[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
FRYINGPAN-ARKANSAS PROJECT AT 45: SUSTAINABLE WATER FOR THE 21ST
CENTURY
=======================================================================
OVERSIGHT FIELD HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
Friday, June 1, 2007, in Pueblo, Colorado
__________
Serial No. 110-27
__________
Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Ken Calvert, California
Frank Pallone, Jr., New Jersey Chris Cannon, Utah
Donna M. Christensen, Virgin Thomas G. Tancredo, Colorado
Islands Jeff Flake, Arizona
Grace F. Napolitano, California Stevan Pearce, New Mexico
Rush D. Holt, New Jersey Henry E. Brown, Jr., South
Raul M. Grijalva, Arizona Carolina
Madeleine Z. Bordallo, Guam Luis G. Fortuno, Puerto Rico
Jim Costa, California Cathy McMorris Rodgers, Washington
Dan Boren, Oklahoma Bobby Jindal, Louisiana
John P. Sarbanes, Maryland Louie Gohmert, Texas
George Miller, California Tom Cole, Oklahoma
Edward J. Markey, Massachusetts Rob Bishop, Utah
Peter A. DeFazio, Oregon Bill Shuster, Pennsylvania
Maurice D. Hinchey, New York Dean Heller, Nevada
Patrick J. Kennedy, Rhode Island Bill Sali, Idaho
Ron Kind, Wisconsin Doug Lamborn, Colorado
Lois Capps, California Vacancy
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South
Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Jeffrey P. Petrich, Chief Counsel
Lloyd Jones, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
SUBCOMMITTEE ON WATER AND POWER
GRACE F. NAPOLITANO, California, Chairwoman
CATHY McMORRIS RODGERS, Washington, Ranking Republican Member
Jim Costa, California Ken Calvert, California
George Miller, California Dean Heller, Nevada
Mark Udall, Colorado Doug Lamborn, Colorado
Joe Baca, California Don Young, Alaska, ex officio
Vacancy
Nick J. Rahall II, West Virginia,
ex officio
------
CONTENTS
----------
Page
Hearing held on Friday, June 1, 2007............................. 1
Statement of Members:
Lamborn, Hon. Doug, a Representative in Congress from the
State of Colorado.......................................... 3
Prepared statement of.................................... 4
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California.................................... 1
Prepared statement of.................................... 2
Perlmutter, Hon. Ed, a Representative in Congress from the
State of Colorado.......................................... 10
Prepared statement of.................................... 11
Salazar, Hon. John, a Representative in Congress from the
State of Colorado.......................................... 5
Prepared statement of.................................... 6
Udall, Hon. Mark, a Representative in Congress from the State
of Colorado................................................ 7
Prepared statement of.................................... 8
Statement of Witnesses:
Long, Bill, President, Southeastern Colorado Water
Conservancy District, Pueblo, Colorado..................... 13
Prepared statement of.................................... 14
Response to questions submitted for the record........... 26
Peternell, Drew, Director and Counsel, Colorado Water
Project, Trout Unlimited, Boulder, Colorado................ 105
Prepared statement of.................................... 107
Rivera, Hon. Lionel, Mayor, City of Colorado Springs,
Colorado................................................... 44
Prepared statement of.................................... 46
Response to questions submitted for the record........... 52
Ryan, Michael J., Great Plains Regional Director, Bureau of
Reclamation, U.S. Department of the Interior, Billings,
Montana.................................................... 31
Prepared statement of.................................... 33
Response to questions submitted for the record........... 34
Scanga, Ralph L. ``Terry,'' Jr., General Manager, Upper
Arkansas Water Conservancy District, Salida, Colorado...... 56
Prepared statement of.................................... 57
Stealey, Wally, Arkansas Valley Rancher, Pueblo, Colorado.... 113
Tauer, Hon. Edward J., Mayor, City of Aurora, Colorado....... 91
Prepared statement of.................................... 93
Response to questions submitted for the record........... 104
Thiebaut, Bill, District Attorney, Tenth Judicial District,
Colorado................................................... 60
Prepared statement of.................................... 61
Response to questions submitted for the record........... 63
Treese, Christopher J., Manager, External Affairs, Colorado
River Water Conservation District, Glenwood Springs,
Colorado................................................... 109
Prepared statement of.................................... 110
White, Sandy, Pueblo Chieftain and Arkansas Native, LLC, La
Veta, Colorado............................................. 68
Prepared statement of.................................... 69
Winner, Jay, General Manager, Lower Arkansas Water
Conservancy District, Rocky Ford, Colorado................. 63
Prepared statement of.................................... 65
Additional materials supplied:
Golnar, Steve, City Administrator, City of Salida, Colorado,
Letter submitted for the record............................ 127
Jackson, Hon. William F., Mayor, City of Canon City,
Colorado, Letter submitted for the record.................. 128
Piltingsrud, Thomas H., City Manager, City of Florence,
Colorado, Letter submitted for the record.................. 129
Thonhoff, Hon. Mark F., Mayor, Town of Poncha Springs,
Colorado, Letter submitted for the record.................. 130
OVERSIGHT FIELD HEARING ON ``THE FRYINGPAN-ARKANSAS PROJECT AT 45:
SUSTAINABLE WATER FOR THE 21ST CENTURY''
----------
Friday, June 1, 2007
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Natural Resources
Pueblo, Colorado
----------
The Subcommittee met, pursuant to call, at 9:00 a.m., in
the Fortino Ballroom, Pueblo Community College, 900 W. Orman
Avenue, Pueblo, Colorado, Hon. Grace Napolitano [Chairwoman of
the Subcommittee] Presiding.
Present: Representatives Napolitano, Lamborn, Udall,
Salazar and Perlmutter.
STATEMENT OF THE HON. GRACE NAPOLITANO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
[Video clip played.]
Mrs. Napolitano. Ladies and gentlemen, I was made aware of
this clip yesterday, and I am glad that I brought it, because
this is exactly where we're at today. This is our future, and
it was just as evident and true then as it is today.
Again, I'm Congresswoman Grace Napolitano with the
Subcommittee on Water and Power. Good morning, and welcome to
our Subcommittee field hearing, and we'll now come to order.
This is the second in a series of oversight field hearings
on sustainable water. Our first one was in the City of Pomona
in California, dealing with perchlorate and other contaminants,
and this hearing will focus on the Fryingpan-Arkansas Project.
However, the question I'm interested in is far broader: What
lessons can be learned from the Fryingpan-Arkansas Project
about wasting water in general?
The Bureau of Reclamation has jurisdiction over the 17
western states, and the Bureau comes under the jurisdiction of
the Subcommittee. And one of the aims I have is to be able to
assess the water needs of the western states who are facing
many challenges, whether it is climate change, drought cycles,
contaminants and various other areas, so this is but one in a
series of hearings to be able to determine and assess the
communities which face challenges now and in the future being
able to have a say that will go into the record.
I'd like to begin by welcoming our guests to the
Subcommittee today. First my friend and colleague who
approached me about the area--and by the way, I am open to
field hearings, so whoever feels they have an issue or wants to
be able to bring information to the table that is pertinent--
Representative John Salazar, who has been a most gracious host.
John.
Second on my left is Congressman Mark Udall, another good
friend.
To my right, I have my Ranking Member who has been sitting
with me in the Subcommittee now for a while, Mr. Lamborn, and
thank you, Mr. Lamborn, for being with us. I really appreciate
it.
Also we have Representative Ed Perlmutter from Jefferson
County. Welcome.
And I think that takes care of our colleagues. And staff is
Zach.
Kiel. Stand up, Kiel. Republican staff. I just want to be
sure we don't leave anybody out, OK?
I ask consent that Representative Perlmutter be allowed to
sit on the dais with the Subcommittee this morning and to
participate in the Subcommittee proceedings. Without objection,
so ordered.
I'll begin the hearing with a brief statement and then
recognize the members for short statements. And ladies and
gentlemen, you'll be held to the 5-minute rule. You'll have a
timer. I don't think you can all see it, but I'll turn it to
whoever is speaking. We have many witnesses and a lot of ground
to cover, and we need to be out of this facility by I believe
it's 12:00 or 12:30. 12:30, so we don't want to belabor that.
Let's see. We start off now with Mr. Lamborn for 5 minutes.
[The prepared statement of Mrs. Napolitano follows:]
Statement of The Honorable Grace F. Napolitano, a Representative in
Congress from the State of California
Good morning. I want to welcome our witnesses and guests this
morning. I am so very happy to be here in the beautiful state of
Colorado, and I look forward to all the testimony this morning. It is
very important to me as Chairwoman to get this Subcommittee out of
Washington, D.C. and hear the perspectives of local people. There are
no better experts on the realities of our ever-increasing water supply
challenges than those on the ground, in the community.
I also want to take just a moment to thank our very gracious
hosts--the administration and staff of the Pueblo Community College,
and Congressman John Salazar and his staff. You have provided a perfect
facility for our hearing this morning. On behalf of myself and
Congressman Nick Rahall, who is the Chairman of the House Committee on
Natural Resources, I thank you for your hospitality.
This field hearing is the second in a series of field hearings this
Subcommittee intends to conduct this year on sustainable water supplies
for the west. All over the west, population growth, coupled with
increased drought and decreased snow pack and rainfall due to the
impacts of global warming, are already stressing our water supplies.
Further, the infrastructure we currently have in place, often projects
authorized and built decades ago long before we could have ever
foreseen these challenges, may not necessarily be adequate to maintain
sustainable water supplies well into the future.
No one understands this issue better than the communities of
Southeastern Colorado. Today's hearing, aptly titled, ``The Fryingpan-
Arkansas Project at 45: Sustainable Water for the 21st Century,'' will
focus on western water management challenges in Colorado through the
lens of the Fryingpan-Arkansas Project.
Like so many of the water projects in my home state of California,
I understand this is a controversial issue. But this Subcommittee has a
history of confronting such issues in a fair and bipartisan way. We
accommodated as many witnesses as we could today so that we will get
the full range of views on this issue. I am eager to listen.
Specifically, I hope to hear from our witnesses regarding the
Congressionally-authorized purposes of the Fryingpan-Arkansas project,
the role of the project in sustaining agriculture and communities in
Southeast Colorado, and the new challenges facing water users, water
managers, and Front Range cities facing unprecedented growth, climate
change, and increasing needs for reliable water supplies.
______
STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Lamborn. Thank you all for being here. I also want to
thank you, Chairwoman Napolitano, for coming here to our
wonderful State of Colorado to learn more about the challenges
that we face in meeting our current and future water needs.
As a new Member of Congress, I appreciate the opportunity
to serve on this important Subcommittee, and I am certainly
honored to serve as the acting Ranking Member on this
Subcommittee while my colleague, Cathy McMorris Rodgers, is on
maternity leave. While I am new to the ways of Washington,
D.C., the challenges facing Colorado with respect to water are
certainly not new to me. The old adage of build them and they
will come no longer applies here in Colorado. They'll come
anyway.
We have many water challenges facing us here. Past
generations had the same challenges and they rose to the
occasion by building visionary projects like the Fryingpan-
Arkansas Project. And I really enjoyed that clip. The sense of
history in seeing that was really special to me.
Mrs. Napolitano. Thank you, Mr. Lamborn, and I'd like to
ensure that that is entered into the record.
Mr. Lamborn. The Fryingpan-Arkansas is a multi-use project
that brings benefits to cities like Colorado Springs, but to
irrigators as well. Now we have the opportunity to meet new
water challenges, and the project can play a big role in our
future water supply picture for not just my constituents, but
for everyone in the region.
Today is an opportunity to focus on the future and to
appreciate the collaborative efforts that have brought us all
to where we are today. Over the years, stakeholders have
marched gradually toward more compromise, but consensus has
been elusive. What's important today is that we march to the
future and not get stuck in the past.
Different perspectives will be heard today. Congressman
Salazar and I have both introduced legislation regarding the
Preferred Storage Option Plans (PSOPs), and there are
significant differences. We are both working to further the
needs and priorities of our districts though, and I am
convinced that there is ample room for compromise. If we and
everybody here do not step up to finalize solutions, the entire
region will suffer, and that's not acceptable.
It's important to note that while PSOP is important,
Colorado Springs has alternative options to address its needs;
however, many communities downstream do not have that same
opportunity, which is why the leadership is critical to moving
forward for the benefit of all affected communities. Should an
alternative to PSOP be pursued, many concessions and benefits
to entities in the Arkansas River Valley would be lost forever,
and it would be a shame to lose what could have been a win/win
situation just because of the obstructionism of a few.
It's amazing to me that a handful of self-appointed experts
want to dictate to other communities and cities what their
future and destiny should be. No one has that right. The people
of Colorado Springs would never dream of telling another city
or community what its future should be, and they just ask that
they be given that same fair treatment in return.
This hearing is a great opportunity to move past the
rhetoric and work on real solutions. I do not expect us to
resolve all of the issues surrounding projects in the Fry-Ark
today, but this hearing is a good opportunity to move this
process forward and hear all concerns and hopefully find true
common ground. I hope the hearing has a positive and
constructive purpose and tone, as opposed to any kind of name
calling or criticism. I look forward to working with all
parties to meet this goal.
Thank you. And thank you, Chairwoman Napolitano.
[The prepared statement of Mr. Lamborn follows:]
Statement of The Honorable Doug Lamborn, a Representative in Congress
from the State of Colorado
Thank you all for being here. I also want to thank you, Chairwoman
Napolitano, for coming to our wonderful state of Colorado to learn more
about the challenges that we face in meeting our current and future
water needs.
As a new Member of Congress, I appreciate the opportunity to serve
on this important subcommittee and I am certainly honored to serve as
the Acting Ranking Member on this subcommittee while my colleague Cathy
McMorris Rodgers is on maternity leave.
While I am new to the ways of Washington, DC, the challenges facing
Colorado with respect to water are certainly not new to me. The old
adage of ``build it and they will come'' no longer applies here in
Colorado. They'll come anyway.
We have many water challenges facing us here. Past generations had
the same challenge and they rose to the occasion by building visionary
projects like the Fryingpan-Arkansas project. Our communities would not
be what they are today without this project. The FryArk is a multi-use
project that brings benefits to cities like Colorado Springs but to
irrigators as well. Now, we have the opportunity to meet new water
challenges and the project can play a big role in our future water
supply picture for not just my constituents but for everyone in the
region.
Today is an opportunity to focus on the future and to appreciate
the collaborative efforts that have brought us all to where we are
today. Over the years, stakeholders have marched gradually towards more
compromise but consensus has been elusive. What's important today is
that we march to the future and not get stuck in the past.
Differing perspectives will be heard today. Congressman Salazar and
I have both introduced legislation regarding the Preferred Storage
Options Plan and there are significant differences. We are both working
to further the needs and priorities of our districts, yet I am
convinced that there is ample room for compromise. If we and everyone
here do not step up to finalize solutions, the entire region will
suffer and that's not acceptable.
It is important to note that while PSOP is important, Colorado
Springs has alternate options to address its needs. However, many
communities downstream do not have that same opportunity, which is why
leadership is critical to moving forward for the benefit of all
affected communities. Should an alternative to PSOP be pursued, many
concessions and benefits to entities in the Arkansas River Valley would
be lost forever, and it would be a shame to lose what could have been a
win-win situation outcome just because of the obstructionism of a few.
It is amazing to me that a handful of self-appointed experts want
to dictate to other communities and cities what their future and
destiny should be. A few have even said, for instance that Colorado
Springs should not grow any more. No one has that right. The people of
Colorado Springs would never dream of telling another community what
its future should be, and they just ask that they be given the same
fair treatment in return.
This hearing is a great opportunity to move past the rhetoric and
work on real solutions. I do not expect us to resolve all of the issues
surrounding projects in the FryArk today, but this hearing is a good
opportunity to move this process forward and hear all concerns and find
true common ground. I hope it has a positive and constructive purpose
and tone, as opposed to name calling and criticism. I look forward to
working with all parties to meet this goal.
Thank you.
______
Mrs. Napolitano. Thank you very much, and we will now
proceed to our next member, Representative Salazar.
STATEMENT OF THE HON. JOHN SALAZAR, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Salazar. Thank you, Madam Chair.
First of all, I want to thank you for allowing us to be
here in Pueblo and for your visit as well. Today I'd like to
talk a little bit about the Arkansas basin. I'd like to talk
about an individual who has been and lived through it his
entire life. This is about a young boy in the Arkansas basin,
John Singletary, who sold his gold frying pan to try to raise
money for the Fryingpan-Arkansas Project.
Little Johnny dreamed of the day when farmers in the lower
Arkansas Valley would never have to worry about future water
needs. He remembers going to Rocky Ford with his father and
seeing a booming farm town, which seemed to have melon stands
on every street corner. In 1962, as we just saw, President
Kennedy came to Pueblo to sign the Fryingpan-Arkansas Project
into law. The Fry-Ark Project was being built to deliver water
to the agricultural-based communities east of Pueblo.
In committee hearing the legendary Congressman and
Committee Chairman, Wayne Aspinall, who we heard President
Kennedy speak about, laid out his argument for the Fryingpan-
Arkansas Project. Aspinall stated that only 17,000 acre-feet of
water would be used for the municipalities in the Arkansas
Basin and of that only 5,000 acre-feet outside the lower Ark
for Colorado Springs.
He said that of the 219,100 acre-feet of usable project
water, that an overwhelming majority of the 184,000 acre-feet
would be designated for irrigated agriculture. That's roughly
85 percent of the water for agriculture. Simply put the Fry-Ark
was approved by Congress and signed by President Kennedy for
the primary purpose of serving agriculture in the Arkansas
basin.
Today I am sad to say that agriculture is no longer the
focus of the Fry-Ark Project. Even worse, the project is
turning into an instrument to move water from the ag-based
communities like Crowley County and Rocky Ford, to growing
metropolises, sprawling communities, and sometimes out of
basin. Promises made to these farm communities have not made up
for the fact of the total community damage caused by their
drive. And while Aurora cannot legally purchase Fry-Ark Project
water, the Bureau of Reclamation has allowed Aurora to utilize
the Fry-Ark facilities to move clean mountain water via
exchange from water they purchased off the farm. The water
taken off the farm will never return. The water taken out of
the basin will never return. The trend leaves no hope for
agriculture or for ag-based communities, nor for them to
survive. I believe that it is immoral for large cities to rob
the future of small towns for the sake of growth.
Thomas Jefferson once said, ``Encouragement of agriculture
I deem as one of the essential principles of our government and
consequently those which ought to shape this administration.''
Jefferson believed that the most moral society was one where
agriculture is a predominant vocation. I agree with Jefferson;
this is a moral issue.
Through the actions of the Bureau of Reclamation and
thirsty cities, farmers and small-town folks are being kicked
out to the curb in towns like Rocky Ford so that urban areas
can continue to grow and build another strip mall. When the
farmer shuts down his operation when the water is moved, so
does the fertilizer salesman, the banker, the tractor, the
tractor repairman, and the farm workers all lose their jobs.
The dried-up farm community can never return to their heyday.
And for whose benefit? We know for whose benefit. And to
add insult to injury, the Bureau of Reclamation has been
complicit in moving water with annual one-year leases with
Aurora since 1986 and is now proposing a 40-year lease that is
almost completed. The Bureau has not made the case why they
have the authority to contract with Aurora using Fry-Ark
facilities. Furthermore, I would argue today that the Bureau
doesn't have the authority to do so. I'm anxious to hear the
testimony today of the witnesses that determined the original
intent of the Fryingpan-Arkansas Project and the authority that
the Bureau has to contract with out-of-basin entities.
One thing I know for sure. John Singletary, who now is the
president of the Lower Arkansas Water Conservancy District,
didn't help his parents to sell these gold frying pans so that
water could be moved out of the Arkansas Basin.
Thank you.
[The prepared statement of Mr. Salazar follows:]
Talking Points of The Honorable John Salazar, a Representative in
Congress from the State of Colorado
As a young boy in the Arkansas Basin, John Singletary
sold gold frying pans
Little Johny dreamed of a day when farmers in the Lower
Arkansas Valley would never have to worry about future water needs
He remembers going to Rocky Ford with his father and
seeing a booming farm town, which seemed to have melon stands on every
street corner.
In 1962 President Kennedy came to Pueblo to sign the
Fryingpan-Arkansas Project into law.
The Fry-Ark project would be built to deliver water to
Agricultural based communities East of Pueblo.
In Committee Hearings, the legendary Congressman and
Interior Chairman Wayne Aspinall laid out his argument for the Fry-Ark
Project.
Aspinall stated that only 17,000 acre feet of water would
be used only for the municipalities in the Arkansas basin; and of that
only 5000 acre feet outside the Lower Ark for Colorado Springs. He said
that of the 219,100 acre feet of usable project water that an
overwhelming majority of 184,600 acre feet would be designated for
irrigated agriculture. That's roughly 85% of the water for agriculture.
(source, Subcommittee on Irrigation and Reclamation, Interior
Committee,
June 9-11, 1953)
Simply put, the Fry-Ark was approved by Congress and
signed by President Kennedy for the primary purpose of serving
agriculture in the Arkansas Basin.
Today, I am sad to say that agriculture is no longer the
focus of the Fry-Ark project. Even worse, the Project is turning into
an instrument to move water from Agriculturally-based communities like
Crowley County and Rocky Ford to growing metropolitan sprawling
communities--sometimes out of basin.
Promises made to these farm communities have not made up
for the fact of the total community damage caused by their dry-up
And, while Aurora cannot legally purchase transbasin Fry-
Ark Project water, the Bureau has allowed Aurora to utilize the Fry-Ark
facilities to move clean Mountain water via exchanges from water
they've purchased off the farm.
The water taken off the farm will never return.
The water taken out of the basin will never return.
This trend leaves no hope for agriculturally based
communities to survive.
It is immoral for large cities to rob the future from
small towns for the sake of growth
Thomas Jefferson said ``Encouragement of agriculture...I
deem as one of the essential principles of our government, and
consequently those which ought to shape its administration.'' Jefferson
believed the most moral society is one where agriculture is the
predominant vocation.
I agree with Jefferson, this is a moral issue. Through
the actions of the Bureau of Reclamation and thirsty cities, farmers
and small town folk are being kicked to the curb in towns like Rocky
Ford so that Aurora can build another strip mall.
When the farmer shuts down his operation when the water
is moved, so does the fertilizer sales man, the banker, the tractor
repair man and farm workers lose their jobs. The dried up farm
community can never return to their heyday. And for whose benefit?
To add insult to injury, the Bureau or Reclamation has
been complicit in moving water with annual one-year leases with Aurora
since 1986 and with a new 40-year lease that's almost completed.
The Bureau has not made the case why they have authority
to contract with Aurora using Fry-Ark facilities.
Furthermore, I argue that the Bureau doesn't have the
authority to do so.
I am anxious to hear the testimony of today's witnesses
to determine the original intent of the Fryingpan-Arkansas Project and
the authority that the Bureau has to contract with out of basin
entities
One thing I know for sure, John Singletary didn't help
his parents sell golden frying pans so Aurora can transfer water from
the Arkansas Basin.
______
Mrs. Napolitano. Now I will move on to Congressman Mark
Udall.
STATEMENT OF THE HON. MARK UDALL, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF COLORADO
Mr. Udall. Thank you, Madam Chairwoman.
Good morning to all of you.
Madam Chairwoman, I would ask the panel's consent that my
entire statement would be submitted for the record.
Mrs. Napolitano. Without objection, so ordered.
Mr. Udall. Thank you. I want to keep my remarks relatively
short so that we can hear from this very influential and well-
informed group of witnesses that we have today and then we can
open it up for questions and comments.
In my remarks that I prepared for the record, I harkened
back to the days of the initial approvals of the Fry-Ark
Project, and I note that my Uncle Stewart, who was John
Kennedy's Secretary of Interior, played a role in seeing this
project come to fruition, but also my father, Morris Udall, who
worked closely with Chairman Aspinall and had great respect for
Chairman Aspinall, noted in a newsletter to his constituents
that after the approval of the legislation that the only way
that it moved forward was because the house delegation in
particular in Colorado came to common consensus on how to move
forward. And I think that's both the challenge and the
opportunity that faces us here today as we hold this very
important hearing.
If we can find consensus--and I believe we can--the future
is bright. But that consensus has to be based, I believe, on
the needs and the outlooks and the sensibilities of
particularly the people who live in the Arkansas Valley
drainages.
And with that spirit, Chairwoman, I'd like to yield back
any time that I do have remaining. But again, I want to thank
all of you for coming out, for being involved in this way.
There's nothing more important to us in the west. The lifeblood
of our communities, the lifeblood of what makes us westerners
of course is water.
I was even--Congressman Salazar, Congressman Lamborn,
Congressman Perlmutter, for some reason I was dreaming about
the water last night and preparing for this hearing today. And
I think we all should be of course incredibly thankful how
green it is all over this wonderful State of Colorado as we
experienced a wet--actually a normal winter, a normal spring,
and I'm certainly thankful that there's grass for our cattle,
there's water for our reservoirs, and there will be water in
which we can fish and enjoy the great outdoors in this State of
Colorado. I know we come here with the same purpose in line,
which is to protect all of the communities of Colorado together
as Coloradans.
Thank you, Madam Chairwoman. I yield back to you whatever
time I have remaining.
[The prepared statement of Mr. Udall follows:]
Statement of The Honorable Mark Udall, a Representative in Congress
from the State of Colorado
Thank you, Madam Chairwoman, and thank you for bringing our
Subcommittee to Pueblo for today's oversight hearing.
I join my delegation colleagues in welcoming you to Colorado and
particularly to the great valley of the Arkansas River, which is linked
with our Western Slope by the Fryingpan-Arkansas project that is the
focus of today's hearing.
I think today's hearing will help us to understand not just how the
project has developed in the 45 years since President Kennedy signed
its authorizing legislation, but also the role it can play in this new
21st Century. And I hope the result will be to lay a sound foundation
for decisions the subcommittee and the Congress will be asked to make
in the near future.
Taken together, the witnesses scheduled to testify no only possess
great expertise regarding the Fryingpan-Arkansas Project's past and
present but also represent a range of views about its future.
I look forward to listening to their testimony and learning from
what they have to tell us.
But before yielding back my time, I want to share with everyone
here today a bit of history about the project that I think is not only
relevant for today's hearing but that can perhaps stand us in good
stead as we go forward.
The final step in authorizing the Fryingpan-Arkansas project was
taken by President John F. Kennedy, when he signed the authorizing
legislation in August, 1962.
But that was hardly the beginning of the story.
As Mr. Long notes in his statement, the idea of a big Reclamation
project to bring West Slope water into the Arkansas valley originated
many years earlier, and in supporting it President Kennedy--and his
Secretary of the Interior, my uncle Stewart Udall--followed the lead of
the Eisenhower Administration.
And the idea had Congressional support, especially in the Senate.
But for many years, the Colorado delegation was not of one mind on the
subject, because of concerns about the different effects the project
could have on different parts of the State.
Those concerns were particularly important for Congressman Wayne
Aspinall, who was one of my predecessors--and one of Representative
Salazar's as well--in representing Coloradans living west of the
Continental Divide.
In 1959, Representative Aspinall became the Chairman of what was
then the Committee on Interior and Insular Affairs and now is the
Committee on Natural Resources. As such, he played a key role in
developing the provisions that enabled the Colorado delegation to come
together in support of a bill to authorize the Fryingpan-Arkansas
project and in having that legislation favorably reported from the
committee and then winning its passage by the House of Representatives
on June 13, 1962.
The bill's passage in the House was noted in a newsletter to his
constituents from another Member of Chairman Aspinall's committee--my
father, Morris K. Udall, of Arizona.
He had strongly supported the legislation, speaking in favor of it
on the House floor, and hailed its passage by the House as ``an
immensely important political breakthrough'' and a precedent for other
reclamation projects.
And in explaining the reason for that breakthrough, he directed his
constituents' attention to what he thought--and, looking back, what I
think today--was the key part of the Committee's report on the bill.
That part of the report said--and here let me quote it directly--
``The Fryingpan-Arkansas project has been under study and
consideration for over 30 years. It has been ready for
authorization for 8 years. However, it was not until recently
that all interested parties in parties in the State of Colorado
were able to agree on the development.''
My father's message to his constituents was that it was agreement
among the Colorado delegation in Congress that made passage of the
bill--and construction of the project--possible.
That was what he saw as one of the lessons of the legislation
President Kennedy signed 45 years ago. And, in my opinion, that same
message bears repeating here today, not just to my constituents, but to
all Coloradans.
As a practical matter, I think none of us who represent some
Coloradans can win passage of legislation dealing with the Fryingpan-
Arkansas project--or anything else that affects people in more than one
part of the state--unless that legislation is acceptable to everyone in
the delegation. And as a matter of public policy, I think it would be
wrong to even try to pass such legislation otherwise.
In Wayne Aspinall's time, one of the hurdles that had to be
overcome to develop that consensus was concern about the adverse
effects on the areas from which waters would be diverted. And in the
years since, as population growth and changes in our economy have
increased the demand for water in our cities, towns, and suburbs, those
concerns have become even greater and more widespread. The demise of
plans for a big Two Forks reservoir and the rejection of Referendum A
by voters in every Colorado county are signals that times have changed.
In some ways, that can make it harder to achieve consensus, but it does
not change the fact that consensus is needed.
Speaking for myself, I want everyone to know that I am ready to
work with all my colleagues to try to achieve consensus, but that in
doing so I will never forget the need to carefully consider the impacts
on all concerned, including those in the areas from which water is
proposed for diversion.
Thank you, Madam Chairwoman, and I look forward to hearing from our
witnesses.
* * *
FOR RELEASE June 21, 1962
Congressman's Report
By Morris K. Udall
``Out of the Fryingpan--Hope and a Lesson for Arizona''
The growth of our West is to a great degree the story of
reclamation. Roosevelt, Hoover, Grand Coulee, and the other projects
have nearly exhausted the choice, low-cost dam sites. Future projects
pose more difficult engineering problems. Water must be carried longer
distances; new engineering ideas are needed to help put the water where
the people are.
On June 13, the House voted to bring into being a sound engineering
dream--the Fryingpan-Arkansas project. If the Senate goes along this
project will bring water and power to semi-arid southeastern Colorado.
Water will be collected high in the Rocky Mountains on the west side of
the Continental Divide. It will be sent churning eastward through a
six-mile-long tunnel drilled through the Rockies at an altitude of
10,000 feet. Then the water will tumble down the eastern slope through
a series of canals, reservoirs and power generating plants and into the
Arkansas River.
Farmers who today don't know if they'll be able to harvest the
crops they now plant will be assured of water to stabilize production.
Colorado Springs, Pueblo and other thirsty municipalities will have
more and better water to supply increasing populations. Badly-needed
energy for farms, homes and industries will be created. Disastrous
floods will be curtailed. The minimum flow of water needed for fishing
and other recreation activities will be assured.
In the 10-12 years needed to complete the project, the federal
government will invest $170 million. Over a 50-year span, $153 million
of this will be repaid. (Only monies invested in fish and wildlife,
recreation and flood control are not reimbursable).
The Fryingpan-Arkansas project has been under study for three
decades. It has been officially before Congress since 1953. President
Eisenhower strongly supported it. President Kennedy wholeheartedly
endorses it. Yet the project drew heavy fire in the House--from those
who ridiculed the idea of a trans-mountain tunnel as a ``Rube Goldberg
Project'' and those who asserted the $170 million will simply be money
thrown away. Members of Congress are always looking for ``economy
votes'' and reclamation is often a likely target--especially from the
big city Eastern members. One of the principal critics of the tunnel
idea was a Long Beach Congressman whose people turn on their taps to
draw water which has come 200 miles across the desert from the Colorado
River through many mountain tunnels.
In the House debate on this bill, I made these statements:
``Based upon some of the debate here today, one might assume that
this was $170 million we are going to throw down a rat hole somewhere.
Reclamation does not cost; it pays. This is not a drain on the
taxpayer. This will be paid back--nearly all of it paid back--with
interest.''
``Let us go back to 1911. If one had been asked to select the 10
least likely places in America to be major cities, I think Phoenix
would have headed this list. It was a dry city of 12,000; when these
people occasionally did get water it came all at once--right in the
living room--and flooded everyone out. It was a hot and barren country.
When Teddy Roosevelt and other farsighted leaders--and I can hear the
opponents in the Congress in those early days laughing at this Rube
Goldberg project in Arizona--supported this type of reclamation, they
probably did not fully realize that would happen. Yet this first major
project has now paid off. It cost $20 million. The federal government
takes out of Phoenix $200 million every year in federal income taxes.
Phoenix has 700,000 people; it is one of the nation's major cities.
Phoenix would be a little town today except for the foresight of the
Congress back in the 1900's when it decided to invest $20 million.''
The Fryingpan-Arkansas project diversion idea is in many respects a
scientific and technological breakthrough. Passage by the House is an
immensely important political breakthrough--one that bodes well for the
$1 billion Central Arizona Project which will come before Congress if
the Supreme Court acts favorably in the California-Arizona water suit.
The lesson for Arizonans is contained in the Interior Committee report
on the bill:
``The Fryingpan-Arkansas project has been under study and
consideration for over 30 years. It has been ready for authorization
for 8 years. However, it was not until recently that all interested
parties in the State of Colorado were able to agree on the
development.''
In Arizona we have achieved substantial unity over the Central
Arizona Project. The more we strengthen that unity, the better our
chances for getting the financing which will bring in the water we must
have to expand our state's economy.
______
Mrs. Napolitano. Thank you, Congressman Udall.
And now we will hear from Congressman Perlmutter.
STATEMENT OF THE HON. ED PERLMUTTER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Perlmutter. Thank you, Madam Chair.
And it gives me great pleasure to be here for this hearing.
I had another hearing in Pueblo a number of years ago when I
was in the State senate, and it was an issue where water was at
the forefront just as it is today. And I think it's key for all
of us to really take the clip that we saw to heart, because I
think for me, it was a very inspirational speech and
presentation by the President.
And I think what it reflected was cooperation and
compromise, and most specifically if you heard at the
beginning, there were Congressmen and women from California and
all the Congressmen and Senators from Colorado. And the
president said this is cooperation and compromise, taking water
from the Pacific and sending it to the Atlantic, and the
project was one that was marked by cooperation and compromise.
And the President's statements--and I have to disagree with
my friend to my right here, Congressman Salazar. The President
said this project is an investment in the future of this
country, an investment that will pay large dividends. It is an
investment in the growth of the west, in the new cities and
industries which this project helps make possible.
There has got to be cooperation between and among cities
and counties, farming communities, industry, the recreational
sector of our economy. This is a great project that was built
with the money of all of the people of the United States of
America and all the citizens of the State of Colorado. I hate
to see the conflict that arises between this part of the state
and the district that I represent, which is Jefferson County,
Adams County, and Arapahoe County.
This is a project that's been marked by cooperation,
compromise, and a vision of the future, and I hope it remains
that way. And as Representative Udall said, this is a day where
I believe we're going to get testimony from outstanding
witnesses and experts who have looked at this issue for a long
time, have many different feelings about it, but I believe
there is a real opportunity to bring compromise.
