Colorado LegiSource

An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.

Month: September 2022

  • New Water Demand Management Agreement on the Colorado River (Updated)

    New Water Demand Management Agreement on the Colorado River (Updated)

    by Thomas Morris

    Editor’s note: This article was originally posted September 19, 2019. We are reposting it on September 22, 2022 with updated information.

    What happens when the demand for a commodity exceeds supply? Economic theory predicts that the price for the commodity will increase. We’re all aware that water in Colorado is relatively scarce; in particular, the northern Front Range is highly dependent on water imported from the Colorado River, which is subject to increasing demands and dwindling supply. Are increases in the price of water sufficient to address this deficit?

    As we’ll see, due to multiple layers of state, interstate, and federal law and a combination of climate change effects, prolonged drought, and demand increases, our Colorado River water supply is at risk, and more is required to avoid fairly serious adverse consequences than simply relying on the market to equalize the supply and demand for water.

    The law of the river. The use of Colorado River water is strictly governed by the so-called “law of the river,” which is a complex interplay of interstate compacts, federal statutes and regulations, United States Supreme Court decrees, and applicable state law.

    To avoid having California’s rapid growth gobble up available Colorado River supplies, in 1922 the seven states in the Colorado River basin[1] entered into an interstate compact. The Colorado River Compact (codified in article 61 of title 37, C.R.S.) allocated 7.5 million acre-feet[2] (Maf) of water per year to the upper basin states (including Colorado) and 8.5 Maf to the lower basin states, for a total 16 Maf.[3] Later, the upper basin states entered into the Upper Colorado River Compact (codified in article 62 of title 37, C.R.S.), pursuant to which 51.75% of the upper basin’s supplies were allocated to Colorado.

    Naturally, the states presumed that the river’s supplies were adequate, even plentiful, to meet these allocations. Indeed, from 1905 to 1921 the flow at the boundary between the upper and lower basins was about 18 Maf. Unfortunately, the 1922 compact was negotiated during a time of relatively high flows: rather than more than 16 Maf of flow per year, actual supplies under current conditions may be as low as 14.8 Maf. Moreover, climate change is likely to reduce this supply even more:

    Colorado River flows decline by about 4 percent per degree Fahrenheit increase . . . . Thus, warming could reduce water flow in the Colorado [River] by 20 percent or more below the 20th-century average by midcentury, and by as much as 40 percent by the end of the century.[4]

    Despite this somewhat grim outlook, the upper basin’s ability to comply with its delivery obligation to the lower basin is enhanced by two facts:

    • The 1922 compact states the delivery obligation as 75 Maf over 10 years rather than 7.5 Maf each year; and
    • Numerous reservoirs with significant storage capacities are located in the upper basin. These reservoirs, including Lake Powell[5] and several reservoirs referred to as the Aspinall Unit, store excess supplies in wet years and release them in dry years to comply with the delivery obligation.

    Staving off a shortage declaration through demand management. The federal Bureau of Reclamation operates the Aspinall Unit as well as Lake Powell and Lake Mead, which is the lower basin’s primary reservoir. Pursuant to an agreement[6] between the seven compacting states, the bureau operates the Aspinall Unit and Lakes Powell and Mead to maintain the water level in Lake Mead above 1,075 feet in elevation. If the water drops to that level, the bureau makes a “shortage declaration” that triggers mandatory restrictions on water diversions and usage in the lower basin. A shortage declaration may also be the first step toward a determination that the upper basin has failed to comply with its delivery obligation, which would result in the curtailment of upper basin diversions that postdate the 1922 compact.

    In order to reduce the risk of a shortage declaration occurring, the upper and lower basins have both recently adopted updated drought contingency plans.[7] Congress has approved the plans.[8]

    In particular, the upper basin’s drought contingency plan involves three elements:

    • Augmentation, consisting of weather modification efforts to increase precipitation and the removal of phreatophytes (plants that have deep root systems that draw water from near the water table and often consume an unusually large amount of water);
    • Operating the Aspinall Unit to benefit storage in Lake Powell; and
    • Demand management.

    Demand management in this context means, roughly, a temporary, voluntary, and compensated reduction in consumptive water use by specific water rights owners. In Colorado, demand management could involve a front range metropolitan water provider (whose water rights postdate the 1922 decree and thus whose diversions would be curtailed if the upper basin failed to meet its delivery obligation) paying a senior agricultural user on the western slope to temporarily not divert water from the Colorado River or its tributaries. The metropolitan water provider would then be able to continue to export Colorado River water to its Front Range water users. As the saying goes, water flows uphill toward money.

    The General Assembly recently supported the development of demand management programs by enacting SB 19-212. The bill appropriates $1.7 million from the general fund to the department of natural resources for use by the Colorado Water Conservation Board.  The board will use this money for stakeholder outreach and technical analysis to develop a water resources demand management program.

