now? Do you expect this…
BB: I think that the drought, that the drought probably has sensitized everybody to these kind of issues. People are not going to be too concerned about their winter storage rights not filling, because of the operation of GASP, if indeed every year their rights or their storage are filling. You’ve got other things to worry about. But in a drought situation…everything is…I’m
searching for words here…things are much more in focus, and there’s a greater concern. All of a sudden you realize hey, we are not filling. That maybe that it’s the drought that is causing the problem. That people who have a senior surface right that they cannot exercise because there’s no water in the river, and they see their neighbor with a pump, a well, irrigating. Even though that neighbor may be irrigating under a decree for a plan for augmentation and replacing his depletions, the average farmer doesn’t quite understand that and says what’s going on here? And there is some thought that it is probably accurate that the pumping of wells can have a depletive effect upon the surface of the river, and a lot of wells pumping could cause water to be…there’d be less water in the river. It’s a complicated issue however, because to a great degree the
presence of this underground aquifer in the Cache la Poudre and the South Platte that gets bigger and bigger as you go on out, was caused not necessarily by natural precipitation which is scant around here, but by the taking of water from the river in past years, delivering it by irrigation ditches far from the river, irrigating with it, with return flows going back to the alluvium, and then those return flows gradually building up and up and up, and so all of that has played a part in this. So, it’s uh…but in the case of the Poudre, at least…you need to know this, that the Poudre is probably the most heavily managed river in the state, from the standpoint of all the exchanges and the interrelationship of the various companies, and that kind of thing. And the Cache la Poudre Water Users Association I think was very perceptive in recognizing that the wells were important, that they needed to be kept going, and to take the steps if necessary to get that done. The other thing that the association did twenty, thirty years ago that in hindsight was very smart for its members was to go into court and adjudicate, get decrees for, all these
exchanges that had been in operation on the Poudre. The impetus for doing that was that in the early 1970s, the Colorado Water Conservation Board, which is the state’s agency that essentially sets water policy, they were given the authority to appropriate waters that were in the stream, and not diverted out of the stream. The purposes of that appropriation were very limited, it was to preserve the natural environment to a reasonable degree and only the Colorado Water
Conservation Board had that power. And the idea of it was, you know, I think essentially a good one, particularly as it applied to streams high in the mountains where you wanted to keep water flowing and there were no water rights on them, you could go in and get this appropriation for a minimum stream flow and that then, that would then protect the stream from later on being totally de-watered by diversion activity if that should ever occur up there. And as a practical matter I think we’ve got some 8000 miles of streams in Colorado that have these minimum stream flows adjudicated and some forty lakes where their lake levels have been protected. The concern the association had though was that it might be that efforts would be made to establish minimum stream flows on the Poudre itself, and if that were to happen those stream flows, minimum stream flows, could preclude the exercise of exchanges, because they would be senior in priority to the exchanges if the exchanges were undecreed. Very often an exchange will essentially dry up the river between the points of the exchange, and the efficacy of the exchange depends on that ability. If a minimum stream flow must be respected, then that limits the ability
to exchange water, since a certain amount has got to be passed to satisfy the minimum flow. And so the association with that motivation went ahead and adjudicated all of the exchanges, which has proven to be a real good thing too because they are now protected with their own decrees. And they’re essential to the effective operation under them and cooperation among the ditch companies on the Poudre.
ZW: Hmm. You talked how the water users association is…it came about as a recognition of not wanting to argue with one another and fight over the rights to the water…is that unique to the Cache la Poudre? Is that something that other river organizations don’t look like?
BB: I don’t know that. I can say this, there is a similar organization that I also happen to represent on the Thompson, that involves major water users on the Big and Little Thompson Rivers, and that organization was formed to be a protective organization, I think. Whether it was formed to foster cooperation or not I don’t know, I think that these organizations have that result in any event if they meet periodically, because representatives of various companies are there and they get talking to each other. There are certainly lots of other water users organizations that formed for different purposes. Further out on the Platte there’s an irrigationist’s association that is made up of many entities. By and large these entities get together I think to form, to be protective organizations, to pool the resources of various water users in order to…that have the same interests, in order to share the expense of retaining attorneys and engineers. We work a lot with engineers too. When we get these cases we have to hire engineers to do engineering
analyses and things.