I can say I've been in the Congress for five months now,
and beyond Iraq, this is the subject that comes up in my office
more often than anything else. I've met with people from Pueblo
and from Aurora and from Colorado Springs, and I would love to
see an agreement reached.
Madam Chair, thank you for having us here.
[The prepared statement of Mr. Perlmutter follows:]
Statement of The Honorable Ed Perlmutter, a Representative in Congress
from the State of Colorado
I thank the Chairwoman, Congresswoman Napolitano, of the Water and
Power Sub Committee for inviting me to attend this important and useful
meeting on water issues in the West and in particular the Fryingpan-
Arkansas Project. I also want to thank the witnesses here today who
will be talking with us about the issue of water and how it affects
different communities around our state.
I do believe that above all today, this hearing will showcase how
critical water needs are in Colorado and throughout the West and how
important it is that we all work together to find solutions to
complicated and challenging water issues.
I am familiar with many of the issues that will be presented today
and I also know that many of the witnesses here today and others not
here are playing a critical role in working together to reach a
consensus regarding the Fryingpan-Arkansas project.
Most importantly, I believe there is opportunity to find a
compromise and I would like to see and encourage a solution. I strongly
support the Bureau of Reclamation in issuing a 40 year lease agreement
to Aurora.
I look forward to working with all of you, my colleagues in the
House and the Senate as we move forward toward consensus.
I would like to recognize Mayor Tauer of Aurora and Mark Pifher and
Bill Groffy from Aurora Water for traveling from my district to
participate in this hearing today.
Again, thank you and I look forward to hearing from the witnesses.
______
Mrs. Napolitano. Thank you, Congressman.
Mrs. Napolitano. I'd like to ask that both Mr. Bill Long,
President of Southeastern Colorado Conservancy District in
Pueblo, and Mr. Mike Ryan, Regional Director of Great Plains
Region, U.S. Bureau of Reclamation, Billings, Montana, please
step up.
And as they're coming up, I just welcome both of you.
Delighted to be back in Colorado. I was in Denver not too long
ago talking, listening about water, and I certainly look
forward to the testimony here. It is important to me as the
Chairwoman of the Subcommittee to hear the perspectives of the
local people, because there are no better experts on the
realities of the ever- increasing water supply challenges that
you, the local entities, face.
Allow me to take just a fraction of a moment to thank the
Pueblo Community College, the administration and staff, John
Salazar and his staff for providing us with this venue and
being so gracious to host our field hearing. And it takes a
great amount of work to be able to put these together and
planning so that it can be what it's supposed to be, and that's
to obtain information from the communities.
On behalf of myself and the Chairman of the House Committee
on Natural Resources, Mr. Rahall, thank you for your
hospitality.
And no one understands this issue better than the
communities of southeastern Colorado, and so today's hearing is
very aptly titled ``The Fryingpan-Arkansas Project at 45:
Sustainable Water for the 21st Century.'' And it's going to be
focused on the western water management challenges in Colorado
through the lens of the Fryingpan-Arkansas Project.
Like the projects in my district in my home State of
California, I do understand controversy. I'm not new to it. But
the Subcommittee has a long history of confronting such issues
in a fair and bipartisan way. We accommodated as many witnesses
as we could, tried to be as fair as we could, and I think Mr.
Lamborn will bear that out.
Mr. Lamborn. [nods head.]
Mrs. Napolitano. To get the full range of the views and
provide input from those affected, we are very eager to listen
to you. More specifically I hope to hear from our witnesses
regarding the congressionally authorized purposes of the Fry-
Ark Project and the role of that project in sustaining
agriculture and communities in southeast Colorado, and of
course the new challenges facing water users, water managers,
and the Front Range cities facing unprecedented growth, climate
change, and increasing needs for reliable water supplies. And
how, more specifically and to the point on my end, is how
conservation, storage and recycling are used, to what extent,
and how are they being used to prepare this area for all of the
above.
I'm pleased to yield now to--I'm sorry. I got a little out
of sorts here. I don't always conduct the hearings the way it's
programmed. I go with my feelings.
Now I want to go forth and begin to ask the panel to hear
their testimony, and your testimony will be in the record,
gentlemen, so I ask, if you would, to highlight the points that
you want to make unless you really want to read the reports.
So we'll start off with Mr. Long.
STATEMENT OF BILL LONG, PRESIDENT, SOUTHEASTERN COLORADO
CONSERVANCY DISTRICT, PUEBLO, COLORADO
Mr. Long. Good morning, Chairwoman Napolitano and members
of the committee. I am Bill Long, President of the Southeastern
Colorado Conservancy District, and on behalf of the district
and myself, thank you for the opportunity to testify today.
The southeast district is a Colorado statutory water
conservancy district formed in 1958 to hold water rights for
and repay the Fryingpan-Arkansas Project. The Fry-Ark
legislation enacted in 1962 and amended in 1978 created a
multi- purpose water project that converts water from the
Colorado River Basin on the west slope of Colorado to the
Arkansas River Basin on the east slope of Colorado. For nearly
half a century, Southeastern's board of directors has grappled
with the challenge to develop, manage, and protect water and
related resources in an environmentally and economically
responsible manner.
The Arkansas River, an over-appropriated system, is most
always short of supply to meet the demand. While development of
the Fry-Ark Project has greatly benefited the Arkansas Valley,
operation of the project is not without challenges and unmet
needs.
Demand for water in the Arkansas Valley has increased,
especially in drought years. As a result of the Kansas v.
Colorado lawsuit decision and other issues, the state has
drastically increased regulation of ground water pumping. These
actions have substantially reduced the available water supply
for the Arkansas Valley. Municipalities from other regions
attempting to export some of the Arkansas's very limited supply
of native water using Fry-Ark Project facilities have created
challenges for water users in the Arkansas Valley as well as
the southeast district.
The Fry-Ark authorizing act, nor any documents incorporated
by reference, provides no explicit authority for the Secretary
of Interior to enter into contracts for use of Fry-Ark excess-
capacity space, to store or exchange native Arkansas River
water rights for use outside of the Arkansas River basin in
Colorado.
The possible exception is the city of Aurora, with whom the
southeast district has reached a mutual agreement. It is not in
the overall best interests of the district and its constituents
for the project to be used in nonauthorized ways which could
potentially hurt the project's intended beneficiaries. These
challenges highlight the need for leadership in developing
conservation programs and cooperative opportunities to assure a
sustainable water supply for future generations in the Arkansas
Valley.
To meet future demands, we must better utilize existing
capacities in Fry-Ark Project reservoirs to help meet the
growing demand for storage without interfering with the current
entitlement project water and storage. We must develop
additional water storage, including expansion of existing Fry-
Ark Projects, to meet future demands of project beneficiaries.
We must finance and construct the Arkansas Valley conduit.
The Bureau of Reclamation identified the water quality and
quantity problems in the lower valley as early as 1950, and the
problems have only gotten worse. More than 40 water providers
of the lower valley with at least 16 under current enforcement
orders to improve water quality have joined together in support
of the conduit. The conduit proponents have reviewed the
feasibility of developing the Arkansas Valley pipeline and have
reached the following conclusion: There is an adequate water
supply to make the conduit feasible, but the financial
capabilities of the participating agencies are inadequate to
fund construction of the conduit under the 100 percent funding
requirements; however, conduit participants could afford to pay
a share of the cost as proposed in Congresswoman Musgrave's
H.R. 186 and Congressman Salazar's H.R. 317 conduit
legislation.
Conduit participants are prepared to discuss the terms of
such cost-sharing arrangements with the committee. The
committee should also be aware of the strong support the
conduit has from the State of Colorado, whose water
conservation board has recently approved a $60 million loan
pending passage of this important legislation.
In closing, Madam Chair, I respectfully request that a
hearing on the conduit legislation be scheduled before Congress
takes its Independence Day break, and with that, I'd once again
like to thank you and the committee members for the opportunity
to testify today and offer to answer questions at the
appropriate time.
[The prepared statement of Mr. Long follows:]
Statement of Bill Long, President,
Southeastern Colorado Water Conservancy District
Madame Chair: My name is Bill Long, president of the Southeastern
Colorado Water Conservancy District (``Southeastern''), and I am
testifying today on ``The Fryingpan-Arkansas Project at 45: Sustainable
Water for the 21st Century.'' For nearly a half century, Southeastern's
Board of Directors has grappled with the challenge to manage, develop,
and protect water and related resources in an environmentally and
economically sound manner.
During the drought of 2002, the Denver Post captured water's
importance in Colorado in a story line: ``In Colorado, water is
everything.'' It's true, without water, our economy could not flourish
and the state, and important to those who live here, the southeastern
region of the state, could not sustain its population.
What that simple statement from the Denver Post overlooks is the
same point that Lt. Zebulon Pike overlooked when he judged eastern
Colorado a desert that would never sustain a civilized society. Pike
did not foresee that mountain water could be captured to provide growth
for the plains. After using the readily-available river and well water,
the early settlers in eastern Colorado learned that water storage was
needed. The Fryingpan-Arkansas Project (``Fry-Ark Project'' or
``Project'') is one of these projects that fuels the possibility of
communities here in the ``Great American Desert.''
The Fry-Ark Project is the result of the vision of the Arkansas
Valley's early water leaders, who combined vision with common-sense
solutions fostered by a desire to make a better tomorrow for the people
of southeastern Colorado and the state of Colorado as a whole. These
leaders of the past leave a legacy that is both humbling and
challenging. The challenge for this generation of southeastern Colorado
leaders is not only to steward the project we have inherited, but to
enhance and increase these assets for the future generation.
Southeastern is a statutory water conservancy district (see C.R.S.
Sec. 37-45-101, et seq.), which was formed on April 29, 1958, by the
District Court for Pueblo County, Colorado. Southeastern's district
boundaries extend along the Arkansas River from Buena Vista to Lamar,
and along Fountain Creek from Colorado Springs to Pueblo, Colorado.
Southeastern administers, holds all water rights for, and repays
reimbursable costs for the Fry-Ark Project, a $550 million multi-
purpose reclamation project authorized by Congress and built by the
U.S. Bureau of Reclamation (``Reclamation''). The Project diverts water
underneath the Continental Divide, from the Fryingpan and Roaring Fork
River drainages, into the Arkansas River drainage, where Project water
is stored in Pueblo Reservoir and other reservoirs. Southeastern
provides Project water and return flows to supplement the decreed water
rights of water users within Southeastern's boundaries. Southeastern
repays a large part of the Project's construction costs (estimated at
$127 million over a minimum 40-year period), as well as annual
operation and maintenance costs, in accordance with its repayment
contract with the United States. Payments are made from property tax
revenues available to Southeastern, supplemented by revenue from
Project water sales.
I. Development of the Fryingpan-Arkansas Project
Shortly after World War II, the nation was in flux. The country
optimistically was gearing up for industrial growth. The ripples of the
post-war economy washed over into the Arkansas Valley as well. The
community leaders of the era saw a major stumbling block to overcome in
any quest for growth--water. So they began pushing heavily for a
project to bring water from the western slope of Colorado--with its
abundant snowfall and sparse population--to the Arkansas River Basin,
where irrigated agriculture and city water systems depended on a river
that often was only a trickle by the time it reached the border with
Kansas.
A. Congressional Authorization of the Fryingpan-Arkansas Project
The Project originally envisioned diversions from the Gunnison
River and other tributaries of the Colorado River and was known as the
Gunnison-Arkansas Project. As it progressed over the years, the scope
of the entire project became limited to the first phase of the
Gunnison-Arkansas Project, with construction of a reservoir on the
Fryingpan River near Aspen, Colorado, transporting water through the
Continental Divide via tunnel and moving it into the Arkansas River
Basin for storage in mountain lakes and a new reservoir near Pueblo,
Colorado. While the original Gunnison-Arkansas Project envisioned
357,000 acre-feet of imports each year, the eventual Fryingpan-Arkansas
Project would be limited to an average of just 69,100 acre-feet.
The name took on even more significance when backers of the Project
began peddling golden frying pans up and down the Arkansas valley to
raise money for the lobbying effort that was soon to come. The sale of
golden frying pans in the valley were brisk. Burros were used to carry
the frying pans to towns up and down the Arkansas Valley. During
January of 1955, groups were able to buy small frying pans for $5 and
large ones for $100 or more.
The Colorado Congressional delegation continued to work with local
interests to develop consensus for how the Fry-Ark Project, once
authorized, would operate. On June 16, 1950, the Policy and Review
Committee, authorized by the Colorado Water Conservation Board to study
the development of the Fry-Ark Project, issued the first set of
proposed Operating Principles for the Project, which were approved by
the Colorado Water Conservation Board.
The Project, along with its Operating Principles, was opposed by
the western slope of Colorado, led by Congressman Wayne Aspinall. Many
west slope water users, including the City of Aspen, remained concerned
about the Roaring Fork River. In response to these concerns,
Congressional supporters of the Project modified the proposal to
enlarge the west slope collection system (adding the Hunter Creek
collection system). One of the many benefits of the expansion of the
west slope collection system is that it allowed the Operating
Principles to provide for minimum flows in the Roaring Fork for the
protection fish and wildlife in the Project area.
In 1958, the Colorado Water Conservation Board, now led by Felix
Sparks from Delta, Colorado, began to try to resolve the East-West
divide over the Project. Mr. Sparks established a second Policy and
Review Committee to revise the Operating Principles for the Project.
The major change was to replace the proposed Aspen Reservoir with a
larger reservoir near Ruedi. The Operating Principles, as amended
December 9, 1960, were adopted by the State of Colorado and signed by
the Colorado Water Conservation Board, Southeastern, Colorado River
Water Conservation District, and Southwestern Water Conservation
District. After development of the 1960 Operating Principles,
Colorado's Congressional delegation was united in seeking authorization
for the Fry-Ark Project.
On June 13, 1962, the House passed legislation authorizing the Fry-
Ark Project. The Senate approved the Project on August 6th. On August
16, 1962, John F. Kennedy flew to Pueblo, Colorado to officially and
proudly proclaim the authorization of the Project, and the start of
construction. The Project could not have been authorized without the
diligent work of those within the Arkansas Valley to unify state
interests and broker compromises to ensure that the final Project
satisfied as many needs as possible.
B. The Fryingpan-Arkansas Project was Authorized for Multiple
Purposes.
The Fry-Ark Project was authorized for numerous purposes including:
(1) developing the regional and national economy through irrigation of
arid lands of the Arkansas Valley; (2) developing power and energy
surplus to Project needs; (3) supplying domestic, municipal, and
industrial water; (4) providing flood control on the Arkansas River;
(5) providing for the preservation, propagation, and enhancement of
fish and wildlife; (6) improving water quality; and (7) developing
recreation facilities.
The Authorizing Act, Public Law 87-590, makes it clear that certain
purposes take precedence over others. Section 1(a) of the Authorizing
Act acknowledges that the Project is authorized for the purposes of
``supplying water for irrigation, municipal, domestic, and industrial
uses, generating and transmitting hydroelectric power and energy, and
controlling floods, and for other useful and beneficial purposes
incidental thereto.'' Incidental or secondary purposes include
recreational uses, development of fisheries, and conservation of
wildlife habitat. As evidenced by the programs discussed herein,
Southeastern and its constituents use Project water for many purposes,
and Southeastern's Board of Directors has attempted to maximize the use
of all transmountain diversions, while recognizing the supplemental
nature of Project water and acknowledging that there is insufficient
water to satisfy all demands.
C. Project Features
Construction of the Fry-Ark Project began with Ruedi Dam and
Reservoir in 1964, and continued without interruption until September
28, 1990 when the Project was declared completed with the dedication of
the Fish Hatchery at Pueblo Reservoir. Construction is completed on all
the water supply-related features that were expected to be initially
developed. The North Side Collection System may be expanded to Last
Chance and Lime Creeks, tributaries of the Fryingpan River. However,
plans to pursue this expansion have been deferred. Plans to construct
the Arkansas Valley Conduit to serve towns and cities east of Pueblo
with treated Project water are currently in process.
There are two distinct areas of the Project: the western slope,
located in the Hunter Creek and Fryingpan River watersheds, and the
eastern slope in the Arkansas River Valley. These areas are separated
by the Continental Divide, which, in many places, exceeds an elevation
of 14,000 feet. The Project consists of diversion, conveyance, and
storage facilities designed primarily to divert water from Colorado
River tributaries on the western slope for use in the water-short areas
in the Arkansas River on the eastern slope. The North and South Side
Collection Systems and Ruedi Dam and Reservoir are located on the
western slope in the Fryingpan River basin. Sugar Loaf Dam and
Turquoise Lake, Mt. Elbert Conduit, Halfmoon Diversion Dam, Mt. Elbert
Forebay Dam and Reservoir, Twin Lakes Dam and Reservoir, and Pueblo Dam
and Reservoir are all located on the eastern slope in the Arkansas
River Basin.
The Project provides water for uses on the west slope in response
to the requirements of the Water Conservancy Act, which directs water
conservancy districts removing water from the Colorado River basin to
operate their projects so that existing appropriations and prospective
uses of water on the western slope will not be impaired nor increased
in cost to the western slope water users. This compensatory storage is
provided by Ruedi Reservoir, which provides storage for replacement and
regulation of water for the western slope users. This water is used for
irrigation, municipal, industrial, recreation, and fish and wildlife
purposes.
The North and South Side Collection Systems on the western slope
collect the high mountain runoff and convey the diverted waters into
the inlet portal of the Charles H. Boustead Tunnel. Sixteen diversion
structures on the western slope are used to divert water into the
Project collection system. The system includes eight tunnels with a
combined length of 21.5 miles. The five-mile long Boustead Tunnel
conveys the water from the North and South Collection Systems under the
Continental Divide to Turquoise Lake. Boustead Tunnel may only divert
at 900 c.f.s. from the Fryingpan River (not including water from the
Hunter Creek system) unless the Colorado River Water Conservation
District agrees that Ruedi Reservoir will fill that season, at which
point Boustead may divert at 945 c.f.s.
For water to be diverted through the Boustead Tunnel from the
Fryingpan River, the Fryingpan must meet minimum flows as measured at
the Thomasville Gage, just upstream from Ruedi Reservoir. From January
through March, those flows are 30 c.f.s. As a practical matter,
however, for this period of time, the snowpack is not melting and the
diversion structures are generally inaccessible due to snow, so
diversions during this season are unlikely. Diversions will generally
not begin until the spring runoff begins in late April or May. Minimum
flows for the Thomasville Gage are 100 c.f.s. in April, 150 c.f.s. for
May and 200 c.f.s. for June. By the end of June, the runoff has
generally peaked. Nonetheless, the Project may continue to divert so
long as it is in priority and there is adequate water to meet minimum
streamflow of 100 c.f.s. in July, 75 c.f.s. in August, and 65 c.f.s.
for September. Due to colder weather and increased snowfall, diversions
are less likely in the late fall through early winter, but may occur.
The Fryingpan River must measure at least 30 c.fs. at Thomasville Gage
between October 1 and December 31 for such diversions to occur.
Turquoise Lake and Sugar Loaf Dam are located just east of the
Continental Divide, approximately five miles west of Leadville,
Colorado. The Lake provides storage capacity for the regulation of
Project water delivered from the Boustead Tunnel, as well as non-
Project water.
The Mt. Elbert Conduit, a 10.7 mile, 90 inch diameter pipe, conveys
water from Turquoise Lake to Mt. Elbert Forebay. The Halfmoon Diversion
Dam diverts available flows to Halfmoon Creek into the Mt. Elbert
Conduit. Water delivered to the forebay is used to generate power at
the Mt. Elbert Pumped-Storage Powerplant.
The Mt. Elbert Pumped-Storage Powerplant is located approximately
13 miles southwest of Leadville, Colorado, at the northwest corner of
the lower lake of Twin Lakes. The powerplant has two pump-generator
units, each with a nameplate capacity of 100 megawatts. After use at
the powerplant, Project water flows into Twin Lakes. From Twin Lakes,
Project water is released to Lake Creek and the Arkansas River for
delivery to water users upstream of Pueblo Dam and Reservoir or for
storage in Pueblo Reservoir. The distance from the confluence of Lake
Creek and the Arkansas River to Pueblo Dam is approximately 143 river
miles.
Project water is released from Pueblo Reservoir to the Arkansas
River for irrigation and municipal use; to the Fountain Valley Conduit
for municipal use by the members of the Fountain Valley Authority; and
to the Bessemer Ditch for irrigation use. Pueblo Reservoir is the
terminal storage feature for the Project, and both Project and non-
Project water are conveyed to Pueblo and Pueblo West through the
municipal outlet works in Pueblo Dam.
El Paso County, Colorado is located to the north of the main
channel of the Arkansas River. With the growth of the Colorado Springs
metropolitan area, it became clear that this area would be interested
in acquiring supplemental municipal water from the Project.
Accordingly, representatives from El Paso County were active in the
development of the Project, and portions of the county were included
within Southeastern's boundaries. Nonetheless, it was clear that the
Arkansas River could not be used as a delivery mechanism for such
water. Several municipal entities including Colorado Springs Utilities,
the City of Fountain, Widefield Water District, Security Water District
and Stratmoor Hills Water District formed the Fountain Valley Authority
which would sell bonds to construct a delivery pipeline and treatment
plant. Revenue from the utility departments would then be used to fund
a statutory authority which would, in turn, pay Southeastern and the
United States for costs of construction of the delivery pipeline and
water treatment plant. The Authority signed a 40-year contract with the
United States and Southeastern to secure the repayment obligation. As
with the remainder of the Project, title to the Fountain Valley
Pipeline remains with the United States, even though Southeastern is
responsible for operation and maintenance costs of all facilities.
II. Challenges for Today
While development of the Fry-Ark Project has greatly benefited the
Arkansas Valley, operation of the Project is not without challenges.
Demand for water in the Arkansas Valley has increased, particularly in
drought years. The State has increased regulation of well pumping due
to the Kansas v. Colorado decision. These factors and others have
highlighted the need for leadership in developing conservation programs
to ensure a sustainable water supply in the Arkansas Valley.
A. Increased Demand for Project Water
The Arkansas River is an over-appropriated system with a continuous
call on the river. There is usually a constant demand for water.
Reclamation conducted land classification investigations prior to Fry-
Ark Project authorization in 1962. The total irrigable area within the
District was estimated to be approximately 280,600 acres. This includes
12,538 acres above Pueblo Reservoir, 12,805 acres along Fountain Creek,
and 255,254 acres below Pueblo Reservoir.
In 1979, Southeastern approved a set of Allocation Principles that
described the percentage allocations to municipal and agricultural
uses. The Allocation Principles were approved by the District Court for
Pueblo County, Colorado that same year. The municipal demand for
Project water is associated with the Arkansas Valley cities, towns, and
entities lying east and west of Pueblo, Pueblo, and the Fountain Valley
Authority. The Allocation Principles require allocation of ``a minimum
of 51 percent of the annual Project water supply to municipal and
domestic use.'' This allocation is distributed, as requested, to
Arkansas Valley cities, towns and entities lying east of Pueblo (12%),
west of Pueblo (4%), Pueblo (10%), and the Fountain Valley Authority
participants (25%). In the event the municipalities do not request the
full 51% available to them, any excess water is made available for
agricultural uses. Finally, after all other municipal and agricultural
have been met, Pueblo West Metropolitan District is given notice that
it can make a request. No municipal water user is required to take a
minimum amount of Project water in a given year.
Project water for use by irrigation ditches is allocated based upon
an acre-foot per irrigated acre basis. Therefore, when demand exceeds
supply, each ditch receives a proportionate share of available Project
water. This allocation is made only after the municipal requests are
met up to at least 51% of the annual Project yield.
Southeastern also promulgated a ``Water Allocation Policy,'' last
amended in April 2006. The Water Allocation Policy is the direction of
the Board of Directors as to how to implement the Allocation
Principles. The Water Allocation Policy is not approved by the Pueblo
County District Court and can be amended by majority vote of
Southeastern's Board of Directors at any time.
In March of each year, appropriate letters and forms are mailed to
eligible entities offering them the opportunity to apply for an
allocation of Project water. About May 1st of each year, Reclamation
notifies Southeastern as to the amount of water available that year.
The Allocation Committee then meets to review the applications
submitted by constituent entities, and prepares recommendations
concerning the applications received as related to the amount of water
available. All recommendations of the Allocation Committee must be
approved by Southeastern's Board of Directors. Recommendations from the
Allocation Committee are considered at the next meeting of the Board of
Directors, and appropriate allocations are made. Applicants are
afforded the opportunity to appear before the Board in support of their
allocation requests.
Many of the ditches serving irrigable areas located within the
District have very senior decreed water rights and generally have not
requested supplemental water from the District. Also, a portion of the
District's irrigable acres have been taken out of production, or are
not eligible to receive a Project water allocation, because of sales
and changes of use of their decreed water rights. As recognized in the
Allocation Policy, it is Southeastern's policy ``not to replace with
Project Water decreed water sold by persons or entities.'' This results
in a reduction of the total irrigable acreage that are eligible to
receive Project water.
The Allocation Principles state that ``any increase in municipal
and domestic allocations shall only occur if agricultural irrigated
acreage, on which Project water has been used, is removed from
irrigation, at which time the amount of Project water previously
allocated to such acreage shall be allocated to other non-irrigation
uses.'' Allocation Principle ] G. In accordance with the Allocation
Principles, Southeastern recently approved a reallocation of 3.59% of
the Project water supply from agriculture to non-agricultural uses, due
to removal of formerly irrigated lands from agriculture. The goal of
the Allocation Principles, the Allocation Policy and the procedures
followed by the Board each year is to facilitate an equitable
allocation of water and to ensure efficient use of Project water.
B. Impact of the Kansas v. Colorado Decision on the Use of Water in
the Arkansas River Basin
In 1949, after three years of negotiations, Kansas and Colorado
approved, and Congress ratified, the Arkansas River Compact. The
Arkansas River Compact's primary purposes are to ``[s]ettle existing
disputes and remove causes of future controversy...concerning the
waters of the Arkansas River'' and to ``[e]quitably divide and
apportion'' the waters of the Arkansas River, ``as well as the benefits
arising from the construction, operation and maintenance by the United
States of John Martin Reservoir.''
In the 1950s and 60s, there was a surge in well development along
the Arkansas River due to improvement in pump technology and to the
availability of inexpensive electrical power. Since the 1950s, water
users in the Arkansas River Basin have increasingly relied on
groundwater for irrigation and other uses.
In December 1985, Kansas brought an original action in the United
States Supreme Court against the State of Colorado to resolve disputes
arising under the Arkansas River Compact. Kansas submitted that
Colorado's increased reliance on new and existing irrigation wells
materially depleted the water otherwise available for use by Kansas.
The Special Master and the United States Supreme Court agreed that such
additional pumping, absent appropriate offsets in surface diversions,
increases the consumptive use of water, and ultimately decreases the
surface flows of the Arkansas River. Colorado generally did not require
sufficient reduction of surface water use to fully offset these
impacts.
Colorado's State Engineer promulgated the Amended Rules and
Regulations Governing the Diversion and Use of Tributary Ground Water
in the Arkansas River Basin (``Use Rules'') in September of 1995. The
Use Rules require that all diversions of groundwater from the valley-
fill and surficial aquifers along the Arkansas River from Pueblo to the
Stateline, be discontinued unless depletions caused by such pumping are
replaced pursuant to a replacement plan approved by the Colorado State
Engineer's Office. The Use Rules establish certain presumptive stream
depletions which are used to determine depletions to the Arkansas River
caused by well pumping. The presumptive stream depletions are reviewed
annually, and revised if necessary to prevent material injury to senior
surface rights in Colorado, and depletions to usable Stateline flows.
If replacement water is not available in sufficient quantities, pumping
must be curtailed. Since the Use Rules became effective, the Arkansas
River has seen more water rights, including Project water and return
flows therefrom, being used for augmentation purposes. This is because
wells can provide a more reliable, often better quality water supply
than most surface water rights. The Fry-Ark Project is an important
source of water that helps sustain agriculture in the Lower Arkansas
Valley while complying with Colorado's Arkansas River Compact
obligations.
C. Sale of Project Water and Return Flows
While Southeastern allocates Project water, Reclamation is
responsible for accounting for the delivery of Project water.
Southeastern provides Reclamation and the State Division 2 Engineer's
Office with the listing of the annual allocation of Project water.
Deliveries are then coordinated by Reclamation in communication with
the Division 2 Engineer's Office as requests are made by ditch
companies and municipalities.
The price for Project water is determined by Reclamation as
directed by Reclamation policy and the Project repayment contract.
Rates are subject to adjustment depending upon the ``Ability to Pay
Study'' and ``Repayment Analysis,'' which are conducted by Reclamation
every four years. These studies first determine the irrigators' ability
to pay for Project water by assessing the economic condition of the
average farm operation within the District. Next, Reclamation, in
consultation with Southeastern, projects the repayment status of the
Project given projected revenues and expenses.
To encourage the efficient use of domestic water, municipal water
users are not required to take a minimum amount of Project water in a
given year. In adopting the Allocation Principles, the Board
acknowledged that it was unlikely that any municipal entity receiving
Project water would require its maximum allocation for a number of
years. Southeastern recognized that over time, demands will gradually
increase. Even if full demand would not be asserted for many years, the
Allocation Principles make it clear that failure to request full
allocation of water will not constitute an abandonment of the municipal
allocation. Water not needed by the area or entity to which it is
allocated may be allocated first to municipal and domestic users,
thereafter offered to any other user on such basis as the Board of
Directors determines.
The first time that municipalities requested their full 51% of
Project Water was in 2002 due to the drought. This hurt agricultural
water users, who had previously been able to use the unallocated
municipal water. This is an indication that water use within the
Arkansas Basin may be changing more toward municipal than agricultural
uses.
Pursuant to its repayment contract with the United States,
Southeastern retains dominion and control over Project water return
flows. Southeastern has made return flows from the use of Project water
available for use by eligible entities within its boundaries, primarily
for augmentation purposes, since the first deliveries of Project water
occurred. Southeastern, by resolution, created the Southeastern
Colorado Water Activity Enterprise to administer the sale of Project
water return flows. On February 15, 1996 the Enterprise approved a
policy governing the sale of return flows. This policy has been amended
and the current version is as of April 15, 2004. Sale of return flows
promotes multiple uses of Project water.
D. Conservation of Project Water
Southeastern encourages municipal water users to develop and
implement Water Conservation and Drought Management Plans. The Board of
Water Works of Pueblo, Colorado Springs Utilities, and the cities of La
Junta, Salida and Canon City have provided summaries of their Water
Conservation and Drought Management practices to Southeastern.
Southeastern has also participated in numerous projects that
encourage efficient use of Project water including the Winter Water
Storage Program, various flow management programs, and programs to
control non-native phreatophytes.
1. Winter Water Storage Program
During the early planning stages of the Project, individuals and
entities envisioned what has become known as the Winter Water Storage
Program (``WWSP''). Prior to construction of Pueblo Dam, the various
irrigation entities would divert the flow of the Arkansas River when in
priority outside of the normal irrigation season to maintain soil
moisture levels in the fields where crops would be grown during the
following season. Problems associated with winter operation of canal
and lateral systems, labor, and related items were frequently
experienced.
As a result, the concept of a WWSP evolved with the objective of
storing waters that otherwise would have been diverted to the fields
downstream of Pueblo Reservoir if the reservoirs of those entities
whose diversions to storage were located upstream of John Martin
Reservoir. These stored waters would then be released during the
following irrigation season. Allocation of this winter stored water is
based upon the ratio of foregone winter direct flow diversion based on
the average of a historic period. These ratios were negotiated among
the parties through extensive negotiations. In 1974, Southeastern, with
the cooperation of various entities in the basin, promoted and operated
a voluntary WWSP each year from 1975-76 through 1986-87, except 1977-
78. With the experience and data gained each year, refinements and
adjustments were made to the program with the goal of arriving at an
equitable means of apportioning the stored water among the program
participants and avoiding injury to nonparticipants. In 1984, the
participants agreed to file a water court application seeking to
permanently decree a change of water rights that allow winter storage.
Following intensive negotiations, the Water Court entered a final
decree on November 10, 1990.
The WWSP includes all ditches (except Otero and Rocky Ford) on the
main stem of the Arkansas River between Pueblo Reservoir and John
Martin Reservoir which have historically diverted for beneficial use or
storage during the winter period. The WWSP Decree changed various
decreed water rights of Southeastern, Amity Mutual Irrigation Company,
Bessemer Irrigating Ditch Company, Catlin Canal Company, Colorado Canal
Company, Fort Lyon Canal Company, High Line Canal Company, Holbrook
Mutual Irrigating Company, Lake Henry Reservoir Company, Lake Meredith
Reservoir Company, Las Animas Consolidated Canal Company, Oxford
Farmers Ditch Company, Riverside Dairy Ditch, and West Pueblo Ditch to
storage for the November 15 to March 15 period with a shared priority
of 1910. Many of these ditches have decrees that, so long as they are
taking water for direct flow irrigation, are senior water rights on the
Arkansas River. The WWSP Decree changed these water rights to a more
junior shared priority from November 15 to March 15, that is typically
the calling water right on the Arkansas River throughout those four
months.
Operation of the WWSP promotes more efficient use of water among
agricultural irrigators. While irrigators were previously compelled to
use water as it became available, using winter water primarily for
increasing the soil moisture, they now have the flexibility to store
water and use it when it is most effective for direct irrigation of
crops. Storage of winter water also allows ditch owners to use the
winter season for ditch improvements, given that no water will be run
during that time, further promoting efficient use of both native and
trans-mountain water.
2. Upper Arkansas Voluntary Flow Management Program
It was noted in 1989 that commercial and private boating was
increasing, as were the number of fishermen on the Arkansas River above
Pueblo Reservoir. To answer the need for better management along the
river corridor, the Bureau of Land Management with the Colorado
Department of Parks and Outdoor Recreation (``CDPOR'') formed a new
management organization known as the Arkansas Headwaters Recreation
Area (``AHRA'').
The AHRA is assisted by a Citizen Task Force. The task force
reviews area issues and helps to give direction to the AHRA staff. This
task force is made up of volunteer citizen members throughout the basin
with representation from anglers, environmental groups, cattlemen,
water users, local governments, private boaters, and commercial rafting
companies.
Prior to 1989, the rafting companies found that during the latter
part of summer, river flows became too low to continue their rafting
trips. They also noticed that river flows would increase as water users
made their releases to the various entities downstream. Early in 1991,
the rafting companies approached AHRA with an idea of a ``Volunteer
Flow Program.''
The Volunteer Flow Program was based in part on Reclamation timing
releases of Project water from Twin Lakes Reservoir and Turquoise
Reservoir to Pueblo Reservoir to meet the needs of fishermen and
rafters. The one problem with such releases was the increased
evaporative losses that resulted from storing increased amounts of
water in Pueblo Reservoir during the summer, rather than the higher
mountain reservoirs. In 1992, the Colorado Department of Natural
Resources (``DNR'') recommended that CDPOR use funds collected from the
commercial rafting companies to pay for replacement of evaporative
water losses caused by the summer augmentation. This repayment is only
necessary when the flows are released before they are actually needed
by Southeastern or Reclamation. The funds to pay for this replacement
are obtained from the commercial rafting companies' yearly licensing
fees.