    The days of hoping that Colorado River supplies will somehow recover or that the lower basin will, by some miracle, substantially reduce its water consumption enough to avoid a shortage declaration are over. Colorado is preparing for a hotter, drier climate in which water demands continue to increase while supplies diminish. Water demand management is one of the primary tools (along with conservation and the development of additional storage) that will be used to adapt to this new normal.

    In the article originally posted in 2019, the author posed the question “Are increases in the price of water sufficient to address this [water] deficit?” Following is an update that suggests the answer to this question is a resounding “no”, as the Colorado River water supply continues to dwindle.

    UPDATE:[9] On August 16, 2022, the Bureau of Reclamation within the federal Department of the Interior released its “Colorado River Basin August 2022 24-Month Study”, which sets the annual operations for Lake Powell and Lake Mead in 2023 in light of critically low reservoir conditions. The key findings include:

    Lake Powell’s water surface elevation on January 1, 2023, is projected to be 3,522 feet, which is 178 feet below full (3,700 feet) and only 32 feet above the minimum level required in order to continue to produce power at Glen Canyon Dam (3,490 feet). The Department of the Interior will limit 2023 releases from Lake Powell in order to protect it from declining below 3,525 feet at the end of December 2023. The Department will also evaluate hydrologic conditions again in April 2023.

    Lake Mead’s water surface elevation on January 1, 2023, is projected to be 1,047.61 feet, which reflects an unprecedented shortage condition that requires shortage reductions and water savings contributions from the Lower Basin States and Mexico, as follows:[10]

      • Arizona: 592,000 acre-feet, which is approximately 21% of the state’s annual apportionment;
      • Nevada: 25,000 acre-feet, which is 8% of the state’s annual apportionment; and
      • Mexico: 104,000 acre-feet, which is approximately 7% of the country’s annual allotment.

    There is no required water savings contribution for California in 2023 under the current operating condition.

    The Department and the Bureau of Reclamation continue to share and update information concerning the increasing risks impacting Lake Powell and Lake Mead. For more information, visit https://www.doi.gov/news.

    _________________________________________________________________

    [1] The seven states of the Colorado River Basin are Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada, and California. The upper basin consists mainly of Wyoming, Colorado, and Utah; New Mexico, Arizona, Nevada, and California are mainly in the lower basin.

    [2] An acre-foot is the amount of water required to cover one acre to a depth of one foot. An acre is about the size of a football field, including both end zones.

    [3] For comparison, Colorado consumes about 5.3 Maf per year, but this includes water that has been reused multiple times. See the state water plan, Figure 5-1. https://www.colorado.gov/pacific/cowaterplan/plan

    [4] http://theconversation.com/climate-change-is-shrinking-the-colorado-river-76280

    [5] Lake Powell is located directly above the boundary between the upper and lower basins; releases from Lake Powell are the primary method by which the upper basin complies with the 1922 compact.

    [6] Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead”, 72 FR 62272 (11/2/07); https://www.govinfo.gov/content/pkg/FR-2007-11-02/pdf/E7-21417.pdf

    [7] Agreement Concerning Colorado River Drought Contingency Management and Operations; https://www.usbr.gov/dcp/docs/final/Companion-Agreement-Final.pdf

    [8] Colorado River Drought Contingency Plan Authorization Act; https://www.congress.gov/116/bills/hr2030/BILLS-116hr2030enr.pdf

    [9] This update was prepared by the LegiSource board, not the original author.

    [10] These reductions and contributions are required pursuant to the 2019 Drought Contingency Plans and Minute 323 to the 1944 U.S. Mexico Water Treaty.

  • Have roads. Will travel.

    Have roads. Will travel.

    by Patti Dahlberg

    According to the Colorado Department of Transportation (CDOT) Historic Timeline featured on its website, CDOT has been around in some form or another since 1910 – amazingly, only about six years after the first automobile reportedly showed up in Colorado and about 15 years after the first sale of an American-made gasoline car. The introduction of the automobile in Colorado and the commitment to improving the roads “paved the way” for easier travel throughout the state. In many ways, the story of CDOT is the story of the state of Colorado opening its doors for all to explore and enjoy. With the founding of the department, Colorado soon became a tourist destination.

    Purportedly, the first automobile in Colorado appeared in 1904 in Louisville. The first reported trip up a mountain road made by an automobile seems to have taken place in June of 1910, when Francis Percy “Frank” Loveland, the grandson of Colorado pioneer businessman W.A.H. Loveland, of Loveland Pass and the city of Loveland fame, drove up an old carriage road (with a 2,000 foot elevation change) from the Denver-metro area to the top of Mount Falcon (near Red Rocks). The 24-year-old drove his Stoddard-Dayton touring car from Morrison to the Mount Falcon summit (elevation 7,851 feet) in about 20 minutes. An hour earlier, he had set another record by driving from the Capitol building to Morrison in only 29 minutes.