ZW: Is uh, for instance, in the ‘70s and currently now, you know, the two most recent drought periods, did the cooperation look differently then than maybe in the ‘80s and ‘90s when things were a little bit wetter?
BB: I haven’t noticed it.
ZW: So people get along pretty well.
BB: Yeah, I think so. Again, as I say, in drought situations, one of the things that happens in drought situations is you get a chance to test how well certain things that are put in place in non-drought years really do work, and so there may be some tensions arise. In non-drought situations the problem of course is the physical supply of water is often just not there, so you can hardly run an exchange if there’s no water in the stream. But, I think many of these exchanges will still
continue to work, although all the companies I think will end up finding they have less water in drought situations because their decrees, even senior ones, may not yield as well as in other times.
ZW: Ok, I’m going to move away from the drought a little bit. How about the emergence of environmental movements and different regulations put on, just on use of water, from, you know, maybe agencies concerned with the environment. Has that played a large role in the Poudre since you’ve been involved?
BB: With the association or just on the Poudre itself? ZW: Either way.
BB: Oh sure, to a great degree it really has. You know, things…ever since the first Earth Day, I think, things have really changed, and there’s a continued increased environmental interest and concern, much of it coming from the federal government but some from the state of Colorado as well. A couple things occur to me; one of the things that I think was maybe not environmentally driven so much, although that played a part in it, was the designation by the federal government of the bulk of the Cache la Poudre River above the mouth of the canyon under the Wild and Scenic Rivers Act. And you’re probably familiar with that, but that did occur…the designation
essentially in all the areas where the designation did occur precluded the future development of water storage or other things up there. One thing people, a lot of people do not realize, is that the Cache la Poudre River would be tremendously different in character but for the activities of those who came before us in developing water storage. The stream flows, as is mentioned in James Michener’s book Centennial, he does a good job of describing them, essentially there’d be snow in the winter months, and then snowmelt, and then rivers would gush on out into the plains, and would flow for a few months, and then would basically peter out and then drop down to nothing, so you could walk across the South Platte at many times of the year. And that was the way that the Poudre would operate. There’d be large, large flows a few months of the year, and very little after that. Right now, the Poudre basically is a much more regular river, from the standpoint of its flows, and that’s because much of the water is stored in reservoirs that are in existence. Some are owned by the City of Greeley, some by the Water Supply and Storage Company, some by the City of Fort Collins, but there are reservoirs up there that capture water and therefore take the peak flows off the river basically when water is available and then release it to the river, later on, particularly in the summer season and in some cases year-round for water supply. So that development, future development in the bulk of the river was precluded by the Wild and Scenic Rivers Act designation. There’s a small reservoir site owned now, I think exclusively by the City of Greeley, back then it was owned by Fort Collins and Greeley, called the Rockwell site. It is on the South Fork of the Poudre. The Rockwell site was not designated under the Wild and Scenic Rivers Act, and still, I think theoretically, could be constructed if there was ever the will to do it. However, the river on both sides of the site, upstream and downstream, is designated under the act. As a consequence it might be difficult to operate that reservoir or make it a meaningful storage location, because of the impacts on the downstream designation. A compromise was reached when the Wild and Scenic River designation occurred. The compromise essentially is this, that seven miles of the Cache la Poudre River, from Poudre Park, which is a small community up on the Poudre, downstream to where the river exits the canyon, was not designated under the act. And the purpose of that was to enable the development of some water storage in that segment. There is a large conditional water right that is owned 7/8 by the Northern Colorado Water Conservancy District and 1/8 by the Cache la Poudre Water Users Association. It is sometimes referred to as Grey Mountain Reservoir, but it’s a decree for a large on-channel reservoir. Whether that reservoir will ever be built remains to be seen. If it is, it would have flood control benefits, it would have water rights benefits and recreational benefits, but again to get something like that built, even with the compromise in the Wild and Scenic Rivers Act designation, there is still all the federal permitting hurdles that you have to go through, and I’ll get back eventually to your question about how environmental things have impacted because all this I think does play a part. But that, that reservoir, I think would be difficult to build in part because of the fact it is on channel and the impacts it could have. Federal…the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act have all had real impacts on the ability of entities to develop water rights because of the permitting…permits that are involved, and even in some cases to operate their systems. As an example, when the Prebles Meadow Jumping Mouse was designated as a threatened species, they…that mouse lives in riparian habitats and around areas where irrigation ditches have been built, and all of a sudden if you’ve maintained your ditches and it was destroying that habitat, you were violating the law. And so that involved working with the Fish and Wildlife Service, and getting letters from that service, on just how you could operate those kinds of things. So yes, the environmental movement has been very significant as far as the operation of water rights.