For many years, DNR, Southeastern and other interested parties
negotiated the terms of the program on an annual basis. In August of
2006, Southeastern, DNR, the Colorado Division of Wildlife (``CDOW''),
CDPOR, Chaffee County Board of County Commissioners, the Arkansas River
Outfitters Association and Trout Unlimited executed a five-year
agreement relating to the operation of the Upper Arkansas River
Voluntary Flow Management Program (``VFMP''). As was true in previous
years, the parties agreed to operate the VFMP on a year that runs from
July 1 of each year through June 30 of the following year (``Plan
Year''). For at least five Plan Years following the date of the VFMP
Agreement (2007-2011), DNR agreed that it would, after consultation
with the VFMP Parties, agreed to request Reclamation to operate the
VFMP by agreement with DNR and Southeastern on an annual basis.
The highest priority for the VFMP is to maintain a minimum year-
round flow of at least 250 c.f.s. at the Wellsville gage, downstream
from Salida, to protect the fishery. To the extent possible, winter
incubation flows (mid-November through April) should be maintained from
250 to 400 c.f.s., depending on spawning flows. Between April 1 and May
15 the flow target is within the range of 250-400 c.f.s. to provide
conditions favorable to egg hatching and fry emergence. Any flow
augmentation for recreational use, or to maintain flows at a target
level greater than 250 c.f.s., is limited to the period from July 1 to
August 15. Subject to consideration of water and storage availability,
flows from July 1 to August 15 should be augmented to maintain flows at
700 c.f.s. through releases of Project water. The 700 c.f.s. level is a
target; the primary goal is to maintain predictable, consistent
recreation flows throughout the summer. Accordingly, Southeastern, DNR
and Reclamation evaluate the water likely to be available for
augmentation in a particular year and adjust the target accordingly to
ensure that augmentation water is not exhausted prior to the end of the
season. CDPOR is responsible for replacing evaporative losses to
Project water caused by this summer flow augmentation.
To ensure that the Project is not releasing water that will be
consumed by other entities' exchanges, each year, the Parties request
Reclamation to include in its annual VFMP Operating Agreement a
provision restricting contract exchanges, to the effect that during the
time of the annual VFMP Operating Agreement, Reclamation will not
execute contract exchanges (non-Project water with Project water) until
after the May 1 water supply forecast from the NRCS has been evaluated
to assure that such contract exchanges will not interfere with
operation of the VFMP, nor impair the ability of the Fremont Sanitation
District or Salida Wastewater Treatment Plant to meet their Colorado
Discharge Permit System requirements. Reclamation has frequently
included such restrictions when granting contracts for storage in
Project facilities. The VFMP facilitates use of Project water for
multiple purposes by timing its release to support recreation and
fisheries while allowing consumptive use below Pueblo Reservoir.
3. Arkansas River Flow Management Program
In partnership with the United States Army Corps of Engineers, the
City of Pueblo developed the Arkansas River Corridor Legacy Project
(``Legacy Project''). The Legacy Project is intended to restore
riparian habitat and provide enhancements to improve recreational
opportunities in and along the Arkansas River through Pueblo. To help
achieve the Legacy Project goals, Pueblo desired to protect and enhance
the flows and the quality of the water in the Arkansas River through
Pueblo. In furtherance of the Legacy Project, Pueblo filed an
application for a recreational in-channel diversion (``RICD'') water
right in Case No. 01CW160 (Water Division No. 2.) To resolve many of
the disputes related to the RICD water right, several parties including
the City of Pueblo, the City of Aurora, Southeastern, the City of
Fountain, the City of Colorado Springs, and the Board of Water Works of
Pueblo, Colorado (``BWWP'') entered into an intergovernmental agreement
to address flow issues related to the Legacy Project.
The six parties agreed to this intergovernmental agreement (``Six-
Party IGA'') in May 2004. The Six-Party IGA binds the parties to the
Arkansas River Flow Management Program (``FMP''). The FMP ensures that
exchanges and augmentation plans operate in a manner that preserves
minimum flows in the Arkansas River between the outlet of the fishery
at the Pueblo Dam and the confluence of the Arkansas River with
Fountain Creek. The minimum year-round target flow is 100 c.f.s.
Recreation flows between March 16 and November 14 (all times except
when Pueblo Reservoir is storing water for the WWSP) vary depending on
the water forecast for that year.
To meet the flow requirements of the FMP, the IGA parties,
including Southeastern, agreed to limit their exchanges to allow the
Arkansas River below Pueblo Dam to maintain certain flow levels. The
Parties, however, explicitly stated that they did not intend to abandon
any water right used to support the FMP, and accordingly created a
program designed to recover foregone water. Colorado Springs, BWWP,
Aurora, Fountain and Southeastern agreed to work together to develop
recovery of yield storage, that is likely to be located at downstream
gravel pit reservoirs.
4. Tamarisk Control Program
Tamarisk is a tenacious, non-native plant that has a deep root
system (up to 100 feet) and leaves a salt residue in the soil. These
characteristics enable it to quickly displace native cottonwoods and
willows as well as adjacent upland plant communities such as bunch
grasses, sage and rabbit brush. The resulting Tamarisk thickets crowd
out streams and rivers; provide poor habitat for livestock, animals,
and birds; increase fire hazards; and limit human use of the waterways.
Tamarisk steals water by using more water than the native vegetation
that it displaces. This non-beneficial user of the West's limited water
resources dries up springs, wetlands, and riparian areas by lowering
water tables. It is estimated that the western United States is losing
from 2 to 4.5 million acre-feet of water per year over what the native
plants would use. This is enough water to supply upwards of 20 million
people or to irrigate over 1,000,000 acres of land.
Southeastern's Board of Directors supported the efforts to pass
federal legislation providing the financial tools for the
implementation of regional projects for the control of tamarisk and
other non-native plants impacting western rivers. On October 11, 2006,
President Bush signed the Salt Cedar and Russian Olive Control
Demonstration Act, H.R. 2720, Public Law 109-320, which authorized $80
million for large-scale demonstrations and associated research over a
five-year period.
The Tamarisk Coalition, in which Southeastern participates, is a
non-profit alliance working to restore riparian lands. The Tamarisk
Coalition is taking the lead in developing a collaborative effort
between the western states and is developing partnerships with
governmental agencies for control of this non-native invasive tree
species. Southeastern is committed to developing innovative programs to
eradicate non-native phreatophytes such as tamarisk that hinder
agricultural and municipal entities from making efficient use of the
limited water resources in the Arkansas River Basin.
III. Challenges for the Future
A. Colorado River Conflicts
With the supplemental supply of water for the communities and
individuals who benefit from the Fry-Ark Project coming from the
Colorado River, Southeastern, as part of a coalition of Colorado water
users, has been involved in three major issues on the Colorado River
over the last several years:
1. Negotiations with California and the other upper basin states
on California's over use of its apportionment in use of surplus water
on the Colorado River. The basin states were successful in negotiating
with California on achieving an agreement by California to reduce its
use to its basin apportionment. With the Department of Interior's
assistance, the other Basin states' success in reaching this agreement
was historic for the river.
2. Deliveries of water to Mexico and some issues raised by Mexico
and various environmental organizations in the United States to secure
additional water for environmental purposes. The coalition has been
involved in those issues in the last several years, and this issue will
continue to come up over the next several years.
3. Current drought and shortage situation in the Colorado River.
For several years, the focus of discussions has been about allocating
surplus water, and, all of a sudden, there is no surplus water.
Currently, the discussion is centering on drought and compact calls,
which provides a very clear indication of how quickly things can change
on the river.
Neither the Boulder Canyon Project Act nor the decree in the
Arizona v. California case provides any real guidance to the Secretary
on how to develop shortage criteria for how shortages will be allocated
in the lower basin. The only guidance is in the authorizing legislation
for the Central Arizona Project, which give California the first
priority to its basin apportionment of 4.4 million acre-feet. Former
Secretary Gale Norton, considering the current conditions of the
reservoirs, was interested in moving forward with the development of
shortage criteria. She asked the basin states to come to a consensus on
that, and to provide that consensus to her.
Recently, after several months of intense negotiations, the seven
Colorado River Basin States reached an accord on handling of the
drought and shortage situation in the Colorado River. The agreement is
specifically designed to comport with the Colorado River Compacts and
the ``Law of the River'' but seeks to find flexibility within the law
to further improve reservoir operations. The signing of the proposed
agreement is a significant event in the overall water operations on the
Colorado River and will remove the threat of litigation between the
states over water operations through 2025.
Several circumstances combined to lead to this agreement. Due to
the recent drought conditions, the Secretary of the Interior was asked
to review current operations of Colorado River reservoirs. As a result,
on June 15, 2005, Reclamation published a Federal Register notice
beginning the process to develop the lower basin shortage criteria and
changes to the coordinated reservoir operations of Lakes Powell and
Mead. The deadline for completion of this process is December 31, 2007.
In response to the Bureau's notice, on August 25, 2005 Governor's
representatives for the seven Colorado River Basin States wrote a
letter to the Secretary of Interior stating the seven Colorado River
Basin States had agreed on a three-pronged strategy for improving
management and operations of the Colorado River. First, the states,
working with Reclamation, would develop lower basin shortage criteria
in conjunction with new coordinated operating criteria for Lakes Powell
and Mead under low reservoir conditions. Second, the states, working
with Reclamation, would look for ways to improve system efficiency and
management. Finally, the states would look for ways to augment the
water supplies of the Colorado River. Southeastern continues to work
with other Colorado River water users to resolve those issues in a
manner that promotes sustainable use of the Colorado River.
B. Exportation of Water from the Arkansas Valley
The Fry-Ark Project was designed to provide supplemental water to a
valley that is water short. Thus, when municipalities from the South
Platte basin have attempted to export some of the Arkansas' limited
supply of native water, it has created challenges for water users in
the Arkansas Valley as well as the District. Nothing in the Fry-Ark
authorizing act, including any documents incorporated by reference in
the statute, provides authority for the Secretary to enter contracts
for use of Fry-Ark excess capacity space to store native Arkansas River
water rights for use out of the Arkansas River Basin in Colorado, with
the possible exception of the City of Aurora.
Special protection for the Arkansas Basin beneficiaries of the Fry-
Ark Project is built into the repayment contract, Contract No. 5-07-70-
W0086, as amended, between Southeastern and the United States, which
govern the evacuation of water from Pueblo Reservoir. The spill order
became part of the Contract by the Fourth Amendment in 1984 and
resulted from negotiations between Southeastern, BWWP and Colorado
Springs in connection with the 1984 applications filed in Water Court
for the WWSP and Colorado Springs' and BWWP's exchanges. The spill
priorities in Article 13, which are unique among Reclamation projects,
provide:
(a) Whenever water is evacuated from Pueblo, Twin Lakes, and
Turquoise Reservoirs to meet the necessities of Project flood control,
power generation purposes, storage of transmountain Project water,
storage of native Project water, and Project operational requirements;
except as provided in Subarticle 13.(b) below, the water evacuated
shall be charged in the following order:
1. Against water stored under contracts for if-and-when
available storage space for entities which will use the water
outside the District boundaries.
2. Against water stored under contracts for if-and-when
available storage space for entities which will use the water
within the District boundaries. This evacuation shall be
charged pro rata against water stored under all such like
contracts at the time of the evacuation.
3. Against any winter storage water in excess of 70,000 acre-
feet.
4. Against water stored under contracts with municipal
entities within the boundaries of the District, which water is
neither Project water nor return flow from Project water and
which water is limited to 163,100 acre-feet less any Project
water purchased and stored by municipal users. This evacuation
will be charged pro rata against the water stored under all
such like contracts at the time of evacuation.
5. Against winter storage water not in excess of 70,000 acre-
feet.
6. Against Project water accumulated from the Arkansas River
and its tributaries.
(b) Notwithstanding the order of evacuation of water listed in
Subarticle 13.(a) above, evacuation of water from storage pursuant to
existing firm storage contracts, the Highline storage contract and
future storage contracts that may be entered into with the Board of
Waterworks of Pueblo, Colorado and Twin Lakes Reservoir and Canal
Company to satisfy prior commitments will be made pursuant to the terms
of such storage contracts.
First to spill out of the reservoirs is water stored under contracts
for if-and-when available storage space for entities which will use the
water outside Southeastern's district boundaries.
Commissioner John W. Keys, III, by his letter of April 3, 2003,
announced Reclamation's conclusion that it has authority to enter into
long-term contracts with Aurora for utilization of Fry-Ark Project
facilities. The City of Aurora acquired Rocky Ford Ditch water rights
and applied to the Water Court to change the use of those water rights
from irrigation use in the Arkansas Basin to use for municipal purposes
in Aurora located in the South Platte River Basin. The lands previously
irrigated by these water rights were included within Southeastern's
district boundaries. The transfer of such water rights out of the basin
to municipal uses in Aurora has potentially serious impacts to the
Arkansas River Basin. Southeastern executed an intergovernmental
agreement with Aurora, as did several other parties in the Arkansas
River Basin, to mitigate the damages caused by the exportation of water
from the Arkansas Valley.
C. Meeting Increased Demands for Water Within the District.
Southeastern finalized a study in September 1998 that documented
the projected future water storage and supply demands of Southeastern's
municipal and agricultural constituents. The study also provided
alternatives to meet those demands, which included conservation
efforts. Southeastern worked with twenty-seven other water users groups
throughout the District to collectively assess future storage and
supply needs. The Water and Storage Needs Assessment Project envisaged
future water demands and listed a set of alternatives to provide for
those demands. The Needs Assessment Study reviewed existing water
conservation efforts in cooperation with Southeastern and the water
users groups. They provided guidance for conservation measures that
will help meet future demands. The Needs Assessment Study also reviewed
storage alternatives including the expansion of existing facilities and
the construction of new storage facilities. The report indicated a need
for an additional 173,100 acre-feet of storage in the Arkansas Valley
by the year 2040. The challenge for the Arkansas Valley is to locate
such storage in an environmentally and economically sound manner.
D. Preferred Storage Options Plan (PSOP)
The ``Water and Storage Needs Assessment Report'' led Southeastern
and the communities in the Arkansas Valley to further study water needs
in the Arkansas River Basin. The participants analyzed many different
alternatives for providing future water supplies, worked with
agricultural and municipal water providers, recreation interests, local
environmental groups and state and federal resource agencies, to devise
a plan to prepare Southeastern to meet water needs in the basin into
the year 2040.
In 2000, the District completed a study that evaluated more than
thirty different alternatives to meet the projected demand. The study
concluded that efforts should be focused on the use and expansion of
existing Fry-Ark Project facilities to meet future demands.
The first objective of PSOP is to better utilize existing capacity
in the Fry-Ark Project reservoirs to help meet growing demand for
storage. This is Phase I, the goal being to make full use of existing
capacity in Project facilities without interfering with the current
entitlements to Project water and storage. These new storage contracts
will help communities meet their water needs through the year 2015. At
that point, new storage capacity will need to be developed. The
preferred alternatives for Phase II were to enlarge both Pueblo and
Turquoise Reservoirs and to allow the use of existing excess capacity
in the Fry-Ark Project (long-term contracts for municipalities within
district boundaries to store non-Project water). PSOP proposes to
enlarge Pueblo Reservoir by 54,000 acre-feet and Turquoise Reservoir by
19,000 acre-feet in order to help meet the projected 2040 demand.
The reasons for enlarging Fry-Ark storage facilities are to allow
for greater municipal storage and storage of agricultural water through
the WWSP. An enlarged Pueblo Reservoir would help municipal users meet
their future demands and provide permanent storage space for the WWSP.
Without additional storage space in Pueblo Reservoir, Winter Water may
be threatened with a spill or at least early release, which means that
storage of this valuable water is restricted or eliminated entirely. In
addition, the enlargement would provide for storage of other
supplemental agricultural water and give small towns future
opportunities to contract for firm storage space.
E. Arkansas Valley Conduit
Both the 1962 and 1978 Acts contemplated the construction of the
Arkansas Valley Conduit (``AVC''), which has yet to be developed,
primarily because the constituents do not have the funding to develop
it.
The need for the AVC is driven by projected population growth, the
economically-disadvantaged nature of the lower Arkansas Valley, and
increasingly costly water treatment requirements being experienced by
certain water providers in the basin. In addition to population growth
pressures, Southeastern's smaller communities, especially those east of
Pueblo, who rely on groundwater for their main water supply, need to
develop a higher quality drinking water supply for their residents. As
early as 1953, the Secretary of the Interior acknowledged that
additional quantity and better quality of domestic and municipal water
was critically needed for the Arkansas Valley, and in particular for
those towns and cities east of Pueblo. House Document 187, 83d
Congress, 1st Session, and the Fryingpan-Arkansas Final Environmental
Statement dated April 16, 1975, both of which have been incorporated by
reference into the Authorizing Act, recognized that the AVC would be an
effective way to address this need. The local water available from the
Arkansas River alluvium has historically been high in Total Dissolved
Solids (TDS), sulfates, and calcium, and has objectionable
concentrations of iron and manganese. Additionally, various water
suppliers have recently reported measurable concentrations of
radionuclides in their water. This extremely poor groundwater quality,
combined with increasingly stringent water quality regulations of the
Safe Drinking Water Act, has caused several local water suppliers to
invest in expensive water treatment facilities to assure a reliable
water supply for their customers.
Generally, all drinking water systems in the Lower Arkansas River
Basin, from St. Charles Mesa in eastern Pueblo County to Lamar in
Prowers County, are concerned with the poor water quality in this
region. Many of the water providers do not satisfy, or only marginally
satisfy, current drinking water standards. More than 40 water providers
in the Lower Arkansas River Basin could benefit from the AVC, if
implemented.
All communities must meet the state and federal primary drinking
water standards through treatment or source replacement. Less
documented, however, is the potential burden placed upon communities by
high raw water concentrations of various unregulated water quality
constituents such as iron, manganese and hardness. These constituents
can cause accelerated infrastructure decay and loss of tax base and
economic impacts associated with factories and businesses locating
elsewhere.
To address these issues, representatives of local and county
governments, water districts and other interested citizens of the Lower
Arkansas River Basin formed a committee in 2000 to consider a
feasibility study of the AVC. These interested parties formed the
WaterWorks! Committee and, along with Southeastern, began to review the
feasibility of developing the AVC. Some of the relevant conclusions
reached are as follows:
The cost of the AVC compares favorably with any ``no
action alternative,'' which would still require the communities
involved to make substantial financial investments to address current
water quality and safe drinking standards.
The financial capabilities of the participating agencies
are estimated to be inadequate to fund the construction of the proposed
Arkansas Valley Conduit, under a 100 percent funding requirement, but
AVC participants could afford to pay 20 percent cost-share.
There is an adequate water supply to make the AVC
feasible.
As mentioned above, the AVC was included in the original Fry-Ark
reports integrated into the Fry-Ark Authorization Act. The AVC was not
built because communities in the Lower Arkansas River Basin could not
fully fund the AVC project. A study of the Arkansas Valley Conduit was
prepared for Southeastern, the Four Corners Regional Commission and the
Bureau of Reclamation in 1972. The report's recommendations for
construction of a water treatment plant, pumping station and conduit to
serve 16 communities and 25 water associations east of Pueblo were not
implemented at that time due to the lack of federal funding.
Evaluations on the quantity of water needed to satisfy long-range
objectives for water users in the Southeastern district area were
prepared in 1998. Additionally, an update of the estimated construction
costs presented in the 1972 report was prepared in 1998.
The citizens and communities of the Lower Arkansas River Basin have
waited 30 to 50 years for this project that will improve their water
quality and supply. The need for the AVC has been well established for
more than 50 years. The Lower Arkansas River Basin communities continue
to seek federal assistance in moving this much-needed project forward.
IV. Conclusion
Community leaders from throughout the basin worked together in the
1950s and 1960s to create the vision for the Fry-Ark Project. Their
vision has certainly paid off, but it wouldn't have been accomplished
without a lot of cooperation and compromise. The challenge for
Southeastern Colorado and the rest of the state is to come together
again to plan for the future water resources needs by managing,
developing, and protecting water and related resources in an
environmentally and economically sound manner.
______
Response to questions submitted for the record by Bill Long, President,
Southeastern Colorado Water Conservancy District
Response to Representative Mark Udall's request for a description of
the ways that the Fry-Ark diversions from the West Slope are
limited.
The Fryingpan-Arkansas Project collects water from the headwaters
of the Fryingpan River and Hunter Creek on the west slope of the
Continental Divide and diverts this water to Arkansas River on the East
Slope via the Boustead Tunnel. This collection and diversion process is
accomplished via a network of in-stream diversion structures and
underground tunnels.
The amount of water that the project is allowed to divert is
limited by several factors. The Operating Principles were adopted by
the State of Colorado, April 30, 1959 with subsequent amendments, and
are incorporated in the authorizing legislation for the Project. These
Operating Principles provide for a ceiling of 2,352,800 acre-feet in
any period of 34 consecutive years, with an annual ceiling of 120,000
acre-feet. The 34 year rolling average works out to 69,200 acre-feet
per year on average. The design capacity of the diversion system is
further limited by the capacity of Boustead Tunnel, which normally
cannot divert more than 945 cubic feet per second (c.f.s.).
Additionally, the Project is only allowed to divert water from the
Fryingpan River and its tributaries when the Fryingpan River at the
Thomasville gauge (a few miles above Ruedi Reservoir) is flowing at or
above the rates shown in the following table:
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Additionally, each diversion into the collection system is limited
by decree, and there are minimum flows that must bypass the diversion
control structures on most streams within the collection system. These
minimum flows are shown in the following tables:
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
South Cunningham, Lily Pad and Granite Creeks have no minimum
bypass as long as the minimum flow requirement on the Fryingpan River
is met at the Thomasville gauge on the Fryingpan River.
There is also a limitation on the diversions from the Collection
System in the Hunter Creek drainage area. These diversion control
structures are not allowed to operate when the flows on the Hunter
Creek above the Red Mountain Ditch fall below 51 c.f.s.
Finally, the first 3,000 acre-feet diverted from No Name and Midway
diversions are used for the Twin Lakes exchange, which provides for the
Twin Lakes transmountain diversion system to bypass flows on the
Roaring Fork River and its tributaries above Aspen.
Post Hearing Questions from Rep. John Salazar:
Chairman Long, thank you for your leadership at the SouthEast and for
pushing for the Arkansas Valley Conduit. The Conduit was an
original piece of the Fryingpan-Arkansas Project. Do you get
frustrated that the Fryingpan-Arkansas Project is being
utilized to move water, through exchanges and storage, out of
the Lower Ark and to Aurora decades before it'll serve one of
its stated goals--to provide fresh drinking water to the Lower
Ark?
Answer:
The Fry-Ark Project was designed to provide supplemental water to a
valley that is water short. Thus, when municipalities from the South
Platte basin have attempted to export some of the Arkansas' limited
supply of native water, it has created challenges for water users in
the Arkansas Valley as well as the District. Nothing in the Fry-Ark
authorizing act, including any documents incorporated by reference in
the statute, provides authority for the Secretary to enter contracts
for use of Fry-Ark excess capacity space to store native Arkansas River
water rights for use out of the Arkansas River Basin in Colorado, with
the possible exception of the City of Aurora. It is not in the overall
best interests of the District and its constituents for the Project to
be used in unauthorized ways that could potentially hurt to the
Project's intended beneficiaries.
Special protection for the Arkansas Basin beneficiaries of the Fry-
Ark Project is built into the repayment contract, Contract No. 5-07-70-
W0086, as amended, between Southeastern and the United States, which
govern the evacuation of water from Pueblo Reservoir. The spill order
became part of the Contract by the Fourth Amendment in 1984 and
resulted from negotiations between Southeastern, BWWP and Colorado
Springs in connection with the 1984 applications filed in Water Court
for the WWSP and Colorado Springs' and BWWP's exchanges. The spill
priorities in Article 13, which are unique among Reclamation projects,
provide:
(a) Whenever water is evacuated from Pueblo, Twin Lakes, and
Turquoise Reservoirs to meet the necessities of Project flood
control, power generation purposes, storage of transmountain
Project water, storage of native Project water, and Project
operational requirements; except as provided in Subarticle
13.(b) below, the water evacuated shall be charged in the
following order:
1. Against water stored under contracts for if-and-when
available storage space for entities which will use the
water outside the District boundaries.
2. Against water stored under contracts for if-and-when
available storage space for entities which will use the
water within the District boundaries. This evacuation shall
be charged pro rata against water stored under all such
like contracts at the time of the evacuation.
3. Against any winter storage water in excess of 70,000
acre-feet.
4. Against water stored under contracts with municipal
entities within the boundaries of the District, which water
is neither Project water nor return flow from Project water
and which water is limited to 163,100 acre-feet less any
Project water purchased and stored by municipal users. This
evacuation will be charged pro rata against the water
stored under all such like contracts at the time of
evacuation.
5. Against winter storage water not in excess of 70,000
acre-feet.
6. Against Project water accumulated from the Arkansas
River and its tributaries.
(b) Notwithstanding the order of evacuation of water listed
in Subarticle 13.(a) above, evacuation of water from storage
pursuant to existing firm storage contracts, the Highline
storage contract and future storage contracts that may be
entered into with the Board of Waterworks of Pueblo, Colorado
and Twin Lakes Reservoir and Canal Company to satisfy prior
commitments will be made pursuant to the terms of such storage
contracts.
First to spill out of the reservoirs is water stored under
contracts for if-and-when available storage space for entities which
will use the water outside Southeastern's district boundaries.
Commissioner John W. Keys, III, by his letter of April 3, 2003,
announced Reclamation's conclusion that it has authority to enter into
long-term contracts with Aurora for utilization of Fry-Ark Project
facilities. The transfer of such water rights out of the basin to
municipal uses in Aurora has potentially serious impacts to the
Arkansas River Basin. Southeastern executed an intergovernmental
agreement with Aurora, as did several other parties in the Arkansas
River Basin, to mitigate the damages caused by the exportation of water
from the Arkansas Valley.
Both the 1962 and 1978 Fry-Ark Authorizing Acts contemplated the
construction of the Arkansas Valley Conduit (``AVC''), which has yet to
be developed, primarily because the constituents do not have the
funding to develop it. The citizens and communities of the Lower
Arkansas River Basin have waited 30 to 50 years for this project that
will improve their water quality and supply. The need for the AVC has
been well established for more than 50 years. The Lower Arkansas River
Basin communities continue to seek federal assistance in moving this
much-needed project forward.
That is why in my testimony I requested that the Water and Power
Subcommittee hold a hearing on H.R. 186 and H.R. 317, the Conduit
legislation, as soon as possible.
Response to Representative Napolitano's question regarding how the
PSOP long-term excess capacity contracts differ from the Aurora
long-term excess capacity contract.
The Preferred Storage Options Plan (PSOP) developed by the
Southeastern Colorado Water Conservancy District, its Enterprise and
Fry-Ark beneficiaries from 1999-2001 has two components to it: 1)
Enlargement and 2) Excess Capacity (storage of water). Your question
regarding storage contracts relates to the second component, excess
capacity.
Historically, there has been an average of approximately 131,700
acre-feet of excess capacity storage space per water year. Temporary
excess capacity contracts enable Contractors to more efficiently use
their non-project water, by providing temporary storage for use at a
later date. Consequently, temporary excess capacity contracts meet
Contractor needs by providing valuable water storage and increased
water management flexibility. Capacity in east slope Fry-Ark facilities
is only available for storage of non-project water when it is not
needed to meet other Project purposes. The number and total volume of
temporary excess capacity contract requests made to Reclamation for use
of Fry-Ark facilities have increased steadily since 2002. To analyze
the direct, indirect and cumulative impacts of temporary excess
capacity contracts were evaluated in a 2006 Environmental Assessment
for contracts to be issued for the years 2006-2010.
The PSOP evaluated scenarios to better utilize this excess capacity
through long-term storage contracts. The scenario chosen in PSOP would
allow a municipal water provider with an existing right to carry-over
storage space for an allocation of Fry-Ark water to use that space,
subject to a myriad of policy, legal and institutional considerations,
to store both Fry-Ark and non-project water in carry-over space.
Currently, only the Board of Water Works of Pueblo has a long-term
excess capacity contract. That contract is for 25 years, and was
entered into prior to the completion of the PSOP. Colorado Springs is
currently in the NEPA-process for a long-term excess capacity contract.
Special protection for the Arkansas Basin beneficiaries of the Fry-
Ark Project is built into the repayment contract, Contract No. 5-07-70-
W0086, as amended, between the Southeastern Colorado Water Conservancy
District and the United States, which govern the evacuation of water
from Pueblo Reservoir. The spill order became part of the Contract by
the Fourth Amendment in 1984 and resulted from negotiations between
Southeastern, BWWP and Colorado Springs in connection with the 1984
applications filed in Water Court for the WWSP and Colorado Springs'
and BWWP's exchanges. The spill priorities in Article 13, which are
unique among Reclamation projects, provide:
(a) Whenever water is evacuated from Pueblo, Twin Lakes, and
Turquoise Reservoirs to meet the necessities of Project flood
control, power generation purposes, storage of transmountain
Project water, storage of native Project water, and Project
operational requirements; except as provided in Subarticle
13.(b) below, the water evacuated shall be charged in the
following order:
1. Against water stored under contracts for if-and-when
available storage space for entities which will use the
water outside the District boundaries.
2. Against water stored under contracts for if-and-when
available storage space for entities which will use the
water within the District boundaries. This evacuation shall
be charged pro rata against water stored under all such
like contracts at the time of the evacuation.
3. Against any winter storage water in excess of 70,000
acre-feet.
4. Against water stored under contracts with municipal
entities within the boundaries of the District, which water
is neither Project water nor return flow from Project water
and which water is limited to 163,100 acre-feet less any
Project water purchased and stored by municipal users. This
evacuation will be charged pro rata against the water
stored under all such like contracts at the time of
evacuation.
5. Against winter storage water not in excess of 70,000
acre-feet.
6. Against Project water accumulated from the Arkansas
River and its tributaries.
(b) Notwithstanding the order of evacuation of water listed
in Subarticle 13.(a) above, evacuation of water from storage
pursuant to existing firm storage contracts, the Highline
storage contract and future storage contracts that may be
entered into with the Board of Waterworks of Pueblo, Colorado
and Twin Lakes Reservoir and Canal Company to satisfy prior
commitments will be made pursuant to the terms of such storage
contracts.
First to spill out of the reservoirs is water stored under
contracts for if-and-when available storage space for entities which
will use the water outside Southeastern's district boundaries. West
Slope project water is not allowed to spill or be used outside the
State of Colorado.
Regarding Aurora's proposed contract, Aurora is an out-of-district
entity and would be treated as such in all of its contracts with the
Bureau of Reclamation regarding Fryingpan-Arkansas Project contracts.
Aurora is not currently involved in the District's Preferred Storage
Option Plan (PSOP), except to the extent Aurora may have made
obligations to individual PSOP participants to pay for costs associated
with pursuing approval of the PSOP, such as Otero County.
Response for the record to Rep. Lamborn's question regarding the
history of the efforts to reach agreement on the PSOP
legislation
After several years of planning, the Storage Study Committee
(``SSC''), which included municipal, agricultural, recreational,
environmental, and state and federal resource management agencies,
developed the PSOP as the best alternative to securing water resources
for future demand. To get the plan underway, the PSOP Implementation
Committee submitted to the Southeastern Colorado Water Activity
Enterprise the PSOP Implementation Committee Report on April 19, 2001,
which provides the operational details for the PSOP. Subsequently, in
May 2001, Rep. Joel Hefley introduced the first PSOP bill, H.R. 1714,
107th Cong., 1st Sess., which the City of Aurora (``Aurora'') opposed.
After the introduction of the first PSOP bill, SECWCD executed
stipulations with most of the potential parties to cases involving the
enlargement of Pueblo and Turquoise Reservoirs in July 2001.
On October 29, 2001, Aurora and the Board of County Commissioners
of Otero County (``Otero County'') entered into an Intergovernmental
Agreement (``IGA'') to resolve issues in dispute between them. In
exchange for certain payments made by Aurora to offset the effects of
the Rocky Ford transfer cases and an agreement for Aurora to cover
certain PSOP costs, Otero County agreed to withdraw opposition to the
Rocky Ford cases as well as support PSOP legislation and any amendments
thereto that are agreed to by Aurora and SECWCD so long as such
revisions do not substantially change the purpose and intent of the
PSOP.
By November 2001, roughly twenty communities and water providers in
the District executed Memorandums of Agreement with SECWCD to
participate in re-operations contract storage and enlargement storage
development efforts.
On December 7, 2001, SECWCD and Aurora entered into an IGA (``2001
IGA''), in which the parties agreed to support certain federal
legislation. That legislation was ultimately introduced in the 107th
Congress as H.R. 3881, discussed below. By the express terms of the
2001 IGA, however, it was to expire in October of the next year.
Also in December 2001, the City of Pueblo (``Pueblo'') filed an
application for a Recreational In-Channel Diversion (``RICD'') water
right for 100 c.f.s during the winter storage period (November 15 to
March 14) and 500 c.f.s during the remainder of the year. That water
right was for a kayak course planned by Pueblo and presented possible
conflicts with the PSOP. Also before the end of 2001, SECWCD filed an
application in the Division 2 Water Court for additional exchange
rights on the Arkansas River.
In January 2002, Colorado Springs and the Board of Water Works of
Pueblo executed stipulations with SECWCD involving water rights for the
reservoir enlargements, and entered into a memorandum of agreement with
SECWCD addressing storage of return flows from Fryingpan-Arkansas
Project water.
In March 2002, Rep. Hefley introduced his second PSOP bill, H.R.
3881, 107th Cong., 2d Sess. Hefley's new bill was then discussed in a
hearing before the House Resources Committee's Subcommittee on Water
and Power before the end of the month. In August of the same year, the
Colorado Water Conservation Board (``CWCB'') issued recommendations to
the water court regarding Pueblo's RICD application.
Then in November 2002, voters in Pueblo, Otero, Crowley, Bent and
Prowers counties approved an initiative to form the Lower Arkansas
Valley Water Conservancy District (``LAVWCD''). The Board of Directors
was appointed that December, and in April of the next year, the LAVWCD
hired a full-time general manager.
Also in April 2003, John Keys, Commissioner of the Bureau of
Reclamation (``Reclamation''), issued a letter announcing Reclamation's
conclusion that it has authority to enter into long-term contracts with
Aurora for the use of Fryingpan-Arkansas project facilities.