    So how did we get all these roads that take us just about anywhere we want to go to? It started in the late 1870s with the “Good Roads Movement.”  Through this movement, which lasted into the 1920s, farmers’ and bicyclists’ organizations advocated for the investment of state and federal money in improving roads outside of the cities. At the time, the rural roads were dirt or gravel, which meant mud in winter, dust in summer, and slow travel year round. Obviously, these roads were generally bad for bringing goods to market and, of course, for bicycling. And in the mountains, wagon roads could be difficult to navigate and unusable for large portions of the year. When automobiles appeared on the scene, the automobile lobbies wholeheartedly joined in the movement.

    Colorado’s Legislature created its first State Highway Commission in 1909, charging it with the responsibility of establishing a network of state primary roads. In 1913, the Legislature created a series of registration and licensing fees as a funding source for the improvement of the Commission’s proposed 4,380-mile primary road system. The fees varied from $2.50 to $10 (from around $40 to $160 in today’s dollars) depending on the vehicle’s horsepower. By 1915, Colorado’s proposed highway system grew to 5,844 miles, but only about 2,600 miles of those roads were constructed and only 196 miles of them were actually surfaced.

    By the time Congress passed the Federal Aid Road Act of 1916, which provided federal matching funds for state highway projects, Colorado had already been busy constructing roads and mountain passes. In fact, a new automobile road over Wolf Creek Pass was opened to traffic that same year. In 1917, the Legislature reorganized its State Highway Commission into the State Highway Department and passed legislation to create a state highway fund to distribute state and federal funds to develop and maintain Colorado’s highway system. By 1918, the Highway Department laid the first concrete road in the state, which ran from Littleton to Denver along Santa Fe Drive. A year later, Colorado was one of the first four states to pass a gasoline tax, one-cent per gallon (the average price at the time was 25 cents/gallon, $3.22 per gallon in today’s dollars), to raise revenue for a special road fund.

    In 1921, the Legislature, largely in response to the U.S. Bureau of Public Roads’ (BPR) willingness to provide federal aid to states, reshaped and expanded the bureaucracy of the State Highway Department. In 1922, Colorado voters deemed transportation important enough to approve $6 million in bonds for highway construction, which would be over $1 billion today. The BPR approved Colorado’s first federally aided road system, covering 3,332 miles. By 1929 the Colorado State Highway system had grown to 9,203 miles, and by 1938 it was almost 12,000 miles.

    Mountain Roads, Scenic and Historic Byways

    Colorado is home to 26 Scenic and Historic Byways, around half of which are also designated as National Scenic Byways and recognized for their outstanding scenic and historic attributes. Colorado has more national designations than any other state. In 1924, the State Highway Department completed the “Million Dollar Highway,” the Scenic Byway through the San Juan Mountains in Southwestern Colorado on U.S. 550. In 1927, the Mount Evans Highway was completed and opened for travel to an elevation of 14,130 feet, just below the 14,264-foot summit of the mountain. It remains the highest elevation for a paved highway in North America.

    The first automobile crossed Loveland Pass on September 29, 1929, and in that same month work on Trail Ridge Road – the highest continuous paved road in the United States, had begun. The Great Depression brought in federal work projects to help Colorado continue to construct and maintain its mountain highways, as anyone who has driven over Trail Ridge Road and read any of the signs knows. Between 1938 and 1940, Colorado completed the roads over Berthoud Pass (U.S. Hwy 40), Monarch Pass, and the original highway (U.S. Hwy 6) over Vail Pass. Gold prospectors may have brought skiing to the Colorado Rockies in the 1860s, but it was passable mountain roads that enabled it to become the popular winter sport that it is today.

    The boring of the westbound Straight Creek Tunnel (later to be named the Eisenhower Memorial Tunnel) through the Continental Divide to align I-70 near Vail with the existing U.S. Hwy 6 started in 1963 and finished in 1973. The eastbound bore of the Continental Divide tunnel opened in 1979 and was named in honor of former U.S. Senator and Colorado Governor Edwin C. Johnson. The combined tunnels are now officially known as the Eisenhower-Johnson Memorial Tunnel complex.

    And then there’s the crown jewel of Colorado mountain highways – I-70 through Glenwood Canyon. Construction began on “the final link” of west-bound I-70 through the canyon in 1980. Less than 15 miles long, the segment was completed in October of 1992 for around half-a-billion dollars. One of the biggest challenges CDOT faced was how to squeeze a four-lane freeway into a gorge barely wide enough to accommodate the existing two-lane highway and how to do so with minimal impact to the environment. CDOT’s solution was clever: construct two roadways, one nearly on top of the other. The final design features an elevated roadway with 40 bridges and viaducts spanning more than six miles between sections. Construction materials included 15 miles of retaining walls, two 4,000 foot tunnels, 150,000 newly planted trees and shrubs, 30,000 tons of steel, and 810,000 tons of concrete. Soon to be 30 years old, the Glenwood Canyon portion of I-70 is not only a beautiful stretch of road, but considered by many to be a modern marvel. The two-tiered elegantly sculpted highway through the Colorado River gorge remains a vital transportation corridor and a popular tourist attraction. The 12.5-mile engineering feat has received a presidential commendation and numerous design awards. It has been featured in books and in a museum exhibit on 20th century engineering achievements.

    Sources: