Collaboration, but not all cards were dealt equally

For six years, Denver Water and leaders of water agencies from Winter Park and Breckenridge to Grand Junction have been meeting in private sessions to talk about where they could find common ground.

by Allen Best

Those negotiations have now yielded a broad agreement of many facets: Key Western Slope organizations remove their opposition to Denver’s plan to draw more water from the close-in headwaters areas near Winter Park and in Summit County. The Western Slope also withdraws potential legal opposition to Denver’s plans to sell recycled water from its diversions to thirsty suburbs that now depend upon wells.

The deal also requires Denver to step up conservation and reuse efforts, specifies several tens of millions of dollars in grants to Western Slope water organizations, and creates more flexible water-management regimes intended to achieve environmental goals and benefit recreational interests.

No single part of this agreement stands out. This is not like a new dam or tunnel. Yet collectively, these elements of compromise may well represent the most important single water news since the veto of the Two Forks Dam in 1990.

Now, the various water agencies will have to sell the deal to their constituencies. Heartburn may be evident on both sides of the Continental Divide. Denver residents may very well question why, if Denver owns the water, it must “pay” Summit and Grand counties to use it.

And for the Western Slope, this does represent further export of water. Already 25 percent of the Colorado River’s native flows are diverted to Eastern Slope farms and cities. In some places, such as in the Fraser Valley, where Denver first began diverting water in 1936, the take will increase from 60 to more than 80 percent, according to analysis of Colorado Trout Unlimited. This will be done by shaving peak flows off spring runoff. Still, Grand County and state wildlife officials insist that the deal they have negotiated will represent an improvement over the status quo. By using Denver’s water infrastructure, and also grant money to physically modify the Colorado River channel, aquatic ecology can be improved.

And water leaders west of the Continental Divide surely must face this question: Do Denver’s tens of millions of dollars in grants and greater flexibility of management still amount to the beads that the Indians got for Long Island?

This settlement arguably represents a new template for Front Range-Western Slope relations, one that reflects a new balance of power in Colorado and also new sensibilities. This is in sharp contrast with attitudes and laws prior to the late 1960s and early 1970s.

Under Colorado’s constitution, water is classified as a property right, and other laws did not temper the exercise of that property right during the first century of statehood. As such, there was a steady progression of water reversing its natural downhill flow. Roughly 75 percent of precipitation falls west of the Continental Divide, and roughly four-fifths of Coloradans live east of the Continental Divide.

The first major diversion began in 1890, with a ditch across La Poudre Pass, located north of Grand Lake, to deliver water to farmers between Fort Collins and Greeley who needed more late-summer supplies to “finish” their corn, alfalfa and other crops. Now, 27 ditches, canals and tunnels create Swiss cheese out of the Continental Divide between Rocky Mountain National Park and Aspen.

There was opposition to some of these, but it rose to a significant level only when federal money was involved. Even as late as the 1960s, Aurora and Colorado Springs heard almost nothing when they laid plans to divert water from Homestake Creek, a tributary of the Eagle River located southwest of Vail. Vail was then a tiny ski resort.

But, by the late 1980s, not only were the easiest water diversions already done, but new laws made approvals far more problematic. Aurora and Colorado Springs discovered that fact when they sought to expand their Homestake diversion network into an area that had recently been designated as the Holy Cross Wilderness. Eagle County refused to allow the project as proposed, in part using legal authority delegated by the Colorado Legislature as part of the raft of environmental laws adopted in the early 1970s. And perhaps no less important, the Vail-area interests had money to press their legal case.
Then, in 1991, the federal government’s Environmental Protection Agency rejected Two Forks, the proposed dam on the South Platte River southwest of Denver, which also would have required water from the Western Slope. At the time, a popular bumper sticker was “Dam the Denver Water Board.”

Attitudes toward water have further evolved in Colorado since then. Environmental and recreational groups have steadily argued that water left in streams has value. And many water leaders have explored more collaborative efforts that seek to diminish the losses of water, both from farms and mountain valleys, devoted to growing cities. Even in the mid-1990s, for example, Eagle County reached out to Front Range cities to suggest that partnerships might be formed to benefit interests on both sides of the Continental Divide.

This attitude is not universal, of course, but it seems to have been a key perception of the late Chips Barry. As general manager of Denver Water, he was credited with laying key portions of the groundwork in the agreement.

“Chips always enabled people like me to sit down and work with the Western Slope in a creative fashion, finding more good if you work together than if you were in a defensive posture,” says Dave Little, director of planning for Denver Water.

Others point to the influence of John Hickenlooper, who as mayor of Denver emphasized regional connections, both within metropolitan Denver, but also reaching out across the Continental Divide. As mayor, for example, he took time to meet with mayors and city managers from ski towns at their annual meeting in Denver. Now as governor, he has also been articulate in describing the importance of rivers and other elements of the Western Slope to both the economy and quality of life along the Front Range.

Beyond the feel-good language, there’s also a hard-nosed reality represented in the new so-called global settlement: that legal battles are expensive and might not yield more satisfactory conclusions than those worked out by negotiation in advance. The bottom line is that metro Denver needs and wants more water, and this deal gives it to them. Water remains private property under Colorado law, its value derived from what is described as “beneficial” use.

As such, this isn’t necessarily a win-win solution. One public official, describing this new settlement, said only half-jokingly that like any compromise, it has nose-pinching components.

As seen from the Western Slope perspective, or perhaps through the eyes of environmentalists, the biggest nose-holder is in Grand County. Its sheer proximity to Denver and the Eastern Slope—the Continental Divide there sticks out like a beer belly, reaching to within 20 miles of Boulder at one point—made it an obvious target. Several decades after farmers had begun diverting water from north of Grand Lake, Denver opportunistically adapted the pioneer bore of the Moffat railroad tunnel for its first transmountain diversion, drawing water from Ranch, St. Louis, Vasquez and any number of other creeks and streams beginning in 1936. As Ed Quillen, columnist for The Denver Post, has pointed out, this additional water enabled the great post-World War II boom of Denver and many suburbs it served. Later diversions into the more westerly Williams Fork Valley through a tandem of tunnels called Jones and Vasquez allows Denver to derive 23 percent of the water from the Moffat collection system. Denver serves 1.6 million people in metropolitan Denver, a little more than a third of them within Denver itself.

As a person who lived along the Colorado River in Grand County for eight years, I can testify to local attitudes in the ‘70s and ‘80s, and I doubt they have changed much. Whatever the law allowed, the diversions amounted to moral thievery and political thuggery. Lurline Curran put it more politely but no less personally several years ago when she spoke at the Colorado Water Workshop in Gunnison. A native of Kremmling, where her father had been a blacksmith, Curran said that “Denver was thinking far ahead, and we were not.”

Denver was also thinking ahead in 1907 when it dispatched a team of engineers to conduct a reconnaissance of Summit County, to see how snowmelt might be harvested for the future metropolis. Denver was thinking ahead, and the payoff came first with completion of Dillon Dam in 1963. Arguably the greater payoff yet was in 2002, the drought year. Before then, Denver might have been able to live without the water.

With its newest proposal, now in the works for several years, Denver hopes to divert an additional 10,000 acre-feet on average annually from the Fraser and Williams Fork valleys, skimming this water off the top of spring runoff. Summit County would lose another 5,000 acre-feet, with yet another 3,000 acre-feet coming from creeks east of the Continental Divide. One key to making this work is an enlargement of Gross Reservoir, west of Boulder, to more than double its current capacity, to hold more water and give Denver more flexibility in when and how much it diverts. “Our goal is to make the river better tomorrow than it is today,” says Denver Water’s Dave Little.

That’s counterintuitive, because more water will be removed. And there will be skeptics. Among them has been Ken Neubecker, of the Western River Institute, who has heard some details of the pact. He’s dubious that enough water will be made available to improve biological functioning of the rivers. He might be right. This kinder, gentler form of transmountain diversions is experimental, as indicated by its name: Learning by Doing. (See separate story below).

Another aspect of the global settlement is Western Slope permission for Denver to sell its treated effluent to the South Metro communities of Parker, Castle Rock and 13 others who now depend wholly or in large part on wells. Why Denver needs this permission requires understanding 60 years of water history and a few key documents, including one called the Blue River Decree. Having studied this history, trust me that the Blue River Decree isn’t something you really need to understand. Suffice to say that Denver thought better than to wage war in the courtroom and agreed to a compromise. The South Metro communities that use this recycled water must also agree that they can’t try to divert their own water from the main stem of the Colorado River—including the Roaring Fork and the Fryingpan rivers in the Aspen area, as well as the Eagle, Summit County and Grand county headwaters.

Denver would sell this recycled water to the South Metro communities on an as-available basis. This year, for example, Denver’s reservoirs are full, and unless the weather suddenly turns horribly hot, dry and windy, as it did in 2002, the city should have water to share. The water would be pumped from the Brighton-Fort Lupton area along E-470 and through Aurora. Already treated once, the water can be stored in the Rueter-Hess Reservoir near Parker, pumped into existing wells in what is called a conjunctive use, or fed directly to South Metro communities. Demand from the aquifers would be lessened, extending their life. But in dry years, when Denver has no water to share, the South Metro communities would get none.

During the next year, Denver Water and some of the South Metro leaders will be trying to sell the idea of this reuse. If the South Metro communities agree, customers will be paying more for water in the short term. In the long term, they will pay anyway as pumps must work with greater difficulty, more wells must be sunk, and some wells will start sputtering. Already, some have, those being ones located at the edge of the foothills southwest of Denver, where the Denver Basin aquifers turn up like saucer rims.

This reuse project, called WISE, and the broader global settlement both attempt to reconcile certain realities. One key reality is that Colorado will continue to increase in population, about half of it the result of a net increase in births over deaths. Another reality is that Denver won’t turn its back on the well-dependent communities of Douglas County. In a piece published in High Country News in 2000, then-publisher Ed Marston described the rather peculiar relationship of Denver with its southern neighbors, describing a possible “hijacking” of Denver Water’s infrastructure should the South Metro wells go dry and a slow-motion panic ensue.

In less paranoid terms, John Hickenlooper articulated the same argument for Denver looking after its southern suburbs, as he has many times noted, that it does not serve Denver’s interests to have nearby property values dropping by 50 percent because of inadequacy of water supplies.

Ultimately, as much as some quarters of the Western Slope would like to cede from the Front Range, that’s not going to happen, either. While an argument can be made that Aspen, especially, but even Vail can live somewhat independently of the Front Range, with their own airports providing access, the two sides of the Continental Divide act and operate more like family.

Of course, this new global settlement isn’t the final word, either. Change is the constant. When Two Forks was vetoed, nobody was talking much about climate change. Now, we have studies that suggest northern Colorado—including Summit, Eagle and Grand counties—will get more precipitation within a few decades. But nobody really knows. The climate picture remains fuzzy. The global agreement provides some cushion while this and other changing realities become more clear.

I have more specific details of what this new global settlement between Denver and the Western Slope looks like in my newsletter, Mountain Town News. Annual subscriptions are $90. I am selling copies of this particular issue for $15. For the month of April, I am selling annual subscriptions at half-price, just $45. Please support hard-working grassroots journalism.

Allen Best

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