On October 3, 2003, the SECWCD, the Upper Arkansas Water
Conservancy District (``Upper Arkansas''), and Aurora entered into a
Reuse Memorandum of Understanding (``MOU'') to resolve areas of
dispute. In this MOU, the parties agreed to settle various issues in
water court cases in which they were involved, and Aurora agreed to
undertake certain reuse activities and report those activities to
SECWCD and Upper Arkansas. Also on October 3, SECWCD and Aurora
executed a new IGA, because the original 2001 IGA had expired and the
SECWCD Board voted not to approve an extension. This new IGA
principally concerned Aurora's water diversions and storage contracts
and stipulated that both parties will request Members of Congress to
support federal PSOP legislation.
In November 2003, Upper Arkansas and Aurora entered into their own
IGA to resolve issues pending in water court cases and to further
cooperation between them, in particular, to participate in and
contribute to storage in a replacement pool. Also in November 2003,
SECWCD and Upper Arkansas entered into a storage MOU providing certain
benefits received by SECWCD in the SECWCD-Aurora IGA to Upper Arkansas.
In February 2004, Pueblo, the City of Colorado Springs (``Colorado
Springs''), and the Board of Water Works of Pueblo executed an IGA that
created a Flow Management Program related to the Pueblo's original
plans for a kayak park and recreational flows. However, in May 2004,
Aurora, SECWCD, and the City of Fountain joined Pueblo, Colorado
Springs, and the Board of Water Works of Pueblo and all six parties
entered into an IGA concerning the Flow Management Program and the
development of Regional Water Management Program. Following these
agreements, in June 2004, Rep. Hefley introduced H.R. 4691, 108th
Cong., 2d Sess.
In September 2004, the River District, Colorado Springs, Aurora,
Twin Lakes Reservoir and Canal Company, and the Homestake Project,
which is a joint undertaking between Colorado Springs and Aurora,
entered in a MOU explaining and clarifying the water and storage rights
of the parties in Arkansas River Basin water. Also in September 2004,
Reclamation and SECWCD completed work on drafting a MOU defining the
District's ``First Right of Refusal'' included in H.R. 4691 and
outlining the procedures for the contracting of excess capacity
contracts outside the Arkansas River Basin (this MOU was never
executed).
In November 2004, Rep. Bob Beauprez introduced another PSOP bill,
H.R. 5373, 108th Cong., 2d Sess., during the lame-duck session of
Congress. This bill was similar to Rep. Hefley's bill from earlier in
the year. It was during consideration of Beauprez's H.R. 5373 that the
LAVWCD began voicing its objections to the PSOP.
It was also during November 2004 that SECWCD executed two other
agreements. On November 16, SECWCD and the Colorado River Water
Conservancy District (``River District'') entered into an agreement to
settle various matters in dispute between the parties. The agreement
accomplished four main goals: 1) it settled West Slope opposition to
SECWCD's water court cases regarding the enlargement of its Boustead
Tunnel water rights, 2) it resolved conflicts with SECWCD over West
Slope operations of Ruedi Reservoir, 3) it provided for a dispute
resolution process to address future issues, and 4) it stipulated that
the River District agrees to support the PSOP legislation in a form
substantially similar to H.R. 4691, 108th Cong., 2d Sess. Then on
November 30, SECWCD, the River District, and Twin Lakes Reservoir and
Canal Company entered into a separate agreement regarding the operation
of the Twin Lakes Exchange described in the Operating Principles of the
Fryingpan-Arkansas Project.
Since early 2005, the PSOP parties have been in negotiations with
LAVWCD to address a variety of regional concerns, including PSOP. In
May 2005, SECWCD, Aurora and Reclamation entered into a MOU regarding
the settlement of Aurora's application in Case No. 99CW170(A) and
clarified the applicability of the spill priorities found in Article 13
of the SECWCD Contract (No. 5-07-70-W0086) to Aurora's requested long-
term storage and exchange contracts with Reclamation.
______
Mrs. Napolitano. Thank you so much for your testimony, sir,
and we'll take your request into consideration.
Mr. Ryan, the Bureau of Reclamation.
STATEMENT OF MIKE RYAN, REGIONAL DIRECTOR, GREAT PLAINS REGION,
U.S. BUREAU OF RECLAMATION, BILLINGS, MONTANA
Mr. Ryan. Good morning, Madam Chair, members of the
committee. My name is Mike Ryan. I'm the Great Plains Regional
Director for the U.S. Bureau of Reclamation. Early in my
career, I spent about four years on the headwaters of the
Arkansas, helping to operate and maintain some of the
facilities of the Fryingpan-Arkansas Project, and I am pleased
to be here today to provide you information on Reclamation's
activities and involvement on the Fry-Ark and provide our view
on water management challenges we are all facing.
Congress authorized the project in 1962 as a multi-purpose
trans-basin diversion project for Colorado. The project
annually diverts an average of about 52,000 acre-feet of water
from the Fryingpan River and other Colorado River tributaries
on the Western Slope to the Arkansas River Basin on the Eastern
Slope. Project water provides a supplemental water supply for
municipal, industrial, and domestic uses and irrigation in the
Arkansas Valley. Additional authorized project purposes include
power, flood control, recreation, and conservation and
development of fish and wildlife resources. The project has
been operated and maintained by Reclamation since its
completion in 1975, when the Fry-Ark Project water was first
delivered to users in the Arkansas Valley.
The Southeastern Colorado Water Conservancy District
represents water users and is responsible for repaying the
United States for the cost of the Fry-Ark Project works
associated with irrigation and municipal uses. The district
also pays a proportionate share of annual operation and
maintenance.
It is a challenge to meet the competing water demands of
people, farms, cities, and the environment. Consistent with the
principles of Reclamation's Water 2025 Initiative, Reclamation
is proposing the use of existing facilities to better utilize
infrastructure, while not jeopardizing authorized Fry-Ark
Project purposes.
Reclamation is involved in several ongoing projects, either
as a lead agency or as a source of technical assistance, that
will help alleviate water delivery challenges in Colorado. We
have helped to prepare a report on Preferred Storage Options
Plan, and have provided planning assistance to local
stakeholders weighing options for the Southern Delivery System.
Reclamation has also responded to frequent requests for
information from local sponsors interested in the study of the
Arkansas Valley conduit.
We are also working to address water shortfalls through
excess capacity contracts, commonly known as ``if and when''
contracts for communities in Colorado. For instance, temporary
``if and when'' storage contracts for 10,000 acre-feet of
Aurora's water have been executed on an annual basis with
Reclamation for the past 22 years. In addition, ``if and when''
exchange contracts for 10,000 acre-feet have been executed
annually. This year in Eastern Colorado, Reclamation entered
into 18 temporary storage contracts totaling approximately
45,500 acre-feet, and one exchange contract for 10,000 acre-
feet. Contractors included several cities and water districts,
the Federal Bureau of Land Management, and the State of
Colorado.
The proposed Aurora contract is an example of the multi-
purpose use of the Fry-Ark Project consistent with its
governing statutes. The proposed contract allows a non-Federal
entity to utilize space not being used to store project water.
This contract is within both legal and policy parameters. It
will cause no significant impact on the environment and does
not require Aurora to construct additional facilities to meet
their needs. It provides revenues which assist in the repayment
of the reimbursable portion of the project. It also allows
Aurora to plan for the future without injury to existing
beneficiaries within the Arkansas Basin.
Because excess capacity contracts are exercised only when
the service can be provided without harm to the project or
those receiving water from the project, Reclamation believes
making excess capacity available to store non-project water for
Aurora, Colorado Springs, and others is an efficient and
beneficial use of existing project features.
Reclamation has other proposed ``if and when'' contracts
for the Southern Delivery System and the Preferred Storage
Options Plan. These arrangements have been formulated in
response to identified needs for additional water-related
contracts to meet long-term water supply needs.
Reclamation applauds the forward-thinking and collaborative
planning efforts that have gone into the development of these
efforts. We will continue to work with local entities to
provide water to small valley cities to enhance existing flows
for recreation and to protect the fisheries.
In summary, full utilization of Reclamation's Fryingpan-
Arkansas project is necessary to help communities work through
water resource challenges. It is the right thing to do, and we
are committed to this collaborative, constructive approach.
This concludes my statement and I would be pleased to
answer any questions at the appropriate time. Thank you.
[The prepared statement of Mr. Ryan follows:]
Statement of Michael J. Ryan, Great Plains Regional Director,
Bureau of Reclamation, U.S. Department of the Interior
Madam Chairwoman and members of the Subcommittee, my name is
Michael J. Ryan and I am the Great Plains Regional Director for the
Bureau of Reclamation. I am pleased to be here today to provide you
information on Reclamation's activities and involvement in the
Fryingpan-Arkansas Project, commonly known as the Fry-Ark Project, and
provide the Department of the Interior's view on water management
challenges we are facing.
Congress authorized the Project in 1962 as a multi-purpose, trans-
basin water diversion project for Colorado. The Project annually
diverts an average of 52,300 acre-feet of water from the Fryingpan
River and other Colorado River tributaries on the western slope of the
Rocky Mountains to the Arkansas River basin on the eastern slope. Fry-
Ark Project water provides a supplemental water supply for municipal,
industrial, and domestic uses, and irrigation in the Arkansas Valley.
Additional authorized Project purposes include power, flood control,
recreation, and conservation and development of fish and wildlife
resources. The Project has been operated and maintained by Reclamation
since its completion in 1975 when Fry-Ark Project water was first
delivered to users in the Arkansas Valley.
The Southeastern Colorado Water Conservancy District represents
water users and is responsible for repaying the United States for the
cost of the Fry-Ark Project works associated with the irrigation and
municipal uses, plus applicable interest. The District also pays a
proportionate share of annual operation and maintenance of the Project.
It is a challenge to meet the competing water demands of people,
farms, cities, and the environment. Consistent with the principles of
Reclamation's Water 2025 Initiative, Reclamation is proposing the use
of existing facilities to better utilize infrastructure, while not
jeopardizing existing authorized Fry-Ark Project purposes.
Reclamation has played a role in several ongoing projects that aim
to help alleviate water delivery challenges in Colorado. We have
provided technical information for reports prepared by the Southeastern
Colorado Water Conservancy District on the Preferred Storage Options
Plan, a project conceived to provide additional reservoir storage space
in the Arkansas River Basin. Reclamation has also provided planning
assistance to local stakeholders weighing options for the Southern
Delivery System, a project to provide additional water deliveries to
the communities of Colorado Springs, Fountain and Security. And
Reclamation has also responded to frequent requests for information
from local sponsors interested in the study of ways to provide improved
water quality to communities in the Arkansas River Valley east of
Pueblo Reservoir.
In addition, Reclamation is working to address water shortfalls
through excess capacity contracts, also known as ``if and when''
contracts for communities in Colorado. These contracts allow third
parties to store water in Reclamation reservoirs as long as it does not
affect the storage and delivery of project water. For instance,
temporary ``if and when'' storage contracts for 10,000 acre-feet of
Aurora's water have been executed on an annual basis with Reclamation
for the past 22 years. In addition, ``if and when'' exchange contracts
for 10,000 acre-feet have been executed annually for the past 9 years.
This year in Eastern Colorado, Reclamation entered into 18 temporary
storage contracts, totaling approximately 45,500 acre-feet, and one
exchange contract for 10,000 acre-feet. Contractors included several
cities and water districts, the Bureau of Land Management and the State
of Colorado.
The contract sought by Aurora is an example of the multi-purpose
use of the Fry-Ark Project consistent with its governing statutes. The
proposed contract allows a non-Federal entity to utilize space not
being used to store Project water. This contract is within federal
legal and policy parameters. It will cause no significant impact on the
environment and does not require Aurora to construct additional
facilities to meet their needs. The stored 10,000 acre-feet of water
has been purchased from willing sellers, and will not be contracted as
``Project water.'' It provides revenues which assist in repayment of
the reimbursable portion of the project. It also allows Aurora to plan
for the future without injury to existing beneficiaries within the
Arkansas Basin.
Because excess capacity contracts are exercised only when the
service can be provided without harm to the project or those receiving
water from the project, Reclamation believes making excess capacity
available to store non-project water for Aurora, Colorado Springs, and
others is an efficient and beneficial use of existing Project features.
Reclamation has other proposed ``if and when'' contracts for the
Southern Delivery System and the Preferred Storage Options Plan. These
arrangements have been formulated in response to identified needs for
additional water related contracts to meet long-term water supply
needs.
Reclamation applauds the forward thinking and collaborative
planning efforts that have gone into the development of these efforts.
We will continue to work with local entities to provide water to small
valley cities to enhance existing flows for recreation and to protect
the fisheries.
In summary, full utilization of Reclamation's Fryingpan-Arkansas
Project is necessary to help communities work through water resource
management challenges. It is the right thing to do, and we are
committed to this collaborative approach.
This concludes my written statement, and I would be pleased to
answer any questions.
______
Response to questions submitted for the record by Michael J. Ryan,
Great Plains Regional Director, Bureau of Reclamation, U.S. Department
of the Interior
Post Hearing Questions from Chairwoman Grace F. Napolitano:
Question: Can you give us more information on exactly what authority
the Bureau of Reclamation has to contract with Aurora and
specifically include a copy of the solicitor's opinion on this?
Answer: Reclamation laws encompass numerous statutes relating to
specific projects as well as those of general application. Section 14
of the Reclamation Projects Act of 1939 is the general authority for
this decision. This Section authorizes the Secretary to enter into
contracts for the exchange or substitution of water and water rights.
The most relevant language is as follows:
The Secretary is further authorized, for the purpose of orderly
and economical construction or operation and maintenance of any
project, to enter into such contracts for exchange or
replacement of water, water rights, or electric energy or for
the adjustment of water rights, as in his judgment are
necessary and in the interests of the United States and the
project.
Under this authority, Reclamation has entered into contracts for
the exchange or facilitation of an exchange of non-project water.
Reclamation believes the 1962 Project Act, as amended, also authorizes
this contract.
There is no formal Solicitor's Opinion, but as per Reclamation's
normal process for contracting actions, the Solicitor's Office has
reviewed and approved the proposed contract for legal sufficiency.
Question: By entering into these contracts with Aurora to store water,
the Bureau is facilitating Aurora's effort to purchase water
rights on the Arkansas River Valley. Aren't there policy
considerations regarding the loss of farmland and the
socioeconomic effects of water being removed from agricultural
production for use by urban areas? Is this something a Federal
Agency like the Bureau of Reclamation should be actively
facilitating?
Answer: Reclamation is not facilitating the purchase of water
rights. For over 20 years, Aurora has followed state water law in
acquiring the water from willing sellers, and the right to transfer the
water to Aurora through the Colorado water rights system. All water
proposed to be moved through the Fry-Ark Project facilities has been
subject to environmental compliance and any additional amounts of water
in the project would likewise be subject to further legal and
environmental compliance. No significant socioeconomic impacts
associated with the proposed contract were identified through
Reclamation's National Environmental Policy Act compliance process.
Question: How does the 40-year long-term contract differ from the
annual contracts that the Bureau and Aurora have entered into
in the past?
Answer: Under the long-term contract, Aurora made additional
commitments in the areas of payments for storage and exchange,
proportionate responsibility for operation and maintenance and
increased environmental safeguards for water quality. The rates under
Aurora's current temporary 1-year contract, which include an operation
and maintenance component, are $43.76 per ac-ft for 10,000 ac-ft of
storage, and $43.76 for exchange. The storage rate under the long term
contract starts at $43 per ac-ft and increases annually at a rate of
1.79% providing a final storage rate of $85.90 per ac-ft in 2046. The
exchange rate under the long term contract starts at $49 per ac-ft and
increases annually at a rate of 1.79% providing a final exchange rate
of $97.88 in 2046. Aurora will pay an appropriate separate charge for
operation and maintenance.
Question: What is wrong with continuing with the yearly contract with
Aurora? Why is a long-term contract needed?
Answer: The adoption of a long-term contract will result in a staff
cost savings for both Reclamation and Aurora by ending the recurring
cycle of annual contracts. Additionally, Aurora's payment for use of
excess capacity of Fry-Ark facilities benefits the project and the
United States with an earlier payout of reimbursable project costs. The
use of excess capacity within the project provides for an efficient and
beneficial use of existing project features. This use of facilities
benefits the taxpayers and will not harm project beneficiaries.
Question: Will this 40 year contract with Aurora mean that the Fry-Ark
Project will be paid off any sooner?
Answer: Yes, revenues expected from the 40 year contract are
estimated to be $30-50 million, which may result in early repayment.
Post Hearing Questions from Rep. John Salazar:
Question: The stated purpose of the Fryingpan-Arkansas project was to
bring trans-basin water into the Arkansas Basin. Now, the
project is being used to divert water out of basin through
exchanges to Aurora. This seems to be in direct opposition to
the intent of Congress. How does the Bureau explain their
rationale for going against the law of Congress?
Answer: Reclamation's actions come in response to a direct request
from a project stakeholder, and are consistent with federal and state
laws. Under this proposed excess capacity contract, Aurora can use
capacity in the project that is in excess of project needs to
facilitate an exchange of their non-project Arkansas River water only
when that capacity is not needed for project purposes. The non-project
water Aurora intends to move through project facilities was purchased
from willing sellers in the 1980's. Colorado state water law allows
such a transfer and the Colorado water court approved the transaction.
Excess capacity contracts are only entered into if there is no harm to
the project or project beneficiaries.
Question: I've never seen the Bureau articulate why they have
authority to contract for storage or exchange contracts with
Aurora. Can the Bureau, for once, explain how they generated
their legal authority?
Answer: Reclamation laws encompass numerous statutes relating to
specific projects as well as those of general application. Section 14
of the Reclamation Projects Act of 1939 is the general authority for
this decision. This Section authorizes the Secretary to enter into
contracts for the exchange or substitution of water and water rights.
Under this authority, Reclamation has entered into contracts for the
exchange or facilitation of an exchange of non-project water.
Reclamation believes the 1962 Project Act, as amended, also authorizes
this contract.
Aurora has purchased water rights on the Arkansas River (below
Pueblo Reservoir) that are below Aurora's intake works (Otero Pipeline,
which comes directly out of Twin Lakes Dam). In order for Aurora to
utilize this water, they will have to enter into an exchange against
water/water rights upstream of the intake works. Reclamation has the
operational flexibility to exchange non-project water.
There are numerous provisions within the proposed contract to
ensure that the Project is not adversely affected. Pursuant to state
law, Aurora has changed the use and points of diversion of the water
rights it has purchased in the Arkansas Valley. The Project has had
ample excess capacity to store, convey and ultimately exchange Aurora's
water. The contract would maximize the use of project facilities,
within legal and policy parameters. There are minimal impacts on the
environment in using Reclamation's facilities and this approach does
not require Aurora to construct future facilities. The United States
receives a benefit from the exchange in that Reclamation is able to
retain 10% of the water exchanged that would have been lost to transit
from moving the water to the lower reservoirs. The revenues from the
contracting arrangement will also repay the Fry-Ark project at a faster
rate.
Finally, Reclamation has entered into exchange contracts of this
type at other federal projects in Colorado, including the Colorado-Big
Thompson Project where we have executed two such exchange contracts of
non-project water. One is with the Municipal Subdistrict of Northern
Colorado Water Conservancy District for the Windy Gap Project which
moves water from the west slope of the Continental Divide to the east
slope through project facilities. The other is with the City of
Berthoud (a member of Northern Colorado Water Conservancy District).
Reclamation is currently in the process of evaluating the possibility
of another contract for exchange of non-project water with the
Municipal Subdistrict of Northern Colorado Water Conservancy District
for the Windy Gap Firming Project.
______
Mrs. Napolitano. Thank you, gentlemen, and thank you for
staying within the time frame. The first question I have is for
you, Mr. Ryan, so you might as well keep that mike up there.
One of the issues in reading your testimony there, you talk
about the insignificant impact, on page 2, on the environment
and doesn't require to construct additional facilities. Can you
just briefly tell me how significant you found that?
Mr. Ryan. Chair--is that with the question directed to the
Aurora contract?
Mrs. Napolitano. Correct.
Mr. Ryan. Yes, ma'am. In the--in the environmental
assessment that was prepared, we take a look at what the no-
action alternative is, and the no-action alternative is these
water rights are held by the City of Aurora. State law in
Colorado allows them to move the water out of the basin up to
Aurora. We believe that would happen regardless of whether or
not the Fryingpan-Arkansas facility were used to help. So that
becomes the baseline. Then the analysis in the environmental
document, what the law requires is you take a look at the
effects of the proposed action against the no-action
alternative. Since the water would move anyway, there is no
significant impact.
Mrs. Napolitano. Thank you. And I understand that, but in
looking at the map that I've reviewed, it allows for the lower
portion to be able to exchange the water rights for water from
the upper portion, which is cleaner water and essentially more,
how would I say, desirable.
Mr. Ryan. And that's the point that Congressman Salazar
made earlier in his remarks. The environmental analysis, which
reaches approximately 200 pages, took four years and a million
and a half dollars to complete. One of the things they looked
at was the impact to water quality. We believe those impacts
would be negligible. But hearing from the communities, there is
strong concern about the potential for that. We've built into
the environmental commitments of the document and into the
proposed contract with Aurora what we feel are safeguards, that
should water quality become a concern, certain issues should
those----
Mrs. Napolitano. Excuse me, sir, but I understand there is
a concern now.
Mr. Ryan. There is a concern about impacts that may
develop.
Mrs. Napolitano. No, I'm talking about the water quality
itself in that area, in the bottom area. My understanding, from
reading various articles and reading some of the testimony, it
already is questionable.
Mr. Ryan. Are you speaking, Madam, to the groundwater
quality or the surface water?
Mrs. Napolitano. The water quality of--the surface water.
Mr. Ryan. OK. Now my understanding is surface water quality
problems do exist in the lower basin. I'm not--I don't
understand the point that people make is how would the contract
with Aurora exacerbate those. The result of our analysis shows
that it would not.
Mrs. Napolitano. Well, it doesn't take much common sense,
sir, to understand that if you take more water from the top in
exchange for water from the bottom, you're going to have less
available to the bottom portion. I talk in general terms,
because that's what I am. And if you did that in my area, I
would be all over you, sir, because it is not something that we
would consider, never mind kosher, ethical.
Let me give you the next question. Can you give us more
information on exactly what authority the Bureau of Reclamation
has to contract with Aurora and do you have a Solicitor's
Opinion and do you have a copy of that opinion from your
solicitor?
Mr. Ryan. Reclamation, in working through the documentation
for the proposed contract, we worked with the solicitors. I do
not have a formal Solicitor's Opinion, but the Solicitor's
Office advises us that under the Reclamation Act of 1902, and
more specifically Section 14 of the 1939 Act and the Fryingpan-
Arkansas authorization of 1962, the Solicitor's Office is
confident that we have authority to enter into this contract.
Mrs. Napolitano. Would you mind being able to provide this
committee the information that allowed you to be able to make
that decision based on what you were informed by your
solicitor?
Mr. Ryan. Yes, ma'am, we'll do that.
Mrs. Napolitano. For the record. Thank you.
Mrs. Napolitano. And I'm already over my time. I'd like now
to ask Congressman Salazar--I'm sorry, Perlmutter--or Lamborn.
I'm sorry.
Mr. Lamborn. Yeah, thank you, Madam Chairwoman.
Mr. Ryan, one of the elements of the proposed piece of
legislation that Congressman Salazar has called for is a state-
sponsored water study that would examine social, economic and
cultural impacts of water diversions or water use on lower
river users. Has the Bureau ever funded such a study like that
before?
Mr. Ryan. Not to my knowledge, sir.
Mr. Lamborn. OK. Thank you.
Could you next explain what the role of the Fountain Creek
is in regard to the Fryingpan-Arkansas Project? In other words,
is Fountain Creek part of the Fryingpan-Arkansas system?
Mr. Ryan. The City of Colorado Springs is a contractor for
Fryingpan-Arkansas Project water. One of the drainages that's
involved with return flow is the Fountain Creek area. There has
been controversy in the recent past about city operations and
wastewater treatment plant operations as well as regional
flooding in the area. It is something that Reclamation and the
City and others are taking a look at as we prepare the
environmental documentation for the Southern Delivery System,
and it's also an issue that Reclamation is involved with and
citizens working on the Fountain Creek----
Mr. Lamborn. OK. Could you explain the role and the extent
to which agricultural runoff has contributed to the degradation
of water quality in the Arkansas River.
Mr. Ryan. The water quality studies that were done in the
environmental documentation for the Aurora contract indicate
that there has been some impact. Agricultural practices
typically have some effect upon water quality through the
introduction of return flows. It becomes a factor of the soil
characteristics and the agricultural practices that will relate
to both the specificity of the impact and the magnitude of the
impact. But one thing is that there are agricultural practices
which have some impact on water quality.
Mr. Lamborn. OK. Thank you. And next, if I could ask a
question of Mr. Long, a question or two. As you saw in the film
clip a few minutes ago, President Kennedy said that a rising
tide lifts all boats, and his whole speech was very inspiring,
as I'm sure you would agree. In that context, if Pueblo
Reservoir were to be expanded, would that allow for more water
for all of the parties in the Arkansas Valley?
Mr. Long. Under the proper operation, it would have the
potential to do that, yes.
Mr. Lamborn. Thank you very much.
Next I'm going to ask you about the process by which PSOP
has come about. Could you just explain how your district has
done its negotiation and followed different processes to come
up with the proposals that we have in front of us today?
Mr. Long. I could provide part of an answer. We'll need to
provide a written response to the larger part of it. I've only
been on the southeast district since 2002. The actual process
in looking at the potential for PSOP started many years before
I was a board member, but there was a report that was submitted
to our board several years ago. It included many different
participants' input. Yeah, we still have to reach agreement on
how that would move forward, but to really provide the
historical detail, I will need to respond to that in writing.
Mr. Lamborn. But would you agree that there have been long
negotiations and a large degree of consensus and deliberation
in the whole process that you have followed?
Mr. Long. I would agree with part of your comment. Yes,
there have been many, many years and much time involved in the
process--and a great deal of consensus--but obviously not
enough to move the project forward, but there is a great deal
of consensus. There are many participants up and down the
valley who need storage, but there's a concern, I believe,
among the dissenters that there's a potential that new storage
could be monopolized, and I think that's where we're at right
now. So, yes, we've done a lot of work, put a lot of time in on
it, we're reaching consensus, but we're not there yet.
Mr. Lamborn. Thank you.
Mrs. Napolitano. Thank you, Mr. Lamborn.
Mr. Salazar.
Mr. Salazar. Thank you, Madam Chair. I appreciate your
recognizing me.
Chairman Long, I want to, first of all, thank you for your
leadership on trying to move the Arkansas Valley conduit, and I
appreciate the question that, Madam Chair, we hope that we can
get a hearing and that we can move this project right along.
You know, the conduit was one of the original pieces of the
Fry-Ark Project. Doesn't it frustrate you that the Fry-Ark
Project is now being utilized to move water to exchange storage
out of the lower Ark and out of the basin before it even serves
one of its primary goals, and that is to deliver clean water to
the towns along the lower Arkansas River?
Mr. Long. Yes, it is somewhat discouraging. I made the
statement before that if we do not get the conduit, the project
ultimately would be a detriment to the valley rather than a
benefit. As agriculture lands are dried up, the project water
then goes to municipal interests, so ultimately a large portion
of the water could be moved out of the area that was intended
to be served and been a beneficiary of the project, yes.
Mr. Salazar. Thank you, Chairman. One other quick question
for you. In 2001, the Southeast District attorney, Lee Miller,
he wrote a legal memo outlining why the district approved the
Bureau storage leases to Aurora. Do you believe that the legal
arguments outlined in the memo are still valid today?
Mr. Long. There is no question we have board members who
believe that the arguments are still valid. We believe those
arguments are very valid, indicating that virtually everyone
else outside of the basin. There was a little bit of a gray
area concerning Aurora, because their previous contracts with
the Bureau created a little bit of unease, and in my previous
statements, I acknowledged that we had reached an agreement
with Aurora, but it was because of that unease with previous
relationships the Bureau had with Aurora. But we absolutely
believe that the project is not authorized to be used to assist
anyone outside of the Arkansas Valley Basin.
Mr. Salazar. Thank you, Mr. Chairman.
Mr. Ryan, you stated in your verbal testimony that the
authority the Bureau of Reclamation had to actually contract
with the 40-year contract with Aurora was the 1902 Act. Did you
mean 1902 or 1920?
Mr. Ryan. In my statement, Congressman, I referred to the
1902 Act, specifically the act of June 17th. Many people
commonly refer to that as the Reclamation Act that initiated
the reclamation. But more specifically, as we come down through
the years, we believe that Section 14 of the 1939 Act, coupled
with the Fryingpan-Arkansas provision of 1962, gives the
Secretary authority.
Mr. Salazar. OK. Mr. Ryan, are you aware of the Sammy
decision discussing the use of the Washington project
facilities?
Mr. Ryan. Is that for me, sir?
Mr. Salazar. In that opinion, the Solicitor General
reaffirmed that the principles of the Federal law requires that
the Secretary, through the Bureau of Reclamation, to operate
its water projects in a manner consistent with the project's
legislative authorities and in a manner consistent with any
feasibility reports submitted to Congress at the time of the
project authorization.
And the project--the authorization for this project was to
provide water within the local--in this map, we show the
project's boundary, which basically would have been Colorado
Springs and Fountain Creek and along the lower Arkansas River
all the way to the Kansas line.
So based on that information, it seems like there was no
feasibility study at the time that the legislation was moved
forward by Wayne Aspinall, correct?
Mr. Ryan. To get to the first part of your question, am I
aware of the citation, the legal citation, my expectation is
that the Solicitor's Office takes those into consideration as
they advise us on the bounds of the Secretary's legal
discretion. In regard to the planning documents developed in
the early years of planning and formulation for the Fryingpan-
Arkansas, I'm aware that some of the early documents referenced
the use of the proposed Federal facilities in conjunction with
non-Federal facilities to help people manage water, more
specifically a person, when they read through the documents,
the one that comes--at least for me, when I read through them,
the one that came to most ready reference was the Homestake
Project. But there are other non-Federal projects that are in
the Arkansas Basin that some of the early planning documents
that the Fryingpan-Arkansas discuss.
Mr. Salazar. Thank you very much. I yield now. I apologize
for taking more time.
Mrs. Napolitano. No problem. Mr. Perlmutter.
Mr. Perlmutter. Thanks, Madam Chair.
Mr. Long, I get confused between the Lower Arkansas
District and the Southeast Colorado Conservancy District. Which
part of the--on this map, what part do you represent?
Mr. Long. I represent all the area in brown.
Mr. Perlmutter. OK. So you're all the way down to the
Kansas border.
Mr. Long. Actually the map is not entirely accurate. We go
to the city of Lamar, near Kansas.
Mr. Perlmutter. And originally as part of this project, the
conduit was contemplated to bring water way downstream, isn't
that right?
Mr. Long. Correct, correct.
Mr. Perlmutter. And that is what you're trying to get built
now as part of the request by Senator Salazar and you,
Representative Salazar? Well, do you have one--you and your
brother--they get me confused too. So I'm confused by the
districts and I'm confused by the Salazars, but that's a whole
other story.
So you have the--the request is a conduit, and the purpose
of that is water quality?
Mr. Long. Correct.
Mr. Perlmutter. Now, isn't it true that a lot of the
problems with water quality to the very end of the river as you
go to Kansas is a result of metals and minerals into the river
itself below the Pueblo Reservoir?
Mr. Long. I would say that's partially true. There are many
contributing factors, but yes.
Mr. Perlmutter. But a lot of it has to do with the river
bed itself, isn't that right?
Mr. Long. Correct.
Mr. Perlmutter. You and I have had this conversation.
Mr. Long. Yes.
Mr. Perlmutter. So I just wanted to be clear for the
record. You do have an agreement with Aurora, don't you?
Mr. Long. Southeast.
Mr. Perlmutter. Southeast Conservancy. I mean you as a
representative of the district.
Mr. Long. Yes.
Mr. Perlmutter. And that agreement provides a variety of
benefits to the district, does it not?
Mr. Long. It does.
Mr. Perlmutter. So the key thing for your organization is
that this conduit be built so that fresher water from the
reservoir can get downstream; isn't that right?
Mr. Long. Absolutely.
Mr. Perlmutter. Mr. Ryan, I'd like to turn my questions to
you, sir.
Mr. Ryan. Yes, sir.
Mr. Perlmutter. How does the Homestake Project play with
the Fryingpan-Arkansas Project in ten words or less?
Mr. Ryan. The two projects are transbasin diversions. The
two projects act in synergy to improve the overall system
effectiveness.
Mr. Perlmutter. The two projects were put together back in
the '60s, were they not, to really be able to build the whole
project out as an economy of scale?
Mr. Ryan. Yes, sir.
Mr. Perlmutter. So it isn't as if Aurora and its use of the
Fryingpan-Arkansas system is a new phenomenon. It's dated back
to the beginning of the project?
Mr. Ryan. Yes, sir. The first contract that I'm aware of
was dated 1965.
Mr. Perlmutter. Now the Chairwoman's questions really
concern me in that your study, your four-year study, 200-page
study, determined that there was negligible change to the
river, to the water quality, based upon use of the water--
diversion from the lower part, which would be the reservoir, to
up the river into the mountains, isn't that right?
Mr. Ryan. Yes, yes.
Mr. Perlmutter. What that means is, as to Mr. Long, the
water quality doesn't change based on the lease that's been
requested by Aurora, at least in the estimation of the Bureau
of Reclamation.
Mr. Ryan. Yes.
Mr. Perlmutter. So from your point of view, a 40-year--
well, I'll get to the 40-year lease, but the differentiation by
going upstream and transferring its water rights down to the
reservoir shouldn't hurt Mr. Long or his district.
Mr. Ryan. Yes, sir. But we recognize that concern remains,
and so that's why we have included a commitment--and Aurora has
agreed--that it requires Aurora to remain involved in the water
quality study being organized by the Southeastern Colorado
Conservancy District.
Mr. Perlmutter. Last question. Is a 40- year lease as
Aurora has requested from the Bureau of Reclamation, is that
unique?
Mr. Ryan. No, sir.
Mr. Perlmutter. Thank you.
No further questions, Madam Chair.
Mrs. Napolitano. Thank you.
Congressman Udall.
Mr. Udall. Thank you, Madam Chair. As Congressman
Perlmutter mentioned, he gets confused by all of the Salazars,
Chairwoman, and no doubt all the Udalls confuse her, but you
haven't seen nothing yet, because there are lots of Lamborns
and Perlmutters as well. But in the end, of course, we are all
Coloradans, and we are here today to look back at 45 years of
history, but also to look at what the 21st Century might hold
for us with this important project.
At the risk of creating some concern on the part of my west
slope friends--I know Chris Treese is here--I want to also
mention that this project is a west slope project. In addition,
we'll hear from Chris Treese and others about the Fryingpan
portion of the Fry-Ark Project. Just I want to make note of
that.
Director Ryan, thank you for being here. As you know,
recently I sent the Bureau of Reclamation a letter asking you
all to consider and strongly urging you to do a full EIS on the
relationship that we have with Aurora. Could you just for the
record let us know why you declined to take that request to
heart.
Mr. Ryan. Congressman, we considered your request and
others had requested it as well. When we took a look at the
information we had in front of us, the analysis that had been
done, and we took a look at what the requirements of law were
under the National Environmental Policy Act, we came back to
the same conclusion, that we believed that the environmental
assessment with its finding of no significant impact is
appropriate. We think that's the right thing.
Mr. Udall. I appreciate the fact that you're forthcoming
and I know there's a letter in transit to me.
Mr. Ryan. Yes.
Mr. Udall. I would just for the record mention in part the
reason I requested that is that I think we're on track to end
up in the courts, and I hope that isn't the case, but I think
that may be what the outcome is, and I thought an EIS would
further clarify where we are and perhaps help us to avoid
litigation. But be that as it may.
Mr. Ryan. Thank you.
Mr. Udall. If I might, you say that the Reclamation has
other proposed ``if and when'' contracts for the Southern
Delivery System and the PSOP pump. Could you provide some more
specific details about those possible future contracts. If
that's a long answer, I would like to have it for the record,
but if you can be concise, I'd appreciate it.
Mr. Ryan. I'll do my best to be concise. In preparing the
environmental documents or in conversations with the different
groups in the past regarding whether it's the Southern Delivery
System or the PSOP, we've had entities come to Reclamation and
request if we go forward with this, would Reclamation consider
entering into these ``if and when'' contracts with us, and we
have said yes, we would consider that.
Mr. Udall. Thank you, and if you want to provide additional
information, I appreciate it.
Mr. Ryan. Yes.
Mr. Udall. Mr. Long, always great to have you here and
thank you for your public service. Somebody said to me recently
you have to wonder about elected officials. Most normal people
don't want a job where they are hated by complete strangers,
and I'm not suggesting that Mr. Long is in that category, but
maybe some of us sitting at the table are.
You say the project is limited to an average of just 69,100
acre-feet on the west slope annually. What determined the
actual amount that's diverted each year?
Mr. Long. We need to meet certain flow requirements to the
rivers on the west slope, and once the flow is at a certain
level--and it changes during the course of the year, let's say
100 cubic feet per second, and I'm just using the number, which
I can't remember, let's say in April, anything over that, we
can divert. So what determines what we bring across is meeting
the flows as well as the snowfall.
Mr. Udall. Thank you for that answer, and that's a very
important number, as we all know. On page 11 of your statement,
you discuss the Allocation Principles, which are listed of
course in capital letters, to determine how project water is
used, and you say the principles require allowing a minimum of
51 percent of the annual project of water supply of municipal
and domestic use. So is it fair to say that the project is
primarily a municipal water supply project and not primarily a
project to supply agriculture, and this is at the heart of the
hearing today. And I left you 40 seconds to answer, but I know
you may want to provide additional thoughts for the record.
Mr. Long. OK. That is correct. The Allocation Principles
provided for 51 percent of the water to go to municipalities,
49 percent agricultural. Historically that has not been the
case. As of 2007, 74.56 percent of the water has gone to
agriculture. 25.4 percent has gone to municipal interests. In
2002 and since 2002, the municipal interests have requested and
received--well, not necessarily received, but they requested
the full 51 percent of whatever we brought over.
But as of today, the majority of the water has gone to
agriculture. But we believe that we will see a shift and more
will ultimately go to municipal interests.
Mr. Udall. Thank you. Thank you, Madam Chair. I think what
you're saying is there's a critical mass here, there is a
tipping point that very much concerns those of you in the
southeastern part of the state. And thank you, and thank you,
Chairwoman Napolitano.
Mrs. Napolitano. Thank you.
I'd rather not do a second round, if you don't mind, Mr.
Lamborn, so we can hear the rest of the testimony, unless you
have some pertinent questions.
Mr. Lamborn. [Shakes head.]
Mrs. Napolitano. Thank you. Pardon me. Taking the
prerogative of the chair though, I will point out to Mr. Long
or ask Mr. Long, can you explain very quickly the differences
between the Preferred Storage Options Plan, PSOP, and the plans
for long-term excess capacity contracts with the City of
Aurora.
Mr. Long. Could you repeat the question?
Mrs. Napolitano. Can you please explain the differences
between PSOP and the plans for long-term excess capacity
contracts with the City of Aurora.
Mr. Long. I think I'd prefer to respond to that in writing.
I mean, that's a lengthy answer.
Mrs. Napolitano. That's fine. And, yes, certainly would
love to have it in writing so that we--then they can share it
with the panel. And this panel will be asked to submit
questions for the record, because we have so many witnesses
that we are not in a position to allow a second round. So
questions will be entered for the record and we would
appreciate if you would supply one, I believe it's a 10-day
time frame.
Mr. Long. That is absolutely no problem.
Mrs. Napolitano. Thank you very much. And thank you both
for being here.
Mr. Ryan, may I ask that you might stick around in case we
might want to ask other questions later on. Thank you, sir.
Mrs. Napolitano. Gentlemen, please move on to the second
panel.
Welcome, Lionel Rivera, Mayor of Colorado Springs, please
come up; Terry Scanga, General Manager, Upper Arkansas Water
Conservancy District, Salida, Colorado; Mr. Bill Thiebaut,
District Attorney, Pueblo, Colorado; Jay Winner, General
Manager, Lower Arkansas Conservancy District, Rocky Ford; and
Sandy White, attorney of water from La Veta.
Welcome, and as soon as you're ready to go, we'll start off
with the honorable mayor, Lionel Rivera.
Mr. Rivera.
STATEMENT OF THE HONORABLE LIONEL RIVERA,
MAYOR, COLORADO SPRINGS, COLORADO
Mr. Rivera. Thank you. Thank you, Madam.
I think I have it now, thank you. Thank you, Madam Chair
Napolitano and members of the committee and Members of
Congress. Thank you for this opportunity to appear before you
today. My name is Lionel Rivera, and I am the mayor of Colorado
Springs.
Colorado Springs is known to many of you as being the
location of the world-famous Broadmoor Hotel; the United States
Olympic Training Center; strategic military installations,
including the United States Air Force Academy, Peterson Air
Force Base, headquarters for the U.S. Northern Command, NORAD,
and Air Force Space Command, and Fort Carson, soon to be
headquarters of the United States Army 4th Infantry Division.
However, what may not be as well known to you is all of
these entities and a population of over 400,000 people rely on
Colorado Springs to deliver their water supply. Today Colorado
Springs' water supply comes from a variety of sources and
features a water delivery infrastructure that reaches over
three river basins and seven counties, and on average 70
percent of our water is delivered from western Colorado via
three delivery pipelines. The Fry-Ark Project plays an integral
role in delivering this water.
As you have already heard, the Fry-Ark Project was
conceived, planned and constructed as a multipurpose project to
serve both the interests of agriculture and municipal entities
within the Southeastern District. It has always included a
pipeline to deliver project and acquired nonproject water to
Colorado Springs, and Colorado Springs has an equal right to
expect to receive the potential benefits that the project has
to offer such as the other project supporters and beneficiaries
do.
From the inception of this project, the City of Colorado
Springs has been an active participant and last year alone the
people of El Paso County contributed over 72 percent of the
total valuations that go into funding the project.
The availability of a dependable and cost-effective water
supply has propelled the growth and success of Colorado Springs
and proves that in many ways the Fry-Ark Project is working as
it was intended. On August 17, 1962, in a speech made right
here in Pueblo, Colorado, President John F. Kennedy said the
following about the Fry-Ark Project:
``This (project) is an investment in the future of this
country, an investment that will repay large dividends. It is
an investment in the growth of the West, in the new cities and
industries which this project helps make possible.''
Looking back almost 45 years now, President Kennedy's words
seem almost prophetic. One needs to look no further than
Colorado Springs and Pueblo to see how President Kennedy's
vision for the growth of the West has come to fruition. As we
have grown, we have done so responsibly with the full
recognition that we would continually try to meet water
quantity and quality challenges.
We are meeting the water quantity challenge through an
extensive release program and through a program that has
resulted in one of the lowest per capita water consumption
rates in the West. We have answered the water quality challenge
by investing $85 million in completed and planned capital
improvements to our wastewater system and by creating a
stormwater enterprise that will collect over $14 million a year
to fund capital improvements in our stormwater management
system.
For all of the rhetoric and misinformation that has been
and will be spread about our city, the truth is that Colorado
Springs has historically sought to avoid relying on the
transfer of agricultural water rights to provide a water supply
to the city. Far from seeking the demise of the Arkansas Valley
agricultural economy, Colorado Springs is working hard to
develop a fallowing and leasing program that allows for the
development of multiple use of the valley's water supply,
multiple uses that will allow farmers to financially benefit
from their water rights, while protecting and enhancing the
agricultural economy of the valley. And we are jointly leading
the efforts to study water quality issues on the Arkansas River
and Fountain Creek through a funded commitment and proposed
agreement with the Lower Arkansas Valley Water Conservancy
District.
At every turn the City of Colorado Springs has complied
with the applicable laws of the United States and the State of
Colorado when it comes to acquiring these water supplies. Each
of our sources of supply is a subject of decrees, and we are in
compliance with the terms and conditions of those water right
decrees. The water problems of this valley and of this state
will never be solved by looking backward and trying to rewrite
legal transactions between agricultural and municipal
communities. True leadership on water issues requires us to
identify the problems of the future and seek to solve those
problems in order to better the conditions of all of our
citizens. Colorado Springs is committed to that concept, and
our resources must be spent planning for that better future.
In closing, let me say the Fry-Ark Project was developed to
benefit all of the citizens within the Southeastern Colorado
Water Conservancy District. It was developed to benefit not
only the agricultural lands within the district, but also
municipal and industrial users as well. As the public body
representing two-thirds of the citizens within the Southeastern
Colorado Conservancy District, Colorado Springs is proud to
have fulfilled President Kennedy's vision and support his
concept that municipal interests must be considered at the same
time as all of the other project beneficiaries.
Increasing the usefulness of the Fry-Ark Project for all of
the citizens of the Southeast District is a shared goal. The
politics of demonization have no place in these discussions. We
should be seeking win-win solutions and we trust the Congress
of the United States is also interested in solutions that
benefit all of the citizens of the district. We look forward to
working with our neighbors in good will in solving the issues
we face in the future and ensuring the project continues to
excel.
Again, I thank you for your invitation, your invitation and
for taking such a keen interest in this project.
Mrs. Napolitano. Thank you, Mayor.
[The prepared statement of Mr. Rivera follows:]
Statement of The Honorable Lionel Rivera, Mayor,
City of Colorado Springs
Madam Chairman Napolitano, Members of the Committee and Members of
Congress:
Thank you for the opportunity to appear before you today to discuss
the Fryingpan-Arkansas Project. My name is Lionel Rivera, and I am the
Mayor of the City of Colorado Springs. Colorado Springs is the second
largest city in Colorado, and is the County Seat of El Paso County
which recently passed the City and County of Denver as the State's most
populous county.
Nestled at the foot of Pikes Peak, Colorado Springs is probably
known to many of you as being the location of the world-famous
Broadmoor Hotel, the United States Olympic Training Center, and for
being the home of some our nations most important military
installations including the United States Air Force Academy; Peterson
Air Force Base, headquarters for the U.S. Northern Command; and Fort
Carson, headquarters of the U.S. Army's 4th Infantry Division. However,
what may not be as well known to you is that all of these entities and
a population of over 400,000 people rely upon the City of Colorado
Springs to deliver their water supply.
Colorado Springs first developed the available water supplies on,
and in the vicinity of, Pikes Peak. When those supplies proved
insufficient for the needs of the City, Colorado Springs undertook the
construction of a pipeline from the headwaters of the Blue River, in
Summit County, Colorado. Thereafter Colorado Springs, in partnership
with the City of Aurora, developed additional water supplies out of the
Eagle River headwaters through a project called The Homestake Project.
At the same time Colorado Springs participated in the development of
the Fryingpan-Arkansas Project for additional water supplies and
acquired interests in the Twin Lakes Company system which gets its
water from the headwaters of the Roaring Fork River. Finally, after
undertaking all of these developments, Colorado Springs was approached
by a water broker and ultimately purchased a significant package of
water that had formerly been used to irrigate lands under the Colorado
Canal.
Today, Colorado Springs' water supply comes from a variety of
sources, and features a water delivery infrastructure that reaches over
three river basins and seven counties, and, on average, 70% of our
water supply is delivered from western Colorado via three delivery
pipelines. The Fry-Ark Project plays an integral role in delivering
this water.
As you have already heard from Mr. Long, President of the
Southeastern Colorado Water Conservancy District and Mr. Ryan of the
Bureau of Reclamation, the Fry-Ark Project was conceived, planned and
constructed as a multi-purpose project to serve both the interests of
agriculture and municipal entities within the Southeastern District.
From the inception of this Project, the City of Colorado Springs has
been an active participant in the development of the project which has
always included a pipeline to deliver both project and acquired non-
project water from the Arkansas River to the City of Colorado Springs.
The costs of the Fry-Ark Project to El Paso County and Colorado
Springs are significant. From 1959 through 2006, El Paso County has
contributed $65,317,360 to the administration and repayment of the Fry-
Ark Project, an amount that is more than double the contributions of
all other project participants combined. Last year alone, El Paso
County contributed over 72% of the total valuations that go into
funding the Project. The second largest contributor was Pueblo County
which came in at 15%. As Colorado Springs and El Paso County continue
to grow, our financial contributions to the Project will grow as well.
I would like to submit to the record the accompanying document which
details Southeastern Water Conservancy District's tax valuations.
[Attachment A].
The return on El Paso County's investment in the project is
significant as well. Of the project water that is stored in Pueblo
Reservoir, 25% is released to the Fountain Valley Conduit for municipal
use in El Paso County by the members of the Fountain Valley Authority;
The City of Colorado Springs; The City of Fountain; The Security Water
District; The Stratmoor Hills Water District; and Widefield Water
District. The conduit became fully operational in 1985 and reached full
conveyance in 2006 and is an important supply and delivery system for
all of those communities.
The Fry-Ark Project is not today and never has been an irrigation-
only project. It has always been a multiple-purpose project and
Colorado Springs has an equal right to expect to receive all of the
potential benefits that the project has to offer just as the other
project supporters and beneficiaries do.
Though we have been very fortunate with the growth and prosperity
of our community, we fully recognize how scarce water is in our arid
climate. As a part of this recognition, Colorado Springs is one of the
most aggressive and responsible cities in the entire Western United
States when it comes to water conservation, and Colorado Springs has
actually witnessed a gradual decline in single-family residential water
consumption over the last 25 years.
Using the same methodology employed by Western Resource Advocates
in a 2003 survey entitled ``The Smart Water Report,'' Colorado Springs
found that in 2001 its citizens used less gallons of water per day than
residents in other areas in the intermountain West, besting cities like
El Paso, Albuquerque, Boulder, Phoenix, Denver, Tempe, and Las Vegas.
Since 2001, our per-capita use has continued to decline and last year
our residential per-capita consumption was below 100 gallons per day.
This success is not an accident. It is the result of aggressive and
innovative policies adopted by Colorado Springs that include citizen
education; low-income conservation support; seasonal rates that
discourage excessive outdoor watering during summer months; financial
incentives for upgrading to more efficient appliances; and even
adopting city codes that which require water-efficient landscaping on
all new commercial, industrial and residential construction.
In addition to conservation, Colorado Springs is a leader in non-
potable water reuse, whereby raw surface water and tertiary-treated
effluent water is piped through an independent system to avoid using
new freshwater supplies for irrigation. Colorado Springs boasts of one
of the oldest non-potable systems in the West, which delivers on
aggregate, more than 12,000 acre feet a year, accounting for 13%
Colorado Spring's total water deliveries. Our non-potable system waters
city parks, municipal cemeteries and golf courses, our power plant
cooling towers, and outdoor areas at Fort Carson and the United States
Air Force Academy. In fact, next year when the PGA U.S. Senior Open is
played at the world-famous Broadmoor golf course, it will be played on
grass that has been irrigated by the Colorado Springs non-potable
system. We are currently implementing plans to extend this valuable
service to more and more regions or our city.
Yet, even as our per-capita water use declines, we are still seeing
growth and this is putting pressure on our ability to deliver water.
Part of the response to this pressure will be to squeeze even more out
of our existing conservation plans and to implement new additional
conservation methods. But conservation alone will still leave Colorado
Springs well short of the water it needs to provide for the residents
that will call Colorado Springs ``home,'' over the next 40 years.
To meet our future demand we will once again be looking to our
water in the Fry-Ark system, and are right now in the process of
implementing a new water delivery pipeline known as the Southern
Delivery System or SDS. Though we are still exploring the options of
connecting a new pipeline from Pueblo Reservoir, like we currently have
with the existing Fountain Valley Authority pipeline, or by building a
pipeline further up the river in Fremont County, we expect to begin
construction on the project by 2009.
The availability of a dependable and cost-effective water supply
has propelled the growth and success of Colorado Springs and proves
that, in many ways the Fry-Ark Project is working as it was intended.
On August 17, 1962, in a speech made right here in Pueblo, Colorado,
President John F. Kennedy said the following about the Fry-Ark project:
``This (project) is an investment in the future of this
country, an investment that will repay large dividends. It is
an investment in the growth of the West, in the new cities and
industries which this project helps make possible.''
Looking back almost 40 years now, President's Kennedy's words seem
almost prophetic. The dividends of the investment in the Fry-Ark
project are real. One needs look no further than Colorado Springs to
see how President Kennedy's vision for the growth of the West has come
to fruition.
Unfortunately, while many aspects of the Fry-Ark project are
working as they were intended, some unintended consequences have
resulted from the success our cities and farms have realized over the
past 40 years. As our cities have grown, tremendous strains have been
placed on our water infrastructures. In Colorado Springs for example,
we have in years past seen catastrophic weather events, and even
vandalism plague our wastewater system, resulting in sewer overflows
into Fountain Creek. While these disruptions were neither willful nor
negligent, we as City have responded by investing over $60 million in
capital programs in upgrading our system and have built a new state-of
the art treatment plant which comes on line this year and have a new,
even more advanced regional plant on the drawing boards to accommodate
future growth. Again in 2007 we estimate investing an additional $25
million on capital projects in the wastewater collection system.
In spite of the having a better disruption record than most other
wastewater utilities for a system of our size in the entire nation, we
are constantly looking for innovative ways to prevent unintended spills
from causing significant damage to our watersheds. I am proud to
announce that next week, we will be inaugurating one of those
innovations in the form of our Fountain Creek Recovery Project, a novel
system whereby in the event of a wastewater spill, we will have the
ability to capture the flow of the Fountain Creek, divert it to a
holding pond, pump the water from the pond to one of our wastewater
treatment facilities, while simultaneously releasing fresh water back
into the creek.
Yet while municipal sewer systems receive more publicity, when it
comes to the overall threats to water quality in a stream, non-point
source discharges should be of a much greater concern. Non-point
discharges from cities come in the form of urban stormwater runoff,
which occurs when rainwater washes pollutants and sediments from
impervious surfaces into storm drains. To better manage the impacts
urban runoff has on Fountain Creek, Colorado Springs this past year
adopted a stormwater enterprise where by approximately $14.3 million a
year will be collected from fees imposed on property owners to fund
much needed capital improvements in our stormwater collection and
management system.
However, urban stormwater runoff is only part of the story, and
significant water quality issues surround runoff from agricultural
development in the Arkansas basin. The U.S. Army Corps of Engineers
report on environmental baseline on the Fountain Creek cites the
following finding from the U.S. EPA on agricultural impacts on water
quality:
``The most recent National Water Quality Inventory reports that
on a national scale, agricultural NPS pollution is the leading
source of water quality impacts to surveyed rivers and
lakes...and also a major contributor to ground water
contamination and wetlands degradation....''
The Army Corps report goes on to identify Fountain Creek to be the most
heavily impacted stream segment in El Paso and Pueblo Counties in terms
of agriculture non-point source pollution.
In some ways, it is much easier for a large municipality like
Colorado Springs to address its impacts on water quality than it is for
an individual farmer or rancher. That is why we are hopeful as this
subcommittee, the full Committee on Natural Resources, or any other
Committee of the House or Senate examines how to manage the impacts
growth has on both the quantity and quality of our water supplies, that
it will pay special attention to helping the agricultural community
mitigate its impacts on our rivers and streams.
It would be wrong to interpret this plain statement of the facts as
an affront to the agricultural community or a dismissal of the plight
of our farmers. Not only are we aware of the difficulties that global
competition poses on our farmers, we are all too familiar our selves.
Already this year, we have seen high tech manufacturers in Colorado
Springs leave our city for foreign shores because the realities of
global commerce mean their products can be made more cheaply abroad.
Instead of merely paying lip-service to the problems our farmer's
face, we are instead forging new ground in Colorado and finding
innovative ideas for farm and city to work together in meeting our
mutual water needs. For our part, Colorado Springs is exploring a water
leasing program with Arkansas Valley farmers, whereby irrigators would
lease their water to cities during dry and less productive years. This
would provide a much needed income source to the farmer, and a much
needed water supply for a thirsty city when supplies are tight. The
benefit is that the right to the water stays with the farmer and that
right is loaned out when it serves the mutual benefit of both parties.
For all of the rhetoric and misinformation that has been spread
about our City, the truth is that Colorado Springs has historically
sought to avoid relying on the transfer of agricultural water rights to
provide a water supply for the City. Far from seeking the demise of the
Arkansas Valley agricultural economy, Colorado Springs is working hard
to see a fallowing and leasing program developed which allows for the
development of multiple-use of the Valley's water supplies.
At every turn the City of Colorado Springs has complied with the
applicable laws of the United States and of the State of Colorado when
it came to acquiring these water supplies. Each of our sources of
supply is the subject of decrees and we are in compliance with the
terms and conditions of those water rights decrees. Those decrees
represent property interests of the citizens of the City of Colorado
Springs and serve as the foundation of the City's health, safety and
welfare. The problems of this Valley, this State and this Nation will
never be solved by looking backward and conducting ``what if''
investigation of matters that are long past. True leadership requires
us to identify the problems of the future and seek to solve those
problems in order to better the condition of all citizens. Our
resources must be spent planning for the future, not attempting to
relive or reinvent the past.
In closing, let me say that the Fryingpan-Arkansas Project was
developed to benefit all of the citizens within the Southeastern
Colorado Water Conservancy District. It was not developed to benefit
only the agricultural lands within the District, but to benefit
municipal and industrial users as well. As the public body representing
two-thirds of the citizens within the Southeastern Colorado Water
Conservancy District, Colorado Springs is not embarrassed to suggest
that its interests must be considered at the same time as all of the
other Project beneficiaries and if consideration of enlargement of
Pueblo Reservoir or other project facilities will benefit other
entities then it should benefit Colorado Springs as well.
Increasing the usefulness of the Fryingpan-Arkansas Project for all
of the citizens of the Southeast District should be considered a good
thing, not a bad one. In the arid west we only succeed in serving the
interests of our citizens when we work together to solve water resource
problems. The politics of demonization have no place in these
discussions. We should be seeking win-win solutions and we trust the
Congress of the United States is also interested in solutions that
benefit all of the citizens instead of a few. So as one of the initial
project beneficiaries and as an entity that has been involved in the
planning, development, construction and operation of the Fryingpan-
Arkansas Project since its inception, we are proud of our role and look
forward to working with our neighbors of good will in solving the
issues we face in the future.
President Kennedy lauded the mutual effort and cooperation that
went into building the Fry-Ark project as the stuff that makes America
great. It took the joint effort of Colorado's municipal and
agricultural interests to make the Fry-Ark a reality. It will take the
joint effort of Colorado's municipal and agricultural interest to
ensure the project continues to excel.
Again, I thank you for your invitation, and for taking such a keen
interest in this project.
______
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[The response to questions submitted for the record by Mr.
Rivera follows:]
July 9, 2007
The Honorable Grace F. Napolitano
Chairwoman
Subcommittee on Water and Power
Committee on Natural Resources
U.S. House of Representatives
1610 Longworth Bldg
Washington, DC 20515
Re: The Fryingpan-Arkansas Project at 45: Sustainable Water for the
21st Century
Dear Chairwoman Napolitano:
In response to your letter of June 12, 2007 and in furtherance of
my testimony presented to your committee in Pueblo, Colorado, on June
1, 2007, I would like to offer the following comments. If I may, I
would like to address the questions which you presented to me in your
letter of June 12, 2007 first.
Post-Hearing Questions from Chairwoman Grace F. Napolitano
1. What water conservation programs does the City of Colorado Springs
participate in now?
Response: The City of Colorado Springs has been a leader in the
recapture, reuse and retreatment of its municipal water supplies for
the past 45 years. Beginning in the early 1960s Colorado Springs began
operation of a tertiary treatment facility in order to capture and
reuse water for non-potable purposes within the City. During
intervening years, Colorado Springs has expanded that capacity on
several occasions, including an upgrade to its Las Vegas Street Waste
Water Treatment Plant. Most recently Colorado Springs undertook the
construction of a new 12 million gallon per day tertiary treatment
facility capable of treating and delivering reusable water for non-
potable reuse purposes within the City. This also includes a 3-5
million gallon per day reuse capability to the Martin Drake Power Plant
for cooling water purposes.
In addition to the physical treatment and reuse programs,
conservation has been an integral part of water resource planning for
over 60 years. Colorado Springs has six categories that make up its
water conservation portfolio. They include education, low-income
support, partnerships, rates, incentives and regulations.
Education--Customer education provides the foundation for all of
Springs Utilities' water conservation programs. Conservation messages
appear in the customer newsletter, on the web site and in the media.
The school program began in the 1990s and features curriculum that is
developed in partnership with local educators. Colorado Springs
Utilities has a Xeriscape Demonstration Garden and offers free classes
and tours on a range of topics for homeowners, civic and business
groups.
Low-Income Support--The Home Efficiency Assistance Program (HEAP)
provides financial assistance to low-income customers for the adoption
of water-efficient fixtures. Free water audits are provided in
partnership with the Energy Resource Center for qualified, low-income
residential customers. If necessary, water leaks are repaired and
inefficient showerheads, toilets and water heaters are replaced.
Partnerships--Colorado Springs recognizes the value of partnerships
in promoting water conservation and works with entities throughout the
region to further the water conservation message. In February, a
landscape symposium is held in which hundreds of homeowners and
professionals gather to learn about water-wise landscape design,
installation and maintenance.
Rates--Seasonal rates are designed to encourage efficiency during
the irrigation months, when the greatest demands are placed on the
water system. All commercial, industrial and multi-family customers are
on the seasonal rate, in effect from May 1 through October 31. The
residential block rate structure provides an affordable rate for
essential indoor use and sends a strong price signal for discretionary
outdoor use.
Incentives--Financial incentives are used to encourage customers to
upgrade their appliances and equipment to more water-efficient models.
Springs Utilities began to market water-efficient rebates in 2002,
during the first year of water restrictions. Since that time, rebates
have been offered for ultra-low flush and dual-flush toilets, high-
efficiency clothes washers, and efficient irrigation systems, including
rain shut-off devices and irrigation equipment.
Regulations--Water consumption may be reduced by local, state and
federal regulations. Since 1998, Colorado Springs has required water-
efficient landscaping for all newly developed commercial, industrial
and multi-family sites.
In 2003, Western Resource Advocates released a report entitled the
Smart Water Report. Although Springs Utilities did not participate in
the study, the same methodology was used to calculate single-family
residential water consumption. Colorado Springs compares very favorably
to other cities as indicated in the chart below.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
2. What incentives are there for water conservation?
Pricing and purchasing incentives help encourage water conservation
in the Colorado Springs community. All residential customers are on an
inclining block rate which provides an affordable rate for essential
indoor use, a moderate rate for typical outdoor use and an aggressive
rate for excess use. The moderate and aggressive rates are 1.7 and 2.6
times the affordable rate, respectively. In addition, all commercial,
industrial and multi-family customers are on a seasonal rate. The
seasonal rate is 1.8 times higher during the summer months, when the
greatest demands are placed on the water system.
In addition to pricing incentives, Colorado Springs Utilities
offers purchasing incentives for water-efficient appliances and
equipment. Currently, rebates are available for ENERGY STAR-qualified
clothes washers, high-efficiency toilets, and irrigation equipment. The
irrigation equipment rebates are particularly important since outdoor
water use constitutes half of the water used annually. Irrigation
equipment rebates are available for the purchase of qualified rain
shut-off devices, irrigation controllers, spray heads with check
valves, and rotating multi-stream nozzles--all technologies proven to
increase outdoor water efficiency.
Post-Hearing Questions from John Salazar
1. Is Aurora an agricultural or municipal entity within the District?
Response: The City of Aurora is not physically located within the
Southeastern Colorado Water Conservancy District. It is my
understanding that at the time the Fryingpan-Arkansas Project was
developed, the City of Aurora agreed to permit the use of certain water
storage facilities in exchange for contract rights to use certain
project facilities. The decision whether or not to enter into contracts
for the use of Fryingpan-Arkansas facilities does not rest with the
City of Colorado Springs, but with the Bureau of Reclamation.
2. How can you sit here today saying you need more water when back in
2005 Colorado Springs felt like it needed to encourage its
residents to use additional water?
Response: The statewide drought offered many learning
opportunities, as well as burdens for most water providers in Colorado.
Water restrictions are considered emergency measures used for short-
term system failures or drought situations, and are not the long-term
commitment to sustainable community conservation. To mitigate the
impacts of the drought we increased public education and imposed water
restrictions. The result was that our community reduced water
consumption by approximately twenty percent and reservoirs were
replenished to ``near normal'' levels. Restrictions were lifted in late
2005 due to improved water supply conditions, not to encourage more
water use and revenue.
It is a real challenge for all public utilities in the nation to
balance the need to raise sufficient revenues to meet the fixed and
ongoing operating costs and cost of water acquisition with the desire
to control water rates and water usage. I would like to emphasize that
the comment purported to be attributed to Colorado Springs Utilities
CEO, by Mr. Tollefson, represented the need to address a short-term
cash flow crunch in the operation of our utilities does not imply a
lack of need for long-term water supply planning, nor for the need to
construct the facilities required to ensure the preservation of the
public health, safety and welfare of the citizens of Colorado Springs.
Your question suggests that a comment related to a short-term financing
issue somehow obviates the City's needs and obligations to plan for a
provision of water supply for its residents into the future. In my mind
the two are not directly related.
I would also like to point out that despite the article you quote
Colorado Springs continues to have one the of lowest per capita water
use of any community within Colorado, evidence that the water
conservation ethic in our community remains strong. So the point of
your question seems to be moot given the fact that Colorado Springs
programs encouraging water conservation and the attitude of its
citizens continued to result in a very conservative per capita water
use despite relaxation of water restrictions.
Responses to Comments Made During the Hearing
1. Concerns about the nature and quantity of releases experienced in
the Colorado Springs Utilities system.
Response: Colorado Springs operates the largest unified wastewater
collection and treatment system in the State of Colorado, which
includes over 1500 miles of collector system as wells as 2 wastewater
treatment plants. During a disastrous flood event in 1999, several
sections of Colorado Springs' collection system were destroyed by the
raging floodwaters. Colorado Springs immediately reported the condition
to the responsible state officials at the Colorado Department of Public
Health and Environment and worked night and day to make repairs to the
system and prevent further discharges. As the result of this event,
Colorado Springs undertook an extensive program of rehabilitation for
its entire wastewater system with an eye toward preventing such events
in the future. The vast majority of releases Colorado Springs has
experienced since 1999 can be broadly categorized in four ways. a.)
Releases resulting from vandalism or the actions of third-parties such
as utility contractors cutting into sewer lines. b.) Normal blockages,
experienced by utilities throughout the nation and the world operating
collection systems, caused by customers depositing inappropriate
material, such as grease, rags or other matter into sewers. In
addition, the problem caused by tree roots intruding into the sewers in
search of moisture in this arid climate is common to all wastewater
utilities. c.) Releases associated with the City's efforts to
rehabilitate its collection system when contractors fail to adequately
control the bypass operations necessary when sewers are being
rehabilitated or re-lined. d.) Releases from the portion of the
tertiary treatment/reuse system transporting fully treated water from
the treatment plants to the point of irrigation reuse. These
``releases'' are only an issue because the water in the reuse system is
well chlorinated to ensure that the public health is fully protected.
Finally, a separate but limited category includes additional breaks
associated with extreme weather events of which there were only 8 in
the eight year period since 1999. With regard to the events under
category a, there were 12; category b there were 53; category c there
were 9; and category d there were 23. Over time, Colorado Springs has
worked hard to reduce the number of releases each year to a minimum,
and has succeeded in reducing the total volume of releases
significantly. Colorado Springs is confident that through its
commitment of over $100 million in additional collection system
expenditures, the number of releases of any size will continue to
decline.
All of these releases have been reported to the appropriate state
officials and appropriate enforcement action has been taken and
sanctions imposed. The City of Colorado Springs is in full compliance
with those enforcement orders, has paid all of the fines that have been
assessed and is ahead of all compliance schedules ordered by the State
Health Department.
2. How old is the Colorado Springs wastewater treatment plant?
Response: The Las Vegas Street wastewater treatment plan was first
put into operation in 1935. Over the intervening years numerous
upgrades, expansions and improvements to the facility have been planned
and completed. The most recent upgrade and expansion occurred in the
mid 1990s, which increased the plant's capacity to 65 million gallons
per day and upgraded the treatment technology. It is currently one of
the most modern advanced wastewater treatment plants in the state with
a rated capacity of 65/75 million gallons per day. The current inflow
to the plant is 42 million gallons per day. Colorado Springs is, and
continues to be, in compliance with all of the permit limits contained
in the plant's NPDES permit related to the discharges from the
facility. Colorado Springs is justifiably proud of the performance of
this plant and its ability to deliver extremely high quality water to
the Fountain Creek.
3. Will the addition of the Phillips Water Treatment and Reclamation
Plant decrease the City of Colorado Springs water use from the
Fryingpan-Arkansas Project?
Response: No, it will not in the long term. As the entity
responsible for approximately two-thirds of all the citizens served by
the Fryingpan-Arkansas Project, and who pay over 70% of the repayments
costs associated with the Project, Colorado Springs' use of Project
water supplies will not decrease as a result of the completion of the
Phillips plant. However, Colorado Springs' ability to fully use water
supplies within the City will increase as a result of the completion of
the Phillips plant. Colorado Springs would like to emphasize that
although the municipal participants in the Fryingpan-Arkansas Project,
including the City of Pueblo, the City of Colorado Springs and a number
of other smaller communities within the Arkansas Basin and within the
Southeastern District are entitled to use 51% of the total water
supplies from the Fryingpan-Arkansas Project, these communities
collectively have historically only used approximately 25%, or half of
their entitlement. The remainder has been utilized by agriculture.
Although, in the future, municipalities, including Colorado Springs
will want to secure a greater share of the project, as they are legally
entitled to do, they certainly will not do so until it becomes
necessary. The following summary chart further illustrates historical
use of Fryingpan-Arkansas Project waters:
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
I hope that the foregoing responses to your written questions as
well as several that were asked of us during the hearing will be
helpful to you. I have also included an updated attachment to my
original testimony on Colorado Springs' contribution to the Fryingpan-
Arkansas Project. I want to thank you again for permitting me to
participate in the hearing and to respond to your further inquiries.
Very truly yours,
Lionel Rivera
Mayor
City of Colorado Springs
______
Mrs. Napolitano. And we will go to Terry Scanga, General
Manager, Upper Arkansas Water Conservancy District.
STATEMENT OF TERRY SCANGA, GENERAL MANAGER, UPPER ARKANSAS
WATER CONSERVANCY DISTRICT, SALIDA, COLORADO
Mr. Scanga. Thank you, Madam Chair. Before I start, I'd
like to give a little background about myself.
Mrs. Napolitano. You have the whole 5 minutes, sir.
Mr. Scanga. Thank you.
As well as being the manager of the district--I've been in
that capacity for about six years--before that I served for
twelve years as a director on the Upper Arkansas Water
Conservancy District Board. I own a business in Chaffee County
in the upper Arkansas Basin. I'm also an agricultural water
right owner, and my family has been involved in agriculture in
the upper Arkansas Valley since my grandfather immigrated there
in 1877. So I think I understand agricultural water use and
water use in the basin.
The Upper Arkansas Water Conservancy District was formed in
1979, after the project was created. It was designed as the
State of Colorado's Water Conservancy Act designs, to protect
and develop water resources for beneficial use within our area.
We operate several reservoirs and a blanket plan of
augmentation, which is a landmark type of planning for
domestic, agricultural use of water, and also for industrial
uses. We use Fryingpan-Arkansas Project water as well to
supplement our native water supplies and other transmountain
water that we utilize within our plan.
My father was a supporter of the Fryingpan-Arkansas
Project. I can remember being a seven-year-old child and seeing
in 1955 my father purchase a frying pan. And I asked him what
the project was like. It was really interesting to see what the
vision of the project was back then. There were going to be
hydroelectric plants and dams all the way throughout the
Arkansas Basin into the lower valley to produce hydroelectric
power, as well as water for irrigation and for domestic use.
There was even a vision that there would be a canal, a large
pipeline that would deliver it, instead of the river delivering
it as we see it today.
I think the Fryingpan-Arkansas Project as we see it is
really a story of change, a history of change within our valley
if you look at it. Back then when the Fryingpan Project was
started in the 1960s, primarily agricultural and mining were
the main industries in the valley. Those industries used and
that's where the demand for water went. Water follows demand
and the needs of a community.
And that's what we see today happening. We see a large
change. We see the--there were two dramatic changes that have
taken place. In 1969 the State of Colorado passed the
Administration and Adjudication Act. It recognized the
tributary groundwater extracted by wells, which were junior to
senior surface water rights, were injuring those rights, and
therefore it integrated those two, making it necessary for
augmentation plans, specific plans of augmentation that would
replace water into the rivers to prevent injury to those senior
diverters.
The lower Arkansas Valley had a lot of irrigation wells
prior to this. And with the Colorado-Kansas lawsuit in 1994, it
triggered a curtailment of the use of those wells and forced
well owners to utilize in fact Fryingpan-Arkansas water to well
associations to be able to put together plans of augmentation
to be able to continue to pump and use that water.
The second I think very dramatic thing that's happened in
our state and probably throughout the entire west is that we
have seen a shift from agricultural demands, because of
competition from large corporate farms and competition from
overseas with produce, with our local industries, we have seen
a change and a shift of water being used, the demand of water,
from agricultural to municipal uses.
We have watched in the upper Arkansas Valley our towns grow
from rural-type areas to suburban- and urban-type areas, where
people are building subdivisions in the mountains and they're
utilizing water for domestic uses. So we're beginning to see a
shift, a large shift. In the upper Arkansas Valley, the
projection is that the population will double.
Another use today that we see in Fryingpan water is
recreational use in the whitewater industry and in fishing. In
that regard, the folks in the upper Arkansas Valley, the
Arkansas River Outfitters, in cooperation with the Department
of Parks, the Department of Natural Resources of the State of
Colorado and the Bureau of Reclamation put together a Voluntary
Flow Management Program. It's 10,000 acre-feet of water are
delivered from project facilities. Because we have facilities
of the project that were built in the upper basin and also
lately we have in the lower basin with two vessels in between,
we are able to put together a program that manages the delivery
of water, of Fryingpan water, and the evaporation, the transit
losses are made up by the whitewater industry.
Mrs. Napolitano. Sir, would you wrap up here?
Mr. Scanga. Yes. Well, thank you very much.
For the future what I see is the Preferred Storage Options
Plan is extremely important to the entities in the upper
Arkansas Basin. You have letters in my testimony from about a
half-dozen different cities and municipalities participate
within PSOP, and this is very important for storage of
nonproject water that this move forward. And we'd like to see
this feasibility study move forward. Thank you very much,
ma'am.
Mrs. Napolitano. Thank you, sir.
[The prepared statement of Mr. Scanga follows:]
Statement of Ralph L. ``Terry'' Scanga, Jr., General Manager,
Upper Arkansas Water Conservancy District
Background: The Upper Arkansas Water Conservancy District ``UAWCD''
was formed in 1979 pursuant to the Colorado Water Conservancy Act, 37-
45-102 C.R.S. to protect and develop water resources for beneficial use
in the Upper Arkansas Region. The District includes Chaffee County,
Custer County, the Western Half of Fremont County and that part of
Saguache County that lies within the Upper Arkansas Basin. The District
provides storage on key tributaries and water pursuant to its decreed
plans for augmentation to the citizens and municipalities within its
boundaries. The ``UAWCD'' is active in the protection of water rights
within the basin from exportation to other areas and collaborates with
other basin entities in the management of water resources for mutual
benefit. The UAWCD owns a collection of native water rights and
utilizes allocations of Fryingpan-Arkansas water within its
augmentation plans as well as Fryingpan facilities through excess
capacity contracts for the benefit of its constituents. In addition
UAWCD has contracted with the Southeastern Colorado Water Conservancy
District for participation in the Preferred Storage Option Plan for
enlarged space and excess capacity space for storage of its non-project
water.
The Upper Arkansas basin is a less developed area of Eastern
Colorado but in recent years is experiencing a greater rate of growth.
In order to provide water for this growth and to protect the senior
water rights from out-of-priority uses, the UAWCD has acquired various
decrees for augmentation of various types of diversion structures to
supply domestic and irrigation supplies to its citizenry. UAWCD is now
embarking on the development of integrated water planning and
management with several of the smaller municipalities within the Upper
Arkansas basin to more efficiently manage and plan for growth impacts.
Recently, in cooperation with the State of Colorado the UAWCD has
agreed to become the Arkansas River Water Bank Operator. The Water Bank
is designed to facilitate the distribution of stored water from sellers
to buyers in need of water on a short-term or annual basis.
Project Water: Vital to the Upper Arkansas Basin is the annual
allocation of Fryingpan-Arkansas project water ``Project Water''.
Although used to supplement existing native water supplies, and other
trans-mountain water sources, such as Twin Lakes Canal Company shares,
Project Water is integral to providing water for irrigation, domestic,
municipal, industrial, and other beneficial uses in the Upper Arkansas
Basin. The cities and towns, some of which did not exist in 1962 when
the Project was authorized, depend upon annual allocations of this
essential commodity. Created in 1979, the Upper Arkansas Water
Conservancy District provides augmentation water supplies pursuant to
landmark blanket augmentation plans that cover large portions of two
counties in the Upper Arkansas Basin and provides replacement supplies
for domestic, industrial and irrigation use. The Upper Arkansas Basin
is typically defined as the lands upstream from the inlet to Pueblo
Reservoir. These communities from Buena Vista in Northern Chaffee
County to Florence in Eastern Fremont County rely on and have benefited
from the Fryingpan-Arkansas Project and integrated this supply source
with their native supplies and other trans-mountain water sources.
Recreational Use: The Whitewater Industry and Fishing have
developed into a thriving and important segment of the economy of the
Upper Arkansas Basin. With storage at the top of the watershed, located
in Turquoise, Twin Lakes and Clear Creek Reservoirs, and at the lower
end of the Upper Basin, in Pueblo Reservoir, fine tuning of water
management became possible. First, municipalities utilized this unique
feature of the system and elaborately timed exchanges were conducted to
correspond to demand. To protect water quality, municipal water
entities agreed to refrain from exercising exchanges when native river
flows fell below a water quality threshold. As river recreation
progressed beyond infancy the need to consider flow levels for
recreation began to loom. The practice of municipalities exercising
large exchanges during the Whitewater season had the effect of lowering
flows at times of recreational need and the releasing of large flows in
the spring and fall were detrimental to the longevity of the fishery.
Management of the timing of exchanges and releases became a point of
contention between the domestic users and the recreational users. Since
the Project had developed the infrastructure for Fryingpan-Arkansas,
the ability to manage flows between reservoirs made support of the
fledgling recreation industry a matter of water delivery. In 1988, the
founding of the Arkansas Headwater Recreation Area, a Division of
Colorado State Parks, in the Upper Basin, created the interface wherein
the Upper Basin's Arkansas River Outfitters Association, The Colorado
Division of Natural Resources, and The Bureau of Reclamation, could
interact to manage flows for the mutual benefit of municipalities,
agriculture and recreation. Without the Fryingpan-Arkansas Project the
Voluntary Flow Management Program could not have been created and from
that the likelihood the fledgling Whitewater Industry might well have
never developed to maturity. Of major significance is the inclusion of
the flow program concepts in exchange and change cases that have
occurred since the inception of the Voluntary Flow Program.
PSOP: As growth places pressure on these communities the need for
storage becomes paramount for future water management. Extremely
important to these Upper Basin communities is the need to develop
storage for their native water supplies. Nearly 10 years ago water
managers from these communities worked with the Southeastern Colorado
Water Conservancy District to develop storage options. The result was
the ``Preferred Storage Options Plan (PSOP)''. PSOP would utilize the
existing infrastructure to provide increased firm storage and capture
water during years of abundance. This was the same concept of the
original Fryingpan-Arkansas Project: bring water from the area of
Colorado where precipitation is more abundant and water demand is lower
to the area of the State where there is meager precipitation but a
greater demand. Since the run-off from the West Slope snow pack occurs
in a two month period, storage would be needed to reserve this water
for the time of need. Thus, Turquoise and Pueblo Reservoirs were
developed. In many ways the storage developed by the Project is as
important as the water diverted from the Western Slope.
The Preferred Storage Options Plan was conceived to provide needed
storage for native water supplies for domestic, municipal and
augmentation uses. Most communities in the Upper Arkansas Basin have
signed agreements to participate in this important project. As growth
in the Upper Basin takes place at an increasing pace, the need to
provide for storage of native supplies during times of abundance begins
to take on a sense of urgency. Faced with the need to provide
augmentation for agricultural and domestic ground water use, due to the
1969 State law that integrated tributary ground water with surface
water and the results of the Colorado v. Kansas law suit, storage
becomes the most essential mechanism to provide for the increased water
demands.
For nearly a decade the federal authorization to conduct a
feasibility study has been stalled due to local conflicts. Many
communities are losing patience with the tedious process and are faced
with an immediate need. Some are beginning to divert their energies
from PSOP and are exploring other alternatives.
Some Upper Basin entities have expressed a desire to begin the
feasibility study in tandem with other studies on extensive water
quality impacts in order that a determination can be made as to the
probability of PSOP. If a determination is made that the project is not
feasible then these municipal entities can explore other avenues to
meet future demands.
Water Conflicts: Although typically overstated, disagreements over
water management and use have often resulted in mitigation agreements
or crafted management planning that would not have taken place in the
absence of change. Disagreements over filings of water exchanges from
the Lower Basin to Upper Basin facilities by large municipal entities
have the potential effect of de-watering the Upper Basin River. Some of
the potential side-effects are reductions in flows and diminished water
quality. Municipalities dependent upon certain stream flow levels to
provide the required amount of dilution of sewage discharges were faced
with increased treatment costs that could be caused from poor timing of
exchanges or use of exchanges during low river flows. To avoid this
occurrence, entities such as Colorado Springs entered into stipulations
to curtail exchanges if the exchange would result in a reduction in
flows below specified levels as a part of their exchange decrees. This
type of stipulation has become the standard for all exchanges that
involve the Upper Basin. Likewise, the Voluntary Flow Management
Program has become institutionalized to the same degree to protect
recreational flows a noted above. The manner of the utilization of
Fryingpan-Arkansas facilities has been a major factor in the ability of
basin entities to cooperate in these types of beneficial water
management programs.
More recently, Colorado Springs Utilities is planning a pipeline to
deliver water to their city. This delivery system is referred to as the
Southern Delivery System ``SDS'' and would pump water from the Arkansas
through a diversion at Pueblo Reservoir.
Although the Upper Arkansas Water Conservancy District has not
taken an official position on this plan, it does not support any more
imports of water out of the Upper Basin, such as those that occur at
the Otero Pipeline. Although the Otero Pipeline was originally
constructed to deliver water from the ``Home Stake Project'' to
Colorado Springs from the Western Slope of Colorado, it has been used
to remove native water by successive exchanges from the confluence of
Fountain Creek and the Arkansas River at Pueblo. This practice has the
effect of reducing river flows through the Upper Basin. By contrast,
providing additional water to Colorado Springs, an Arkansas Basin
entity, via a pipeline option that would not include the Otero Pipeline
or a similar Upper Basin diversion, is preferred by the Upper Arkansas
Water Conservancy District.
Water quality issues still exist between the Lower Arkansas Valley
and Colorado Springs in regard to Fountain Creek. These issues need to
be resolved between these two entities and these issues should be
resolved independent of the feasibility study of PSOP. Today this
dispute is holding the Upper Basin entities ``hostage''!
Summary: My first memory of this great project was of my father
purchasing a golden frying pan at his butcher shop. I was seven years
old. Two gentlemen dressed in suits and ties described the vision of
the Frying-Pan Project. They claimed that the Fryingpan-Arkansas
Project would bring water to the Arkansas Valley for irrigation and
domestic uses. They described a large conduit with many reservoirs
built at various intervals in the river that would produce hydro-
electric power. For the most part, the dream has come true.
The reservoirs have been developed in the Upper Basin. Pueblo
Reservoir was built and water flows from the West Slope into our
Arkansas River. Cities, towns and farms can rely on this precious
supplement to their native and trans-mountain supplies. Because of the
unique infrastructure mitigation management plans can lessen the strain
of growth and recreation can flourish. At 45, Fryingpan-Arkansas has
delivered.
As we look to the future, the Preferred Storage Option Plan looms.
All the water managers know we will need reliable storage for the
future, but some issues still need to be resolved. The spirit of
cooperation with good communication and an effort to understand each
other's challenges is how the Fryingpan-Arkansas Project was
accomplished. As we face today's challenges it is the hope of the Upper
Arkansas Water Conservancy District that this same spirit leads us in
providing needed water storage for the basin in the future.
______
Mrs. Napolitano. Mr. Bill Thiebaut, District Attorney for
Pueblo
STATEMENT OF BILL THIEBAUT, DISTRICT ATTORNEY,
PUEBLO COUNTY, COLORADO
Mr. Thiebault. Thank you, Madam Chair, members of the
committee, and guest members.
John Wesley Powell in 1877 said that ``In the whole region
(the West), mere land is not of value. What is really valuable
is the water privilege.''
I'd like to share some thoughts about water quality, which
is our new challenge. Water quality and water quantity can no
longer be treated as separate issues. Water quality is rapidly
evolving to become a matter of equal importance in water
transfers and water quantity. Water quality can change as fast
as its use. Just as Coloradans want water available in
sufficient quantity and location, they also want and need to be
assured that water is the right quality for its intended use.
This past legislative session a bill was enacted into Colorado
law to address the effects of a water right adjudication on
water quality. The Fryingpan-Arkansas Project needs to be
managed in a manner that recognizes this growing concern with
water quality and assists, but does not hammer, this need.
Surface water laws were written into the Colorado
Constitution at the time of statehood in 1876 and became known
as the ``Doctrine of Prior Appropriation.'' Water is considered
a separate water right in Colorado--rights can be sold or
inherited, and prices may fluctuate according to supply and
demand. The increasing demand for water by urban areas has
prompted many sales, as you know, of agricultural water to
cities.
Lake Pueblo is one of the components of the Fryingpan-
Arkansas Project, a project which moved water, as you know,
from one side of the Rocky Mountains to the other. It is a
multipurpose project which built the Pueblo Dam and the system
of pipelines dedicated to bringing Western Slope water to the
southeast corner of Colorado. But foremost on the minds of
farmers and ranchers at the time the project was conceived was
winter storage and flood protection. In other words, the
legislation was designed to provide supplemental water to the
Arkansas River Basin. It was not designed to export that
transmountain water or native water, out of the basin.
Apparently there were no references in the legislation to
Arkansas Valley quality; however, as we've heard today, water
quality is clearly implied in the act. As an example by
implication is one component of the project which has not been
implemented, and that is the delivery of quality drinking water
to the lower Arkansas Valley.
The Arkansas Valley Conduit would take from behind the dam
water and via pipeline deliver it to communities and rural
water providers east of Pueblo. In fact, an outlet exists on
the dam specifically for the conduit. Today there are competing
bills in Congress--of course we have discussed that today--
attempting to discuss this conduit issue, as well as addressing
the Preferred Storage Options Plan, that is, an enlargement of
the dam and increased storage.
The Colorado Water Quality Control Commission is the body
responsible for establishing surface water quality policy in
the state. The Water Quality Control Division is the state
agency charged with protecting the quality of the state's
water. Despite the perceived fact that many water right holders
may see a threat from water quality regulations, the protection
of good quality waters benefits all users. Thus, good quality
waters need protection from degradation.
Generally, effluent is the liquid that flows out of a waste
treatment plant. For wastewater, the Federal Clean Water Act,
Federal legislation that regulates surface water quality, and
the Colorado Water Quality Control Act prohibit the discharge
of pollutants from a point source to surface waters without a
permit.
On October 12, 2005, I filed a lawsuit against the City of
Colorado Springs, a Fry-Ark participant, for the unlawful
discharges of raw materials, raw sewage, non-potable water, and
chlorine from the City's collection and treatment system into
the Fountain Creek and its tributaries. The plaintiffs are
downstream victims of the pollution. Instead of being an
amenity for downstream communities, Fountain Creek is more like
an open sewer running through Pueblo.
Return flow is another issue that was mentioned earlier. In
essence what's going on there is that basically the so-called
Southern Delivery System, which is advocated for by Colorado
Springs, would take additional high quality water through a
pipeline out of Lake Pueblo in exchange for effluent or at
least contaminated urban flows running back down the Fountain
Creek. In other words, exchanging good water for bad.
In summary, we must recognize the value of preserving high-
quality waters, stop gutting the power of water quality
administrators and provide adequate funding and teeth for
enforcement. The Fryingpan-Arkansas Project must be managed and
evolved to support these goals, not to defeat them. Thank you.
Mrs. Napolitano. Thank you, sir.
[The prepared statement of Mr. Thiebaut follows:]
Statement of Bill Thiebaut, District Attorney,
Office of the District Attorney, Tenth Judicial District, Colorado
Water Quality: Our New Challenge
``In the whole region (the West), mere land is not of value. What
is really valuable is the water privilege.''--John Wesley Powell, 1877.
Water quality and water quantity can no longer be treated as
separate issues. Water quality is rapidly evolving to become a matter
of equal importance in water transfers as water quantity. Water quality
can change as fast as its use. Just as Coloradans want water available
in sufficient quantity and location, they also want and need to be
assured that water is the right quality for its intended use. This past
legislative session a bill was enacted into Colorado law to address the
effects of a water right adjudication on water quality. The Fryingpan-
Arkansas Project needs to be managed in a manner that recognizes this
growing concern with water quality and assists, but does not hamper,
this need.
Colorado Surface Water
Surface water laws were written into the Colorado Constitution at
the time of statehood in 1876 and became known as the ``Doctrine of
Prior Appropriation.'' Water is considered a separate property right in
Colorado--rights can be sold or inherited, and prices may fluctuate
according to supply and demand. The increasing demand for water by
urban areas has prompted many sales of agricultural water to cities.
Notably, the Lower Arkansas Valley Water Conservancy District was
formed to ``keep every drop of water in
the Arkansas Valley.'' A water right is based on putting the water
to a beneficial use. The Colorado Constitution recognizes a preference
of water uses in the following order: domestic, agricultural, and
industrial.
The Pueblo Dam
Lake Pueblo is one of the components of the Fryingpan-Arkansas
Project--a project which moved water from one side of the Rocky
Mountains to the other. It is a multipurpose project which built the
Pueblo Dam and the system of pipelines dedicated to bringing Western
Slope water to the southeast corner of Colorado. But foremost on the
minds of farmers and ranchers at the time the Project was conceived was
winter water storage and flood protection. In other words, the
legislation was designed to provide supplemental water to the Arkansas
River Basin. It was not designed to export that transmountain water,
nor native water, out of the Basin. Apparently, there were no
references in the legislation to Arkansas Valley water quality.
However, water quality is clearly implied in the act. As an example of
that implication, one component of the Project, which has not yet been
implemented, is to deliver quality drinking water to the lower Arkansas
Valley. The Arkansas Valley Conduit would take water from behind the
Dam and via pipeline deliver it to communities and rural water
providers east of Pueblo (an outlet exists on the Dam specifically for
the conduit). Today there are competing bills in Congress attempting to
address this conduit issue as well as addressing a ``Preferred Storage
Options Plan''--that is, an enlargement of the Dam and increased
storage.
Colorado Water Quality
Regulation
The Colorado Water Quality Control Commission is the body
responsible for establishing surface water quality policy in the state.
For example, the Commission has the authority to maintain and enhance
the quality of the state's waters for public water supplies, for
protection and propagation of wildlife and aquatic life, and for
domestic, agricultural and recreational and other beneficial uses. The
Water Quality Control Division is the state agency charged with
protecting the quality of the state's water by implementing federal and
state water quality control and regulatory programs.
Despite the fact that water rights holders may perceive a threat
from water quality regulations, the protection of good quality waters
benefits all users. Thus, good quality waters need protection from
degradation.
Effluent
Generally, effluent is the liquid that flows out of a waste
treatment plant. For wastewater, the federal Clean Water Act, federal
legislation that regulates surface water quality, and the Colorado
Water Quality Control Act prohibit the discharge of pollutants from a
point source (a discrete source of discharge of a contaminant) to
surface waters without a permit. The U.S. Environmental Protection
Agency has delegated authority to the Division to issue discharge
permits to municipalities and industries. The permits specify the
levels of contaminants, such as bacteria, metals, and chemicals that
can be discharge by the permitted entity.
On October 12, 2005, I filed a lawsuit against the city of Colorado
Springs, a Fryingpan-Arkansas Project participant, for the unlawful
discharges of raw sewage, non-potable water, and chlorine from that
city's sewage collection and treatment system into Fountain Creek and
its tributaries. The Plaintiffs are downstream victims of this
pollution. Instead of being an amenity for downstream communities,
Fountain Creek is more like an open sewer running through Pueblo.
Return Flow
Return flow is unconsumed water that returns to its source or
surface after use. Generally, the wastewater and return flow water at
the new point of discharge should not exceed pollution limits
established at the original place.
Use of existing or enlarged Pueblo Dam storage capacity by
development hungry cities creates the probability of more Fountain
Creek downstream victims. For example, the so-called Southern Delivery
System, advocated for by Colorado Springs, would take additional high-
quality water through a pipeline out of Lake Pueblo in exchange for
effluent, or at least contaminated urban flows, running back down the
Fountain Creek--in other words, exchanging good water for bad. Some
have suggested that any diversion be piped below the confluence of
Fountain Creek and the Arkansas River to assure that Colorado Springs
has an incentive to send quality water downstream.
Summary
We must recognize the value of preserving high-quality waters, stop
gutting the power of water quality administrators and provide adequate
funding and teeth for enforcement. The Fryingpan-Arkansas Project must
be managed and evolved to support these goals not work to defeat them.
______
[The response to questions submitted for the record by Mr.
Thiebaut follows:]
On June 1, 2007, my written and oral testimony stated, in part:
``On October 12, 2005, I filed a lawsuit against the city of
Colorado Springs, a Fryingpan-Arkansas Project participant, for the
unlawful discharges of raw sewage, non-potable water, and chlorine from
that city's sewage collection and treatment system into Fountain Creek
and its tributaries. The Plaintiffs are downstream victims of this
pollution. Instead of being an amenity for downstream communities,
Fountain Creek is more like an open sewer running through Pueblo.''
Question by Representative John Salazar, Guest Member of the Committee
What are the numbers of spills since the lawsuit was filed?
Response
Sewage Spills
Since October 12, 2005, there have been 20 sewage spills. This
number includes only spills that reached receiving waters. Colorado
Springs has had many additional sewage spills from their system that
did not reach receiving waters.
Non-potable Water Spills
Since October 12, 2005, there have been 6 non-potable water spills.
This number includes only spills that have reached receiving waters.
Colorado Springs has had many additional non-potable water spills that
did not reach receiving waters.
Chlorine Violations
Since October 12, 2005, there have been 4 chlorine violations at
the treatment plant discharge point.
______
Mrs. Napolitano. Next we have Mr. Jay Winner, General
Manager of Lower Arkansas Water Conservancy District.
STATEMENT OF JAY WINNER, GENERAL MANAGER, LOWER ARKANSAS WATER
CONSERVANCY DISTRICT, ROCKY FORD, COLORADO
Mr. Winner. Madam Chair, members of the Subcommittee, thank
you.
The Fryingpan-Arkansas Project promised a golden future for
the Arkansas Valley in the sweltering years of the 1950s.
Already ravaged by the drought of the 1930s, the valley's
residents embraced the prospect of additional water with
unprecedented enthusiasm. Now there would be a new supply of
water and insurance against the droughts of the future.
Now 45 years after the inception of the Fryingpan-Arkansas
Project, the golden future has turned into a last stand for the
communities east of Pueblo, the apparent losers so far in a
race to develop increasingly scarce water resources in the
Arkansas Valley.
Has the project met its purposes? For the major population
centers of the valley, Colorado Springs and Pueblo, the project
has done an admirable job. It has provided the storage that
allows these cities to continue to grow.
The Western Slope has benefited as well, with compensatory
storage that has allowed for stable flows to aid the
environment and a new source of water for its people.
For the farms east of Pueblo, it has provided a temporary
source of water that merely replaced other more difficult to
maintain sources of water. In fact, the conversion of Twin
Lakes from an agricultural buffer to a municipal reservoir was
hastened by the promise of Fry-Ark water.
But farms have not prospered as intended by the 1962
Fryingpan-Arkansas authorization. Irrigated acreage has
decreased since the project began. Despite its significant
imports, transfers have permanently removed 65,000 acres of
farmland irrigation since 1955. Canals continue to be short in
supply and the ditches are the target of unceasing raids on the
water supply for municipal and industrial use.
Approximately 121,000 acre-feet were sold for use outside
the main stem of the Arkansas River through 2002. This is one-
fifth of the historic average native Arkansas River flow.
For the communities east of Pueblo, the Fry-Ark Project has
so far been a disaster. An economy once bolstered by thriving
farms and the demand for goods and services by rural families
has become a string of economically depressed communities
struggling to survive. In 1976, Rocky Ford had a graduating
class of 129. In 2006, a graduating class of 40. Lake County in
1973 had a graduating class of 131, and in 2006, a graduating
class of 61.
The poor water quality of the valley was recognized in the
earliest Congressional testimony on the Fryingpan-Arkansas
Project. The remedy was to develop water resources as a primary
supply for cities like Rocky Ford, La Junta, Las Animas and
Lamar.
Today the Arkansas Valley Conduit remains only a dream for
those cities, while the Federal government is taking steps
toward projects that will only worsen the water quality in
incremental, but deadly, steps. Those communities have been
through a series of last stands: The decline of the family
farm, the collapse of the regional sugar beet industry and the
endless water raids.
In contrast, the city of Colorado Springs has thrived
beyond all expectations of the hopeful people who were forming
the Southeastern Colorado Water Conservancy District 50 years
ago. At that time, Pueblo was larger than Colorado Springs, a
quaint mountain city seemingly in the league with its partners
in the Arkansas Valley.
Through its partnership with Colorado Springs, Aurora has
bullied its way into the Arkansas Valley. Without the Homestake
Project, Aurora never would have gained a toehold in the
Arkansas Valley and developed an absurd premise of moving one-
third of its annual water supply 300 miles from what were once
productive farms. The Bureau of Reclamation has compounded that
technical and moral error through its annual contracts with
Aurora. In just three days, the Bureau of Reclamation is
planning to finalize a contract that will tie up part of the
Fryingpan-Arkansas Project for the next 40 years.
One issue of significance is exchanges. Aurora and others
trade pristine mountain water for poor quality water from the
lower Arkansas Valley through exchanges, exchanges made
possible by the reservoirs of the Fry-Ark Project.
Here is a good example of an exchange. This is what is
purchased. This is what people get.
Mrs. Napolitano. Will you hold it up, please.
Mr. Winner. This water has a purchased cost right around
$1,700 per share. The water that they get, if they were to
purchase it, is about $25,000 per share.
When we talk about water quality, I believe this is a very
good example of what has happened in the Arkansas Basin. In the
Arkansas Basin, we currently have two RO plans, one in La Junta
and one in Las Animas. I have asked over and over and over to
municipal providers, why don't you take what you purchased? The
answer is always the same. Jay, it's too expensive for us to
clean it up. It's the burden of that cleanup that falls on the
people of the Arkansas Valley. Thank you.
[The prepared statement of Mr. Winner follows:]
Statement of Jay Winner, General Manager,
Lower Arkansas Valley Water Conservancy District
Madame Chairwoman, members of the Subcommittee, I am Jay Winner,
the General Manager of the Lower Arkansas Valley Water Conservancy
District
Thank you for being here in the Lower Arkansas Valley today, and
your invitation to testify.
The Fryingpan-Arkansas Project promised a golden future for the
Arkansas Valley in the sweltering years of the 1950s. Already ravaged
by the drought of the 1930s, the valley's residents embraced the
prospect of additional water with unprecedented enthusiasm. Now, there
would be a new supply of water and insurance against the droughts of
the future.
Now, 45 years after the inception of the Fryingpan-Arkansas
Project, that golden future has turned into a last stand for the
communities east of Pueblo, the apparent losers so far in a race to
develop increasingly scarce water resources in the Arkansas Valley.
Has the project met its purpose? For the major population centers
of the valley, Colorado Springs and Pueblo, the project has done an
admirable job. It has provided the storage that allows these cities to
continue to grow.
The Western Slope has benefited as well, with compensatory storage
that has allowed for stable flows to aid the environment and a new
source of water for its people.
For the farms east of Pueblo, it has provided a temporary source of
water that merely replaced other, more difficult-to-maintain sources of
water. In fact, the conversion of Twin Lakes from an agricultural
buffer to a municipal reservoir was hastened by the promise of Fry-Ark
water.
But farms have not prospered as intended by the 1962 Fryingpan-
Arkansas authorizing legislation. Irrigated acreage has decreased since
the project began, Despite significant imports, transfers have
permanently removed 65,000 acres of farmland from irrigation since
1955. canals continue to be short in supply and the ditches are the
targets of unceasing raids on their water supply for municipal and
industrial uses. Approximately 121,520 acre-feet were sold for use
outside the main stem of the Arkansas River through 2002. 1
This is one-fifth of historic average native Arkansas River flows.
2
---------------------------------------------------------------------------
\1\ Charles H. Howe, ``The Regional Economic Impacts of Transfers
of Water from Irrigated Agriculture in the Arkansas Valley of Colorado
to In-Basin and Out-of-Basin Non-Agricultural Uses,'' at 6 (2002).
\2\ Colo. Div. of Water Resources, ``Annual Report,'' at 17 (1995).
---------------------------------------------------------------------------
For the communities east of Pueblo, the Fry-Ark Project has so far
been a disaster. An economy once bolstered by thriving farms, and the
demand for goods and services by rural families, has become a string of
economically depressed communities struggling to survive. (Rocky Ford
Year book)
The poor water quality of the valley was recognized in the earliest
congressional testimony on the Fryingpan-Arkansas Project. The remedy
was to develop water resources as a primary supply for cities like
Rocky Ford, La Junta, Las Animas and Lamar. Today, the Arkansas Valley
Conduit remains only a dream for those cities, while the federal
government is taking steps toward projects that will only worsen water
quality in incremental, but deadly, steps.
Those communities have been through a series of last stands: the
decline of the family farm, the collapse of the regional sugar beet
industry and the endless water raids.
In contrast, the City of Colorado Springs has thrived beyond all
expectations of the hopeful people who formed the Southeastern Colorado
Water Conservancy District 50 years ago. At that time, Pueblo was
larger than Colorado Springs, a quaint mountain city seemingly in
league with its partners in the Arkansas Valley
Through its partnership with Colorado Springs, Aurora has bullied
its way into the Arkansas Valley. Without the Homestake Project, Aurora
never would have gained a toehold in the Arkansas Valley and developed
the absurd premise of moving one-third of its annual water supply 100
miles from what were once productive farms. The Bureau of Reclamation
has compounded that technical and moral error through its annual
contracts with Aurora. In just three days, the Bureau of Reclamation is
planning to finalize a contract that will tie up part of the Fryingpan-
Arkansas Project for the next 40 years.
One issue of particular significance is exchanges. Aurora and
others trade pristine mountain water for poor quality water from the
Lower Arkansas Valley through exchanges--exchanges made possible by the
reservoirs of the Fry-Ark Project.
The poor quality of water for downstream users was well documented
more than 50 years ago. Instead of the making that water better--the
real golden promise of the Fryingpan Arkansas Project--the federal
government has established the means to adopt policies that will
actually make the water worse.
Aurora would like to increase such exchanges. Aurora should never
have been allowed into the Arkansas Basin through a federal project
before all of the needs of the Basin were satisfied. Within the
Southeastern District, there are communities whose water needs have
never been met by the project. This past year, the district struggled
mightily for more than nine months, to come up with a way to
accommodate Pueblo West and Manitou Springs.
The LAVWCD, among many others, firmly believes that nothing in the
Fry-Ark authorizing act and amendments, 3 including
documents incorporated by reference in the statute, provides authority
for Reclamation to enter into long-term excess capacity contracts with
Aurora. In particular, the proposed exchange contract is so far outside
established law that Reclamation's authority to enter into such a
contract is speculative, at best. Yet Reclamation would promote Aurora
to the head of the class in its proposed contract when it comes to
water exchanges.
---------------------------------------------------------------------------
\3\ Pub. L. No. 87-590 (76 Stat. 389, Aug. 16, 1962), amended by
P.L. No. 95-386 (92 Stat. 2493, Nov. 3, 1978).
---------------------------------------------------------------------------
Reclamation's authority to contract for non-project use of the Fry-
Ark Project is not a new issue. It has been the subject of a lively and
at times heated debate for over 20 years. 4 But the issue is
approaching a critical juncture since Reclamation appears poised to
issue excess capacity storage and exchange contracts with Aurora.