Bear in mind, too, that farmers, the ones who use water, consider themselves as
environmentalists. By and large I think they do a pretty good job of trying not to contaminate the water, they don’t over-fertilize since it costs them money to do it. In any event, clearly
discharges to streams that are point source discharges, such as would occur when a municipality treats water and puts it back into a stream through a pipe, are regulated, as to water quality, by the Colorado Water Quality Control Commission, and you need these permits called NPDES permits, National Pollution Discharge Elimination System permits. Farming operations still are not regulated in the sense of regulations that one must follow. Rather best management practices, or BMPs, are utilized to try to encourage…those who use lands where discharges occur but are non-point source and are instead diffused across the land, such as irrigation returns to take steps to decrease water pollution. They can adopt these practices and the idea is that fecal coloform levels and nitrate levels and other things that are pollutants will be less in the water. I think there’s a recognition that a great deal of the quote “pollutants” that get back into a stream come from this kind of thing, and EPA and others continue to be concerned about it. And our law firm, on behalf of the Poudre Water Users Association and others, participates in tri-annual reviews where the water quality in all streams is examined. Twenty or so years ago, on behalf of the Cache la Poudre Water Users Association and other water using entities in this area, my partner Ward Fischer and I participated in the process of first determining what the use classifications would be on the streams, the Poudre and the South Platte. And also what the standards, what levels of pollutants could be discharged into those streams. If a stream was classified for a use that was, for example, agricultural or industrial, the levels of pollutants in that stream could be higher than if it were classified for bodily contact or class one cold water fisheries to grow trout, where there’s much more sensitivity to those kinds of things. If there were those kinds of
classifications, the levels of your permit conditions would be more expensive to meet, because you’d have to treat the water to a higher level. And the concern that we had at that time was that the classifications on the Poudre, particularly after it leaves the canyon mouth, and in the South Platte as it goes out, not be classified as class one fisheries or those kinds of things, because that would require tertiary treatment for unattainable beneficial purposes. By this point, the Poudre had been transformed into a workhorse river, where water was being diverted periodically as it occurs now, essentially the river would be de-watered, the water would be applied to agriculture use, and return flows would nourish the river again, it would be diverted and the process repeats itself. It’s often been said that water is used seven times over before it exits the state. And so all of that kind of stuff was a reality at the time these use classifications were being established, and so we got involved in that, to make sure that the classifications on the Poudre and the South Platte were realistic. But yes, the environmental stuff plays a part now in everything, there’s an interrelationship between water quantity and water quality that is definitely present. One thing I could mention to you, ‘cause this is something that the Cache la Poudre Water Users Association did, they were concerned that, you may or may not know this but the Federal Clean Water Act allows the states that opt to do it, to essentially run the program. They must comply with the Federal Clean Water Act, but they can do this, and as long as they do it the EPA doesn’t have to. It’s a nice thing for EPA because frankly they wouldn’t have the ability to do it. So Colorado did develop a law, the Colorado Water Quality Act, and established the Colorado Water Quality Control Commission, which is a citizen body that basically is involved with this. The
commission is aided by the Water Quality Control Division, which is the staff of it, and they’re the ones that review and set the permit conditions. The concern that arose was that requirements of the Clean Water Act could impact water rights, water quantity situations. As an example, if
there was a requirement that an entity or an industry that discharged water into the river could no longer do it, but must instead go to outside treatment that was totally evaporative in nature, so the water didn’t get back to the river, well that might impact the quantity of water in the river, there’d be less flow in the river, and so the concern was that that not occur…
End of Side A
ZW: …Ok.
