Somach Simmons & Dunn | Attorneys at Law
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While arid conditions have prevailed in the Colorado River Basin since the turn of the century, 2021 stands out as a particularly dry year across all of the seven basin states, and Colorado’s western slope provides insight into the depth of the drought. Despite near- to above-average precipitation along Colorado’s Front Range/Denver-metro area this year, Colorado’s western slope is facing water supply conditions that are among the worst in generations. The US Drought Monitor currently classifies more than 17% of the state, all on the western slope, as experiencing “Exceptional Drought,” which means that possible impacts include widespread crop losses and water shortages creating emergencies. Natural Resources Conservation Service (NRCS) and National Oceanic and Atmospheric Administration (NOAA) streamflow forecasts for many of Colorado’s western slope streams predict that annual runoff volumes will be less than 50 percent of average, some even below 30 percent of average. If you are a water user in the Colorado River Basin whose use has been or might be curtailed, you may be looking for solutions in what is likely to be a drought year of record.
The timing of this drought only worsens existing anxieties about Colorado River Compact concerns. The United States Bureau of Reclamation forecasts predict the water level of Lake Powell later this year will be its lowest since 1963, approaching critical reservoir elevation thresholds and potentially creating operational changes across Upper Basin reservoirs. Meanwhile, the Colorado Water Conservation Board is working through a public process to create a framework to implement a “Demand Management” Program. This program could provide another tool for water conservation in Colorado, and for working with the other Upper Basin states.
Ranchers and state water administration officials in Colorado’s Yampa River Basin have expressed concerns that this could be the worst drought year in roughly a half-century, surpassing 2002, especially with respect to springs and stock water. Inflows into Stagecoach Reservoir, a multi-purpose project on the Upper Yampa, this month have been roughly six percent of historic average, and some creeks in the area have not produced any surface flow at all. Concerned about fish populations and their habitat, Colorado Parks and Wildlife has prohibited fishing on certain stretches of the Yampa, and the Colorado River Trust will lease water to sustain adequate stream levels and temperatures.
Many agricultural water users, especially junior rights holders, are unable to divert enough water for their farm and ranch lands. Administrators in the Rio Grande River Basin have ordered the curtailment of certain groundwater well diversions for the first time in history, requiring sheriffs to intervene.
As a result, cattle ranchers and fruit growers have suffered. Across Colorado’s western slope, ranchers from Mesa to Routt to Saguache Counties have had access to little (or none) of their normal summer supplies, reducing their feed crop yields dramatically. Many will have no option other than reducing herd sizes. Meanwhile, fruit growers in Delta County, despite converting to more efficient irrigation systems, do not have enough water to adequately irrigate their entire orchards. One grower resorted to ripping out over 5,000 trees in order to conserve supplies for the remainder of the orchard.
But the impacts of the current drought are not limited to western slope agricultural users. Even Denver Water, whose water supplies consist of both eastern and western slope diversions, is bracing for minimal runoff in the Colorado River Basin. The Colorado River provides significant water for several of the state’s largest eastern slope municipalities through transmountain diversions. Fortunately, Colorado’s Front Range has enjoyed a wet spring and summer so far, which stands in stark contrast to the parched western part of the state. Still, very few users across the state, including the largest municipal provider, are immune to a drought of this magnitude.
First, state administrators will likely police water use more tightly than ever—e.g., diversions that are unauthorized, or in excess of the flow rate quantified by the right, may face enforcement action despite having previously gone unchecked. Additionally, calls to meet senior rights will reach farther back into the priority system than usual, meaning junior water rights will face curtailment during times when they could historically count on being able to make diversions.
Further, users should be aware that water commissioners may inspect their diversion and measuring devices with greater scrutiny—by statute, appropriators must have measuring devices that meet the state’s standards for accuracy or functionality. For instance, in fall 2019 the state ordered hundreds of diverters in Division 6 to install measuring devices for first time; the State Engineer is also currently considering whether to designate a large stretch of the Yampa River as “over-appropriated,” which would place greater oversight over existing and new diversions.
There are certain solutions that may be available to mitigate or relieve the harms of drought and a lack of water supply. In the short-term, certain mechanisms exist for appropriators to obtain additional or alternative supplies on a temporary basis—Substitute Water Supply Plans approved by the Office of the State Engineer are one avenue, along with pooling resources with immediate neighbors or other shareholders on a common ditch. Additionally, water providers like the Upper Yampa Water Conservancy District and Basalt Water Conservancy District have augmentation plans and offer contracts that allow users in need to purchase additional supplies.
Long-term solutions may include acquiring senior water rights or augmenting existing rights. Opportunities exist for users to add incremental water supplies, e.g., through the Southwestern Water Conservation District. While permanent legal solutions take a longer time to accomplish than temporary measures, the predictions of drier summer seasons mean that proactive planning and legal protections will remain important in the future.
Arid conditions have prevailed in western Colorado, the Colorado River Basin and beyond for two decades, and with no sign of abatement. Junior rights holders will likely continue to struggle to satisfy their water demands on a consistent basis.
Somach Simmons & Dunn attorneys have decades of experience in Colorado water matters and offer the legal services to protect, secure, or improve the water rights of its clients. Please contact Dan Condren at dcondren@somachlaw.com for assistance in securing and protecting water supplies amidst this summer’s drought and beyond. Max Bricker is a contributing author and summer Law Clerk with Somach Simmons & Dunn. He can be reached at mbricker@somachlaw.com.
Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.
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