---------------------------------------------------------------------------
\4\ Letter dated July 13 (?), 1985 from Raymond H. Wilms, Fry-Ark
Project Manager, to Tom Griswold, Aurora Manager of Planning and
Resources.
---------------------------------------------------------------------------
It seems to the LAVWCD that there are only two ways to resolve this
issue: Congressional legislation or federal litigation.
The LAVWCD continues to believe that it is preferable to solve this
issue--and others involving the Fry-Ark Project--through negotiations
leading to an agreement that the parties could jointly recommend to
Congress. To that end, the LAVWCD remains ready, willing and able to
negotiate its concerns with Aurora, although, frankly, not everyone at
Aurora has been similarly committed to engaging in good faith
discussions. Perhaps--whether or not Reclamation heeds Senator
Salazar's request (which the LAVWCD supports) to defer action on the
proposed contracts pending the completion of negotiations--Aurora will
find a way to engage in constructive negotiations to address issues of
concern to the Lower Valley.
The alternative to legislation is litigation. The LAVWCD hopes that
the issue of Aurora's contracts will not lead to court. However, the
District is investigating and, if necessary, will pursue all available
legal avenues to protect the future of the Lower Arkansas Valley.
In Lake County, where two of the project's major lakes are located,
officials complain about rough treatment at the hands of Reclamation.
At the other end of the valley, residents in Kiowa County have not
received one drop of water through the project.
Yet Aurora is promoted to the head of the class when it comes to
water exchanges in its pending contract with the Bureau of Reclamation.
It's no wonder that in 2002, the voters in the five counties in the
Lower Arkansas Valley--Bent, Crowley, Otero, Prowers and Pueblo--voted
overwhelmingly to form the Lower Arkansas Valley Water Conservancy
District. Embroiled in yet another drought, the residents of the five
counties formed the district as a defensive measure to protect
themselves from even more losses. In a way, it was yet another ``last
stand.''
The Lower Valley simply cannot afford any additional permanent
transfers of agricultural water that would further undermine its
economic future. That is why the LAVWCD has been investing time and
money to develop a viable alternative to permanent agricultural
transfers that will both strengthen irrigated agriculture and address
the water needs of municipal and other users.
Success will require some fundamental changes in the relationships
between the interests involved, primarily in the form of new
partnerships and cooperation. The LAVWCD has, accordingly, been working
for over two years on a nine-party intergovernmental agreement. The
draft IGA envisions a water future that addresses everyone's future
social and economic well being.
The Lower Arkansas Valley has a high proportion of Hispanic and
low-income residents. In fact, Hispanic residents constitute over a
third of the population of the LAVWCD. 5 In addition,
residents living below the poverty level ranged from 14.9 to 19.5
percent in the five counties that comprise the LAVWCD in 2000.
6
---------------------------------------------------------------------------
\5\ U.S. Bureau of the Census, ``State and County Quickfacts,''
available at http://quickfacts.census.gov/qfd/states/08/08011.html.
\6\ Id.
---------------------------------------------------------------------------
President Clinton recognized that minority and low-income
populations often bear disproportionately high and adverse human health
or environmental effects of governmental programs. 7 The
possibility exists that minority and low-income populations could bear
adversely high negative effects of future changes in the administration
of the Fry-Ark Project. For example, Reclamation has proposed entering
into long-term excess capacity contracts for the use of Fry-Ark
facilities with Aurora, where the Hispanic population is roughly half
that of Pueblo County. 8 Similarly, the poverty rate in
Aurora is between a third and a half of that found in the LAVWCD.
9
---------------------------------------------------------------------------
\7\ Executive Order 12898 (Feb. 11, 1994).
\8\ U.S. Bureau of Census, ``Factfinder, Aurora City, Colorado,''
available at http://factfinder.census.gov/servlet/SAFFFacts?
\9\ Id.
---------------------------------------------------------------------------
In short, the proposed excess capacity contracts with Aurora run
counter to fundamental concepts of justice and the new partnerships and
cooperation that the LAVWCD and others are trying to foster.
As pressures on Colorado water by outside municipal users grow in
coming years, what does the future hold for the Arkansas River? Do we
continue to let the Fryingpan-Arkansas Project be used as a siphon that
will continue to degrade water quality in the basin? Or do we complete
the golden promise of the project for the communities, particularly
those east of Pueblo?
The ultimate question for water users in the Lower Arkansas Valley
is: ``How many more last stands can we survive?''
Thank you for your attention. I will be happy to try to answer any
questions
______
Mrs. Napolitano. Thank you, and next is Sandy White, the
water attorney from La Veta.
STATEMENT OF SANDY WHITE, WATER LAWYER,
LA VETA, COLORADO
Mr. White. Thank you, Madam Chairman--or Chairwoman.
Mrs. Napolitano. May I interrupt just to start time over
again, please. I am going to have to step aside and I will turn
it over to Ranking Member, Mr. Lamborn. I'll be right back.
Mr. Lamborn. Thank you, Madam Chairwoman. And Mr. White,
can you please continue and give us your testimony.
Mr. White. Thank you very much, Madam Chair and members of
the Subcommittee. I'm Sandy White. I have represented clients.
I'm a water lawyer. I've represented clients in the Arkansas
Valley since 1971. I currently appear before you on behalf of
Pueblo Chieftain and the Arkansas Native L.L.C., which is a
water right owner and is determined to protect the Arkansas
Valley and the Fry-Ark Project.
Now there's a lot of material in my written testimony, but
I'd like to try to respond in the few minutes I have to some
questions that have come up and are within my testimony. One of
the questions the Chairwoman had was what were the purposes of
this project, and we've heard that it's a large multipurpose
project. Just about everything including the kitchen sink can
be found in the preamble to the authorizing act of 1962.
The real question is what is this project meant to do? And
that same language appears in maybe a couple of dozen other
project authorizing acts. What is the Fry-Ark Project meant to
do? And there are two purposes that have developed and were
initially intended. One, as President Kennedy said in the film
clip we watched, is to import water into the Arkansas Valley.
The second is to enhance the base flows that are already in the
Arkansas Valley, and that's been done by creation of some
Eastern Slope storage that captures flood flows, for example.
So you have two purposes: To bring in transmountain water, or
imported water, and to enhance the base flow.
Into this situation came Aurora. It bought water rights to
the base flow, far downstream from Pueblo, down where the water
looks like what was on your right when Jay held things up. It
is now proposing, or the Bureau is proposing, to enter into a
contract with them that would swap that water for the clear
water that's found in Twin Lakes and Turquoise Lake reservoirs.
Only by using the project facilities through a process of
storage and exchange is Aurora able to move the water upstream
and out of the basin.
So the thrust of my testimony is that based on the purposes
of the project, the Bureau is not authorized to enter into that
contract with Aurora.
Now we've heard two things discussed in the way of
authorization. One was Section 14 of the Reclamation Act.
That's codified at 43 USC 369. And you read that, and yes,
indeed, it is possible for the Secretary of Interior to enter
into these kinds of contracts. But he must make a finding that
the contract is necessary and that it is in the interests of
the project.
Neither of those findings has been made. And so when you
get the material from the Solicitor's Office that was
volunteered by the Bureau, look for where did the Secretary
make those findings? He hasn't made those findings. The Bureau
is essentially on an adventure of its own.
We also heard about the Homestake Project and the
connection between the Homestake Project and the Fry-Ark
Project. The 1965 contract that was mentioned was entitled
``Contract for the Transportation of Water From the Homestake
Project.'' Now there is a Section 10B in that contract that
talks about the storage of water in east slope facilities. But
what it says is that the Bureau grants Aurora an option to
negotiate for such a contract. So the argument must be that by
granting Aurora an option to negotiate, the Bureau also created
its own authority to enter into that contract.
It is an absurd argument. The Bureau adopted it early on,
over 15 years ago, and has now dropped it. And I know of no one
who seriously carries it forth. So there is no authority. There
has been no finding by the Secretary, and more importantly
perhaps, under Section 390, according to USC 390, there has
been no Congressional approval as required by that section.
Mr. Lamborn. Mr. White, thank you for your testimony.
Mr. White. Thank you.
[The prepared statement of Mr. White follows:]
Statement of Sandy White, Pueblo Chieftain and
Arkansas Native, LLC
Chairwoman Napolitano and Members of the Subcommittee:
I am Sandy White, a local water lawyer from La Veta, Colorado, and
a partner in the Denver firm of White & Jankowski, LLP. I have
represented clients on the Arkansas River since 1971. Today, I appear
on behalf of the Pueblo Chieftain and Arkansas Native, LLC, a water
right owner determined to protect the Arkansas River Basin and the
Fryingpan-Arkansas Project. Thank you for inviting me to testify
concerning the Project. As noted in the subject of this hearing, the
larger issue is ``sustainable water.'' In this basin whose native water
has long been over-appropriated, the Fry-Ark Project's purposes of
regulating base flows and importation of water to supplement the base
flow are essential to a sustainable water supply, a sustainable
economy.
Background and Introduction
Almost forty-five years ago, on August 16, 1962, President John F.
Kennedy signed PL 87-590, authorizing the Fry-Ark Project. Two days
later, he flew to Pueblo where he spoke at the then Pueblo Public
Schools Stadium, about 6 blocks from here. After acknowledging the
worthies on the podium, the President began: ``I don't think there is
any more valuable lesson for a President or for a member of the House
and Senate to fly as we have flown today over some of the bleakest land
in the United States and then to come to a river and see what grows
next to it--to know how vitally important water is.'' Noting that
federally funded Reclamation projects were started some sixty years
before under President Theodore Roosevelt's administration, President
Kennedy went on. ``We are finally on our way to bringing water through
the Continental Divide into the Arkansas River Basin.''
Other witnesses have and will describe to you the vast benefits
brought by the Project to the valley. I testify, however, in opposition
to a planned future development: the Bureau's proposed 40-year ``excess
storage contract'' with the City of Aurora.
Under that contract, Aurora will use Project facilities to
facilitate its export of water out of the Arkansas Basin for municipal
use in Aurora. Located some 115 miles from here, Aurora is a large and
powerful city. It has many good qualities, but it is not in the
Arkansas Basin. The proposed contract will increase Aurora's average
annual exports by over 20,000 a.f..
We must ask: If President Kennedy thought he signed project
authorization to bring water into the Arkansas Basin, how is it that
the project facilities will now be used to help Aurora or anyone else
take water out of the basin?
Summary
The Bureau of Reclamation is without authority to enter into the
proposed Aurora contract:
1. Original Project purposes are diametrically opposed to current
contract purposes.
The original purposes of the Project were two-fold: (1)
to make more efficient use of Arkansas base or native flows by
providing storage facilities on the Arkansas, and (2) to add new water
to the Arkansas by importing supplemental supplies from the Colorado
River Basin into the Arkansas.
Under the Aurora contract, however, instead of using
Project facilities to enhance the Arkansas base flows or to import
supplemental water, the Bureau proposes to lend Project facilities to
facilitate Aurora's taking water from the Arkansas Basin.
2. For the Bureau to be authorized to enter the Aurora contract,
two things must happen.
The Secretary of the Interior must find, inter alia, that
the contract is ``necessary'' and ``in the interests of the project,''
43 USC Sec. 389, and
Since the Aurora contract ``seriously affects'' project
purposes and involves ``major operation changes,'' Congress must give
its approval. 43 USC Sec. 390(d)
3. For the Bureau to comply with Colorado law in the Project's
``control, appropriation, use, and distribution of water,'' P.L. 87-
590, Sec. 5(e), under the Aurora contract:
The Project's west-slope water must be used solely in the
Arkansas basin, based on Project water right decrees.
There may be no ``re-coloring'' of imported water as
native water. Thornton v. Bijou.
Each contract exchange must either be approved by water
court decree or be administered by the State Engineer, Empire Lodge v.
Moyer, not by the Bureau's Regional Director, who is given ``exclusive
authority'' over the exchanges by the Aurora contract.
Contract exchanges should operate only when Aurora's
decreed exchanges could operate, thereby complying with the terms and
conditions imposed by state law.
Since the Aurora contract's Environmental Assessment
expressly avoided consideration of water right injury, only court
adjudication or State Engineer administration of those exchanges will
protect other water rights.
Aurora's Problem Water
How did this situation arise? First, Aurora purchased some Arkansas
water which is diverted some 25-90 miles downstream from here. At that
point, Aurora faced a geographic problem. The city had no feasible way
to move the water directly from its original head-gate to Aurora's
terminal storage and water treatment facilities. A 115 mile pipeline is
mighty expensive. In addition, the water quality diverted in that reach
of the Arkansas is not attractive for municipal use, particularly in
comparison with water much farther upstream near the headwaters.
As a result, Aurora started to work its water upstream--towards the
point where the distance is shorter, where the headwaters of the
Arkansas and South Platte River basins back up to one another. First,
Aurora got temporary annual contracts with the Bureau to store its
water in Pueblo Reservoir. That was followed by state water court
decrees allowing that storage. Then Aurora got decrees allowing it to
exchange the water from Pueblo Reservoir to its Otero Pump Station,
some 115 miles upstream. At Otero, Aurora has existing facilities which
can pump water into the South Platte River basin. However, Aurora's
decrees imposed strict terms and conditions on the storage and
exchanges, limiting Aurora's ability to exchange water to the Otero
Pump Station.
The Aurora Contract
Even though Aurora is in a different river basin and will not use
its water in the Arkansas basin, the Bureau of Reclamation agreed to
assist Aurora. A deal was struck in the form of Contract No.
07XX6C0010. Comments on the final draft contract are due on or before
June 4th, next Monday.
Under the contract, Aurora could continue to store its water in
Pueblo Reservoir; not for just one year, but for 40 years. Once the
water was stored in Pueblo Reservoir, the Bureau would help Aurora
again. Finding it difficult to comply with the terms and conditions of
its decrees, Aurora needed a way to circumvent them. Again the Bureau
was there to help. When Aurora could not operate under its decrees, the
Bureau itself would move the water upstream. It would do so by
``accounting.'' In what came to be called ``contract exchanges'' the
Bureau would trade Aurora the same amount of Project water upstream as
native water Aurora stored downstream in Pueblo Reservoir.
Consequently, Fry-Ark Project water stored in project facilities, Twin
Lakes or Turquoise Lake reservoirs which are 125 and 150 miles
upstream, will become Aurora's water by computer keystroke. From those
reservoirs, Project water is then released back to the Arkansas River.
It flows 26 and 11 miles downstream, respectively, before it is
diverted by Aurora at the Otero Pump Station. Once diverted the water
flows through a tunnel to the South Platte River. See Map of Project
Area, Attachment # 1, as well as Map of District Boundaries, Attachment
#2, and Exchange Schematic, Attachment #3, to this testimony.Project
Purposes
The Project's Authorizing Act, PL 87-590, simply describes a multi-
purpose reclamation project. The legislative history and documents
which the act incorporated, however, tell a more specific story. See
the Project's engineering plans (House Doc. No. 187, 83rd Cong., as
modified), and the Project operating principles (House Doc. No. 130,
87th Cong). The Project's original purpose was to provide supplement
municipal and irrigation water by: (1) making more efficient use of the
Arkansas base or native flows by providing eastern slope storage
facilities, and (2) to add new water to the Arkansas by importing water
from the Colorado River Basin (Fryingpan River) into the Arkansas.
Enhancing the base flows
As Secretary Udall wrote to the respective committee chairs in the
House and Senate, ``The Project contemplates [inter alia] the
construction of storage on the eastern slope--for eastern slope
floodwaters and winter flows averaging 50,000 and 93,000 acre-feet per
annum, respectively.'' Senate Report No. 1742, Senator Carrol's Report
of Accompany Fry-Ark Bill (July 1962). The Report itself described
``regulation of winter flows'' and ``conservation of floodflows'' in
the respective annual amounts of 88,600 a.f. and 19,100 a.f.
Importation of supplemental water
According to the then Chairman of the House Interior Committee,
Colorado's Wayne Aspinall, speaking on the floor of the House, ``The
purpose of the Project is to take water out of the Fryingpan
tributaries and send it across the mountains--and drop it into the
Arkansas Valley and send it down to the users--in the Arkansas Valley.
Congressional Record--House, June 12, 1962, p. 9404.
The authorizing act itself incorporates and directs the Bureau ``to
comply with--operating principles'' contained in House Document
Numbered 130, hereinafter ``HD-130.'' PL 87-590, Sec. Sec. 5(e), 3(a).
Those principles define the Project as one ``planned and designed--for
the transmountain diversion of water--to the basin of the Arkansas
River.'' The operating principles also provide that the SECWCD shall
``acquire title to the water required by the project for diversion to
the Arkansas Valley.'' HD 130, Sec. Sec. 1(a), 18.
The Bureau itself has recognized that the purpose of the Project
facilities is to bring water to the Arkansas basin. In the Aurora
contract's Environmental Assessment, for example, the project is
described as a ``multipurpose transbasin project that delivers water
from the West Slope of Colorado to the upper Arkansas River basin'' EA,
Sec. 1.1, p. 1, emphasis added.
The incontrovertible purpose of Fry-Ark Project facilities is to
import water into the Arkansas River basin. Nevertheless, under the
Aurora Contract, those works will be used to facilitate the export of
water from the Arkansas basin.
The Bureau is Not Authorized to enter the Aurora Contract
Perhaps the most important issue to address by way of oversight is:
Whether the Bureau is authorized to enter into the proposed Aurora
Contract. The proposed Aurora Contract would be authorized only under
two circumstances: (1) if the Secretary of Interior were to find that
the changes in Project operations required by the Contract are in the
``interests of the Project,'' and (2) if Congress were to approve of
the changes wrought by the contract which ``seriously affect''
operations. Let's take these requirements one at a time.
Secretarial Finding
The Reclamation Act, Sec. 14, codified at 43 USC Sec. 389,
authorizes the Secretary of Interior, ``for the purpose of orderly and
economical construction or operation and maintenance'' of a project to
enter into ``such contracts for exchange or replacement of water--as in
his judgment are necessary and in the interests of the United States
and the project.'' (emphasis added) Accordingly, at pp. 1-2, the Aurora
Contract repeats in full the requirements of Sec. 14, above.
Nevertheless, the contract nowhere reflects that the Secretary or
his appropriate designee has made such a judgment or finding that the
Aurora Contract is ``necessary and in the interests of the United
States and the project.'' Informally, the Bureau points to the April 3,
2003, letter from Reclamation Commissioner John W. Keys, III, to James
Broderick of the Southeastern District. The letter is Attachment #4 to
this testimony. Attachment #5 is Regional Director Bach's letter of
August 20, 2003. She cautions, ``The request for any such contracts,
however, will be reviewed for authority and evaluated on a case-by-case
basis....''
In his letter the Commissioner neither makes nor reports any
finding as required by Sec. 14. Instead, he simply says, ``we have
concluded that such authority exists'' to issue a long-term contract to
Aurora. Without providing any support for his conclusion, the
Commissioner continued, ``The arrangements with the City of Aurora will
not adversely affect Reclamation's contract'' with the Southeastern
District. The Keyes letter could be considered an appropriate finding
only if non-interference with Reclamation's contract with the district
means the same as being ``necessary and in the interests of
the...project.'' It does not.
Should the Secretary make such a determination, it would be an
abuse of discretion on two related counts. First, since the purpose of
the Fry-Ark Project is to enhance the base supply of the Arkansas
River, it cannot be in the interest of the Project to facilitate
removal of a portion of that base supply. Second, since the purpose of
the Project is also to import water into the Arkansas basin, it cannot
be in the best interest of the Project to use its facilities to enable
the export of water from the basin. It strains credulity to assume that
the discretion of a rational public servant could be properly exercised
to decide that black is white, that up is down or, in this instance,
that in is out, i.e. that import means export.
Congressional Approval
Another provision of the Reclamation Act, 43 USC Sec. 390(d),
provides that any project modifications--which would seriously affect
the purposes for which the project was authorized--or which would
involve major--operational changes shall be made only upon the approval
of Congress.''
The Fry-Ark Project was authorized to enhance the base supply of
the Arkansas River and to import water into the Arkansas basin as a
supplemental supply to the existing base supply. The Aurora Contract,
however, is designed to diminish the base flows and to export Project
water from the basin.
Although the amounts involved are relatively small, compliance with
the proposed Aurora contract will reverse Project purposes. Instead of
enhancing base flows, they will be diminished. Instead of importing
supplemental water, it will be exported. The reversal of purposes
involves ``major operational changes'' which would ``seriously affect
the purposes for which the project was authorized.'' Congress must
approve these operational changes. It has not.
Intergovernmental Agreement
Even after Commissioner Keys' letter of April 3, 2003, Aurora and
the SECWCD continued to seek ``the enactment of federal legislation
expressly authorizing Reclamation to enter into contracts--with Aurora
for use of Fryingpan-Arkansas Project facilities.'' Intergovernmental
Agreement Between the Southeastern Colorado Water Conservancy District
and the City of Aurora (Oct. 2003) (hereinafter ``2003 IGA''), p. 2.
Indeed one of the purposes of the IGA was to cooperate ``in efforts
to pass federal legislation that provides specific authorization--for
Aurora's contracting for ``if-and-when'' available storage and exchange
use of excess capacity in current Fryingpan-Arkansas facilities,'' 2003
IGA, Sec. II. A, B, and to ``request Members of Congress to introduce
and support federal legislation'' to the same effect.
Id.,Sec. III.B.1.iii.
Prior to its IGA with Aurora, the SECWCD adamantly opposed any
proposed Bureau contract with Aurora. In 2001, counsel for the District
prepared a lengthy (23 pp) memorandum regarding the authority of the
Secretary of Interior to contract with Aurora for use of Fry-Ark
Project ``excess capacity space to store native Arkansas River water
right for use out of the Fry-Ark service area and the Arkansas River
Basin.'' He concluded that there was no authority except, perhaps, the
1920 Miscellaneous Purposes Act which requires several conditions for
such a contract, including that no other practicable water supply
source is available. In a portent of things to come, perhaps, the
District's counsel concluded, ``At a minimum, Southeastern contends
that no contract could be entered with Aurora pursuant to the 1920
Miscellaneous Purposes Act without Southeastern's approval.''
Memorandum, Lee E. Miller to Brian Person, March 9. 2001, re: Authority
to contract with Aurora for use of Fry-Ark excess capacity space to
store and transport native Arkansas River water rights out of the
Arkansas River Basin.
To induce SECWCD approval, Aurora committed itself to payments
totaling some $19,000,000. 2003 IGA,Sec. III.E. Most of those payments
are due only after ``execution by Aurora and Reclamation of a long-term
contract for use of Fryingpan-Arkansas facilities.'' Sec. III.E.1.a, b,
III.E.3. In the meantime, the District is to be on its best behavior:
``Until Aurora obtains a forty year contract with Reclamation,
Southeastern will not oppose Aurora's request for annual `if-and-when'
agreements for storage and exchange purposes.''
Is it surprising that Aurora continues to feel that the Bureau
needs express legislative authority before entering into the Aurora
Contract? Probably not, considering what the current statutes say, as
discussed above. What is surprising is that the District allowed itself
to be co-opted. If the custodian of the Fry-Ark Project itself can be
bought off, the only chance for water users in the Arkansas Valley who
are the intended beneficiaries of the Project is that Congress will see
fit unconditionally to close the door on the type of adventurism being
displayed by Aurora and the Bureau.
Parenthetically, it should be noted that Aurora has entered IGAs
with innumerable other entities in the Arkansas Basin, often providing
substantial consideration for their cooperation. In addition, under the
proposed contract, Aurora is also paying the Bureau well over $60
million. All-in-all, a good bargain in light of the alternative, a much
costlier pipeline and water treatment facility.
The First (1986) Aurora Contract
The Bureau's first excess storage contract with Aurora was executed
in 1986. Like those that followed, the contract was limited to one
year. The Southeastern District (SECWCD) challenged the Bureau's
authority to enter the contract. Relying on the incidental purposes
provision in the authorizing legislation (``other useful and beneficial
purposes incidental thereto''), the Bureau brushed aside the District.
The Bureau went on to rely on Sec. 10(b) of the ``Homestake Contract''
for authority. Raymond Williams' April 30, 1986, letter to Raymond
Nixon (emphasis added).
Executed in 1965 between the Bureau and the cities of Colorado
Springs and Aurora, the Homestake Contract provides for the
transportation of Homestake water. The one possible exception is
Sec. 10(b). It ``grants an option to the Cities to negotiate for
additional storage service in the Eastern Slope project works'' of the
Fry-Ark Project. The type of water to be stored is not specified, but
from the context and the title of the contract, the most likely
interpretation is that it is Homestake water. Agreement between the
United States and the Cities of Colorado Springs, and Aurora, Colorado
for the Transportation of Water from the Homestake Project, Contract
No. 14-06-700-6019, December 14, 1965.
The history of Aurora's first contract has little of value by way
of providing authority for today's proposed contract. The incidental
purposes provision is a weak reed. Relying on it to support diminishing
the Arkansas River base supply or the exporting of Project water from
the river, would transform incidental purposes into super-purposes,
those which conflict with and override primary purposes.
Similarly, Sec. 10(b) of the Homestake Contract, simply grants an
``option to negotiate,'' nothing more than permission to apply. It
certainly doesn't give the Bureau the authority to enter into such a
contract. If it did, then the Bureau would have never-ending
opportunities to expand its authority, with regard to any project,
simply by executing contract after contract granting options to
negotiate for other contracts which were theretofore unauthorized.
Finally, as pointed out by the Williams letter, the 1986 Aurora
contract ``specifically excludes exchanges involving Project water.''
That Project water is ``involved'' in the proposed contract is
undeniable. According to Williams, the 1986 Aurora contract ``requires
both storage of water and any exchange with nonproject water to be
approved by the State of Colorado Division of Water Resources.'' No
such state administration is contained in the proposed contract. As
pointed out below, it must be.
Compliance with Colorado Law
The authorizing act also requires Project operation to ``comply
with the laws of the State of Colorado relating to the control,
appropriation, use, and distribution of water therein.'' PL 87-590,
Sec. 5(e), emphasis added.
Filings and Decrees
The filings and decree for the Fry-Ark Project's western-slope
water leave little doubt about where it was intended to be used.
To create prima facie evidence of the appropriation of water rights
for the Fry-Ark Project, pursuant to 1953 CRS 147-4-1 et seq. and 1963
CRS 148-4-1 et seq., the SECWCD and its predecessor filed maps with the
Office of the Colorado State Engineer. Those maps recited that the Fry-
Ark Project works ``are to be constructed for (a) Supplying water to
the lands of the Arkansas Valley in Southeastern Colorado; (b) Domestic
water supply in the area served; (c) The regulation and flood control
of waters in the Arkansas River and its tributaries; (d) Power,
recreational, and industrial purposes; [and] (e) Other beneficial
consumptive and nonconsumptive uses in the area served.'' Filings in
the Office of the Colorado State Engineer numbered 20997 and 20997A,
accepted February 1, 1957, and November 25, 1968, emphasis added.
After filing the maps, the SECWCD began to adjudicate its state
water rights for the Fry-Ark Project. On the western-slope, for
example, the decree provided that Project Water ``will be used for
irrigation, manufacturing, domestic, municipal, power, and other
beneficial purposes. Various cities and towns in the Arkansas Valley in
Colorado will use such water for all municipal purposes''. The various
ditch companies and farmers of the Arkansas Valley will use such water
for all farming purposes....'' Decree, Supplemental Adjudication, Water
District 38, In the District Court in and for Garfield County,
Colorado, CA 4613, entered July 21, 1959, Art. VIII, pp 25-26 (emphasis
added).
Consequently, the intent of the Fry-Ark Project appropriations and
the provisions of the decree which made them enforceable was to provide
water for beneficial use only in the Arkansas River basin. By the
proposed Aurora Contract, the Bureau now intends to allow project water
to be exported from the Arkansas Basin for beneficial use elsewhere. To
do so lawfully, an application must be made to and a decree obtained
from the Colorado Water Court authorizing the change of place of use.
The appropriate venue for such an application is the Division 2 Water
Court, Pueblo. People v. Ogburn, 194 Colo. 60, 570 P.2d 4 (1977)
Re-coloring
The Bureau may seek to avoid the prohibition on export of Project
water by simply presuming that Project Water may be re-colored or
relabeled as reusable native Arkansas water which may be diverted out
of the Arkansas basin.
The Colorado Supreme Court has rejected the practice of re-coloring
Project water in an exchange. It determined that project water cannot
be relabeled as reusable native water. In Thornton v. Bijou, 926 P.2d 1
(Colo. 1996), involving the Bureau of Reclamation's Colorado-Big
Thompson Project, the court was faced with a similar municipal attempt
to exchange Non-Project Water for Project Water, then export the
Project Water outside of the Northern Colorado Water Conservancy
District. As the Bureau does here, Thornton asserted that the
``character of exchange rule'' provides that water diverted by exchange
takes on the character of the substitute supply, i.e. if Project Water
is diverted in exchange for Non-Project Water, the Project Water
becomes Non-Project Water available for diversion out of the district.
Noting that the trial court labeled the rule as a ``legal fiction,''
Thornton, 926 P.2d 1, 70, the Supreme Court ``affirm[ed] the trial
court's denial of Thornton proposed application of CBT water for
replacement and exchange purposes creating benefits for Thornton
outside the boundaries of the NCWCD.'' Thornton, 926 P.2d 1, 77.
Consequently, any Project Water in Twin Lakes or Turquoise
reservoirs which is the subject of Aurora's contract exchange is still
Project Water which cannot lawfully be exported to the South Platte
River basin.
State Engineer supervision
Under the proposed contract, ``The [Regional Director] shall have
exclusive authority to determine if and when an exchange may occur,''
and he ``shall execute the exchanges herein contemplated through
reservoir water accounting procedures.'' Aurora Contract, ]]
5.b.(2),(3). These provisions presumably apply only to the ``contract
exchanges'' authorized by the Aurora Contract. Those exchanges,
however, would only ``occur when the exchange potential in the Arkansas
River is insufficient to move water stored in Pueblo Reservoir
upstream.'' EA, Sec. 2.3.1, p. 12. More specifically, Aurora's current
decrees do not cover the contract exchanges. EA, Sec. 2.2, p. 10.
Simply put, the contract exchanges ignore Colorado water law.
The Bureau's slightly cock-eyed rationale for this approach is
found in the Bureau's Draft Hydrologic Model Documentation, p 4-24:
``Contract exchanges are not decreed by the water court, because the
exchange occurs between two willing parties who have legally diverted
water, which is under their control, and when doing so would not injure
other water rights holders.''
The Bureau's understanding is only partially correct. It is correct
that exchanges must be administered so that they do not cause injury.
In addition, exchanges, including contract exchanges, do not require
decrees. City of Florence v. Board of Waterworks of Pueblo, 793 P.2d
148, 155-56 (Colo. 1990) (Erickson, J., concurring). Nevertheless, all
exchanges, including contract exchanges, are subject to regulation by
the State Engineer. Id. at 156. All exchanges must be regulated to
ensure there is no injury to other water rights. They may be
adjudicated if the party operating the exchange wishes to receive a
priority date for the exchange. Justice Erickson's characterization of
exchanges was adopted by the majority opinion of the Colorado Supreme
Court eleven years later. Empire Lodge Homeowners' Ass'n v. Moyer, 39
P.3d 1139, 1155 (Colo. 2001) (``an exchange is a water management
practice the State Engineer administers between decreed points of
diversion...The State Engineer may allow an exchange in absence of a
decree confirming it. If the exchange is adjudicated, it receives the
priority date of its appropriation.''). See also, Colorado Water
Conservation Board v. City of Central, 125 P.3d 424, 436-37 (Colo.
2005) (``A water right exchange is a trade of water between structures
or users administered by the state engineer.''). See also CRS Sec. 37-
83-104 (exchanges to be charged deductions for stream loss ``to be
determined by the state engineer'');
The water court or the State Engineer, not the Bureau's Regional
Director, is responsible for ensuring exchanges do not injure senior
water rights. As such, exchanges must subject themselves to his
authority and administration before the exchange is operated. The
primary concern is to ensure that water will be available to satisfy
senior rights when needed. See, e.g., City and County of Denver v. City
of Englewood, 826 P.2d 1266, 1272-73 (Colo. 1992) (disallowing Denver's
``owe-the-river'' accounting system for its exchange where the division
engineer was not informed of the exchange until after the water had
been diverted; ``[p]rior notification of the exchange allows the
engineers to ensure that water is available to be released to meet the
needs of downstream senior appropriators.'').
The water that the Bureau books over to Aurora upstream in Twin
Lakes and Turquoise reservoirs will not be sent downstream to project
beneficiaries, as it otherwise would be. That water is destined for the
Otero pump station and the South Platte basin instead, forever
unavailable to downstream rights along the exchange reach. The Bureau's
own analysis demonstrates the impact of the contract exchanges on the
flow of the Arkansas. Attachment # 6, hereto, demonstrates that the
cumulative effects of the Aurora Contract will reduce the flow of the
Arkansas River in the exchange reach at the Wellsville Gage by up to
approximately 5% during a ``mean dry year.''
Consequently, in order to comply with Colorado water law, the
Aurora Contract must be amended to reflect that the Colorado State
Engineer, not the Bureau's Regional Director, has sole authorization to
determine when contract exchanges may operate without injury to others
and how much water may be exchanged. In addition, as described below,
the Aurora contract must also incorporate the restrictions in Aurora's
exchange decrees.
Compliance with Aurora's Exchange Decrees
Aurora holds several decrees allowing the exchange of its water in
Pueblo Reservoir, including those issued in cases 87CW63, and
99CW170(A), as well as a consolidated decree for cases 84CW62 and
84CW63, 84CW64, all in the water court for Water Division No. 2. To
protect other water rights, those decrees impose on Aurora's exchanges
a variety of terms and conditions, including priorities among competing
exchanges, and requirements for a live stream in the exchange reach,
Division Engineer determination of non-injury, volumetric limitation,
daily accounting, the satisfaction of all intervening senior rights
which are calling for water, seasonal limitations (e.g. no exchanges
November 15 through March 15th; reduced exchanges, July 1st through
August 15th), flow limitations, volumetric limitation, protection of
minimum stream flows, matching of exchange diversions to reservoir
releases, limitations on simultaneous exchanges, protection of water
quality, maximum diversion rates based on gage readings, protection of
the Upper Arkansas River Voluntary Flow Management Program, and subject
to the terms of over 30 stipulations incorporated by reference, subject
to IGAs incorporated by reference, compliance with its own exchange
priorities, making all the exchanges absolute, notice to the Division
Engineer prior to exchange operation, and the court's retained
jurisdiction.
These decrees aggregate over 70 pages and are the result of
thousands of hours of effort by expert witnesses, lawyers, and judges.
Aurora now wants to circumvent the results by doing an end run around
the decrees using the contract and with the Bureau running
interference. If Aurora and the Bureau truly wish to comply with
Colorado law, the exchanges contemplated by the contract should be
subject to all the terms. conditions, and limitations contained in
those decrees.