BB: As I was saying, we were able to get into the law language that states that the rights to quantities of water under Colorado’s priority of appropriation system will not be impaired or adversely affected by water quality requirements. And so while water quality is still important, water quantities are also recognized in Colorado as being of critical importance.
ZW: You mentioned Nebraska before. Have there been issues between the state of Colorado and state of Nebraska in the past?
BB: Oh yeah, there’s a compact between the states that doesn’t really affect, hasn’t really affected the Cache la Poudre Water Users Association. Its impacts are downstream. The impact of that compact only affects water rights that lie downstream of the Morgan-Washington County line, which is way out there. And in times of the year, April to November or something like that, I’m not sure of the date, I’m not that familiar with the compact, if there is not 120 cfs passing into Nebraska to take care of the Western Canal there, these rights can be curtailed, but for a great portion of the year Colorado can take all the amount of water it wants to and the compact doesn’t come into play at all. The key issue now with Nebraska relates to endangered species on the South Platte River, the whooping crane being the most notable one, but it also affects
the...the pallid sturgeon’s also involved, and there’s some species, some floral species too that are endangered. The U.S. Fish and Wildlife Service basically is involved in negotiations with the states of Nebraska, Wyoming, and Colorado trying to come up with some way to comply with concerns as to the habitat of the whooping crane and the pallid sturgeon, that would
enable…basically, they would come up with something called a reasonable and prudent alternative, which might include provisions for water or other things. But if that was met, that reasonable and prudent alternative would allow water projects in Colorado to continue to be built, without having to go through a separate Section 7 consultation under the Endangered Species Act, and at that separate consultation each entity would have to show that they were not impacting the species, and that’s much, much more difficult and much more expensive to do. And in many cases the position that the federal government has taken is, if you’re going to do this kind of stuff, if you’re going to deplete here or divert here, you must replace on a one-for-one acre-foot basis. This gets me to…I should mention this too, another environmental concern that has…it’s still evolving, but it surfaced probably over ten years ago, is this: The United States Forest Service attempted to adjudicate water rights in the headwaters of the Cache la Poudre River in the forest lands, on the basis that those rights were reserved to the federal government when the federal enclave was created. And there is such a doctrine, called the Federal Reserved Rights Doctrine. It’s a slick deal for the federal government, because if indeed it is determined that it was intended when the enclave was created that it have a water right associated with it, that water right gets the priority date of the creation of the enclave, and that becomes very senior in some cases, even though it was never adjudicated in court. There is a requirement to now adjudicate it in court, and the federal government tried to do that but it was resisted mightily by
the Cache la Poudre Water Users Association and others, including the state of Colorado, on the basis not so much that the doctrine was improper, but that the amount of water the Forest Service was claiming was far too much. It was claiming sufficient water basically to periodically scour out all the streams…it was a donnybrook of a case involving geomorphologists and others and I won’t go into the details of it. Suffice it to say that the decision in Colorado in Water Division Number 1 was that the amount of water that was reserved when the forests were created was minimal in nature, enough maybe for the forest ranger or for a small campsite, but not for these bank full flows. But the federal government is inventive, and tried to figure out another way to do this. There are, as I mentioned to you, many reservoirs that take water from the Poudre and some of its tributaries that are on federal lands. The federal government invited people to come on there and build these reservoirs. In fact the purpose, one of the initial purposes of the U.S. forests was to provide a supply of timber and of water to the settlers in the region to encourage settlement. And so the provision of water by the forests was of great importance. Since then of course other acts have broadened the scope of the forests so now the Forest Service looks at forests as a multi-use kind of thing, for recreation and other things. But the original purposes were water and timber. So these reservoirs were built. They were built under permits, and these permits have to be renewed periodically, I think every twenty years or thereabouts, but I think that can probably change depending upon certain things. When some of the reservoirs came up for permit renewal in the forest, the Forest Service said before we’re going to renew that permit, you’re going to have to bypass a certain amount of the flows of your water rights to the stream in order to protect downstream environmental concerns. That just raised a firestorm of concern. I mean, I remember that Hank Brown was in the Senate and he called that blackmail. The word extortion was used in the state. Colorado resisted that vigorously. And well, at first blush it may seem that what the Forest Service was requiring was not that bad a deal, that they were just protecting the forest. But it has to be remembered that a water right is a property right, and the people with the reservoirs up there had adjudicated property rights, and requiring significant bypass flows of what they stored would deprive their shareholders of water. The water released would be in the river, but that doesn’t mean it’s there when the shareholders need it. The result on the Poudre of all of this was that a compromise was worked out, and I might mention this too, some of the notions of releasing water, particularly in the winter months, just didn’t make any sense, even though it was required by the federal government. There’s nobody up
there…everything’s iced over, and releasing the water in the wintertime to streams would probably not do anything. A compromise though was worked out and resulted in a joint
operating agreement. Under that agreement, basically releases are made from various reservoirs. But it’s under an agreement now instead of under a bypass flow requirement, and the Forest Service was a party to this, as were Water Supply and Storage Company, who’s a member of our association and also an individual client, and the City of Greeley, and there maybe were others. But in any event, this was all worked out. Then along comes Trout Unlimited, and I think this was from the national organization, not the one in Colorado. And Trout Unlimited basically sued the Forest Service on the basis that it had no authority to enter into this compromise, even though it was frankly accomplishing what the Forest Service wanted to accomplish, while still
respecting the rights of water users. That case is still in litigation, it still hasn’t been decided. But this whole issue of whether the federal government has authority to impose these bypass flows as conditions of permit renewal is a real hot button. And it’s driven by environmental concerns. Bennett Raley is a name you may have heard. Bennett is the Assistant Secretary of Water and Science in the Department of Interior. And he, before he became that, was a practicing water
lawyer in Colorado. He chaired a commission to consider and make a determination as to whether the federal government had the authority to require these bypass flows, and the commissioners I think split five to four, deciding that it didn’t have that authority, but that may have been, you know, on party lines. But still, this was the opinion of that commission. In my view it would be a shame if the result of this lawsuit is that the compromise that the affected parties all worked out is thrown out, and we have to go back to court battles again.
ZW: Um, how has, just from what you’ve seen, even just living in the region, the kind of the shift to the suburban lifestyle…in you know, in Windsor, Windsor and Fort Collins are going to meet up pretty soon it looks like, but the building of houses and the continuous growth and population along the river, how has that affected all the usage and what the board does?
BB: It’s affected it a lot. There has been…a big shift from agriculture…our agricultural economy is diminishing as growth occurs, and one of the reasons is that we are overgrowing good,
irrigable farmland. When that occurs, the water typically is required by the city, that was historically used to irrigate that land. Agricultural water rights can be, and they often are, changed in water court from agricultural uses to municipal uses. And so when that occurs, a change case focuses on whether the change will or will not cause injury to others with water rights on the river, and it includes even those with rights junior to the rights being changed, because anybody getting a water right is entitled to the maintenance of conditions on the river at the time they got the right. And so if water is changed from agricultural to municipal use, you have to look at how that affects principally return flows from that agriculture use, they must be maintained to the extent necessarily to prevent injury. Uh, you can’t have an expanded use. A decree for agricultural irrigation that is later obtained by a municipality could be exercised all year long, and so basically the water court change decree contains conditions to prevent that kind of expansion at least. And our association gets involved in that a lot, to make sure that the
regimen of the river remains the same. I…it’s difficult to predict the future, but if the area continues to grow as it has in the last thirty years or so, at this same percentage rate and everything else, we’re gonna see a continuation of this problem and the focus is gonna be frankly, as I think it is really right now, on how do you protect our water not necessarily for agricultural use, but how can we make sure that we have sufficient water to change to these various things to provide for our population’s increase. As you know, the City of Thornton was able to come to this area and acquire a good amount of agricultural water. Other entities could still do that, and there is an organization right now, known as the Larimer-Weld Water Issues Group, that meets and is focusing on trying to figure out ways that we can keep our water…I say our water, it’s not our water in the sense that we own it, but the water that is native to this area, how we can keep it up here for use here rather than letting someone else, who’s perfectly entitled to do it under the appropriation system, come up here and divert the water and take it elsewhere for use. And that organization meets monthly and has been meeting for a number of years. It operates by consensus, it involves water right owners, municipalities, the Northern District, water associations, and environmental groups, trying to figure out what can we do to keep the water here for all kinds of uses, municipal, environmental, recreation, all that kind of stuff. ZW: Well, I don’t want to take too much more of your time. Is there…I pretty much exhausted the questions that I really wanted to get at, but is there issues or topics that maybe I don’t know about that you think would be important for someone to learn when they go to this Heritage Corridor?
BB: Oh…no, I think we’ve talked about it. If you’re thinking in terms of signage or that kind of thing, I think that one thing that would be important to put…have people understand, is how this
river fostered settlement in this area and enabled farmers to come and use the water, and how it’s different here than it is back east. We aren’t…from the early days of the territory, you’re entitled to divert water from the river. When you talk about environmental concerns, you need to
recognize this. The very first diversion of water from the river for beneficial use in the West affected the natural environment. It had to, because the water’s not in the river now, part of it’s somewhere else. And so the flows downstream are somewhere else than they otherwise would be. And if you store that water and release it to the river later on, for later delivery, you’re gonna affect timing. And that has occurred in the West, and I think initially and for the first century or so it occurred with the blessing of everyone, the government and everybody else, to encourage settlement because frankly otherwise, if we didn’t do these kind of modifications and be
stewards of the river we wouldn’t be able to…very few of us could live out here. And so that was encouraged. And now it is a fact of life. I mentioned that the Poudre is a workhorse river, a lot of water is taken from the Poudre, and it’s used for municipal and industrial purposes but heavily for agriculture, and so the river…it does not look like what it would look like in nature. And people I think need to understand that. I think that it would be important for people to get the idea of the fact that water was diverted and applied to lands, not just bench lands right along the river but far from the river. And even a map that could show the extent of the irrigated land under the ditches that divert from the Poudre I think would be of interest to people. It’d be awfully difficult to show them the exchanges and how significant they are, but they also are very important. The…this is a generalization, but the prio-…there are four major ditches on the river. The one furthest downstream is the New Cache la Poudre Irrigating Company’s. It has the most senior decrees, because it was developed first, and then the other ditches as you move up the river were developed later. So the higher on the Poudre the ditch, the more junior the priority. Without cooperation and exchanges what would happen is that the New Cache la Poudre Irrigating Company would tell everybody above them wait a minute, don’t take any water until we’re fully satisfied and we get our flow. But that’s not what happens. What happens is that the ditch company above them, the Larimer-Weld Irrigation Company, built a large reservoir called the Windsor Reservoir. Huge. It has a storage right, it stores water in that reservoir. The reservoir is downhill from its system. They cannot use the water in that reservoir. What they use their water for is, they release it, they’re able to release it to the downstream ditch of the New Cache la Poudre Irrigating Company, and they do that in exchange for being able to take water from the river they otherwise couldn’t because the New Cache would have it. So that reservoir water they stored takes care of the New Cache’s decree. That’s an example of a significant exchange, and there’s many more of ‘em that are operated by these ditches. It would be wonderful to be able to show how that all works, but it probably is not in the cards. Another thing’s been very significant to this whole area, including the Cache la Poudre, is the development of the Northern Colorado Big Thompson Project by the Bureau of Reclamation. That provides a supplemental supply of water. As you know, it’s stored in Horsetooth and it is the CBT units’, Colorado Big Thompson units’, right to pull water from the Western Slope. One of the major ditch companies, the North Poudre Irrigation Company, acquired 40,000 of those units, so a big part, almost half of its supply, comes from the CBT project. That has made that system, and enabled much more effective irrigation under that system. Because of the growth we talked about, particularly Fort Collins, much of that North Poudre water has been acquired by Fort Collins and others for municipal use primarily because of the fact that about half of that water is Colorado Big Thompson unit water, which can be used by a municipality without going into water court to change that use. So I just think that one aspect of the Poudre is it’s a workhorse river, and people
need to understand it. You mentioned quality too, and another thing that…the river’s changed. Before we came here, before I came here, the…people couldn’t play in the river. They actually had people patrolling the river, to make sure that folks didn’t get into it, and they’d try to keep it pure because it was a water supply. And now that…all that stuff is sort of by the boards, I think there’s public pressure to use it as a recreational river, so as you know that’s camping and fishing and tremendously heavy use of the river upstream that can cause, and I think that it does cause, Fort Collins, that has to treat that water, continuing concern with its quality.
ZW: Hmm. Ok.
BB: That’s probably more than enough for you from me. I don’t know if there’s anything specifically you want…
ZW: No, this is…this is great, yeah. No, I mean, definitely…
BB: I thought you were going to ask me things like what’s my association with the river, what do I know, all that stuff. They sent me a list of questions other than what you asked me.
ZW: Yeah, yeah…well actually, I mean, I’d love to come back and do that part of it to, ‘cause that is on the list of questions.
BB: But this is fine. I mean, to be truthful with you, Zack, I have a cabin right on the river on the South Fork, where it’s Wild and Scenic River and it’s wonderful because I have a reliable flow out there. There will never be any more diversions above me. So from that standpoint I like it. ZW: Well, I mean, if it’s something you’d be interested in doing later, I’d love to come back, because we want to get stories of use of the river recreationally as well, so I just got caught up on how interesting the other stuff is. But definitely, certainly appreciate…
BB: You’re welcome. Yeah the…in fact, I fish in it. I got a…I canoe the river a little bit, I always get irritated when I run into a fence across it. That’s a whole ‘nother issue, you know, the rights of landowners to keep people out…I haven’t got too involved in that with the association. The bulk of the river as you know upstream is protected and is a great recreational river.
ZW: All right. I didn’t even realize that individual landowners are putting fences over it to keep people out of it. So I thought…
BB: They have cattle, so it’s more, you know, the cattle will walk through there, so they just run that fence. There used to be some fences right across the Poudre to prevent it…I don’t, haven’t done this for years, but we had to take out maybe a mile or two downstream of Fort Collins because of a fence across the river.
ZW: Ok. But the state has issues, you know, like you said before, of people in the river because they had to treat the water after that. But then individual landowners also have an issue because they feel like their land’s being…
BB: No question about it, yeah. And you know, somebody buys a big ranch, wealthy guy gets a ranch for fishing, and he wants to keep that for himself, and he doesn’t want people coming on to it, and I think that the current state of the law is, well, it’s probably being developed still. John Hill, a lawyer over in Gunnison, is involved in a case of…I’m not aware that it’s ever been decided. Duane Woodard was the attorney general, the Colorado attorney general. He started in Fort Collins, he was a trust officer for the First National Bank. Duane came up with an opinion, and I think I’m right on this, where he said, what you can do is float on the river, and you can float across a guy’s land, but you can’t put your foot down. He owns the land, so that’s
trespassing. You can’t pull off and stand there, but you can float on it as long as you don’t touch anything. I think that’s kind of the state of the law, and depending on whether you’re a
recreationalist or a landowner you may or may not like it, I don’t know how it’s all going to turn out, my guess is, because the West is changing, we’re going to see an increased ability of people
to use the water for recreational purposes. A change in Colorado law is that there has been an attempt to allow more and more recreational use, and I talked about the minimum stream flow right, initially the Colorado Water Conservation Board had that right. Now, other entities are able to get it. It’s not a private type thing, but the City of Fort Collins is an example, it has a boat chute, and it has a water right for that boat chute, it’s an in stream flow right. Four years ago you couldn’t have gotten it.
ZW: Well, thank you so much. BB: You’re welcome.
ZW: I really appreciate your time. BB: Thanks for coming over.
