Water conservation

West Slope water managers ask: what authority does the federal government have?

Paonia Reservoir, May 2022.
Aspen Journalism/Courtesy Photo

As the deadline approaches for the seven states in the Colorado River Basin to develop a water conservation plan, some Colorado water managers are asking what authority the federal government has in the upper basin and what projects of water could be at risk of federal action.

U.S. Bureau of Reclamation Commissioner Camille Touton sent water managers scrambling when she announced in June that they had a 60-day window to find 2-4 million additional acre-feet of conservation or that the federal government would step in to protect the system. With many reservoirs, transbasin diversion systems, and irrigation projects in Colorado tied in one way or another to the Bureau of Reclamation, some are asking if the water in those buckets could be requisitioned by the federal government to fill the deficit.

“I think there’s probably a good argument that the secretary (of the interior) has some authority on these projects,” said Eric Kuhn, Colorado River author and former district chief executive. Colorado River Water Conservancy. “The projects on the West Rim and in the upper basin states that are owned by the federal government and are ultimately under the authority of the Secretary of the Interior, those are the projects at risk.”

There are many dams and reservoirs across Colorado that are tied to the Bureau of Reclamation’s 20th-century building spree to retain water and “reclaim” arid regions through irrigation. On the West Slope, some of the well-known projects include Fryingpan-Arkansas Project (Ruedi Reservoir), Dallas Creek Project (Ridgway Reservoir), Dolores Project (McPhee Reservoir), Paonia Reservoir, Grand Valley Project, Silt Project (Rifle Gap Reservoir), the Uncompahgre Project (Taylor Park Reservoir) and more.

In general, local entities such as conservation districts, irrigators, and water-using municipalities are responsible for reimbursing the Office for the cost of the project. But the infrastructure belongs to the Bureau of Reclamation. Some projects are operated by Reclamation and others are operated by a local entity. Many also have a hydroelectric component.

“I think every project operator needs to review their contractual obligations with the Bureau and their lawyers are going over those with a fine-toothed comb to see if the Bureau’s arm can reach Lake Powell and the upper basin states. said Kathleen Curry, a rancher and Gunnison County representative in the Colorado River Water Conservation District. “Any Upper Basin projects are going to have to look very carefully at the authority the Bureau has.”

Last year, Reclamation conducted emergency releases from Blue Mesa, Flaming Gorge and Navajo reservoirs to support Lake Powell. In this case, their authority has not been questioned since these reservoirs are, with Lake Powell, the four initial reservoirs of the Colorado River Storage Project. They store so-called “system water,” which is used specifically to help the Upper Basin meet its delivery obligations to the Lower Basin.

But water managers still don’t know exactly what, if anything, Reclamation is allowed to do with the water in other Reclamation-related reservoirs.

At the River District’s third quarterly board meeting in July, board members tried repeatedly to get answers from federal and state officials with little luck.

Montrose County Representative and State Rep. Marc Catlin asked State Engineer Kevin Rein where he stood on whether the Bureau of Reclamation could get tanks with rebate links in state are releasing water downstream of Lake Powell to meet the conservation goal of 2 to 4 million acre-feet.

“If the Bureau of Reclamation comes into the state of Colorado and says they want to move the water…to Lake Powell, what is the state engineer going to do?” Catlin asked. “Are these water rights governed by state law or federal law?”

Rein didn’t know the answer.

“I don’t know what authority – it’s not some of that ‘I’m not sure’ rhetoric, I’m really not sure – what authority the Bureau of Reclamation would have to induce a federal project with water rights of the state to release them to go to Powell,” Rein said.

Later in the meeting, Katrina Grantz, deputy regional director of the Colorado Upper Basin Bureau of Reclamation, made a presentation and answered questions from board members. Curry asked if changes could be proposed to the operation of projects in the 15 counties represented by the River District with federal ties to move closer to 2 million to 4 million acre-feet. Grantz evaded the question.

“At this point, we’re not looking at specific locations,” she said. “I would flip it around and say, are there any areas where you locally think there might be areas to conserve?”

River District General Counsel Peter Fleming said the federal government’s authority in the upper basin has not been tested. This is partly because the upper basin has dozens of small reclamation projects as well as thousands of individual water users on private ditch systems that are not affiliated with the federal government. Colorado has generally been left alone to administer this complex system of water rights under the state’s doctrine of prior appropriation, which means older water rights get first use of the river.

The Lower Basin, by contrast, has only about 20 diversions—and only six or more—of the Colorado River. And everyone using Lake Mead water must have a contract with Reclamation, which means the federal government is directly involved in water deliveries.

“The reason I think these issues haven’t been tested is that historically the role of the secretary in the upper pelvis has been different than the role of the secretary in the lower pelvis,” Fleming said. “It’s much more convenient. The difference in the administration of the rivers is enormous.

Fleming said the River District had no guidance for its water users on the situation, other than to reiterate the Upper Basin’s position that the responsibility for finding the 2-4 million acre- feet falls mostly on the lower pelvis.

“At the end of the day, I think there will be a big effort to try to resolve the issues through agreement and I think the secretary will exercise her authority to the fullest extent possible without initiating litigation,” Fleming said.

Water managers may not have to wait long for clarification. The deadline for states to come up with a conservation plan before the federal government takes action to protect the system is fast approaching. The upper basin states, through the Upper Colorado River Commission, have proposed a 5-point plan, which outlines actions they believe are designed to protect the reservoirs.

Amee Andreason, a public affairs specialist with the Bureau of Reclamation, said officials could address the question of federal authority in the upper basin at a media event Aug. 16 that coincides with the release of the study by the August 24, which presents the reservoir operations for the following hydrological year.

If the federal government ends up reducing uses in the lower basin, it could set a precedent that strengthens the argument that they can do the same in the upper basin, Kuhn said.

“He’s the one I think is the elephant in the room,” he said. “The fact that the River District Council has asked about the authorities tells you that people are thinking about it.”

Aspen Journalism is an independent, nonprofit news organization that covers water and rivers in conjunction with The Aspen Times. To find out more, visit http://www.aspenjournalism.org.