Summary
The proposed Bureau contract with Aurora is unlawful and
unauthorized. It is unlawful since, contrary to the Project Authorizing
Act, the contract is an unvarnished an attempt to circumvent Colorado
water law. The Aurora Contract is unauthorized (1) since the Secretary
has not found that the contract operations are in the interest of the
project, and (2) since Congress has not authorized such changes which
would ``seriously affect'' Project purposes.
Supporters of the contract will ask, ``What is the big deal? We've
had temporary annual contracts for years in the past. Why not save us
the trouble of renewal and make the contract good for forty years?''
The answer is two-fold: First, 40 years is a long time, a professional
life-time, practically permanent from the view point of a resident of
the Arkansas Valley. Second, after forty years, when Aurora has become
dependent on Arkansas River water, contract renewal will be politically
mandatory.
Once again, thank you for inviting me to testify. I am available to
answer any questions you may have.
List of Attachments
1. Map of Project Area
2. Map of District Boundaries
3. Exchange Schematic
4. Reclamation Commissioner John W. Keys III April 3, 2003, letter
to James Broderick of the Southeastern District
5. Regional Director Bach August 20, 2003, letter to James
Broderick of the Southeastern District
6. Cumulative Effects of contract exchanges on stream flow
______
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Lamborn. The Chairwoman will have her questions as soon
as she gets back. I'll go ahead with the next questions for
myself and then we will continue on down the line.
Mr. Thiebaut, I enjoyed the years that you and I spent in
the legislature, but I've got to ask you these questions
though. Given that pollution spills have occurred in your own
counties, but you have not filed suit against those
responsible, while you have sued the City of Colorado Springs
for the same thing, wouldn't you agree that there's a double
standard at work?
Mr. Thiebault. Well, first of all, it's a thrill to see all
of my former colleagues in the legislature one more time.
That's not such a thrilling question, but----
[Laughter.]
Mr. Thiebault.--let me assure you, Representative Lamborn
and members of the committee and guest members and this entire
community and this state, that if I believed that there were
violations of the law and any community within the boundaries
of the 10th Judicial District, the area that I represent, was
affecting anyone's safety, health, or welfare, I would take
action.
It's a little difficult to discuss pending litigation in
Federal courts right now. I don't think it would be fair, but I
do want to assure you that because of the chronic nature of
those discharges, nearly 73 million gallons from 1998 to the
point of the lawsuit, over 100 spills, during a very short
period of time in the last few years, I was duty bound to bring
an action.
If any other entity within my jurisdictional powers brings
forth such demonstrative conduct that creates a danger to the
health and safety of a community, I'll take action.
Mr. Lamborn. OK, thank you.
Mr. Rivera, how much money has Colorado Springs Utilities
spent on recent improvements of water quality flowing into
Fountain Creek and what are the plans for the future?
Mr. Rivera. Thank you for that question, Representative
Lamborn. Today we have spent over $65 million reinforcing our
wastewater collection system. This year we will spend an
additional $20 million to further improve it. Next week we will
open a $10.5 million Fountain Creek recovery system, where we
will be able to use a diversion dam, if we have any future
spills, to divert it into two holding ponds, treat the water,
clean it, and send it back down Fountain Creek.
In the future over the next 15 years, we anticipate to
spend close to $200 million, and again, reinforcing our
wastewater collection system. I think we've been good stewards.
We rely on the Colorado Department of Public Health and
Environment to enforce the Clean Water Act. They are doing
that. We are in compliance with all of their requirements, and
frankly, I think that's where the enforcement should lie, and
they are doing a good job of enforcing EPA standards.
Mr. Lamborn. OK. Thank you, Mr. Mayor. And Mr. Winner, if I
could ask you a question. You focused a great deal in your
testimony on water quality problems in the lower valley, and
you seem to associate these problems with Colorado Springs's
participation in the Fry-Ark Project; however, I was under the
impression that the lower district and Colorado Springs have a
conceptual agreement in place that addresses most of the
concerns you raised in your testimony, including comprehensive
plans for water quality studies and a comprehensive approach
for managing Fountain Creek. Isn't there such a conceptual
plan?
Mr. Winner. That is correct. And I did not mean to point
any fingers at Colorado Springs. I was not aware that I did
that. What I was attempting to do was clarify an exchange.
Mr. Lamborn. So is the Lower Ark Conservancy District ready
to sign such an agreement with Colorado Springs?
Mr. Winner. At this time, two of the nine parties have come
to an agreement. I believe it's not nine parties. I believe
it's 12 parties. We have conceptually come to an agreement with
Colorado Springs. There's still a long way to go. It took us
two and a half years to get this far.
Mr. Lamborn. And when you say ``a long way to go,'' what do
you mean by that? Because I thought you said a second ago that
there was.
Mr. Winner. Nine more entities have to agree to what we
have agreed to with Colorado Springs.
Mr. Lamborn. And the last question for you, Mayor Rivera.
Is the City of Colorado Springs only asking to have water
delivered to it that it already has the rights to?
Mr. Rivera. That's correct, Congressman Lamborn. These are
water rights that were acquired in the mid to late '80s, and
what we are looking for with our Southern Delivery System
basically is what all of us want for the Arkansas Valley
conduit. We want a project that will be built and to deliver
clean drinking water to members of the Fry-Ark Project.
I think the Arkansas Valley conduit is something that
Congress should step up to the plate, enact legislation, and
help us get that funded as soon as possible, because then
members of the lower Arkansas Valley community can have clean
drinking water that they deserve.
Mr. Lamborn. Thank you all for your answers, and this time
I'll turn the gavel back over to Chairwoman Napolitano.
Mrs. Napolitano. Thank you, Congressman. And thank you for
taking over. Thank you, and now I will turn over to Mr.
Perlmutter for questions.
Mr. Perlmutter. OK.
Mrs. Napolitano. Thank you.
Mr. Perlmutter. Yes, Madam Chair.
Senator Thiebaut, a question for you. You talked about
water rights being property rights. And if I understand the
water law that I learned from Mr. White at the end of the table
there, those water rights can be sold to and from anybody,
isn't that true?
Mr. Thiebault. That is my understanding, yes.
Mr. Perlmutter. And that they are not necessarily attached
to the land. They are severed from the land.
Mr. Thiebault. Yes.
Mr. Perlmutter. Mr. Winner, about five years ago--no,
longer than that, six years ago, we had a hearing here in
Pueblo, and this was just an experience that occurred at that
time. There were two gentlemen from St. Charles Mesa, which
used to be a truck farming area, as I understand it. One guy
announced that he sold his water rights I think to the City of
Pueblo. I'm not sure who he sold it to. But his next-door
neighbor said what are you doing that for? You're going to, you
know, dry up this land and it's going to be for development.
Do you object to the farmers that have had water down along
this--along the Arkansas, do you object to them selling their
water rights?
Mr. Winner. Water is a property right. If a farmer wants to
sell his water, he has every right to sell his water.
Mr. Perlmutter. And he can sell it to anybody he wants to?
Mr. Winner. He can sell it to anybody he wants. Where my
problem lies when it comes to the purchase of water, this is
what you buy, this is what you take. There's a big difference
between what you purchase and what you actually take. I have no
problem if somebody buys water, let's say they buy it for life.
Go ahead, put your pipeline in, clean up the water. The cost of
that is over a billion dollars. It's quite simpler for people
who want to buy water to exchange it up high to get this, and
then leave this for the small communities that cannot afford to
clean it up.
Mr. Perlmutter. Let me stop you for a second. Isn't it true
that the water rights that we're talking about are all water
rights that come from the west slope? And the transmountain
diversion of Homestake?
Mr. Winner. No.
Mr. Perlmutter. Homestake is the transmountain diversion?
Mr. Winner. Homestake is a transmountain diversion.
Mr. Perlmutter. All right. And Fryingpan-Arkansas is a
diversion.
Mr. Winner. Absolutely.
Mr. Perlmutter. All right. And are you saying that the
water rights that are purchased down on the lower Arkansas are
of the muddy quality and not the clean quality? Is that your
point?
Mr. Winner. That is correct. Such as the Rocky Ford high,
the Rocky Ford ditch is native water that starts on the east
slope. It----
Mr. Perlmutter. So do you disagree then--you obviously
disagree with the Bureau's conclusion after four years and 200
pages, that there's a negligible difference between having the
water up high and taking it from the Pueblo Reservoir.
Mr. Winner. Absolutely.
Mr. Perlmutter. OK. Would the water quality improve if
there were a conduit that directed water down to the Southeast
Water Conservancy District? I'm not sure exactly which counties
you represent.
Mr. Winner. If there is a conduit built, it would improve
the water quality a hundredfold to the small communities east
of Pueblo.
Mr. Perlmutter. You mentioned in your testimony that even
at the outset of the Fryingpan-Arkansas, that the farming in
that area along the Arkansas has actually decreased, not--it
isn't just a recent phenomenon.
Mr. Winner. Since 1955, 65,000 acres have been taken out of
production, with 121,000 acre-feet transferred off the main
stem of the Arkansas. I believe the water raids started right
around that time.
Mr. Perlmutter. And even so, today it's still, as I heard
somebody testify, 74 percent of the water from the Fryingpan-
Arkansas is still used for farming, even though cities are
entitled to 51 percent.
Mr. Winner. That is correct. Realizing that the amount of
water that the Fryingpan-Arkansas Project brings over is
minuscule compared to what is diverted for Arkansas.
Mr. Perlmutter. One last question for Mr. White. You
represent cities as part of your water law practice, do you
not?
Mr. White. Yes, and I represent a lot of other kinds of
people too.
Mr. Perlmutter. And as part of that, you've been involved
with transfers from farmers--water rights from farmers to city
clients that you represent.
Mr. White. That's correct.
Mr. Perlmutter. OK. Thanks, Madam Chair.
Mrs. Napolitano. Now Mr. Salazar?
Mr. Salazar. Thank you. Mr. Mayor, it's good to see you
here again. I totally agree with your statement. It starts out
by the following: ``The Fry-Ark Project was conceived, planned
and constructed as a multipurpose project to serve both the
interests of agriculture and the municipal entities within the
Southeast District.''
Let me just read to you what the original legislation said.
This was testimony by Wayne Aspinall. It talks about the water
quality, and it talks about the quality of water utilized by
some of the cities that are extremely short on water. Water
quality is a (inaudible). The needs of the principal cities in
the area that can be supplied with water by the project are
shown in the following tables. The following table provides for
17,000 acre-feet of water for Colorado Springs, Pueblo,
Manzanola, Crowley, Rocky Ford, La Junta, Las Animas,
(inaudible), and Lamar. These are all within the project
boundaries. OK? And it would also supply--which has never
happened, 184,000 acre-feet for irrigation purposes and the
17,000 for municipal uses. Are you aware of any congressional
act that basically enlarged the boundaries of the project?
Mr. Rivera. No comment.
Mr. Salazar. You are within the boundary, correct?
Mr. Rivera. Yes, sir.
Mr. Salazar. Thank you very much. And can you tell me, you
know, there's been several reports in the paper on several
spills that have come from Colorado Springs because of
malfunctions of your wastewater facilities; is that correct?
Can you tell me how many of those happened over the last two
years?
Mr. Rivera. No, sir, I cannot, but I can provide you
written documentation to give you that information. Some of
those are due to vandalism, some--the majority of the spillage
that the D.A. referenced was because of a 1999 flood that
inundated the entire valley, and that's really an act of God
that no utility, whether it's Colorado Springs or Pueblo, has a
way of preventing.
Mr. Salazar. Well, I sit on the Water and Infrastructure
Subcommittee and Transportation Committee, and we are happy to
work on wastewater facilities and other projects in Congress. I
would be happy to try to help Colorado Springs try to lessen
some of the problems that they have with some of their
wastewater treatment facilities, so I offer you that sort of
service, if I can be of any help.
Mr. Scanga, you and I are lifelong ranchers and farmers. We
have a long history back in Colorado. My family settled in 1860
in the San Luis Valley. We're seven generations on the same
farm. Are you aware that last year, the United States became a
net importer of specialty crops?
Mr. Scanga. Yes, since I'm in the meat business, I'm very
aware of that.
Mr. Salazar. Does it worry you that much of our water that
is purposefully supposed to go to agricultural is moving to
urban use?
Mr. Scanga. Yes, it does. I'm not sure that economically
speaking that water moving to other uses is necessarily the
cause of why we have become a net importer. I think we've
become a net importer because our cost of production is higher
than foreign costs of production. I'm not sure how that relates
to water. I believe in terms of water, drip irrigation, new
types of water systems that conserve water, drip irrigation in
particular, would help in the lower Arkansas Valley by actually
cleaning up the river. Irrigation creates--the return flows
from irrigation, the lower Arkansas Valley in particular,
create a lot of contaminants, like sedimentation of the lower
Arkansas River. I'm aware of that. There's a lot of USGS
studies that confirm that, so----
Mr. Salazar. Thank you, Mr. Scanga.
Mr. Winner, do you believe that in all of the water
transfers that have happened out of the lower Arkansas there
has been proper mitigation that's happened to make sure that
the effect of the socioeconomic impacts of the water transfers
out of the basin has been addressed?
Mr. Winner. I do not believe proper mitigation is in place.
I believe what needs to happen is that we need to have a
socioeconomic study to study the past so that we do not lose
the future. As I said before, some mitigation for Aurora's
school system was $1.5 million to the high school. $1.5 million
does not make up for a graduation class to lose 100 students
over 30 years.
Mr. Salazar. Thank you.
Mr. White, are you aware of any legislation in Congress
that actually authorizes the project boundaries to be enlarged
from this current map?
Mr. White. I am not.
Mr. Salazar. So do you believe that the Bureau of
Reclamation has the authority to enter into a 40-year contract
to move water out of the basin using the project?
Mr. White. I do not.
Mr. Salazar. Thank you, sir.
Mr. Thiebaut, since you've filed a lawsuit against Colorado
Springs, how many spills have you counted within the last two
years? Do you have any idea or recollect?
Mr. Thiebault. Congressman Salazar, my gut reaction is that
there's been several. I don't have the exact count. When I
answered Representative Lamborn, I know there's been since 2000
or 2001, over 100 spills, and there's a significant number over
the last few years, and I can sure provide that correct
information to you at a later date.
Mr. Salazar. Madam Chair, could you give me one additional
question, please?
Mrs. Napolitano. No.
[Laughter.]
Mrs. Napolitano. Go ahead. I'll give you part of my time.
So----
Mr. Salazar. I do appreciate that.
Mrs. Napolitano. I'll yield some of my time to you.
Mr. Salazar. Mr. Mayor, as you know, there's two bills. One
is being proposed by Congressman Lamborn and one is being
proposed by me. My bill basically deals with making a
socioeconomic study that can be an independent study conducted
by the state. The bill would actually include a requirement
that the State of Colorado study the cumulative effects,
socioeconomic and environment impact of water transfers out of
the Arkansas and Colorado basins prior to Federal dollars being
spent on enlargement potential for Lake Pueblo. Could you
support something like that?
Mr. Rivera. Congressman Salazar, I think it's important to
note that we currently have intergovernmental agreements that
have been signed by the City of Pueblo, the Pueblo Board of
Water Works, the Southeast Water Conservancy District, the City
of Fountain, that we would support legislation similar to what
Congressman Lamborn has already introduced. So we are already
on record and have intergovernmental agreements that would
unwind if we were to change that.
Mr. Salazar. So basically you would not support a
comprehensive study that would actually study the cumulative
effects, the socioeconomic and environmental impact on the
basin when water is moved out of the basin, and I'm asking you,
would you or would you not support that?
Mr. Rivera. I would restate what I just said. We are on
record with intergovernmental agreements with our partners,
that we would support legislation similar to what Congressman
Lamborn has already introduced, and I guess I personally would
have concerns at looking back at history at the transfers of
water rights that were done between the agricultural community
and the municipalities that at that time following Colorado
water law, were completely imbedded, and I don't think it would
be appropriate to go back and try to unwind those.
I think the better solution is what we are trying to work
out with the Lower Arkansas Conservancy District, and that is a
lease and fallowing program, where we allow farmers to benefit
from their water rights while protecting the agricultural
community and making it stronger.
Mr. Salazar. And does the fallowing program actually put
the fertilizer dealer back in place, does it put the tractor
dealer back in place?
Mr. Rivera. I'm sorry. Could you repeat that question?
Mr. Salazar. Does the fallowing program that--your
mitigation project in the lower Arkansas Basin, do they
actually put the grocery store owner back in place or the
equipment, fertilizer dealer back in place? Does it put the
tractor dealer back in place? So we are not really addressing
the full effects of what happens when water is transferred out
of the basin, correct?
Mr. Rivera. Well, sir, our goal is not to do that. Our goal
is to keep the water in the valley and basically the farmers
benefit and at the same time the municipalities can also
benefit.
Mr. Salazar. Thank you.
Mrs. Napolitano. Thank you, Congressman Salazar.
Congressman Udall.
Mr. Udall. Thank you, Madam Chair. Before I start my
questioning, I want to note that there are a lot of brave
people here today, and I would include Senator Thiebaut in that
list. He is appearing with his old and tired colleagues.
I think I see Commissioner Richards here in the audience. I
see Mayor Ed Tauer here from Aurora. We're going to give Ed a
chance to give his point of view.
Mayor Rivera, thank you for being here. But I think the
most courageous person is the Chairwoman, given she's a
Californian.
Grace, we could turn on you and then there wouldn't be
anything left of you. We want to thank you for again holding
the hearing and for being here in the spirit of more broadly we
are all Americans.
Mrs. Napolitano. Just try it.
Mr. Udall. She's something, isn't she?
If I could, Mayor, I'll turn to you briefly. You mention
the money that the Springs contributes to the administrative
and I think the O&M aspects of the project, and the amount that
you put forth is more than double of all of the other
participants combined. What determines how much the Springs
pays and why is your city's commitment so large?
Mr. Rivera. It's basically based on the ad valorem property
tax value and the mill levy set for the Southeast Water
Conservancy District and because Colorado Springs has had
tremendous success in growing as a community, the value of our
property is what determines what we contribute.
Mr. Udall. If I could, Mr. White--and I noticed Mr. White's
graduated West Point, served in our Army. Thank you for your
service, particularly at this time in our history.
Let me turn to I think what really is a very important
question that you posed. Am I right in understanding that any
water exchanges by Aurora have to be done under Colorado state
water law? I think that is a yes or no answer, I hope.
Mr. White. It is not.
Mr. Udall. All right. Take a shot at it and give me a
chance to ask you a follow-up question.
Mr. White. I'll use about 20 words. The contract exchanges
are not under the contract with the Bureau. Aurora has exchange
decrees, but those aren't involved. In fact, those are so
cumbersome in that they're being replaced by the contract
exchanges.
Mr. Udall. The follow-up question I have then, is this
about the legality of the exchanges, or about the legality of
the actions of Bureau of Reclamation that it may take in
connection with the exchanges? Do you care to expound on that?
Mr. White. If I understand the question, I believe that it
is about the legality of the exchanges, because the exchanges
are by the authorizing legislation to be conducted in
accordance with Colorado law. The decreed exchanges that exist
for Aurora have dozens of pages of terms and conditions that
Aurora must comply with.
By going through the contract exchange, however, they avoid
that. And how the Bureau is able to help Aurora escape the
provisions of Colorado law and still comply with the
authorizing legislation is beyond my understanding.
Mr. Udall. Thank you for sharing and furthering your point
of view on that.
Senator Thiebaut, I apologize for adding another syllable
to your name when I first mentioned you earlier in this round.
At the end of your statement, you say we must stop gutting the
power of water quality administrators and provide adequate
funding and teeth for enforcement. Would you talk a little bit
about what gutting and enforcement is taking place right now?
Mr. Thiebault. Thank you, Representative Udall, and I've
been called a lot of things, so please don't worry about that.
What I'm experiencing in the situation that I took up for
our community is that our state regulators are in essence
sitting down with the perceived polluters and working out
arrangements to try to fix the issue that we're involved in,
and that's just basically wastewater, human feces, denigrated
water that's coming down the Fountain Creek.
And it's just odd for me to see that there is no public
engagement prior to any decisions being made with regard to
that, and that only after the fact, after a deal is cut, so to
speak, that people are then asked to comment on what has been
accomplished, and it's sort of a backward process. And I think
it demonstrates that at least on the state level, there is not
enough resources to have public hearings, or gain adequate
input into resolving what is a regional problem.
And I think how it relates to the Federal government is
that the Federal government has given our local and state
regulators the power to work on these issues, and so if there's
more help from Congress, I think there would be more help at
the state level and more help at the local level, and it would
all translate into more open discussions about how to solve the
problem in the first instance, rather than having the polluter
and the regulator sit in a room and work out solutions that are
not satisfactory, frankly, to downstream communities.
Mr. Udall. I presume your conversations with Governor
Ritter and his administration in that regard, and I would
imagine that all of us here on the panel could add some help to
need to have better oversight of our water quality.
Mr. Thiebault. Representative Udall, I would appreciate
anything that any one of you could do to nudge our state
elected officials and regulators. It is something that's going
to continue until many years to come unless we sit down and do
something different than we're doing now.
Mrs. Napolitano. Thank you, sir.
I have a lot of questions and follow-up. Some of them will
be posed to you in writing, because there's not going to be
enough time. But Mayor Rivera, how many sewage treatment plants
do you have, roughly? One, two, three?
Mr. Rivera. We have one major wastewater treatment facility
and we're about to open a second in a matter of weeks.
Mrs. Napolitano. And I've dealt with the sanitation
district in my area, so I'm a little cognizant of the issue.
How old is your treatment plant and what capacity does it have?
Mr. Rivera. Those are technical questions. I can get you
those answers, but I don't have it for you now.
Mrs. Napolitano. Thank you, for the record, because I know
that in some areas that I've known, the age of a--and the size
precludes them from actually being able to treat the increased
sewage from the new developments, from the growth that has
emanated from the area. And so it's a great challenge for the
communities to stay on top of it; however, it's one of those
areas that should not be overlooked, because that could lead to
lawsuits based on people getting sick from that sewage-
contaminated water. Do you follow?
Mr. Rivera. I do, ma'am, but we follow Colorado law, and
when it comes to planning and building a new wastewater
facility, when we reach 85 percent of a capacity of an existing
facility, we need to begin to find a property. Like I
mentioned, we will be opening a new facility, and we have spent
millions of dollars improving and enhancing our facility.
Mrs. Napolitano. I've read that, sir, but if you are having
spills, what are they due to?
Mr. Rivera. Primarily, they are due to the fact that we
have about 1500 miles of wastewater lines. A lot of them run
along creek beds. And when we have very strong storms, the
tributaries of Fountain Creek turn into raging rivers. And we
are in the process, as I mentioned before, of spending $85
million reinforcing all of those collection lines in our creek
beds, and I think we've done a good job of making sure those
kinds of spills don't happen again.
Mrs. Napolitano. I would hope not, sir, because that is a
health hazard for all concerned. The other issue, we were
discussing which--let's see. I'm--do you have any water-
recycling projects serving Colorado Springs, and if not, why
not?
Mr. Rivera. Well, we probably are one of the best reusers
of treated water. We have 12,000 acre-feet per year, about 13
percent of our water supply, that is used throughout our
community, whether it's watering golf courses, cooling our
power plants----
Mrs. Napolitano. Excuse me. How many acre-feet, do you
have?
Mr. Rivera. 12,000 acre-feet per year. It's about 13
percent of our water supply that we use.
Mrs. Napolitano. Do you plan to increase that recycling
capability?
Mr. Rivera. Our new wastewater treatment plant that will be
opening in a few weeks will have the capability to deliver
tertiary-treated water that we can use throughout the community
for nonpotable uses, yes.
Mrs. Napolitano. Is that going to be able to assist you in
reducing the take of water from the project?
Mr. Rivera. Well, I think we've done a good job of that
over the years. One of the----
Mrs. Napolitano. No, I'm asking do you think that is going
to help reduce the take that you now have?
Mr. Rivera. Umm----
Mrs. Napolitano. Putting more recycled water into use, for
whether it's commercial, industrial, ag use--California does it
all the time now--but is that something that you've looked into
and are you considering it?
Mr. Rivera. The answer to that is yes, ma'am. We
retrofitted our power plant to use 2 million gallons of water
per day of treated effluent instead of fresh water. So we are
doing that throughout our community. So the answer is yes.
Mrs. Napolitano. Thank you, sir.
Mr. Scanga, If the storage that Aurora is seeking for their
water is the first to spill, how could the use of this unused
space affect anyone else in the Arkansas Valley's water rights?
Mr. Scanga. The use of which unused space? I'm not clear.
Mrs. Napolitano. The space in the Pueblo Reservoir.
Mr. Scanga. In Pueblo Reservoir? Unused space?
Mrs. Napolitano. Excess water.
Mr. Scanga. Oh, you mean excess capacity contracted.
Mrs. Napolitano. I'm sorry.
Mr. Scanga. Now, madam, if you wouldn't mind repeating that
question now that I understand what you mean by excess
capacity. I don't quite understand your question.
Mrs. Napolitano. Well, in essence, you have Aurora water
stored, and if that's the first to spill, what is that--how
does that affect everybody else?
Mr. Scanga. If it's the first to spill, that means that the
in-basin entities have the higher priority, storage priority.
So that would give more space available in a situation where we
end up in a spill situation to an in-basin entity. It wouldn't
bump their water, in other words.
Mrs. Napolitano. OK. And then your district Web site says
that one of the primary roles of the district is to preserve
and protect water by legislative and judicial means. Does that
mean you expect a legal challenge if the long-term contract
with Aurora will be filed?
Mr. Scanga. No. Sometimes there's legislation that could be
detrimental to water right owners and to our system in
particular, the Arkansas River. So we are active in lobbying
activities to make sure that adverse legislation is not passed
and also legislation that could be beneficial, such as water-
banking legislation, that that type of thing is passed.
For example, water banking legislation was first introduced
in the State of Colorado. It allowed water to be moved through
a water bank outside the basins. We fought against that, and
eventually we were able to get that language amended and
therefore water banking cannot be used to move water out of the
basin.
Mrs. Napolitano. Thank you. And to any of you very quickly,
with a yes or no answer simply, Congressman Salazar and Lamborn
both have legislation proposed, and Congressman Salazar is
requesting a study. How do you feel about the study's ability
to influence what you're facing now? And the reason I ask that
is because the Bureau of Reclamation needs to answer how long
would it take them should that bill pass to come up with a
study? Given that I've waited 11 years for a study to come out
on Los Angeles water needs since 1996 and just recently was
finally given it. It was early this year.
Mr. Scanga. I think the study--ma'am, if I understand the
question, I think the study of the socioeconomic impacts of
building the first storage option plan, I think that should
take place. It should take place in a feasibility analysis that
is necessary were the project to go forward. At this time, I
would like to see at least a feasibility study be done to see
if it's even feasible to do the Preferred Storage Options Plan
first.
Mrs. Napolitano. Gentlemen?
Mr. Thiebault. I think that Representative Salazar's bill
would be helpful.
Mr. Winner. Like I said before, we must learn from the past
so we don't lose the future, so I support Representative
Salazar's bill.
Mr. White. Me too.
Mrs. Napolitano. Mayor?
Mr. Rivera. I would agree with Terry Scanga. I think we
need to do the feasibility study patterned after Lamborn's bill
and then we would discuss socioeconomic needs after that
feasibility study.
Mrs. Napolitano. Thank you very much. This will conclude
the second panel, gentlemen. Thank you for your testimony. It
is appreciated and you will have additional questions sent to
you. We appreciate your reply within ten days if at all
possible. And again, for those in the audience who have
questions, you may submit them for the record and on behalf of
this committee, and I will call for a five-minute break. Five
minutes. I think some people have been waiting patiently. Five
minutes from now.
[recess.]
Mr. Lamborn. OK. The third panel will now resume. We have
The Honorable Ed Tauer, Mayor of Aurora. We have Drew Peternell
from Trout Unlimited; Chris Treese from the Colorado River
Conservancy District--Conservation District, excuse me; and
Wally Stealey of Pueblo.
OK, Mr. Tauer, Mr. Mayor, you are the first one on the
third panel. If you could present your testimony, please.
STATEMENT OF THE HONORABLE EDWARD J. TAUER,
MAYOR, AURORA, COLORADO
Mr. Tauer. OK. Thank you.
Madam Chairperson, thank you very much for having us this
afternoon--this morning. We appreciate you coming and hope you
have time to enjoy Colorado for a little bit while you're here.
My name is Ed Tauer, and I'm the mayor of the City of
Aurora. It's a city on the eastern side of the Denver metro
area, and our current population is about 310,000 people.
You know, I was listening to some of the testimony earlier,
and if somebody isn't from Colorado, they may not understand,
in Colorado, water is life. It's so important that we actually
have about half of the water lawyers in the country practicing
in our state. We're one of the few states that have actual
water court, special courts to decide water issues.
It's a very emotional issue. First, last, and always, it's
important to the people of Colorado. And we've heard what water
can do in the valley, but I wanted to point out quickly some of
the things that it's doing in the city of Aurora. It's allowing
us to bring in great jobs for the people of Colorado, like with
employers like Raytheon and Northrop-Grumman. It's allowing the
extension of Buckley Air Force and projects like the
redevelopment of the former Fitzsimons Army Hospital that
Congressman Salazar has been so helpful with.
This is a time for us to look at the issues of water with
cool heads and do the best for all of the people of Colorado.
We've been involved with the Fry-Ark Project since its
early days. You know, the Fry-Ark Project is very simply a
series of pipes, pumps, and buckets that allow the movement of
water from one basin to another. And during the early
development of the project, something very unique happened at
the Bureau of Reclamation. The people working at the Bureau saw
that there was another project nearby that had a similar
purpose and they saw that by working together, those two
projects could be better for everybody. That's a very unique
thing to have happen in government. I think it's something that
should be encouraged. And it was allowed because the original
concept of the Fry-Ark Project was to be a multi-purpose
project.
So early on in the construction phase, before any of the
construction was even begun on the Eastern Slope, the Bureau of
Reclamation entered into discussions with Colorado Springs and
Aurora about how to expand the use of the project. In fact, I
believe the first contract was entered into in 1965. The intent
and the rationale for this was reconfirmed by the Bureau in the
'80s.
I've heard somebody say that it wasn't part of the original
intent, and that may be in a very, very narrow sense true, but
I believe that it's the legacy of Congress and of the Bureau of
Reclamation to maximize the investments of the taxpayers of the
United States. And that's exactly what the Bureau has done
through these agreements. For when you do that, it's important
that you do it in a way that doesn't injure the original intent
of the project, and it goes to your point earlier, Madam
Chairperson, in one of your questions.
The Bureau of Reclamation has managed the project so that
Aurora has what's called an ``if and when'' contract. What that
means is that we can store water in project facilities when,
and only when, there's space available. Whenever an in-basin
user needs space, if our water is in there, there isn't room
for them as well, our water does spill out of the project.
It does not change Colorado water law. We're still only
allowed to move water per Colorado water law. And because we're
an out-of-basin user, quite appropriately, we have to pay more
for the usage of those facilities. And as a result we are the
third-largest payer for the repayment back to the Federal
government for this project.
We believe that we have responsibility to be a good
neighbor, and that's why we've entered into six different
agreements with in-basin parties, most recent of which is the
2004 agreement which is sometimes called the 6-Party Agreement.
Under that agreement, we agreed to work with our partners to
protect some of the flows in the river, some of which were
already mentioned by Mr. Scanga, to participate financially in
future storage, but also to limit the amount of water that
Aurora can take out of the valley.
We have to use water responsibly in Aurora. That's why we
have some very innovative conservation programs and why we are
leading the state in the reuse and recapture of water. I'd like
to point out that the 40-year agreement that's under study and
we hope to enter into soon with the Bureau does not change any
of this. It's not a new agreement. It's a reconfirming of the
year-to-year agreements that we've had. It doesn't change any
of the conditions, the ``if and when'' aspects, the limits or
any obligations that we have. And it also doesn't change
Colorado water law.
We hope that in the future, we're on the edge of something
different in Colorado, that we're not talking about one basin
against another. We think it's time for us to change that
conversation and talk about how do we work together, people in
cities and farms, people in one basin and another. There's a
new process in Colorado, the 1177 Process, that aims to do just
that.
Especially in a year where Congress has so little money
that's discretionary and available, it's time for us to
maximize the investments of America's taxpayers, and
cooperative uses like our involvement in the Fry-Ark Project
are one way to do that. Thank you very much.
[The prepared statement of Mr. Tauer follows:]
Statement of The Honorable Edward J. Tauer,
Mayor, City of Aurora
I. Background
The City of Aurora is the third largest municipal water provider in
the State of Colorado and serves the needs of 300,000 people and
businesses within its service area. The City operates a complex and
integrated water system to reliably serve its customers with a safe
drinking water supply. As a part of that water system, the City of
Aurora derives about one quarter of its source water from the Arkansas
River basin and has had a long-standing and productive relationship
with the Fryingpan-Arkansas Project since its very inception in the
1960's. All water sources have been developed under the State's water
laws and operating agreements with the federal government and local
agencies.
Aurora is the third largest financial contributor to Fryingpan-
Arkansas Project repayment, subsidizing the repayment obligations of
local agricultural and municipal users while helping to retire the
public debt at an earlier time. Aurora trails only El Paso County and
Pueblo County, who contribute to project repayment obligations through
the payment of ad valorem taxes on property within the Southeastern
Colorado Water Conservancy District.
Aurora History in the Fryingpan--Arkansas Project
In the early 1960's, Aurora joined with Colorado Springs in the
purchase and development of the Homestake Project. The Homestake
Project imports water from the Eagle River, a tributary to the Colorado
River and delivers water to the South Platte River basin through the
Homestake Reservoir outlet and tunnel to Turquoise Lake and Twin Lakes
which are both Fry-Ark facilities. Water is piped and pumped from Twin
Lakes through the Otero Pump Station to Spinney Mountain Reservoir and
then by gravity to the City of Aurora.
The Fryingpan-Arkansas Project was proposed as a source of
supplemental water for agricultural and municipal entities within the
Arkansas basin. However, recognizing the economies of scale that could
be realized where two projects, i.e., Homestake and Fry-Ark which were
simultaneously in the planning and development stages, the Bureau of
Reclamation entered into discussions with Colorado Springs and Aurora
in an attempt to coordinate efforts and thereby minimize costs and
maximize efficiencies. In 1965, prior to the construction of the East
Slope components of the Fry-Ark Project, both Aurora and Colorado
Springs executed a contract with the Bureau of Reclamation. That
contract acknowledged that ``it will be economically feasible to
transport all or part of the Homestake Project water through the
Fryingpan-Arkansas Project facilities for delivery to the cities.'' The
contract was designed to ``provide...for the coordinated operation of
the two Projects, and to provide a method of payment for the use of the
Fryingpan-Arkansas Project facilities.''
In particular, the contract identified how Fry-Ark facilities would
``provide carriage of Homestake water...and storage for Homestake
water...,'' and contained flow rate limits as well as a storage of
30,000 acre-feet cap for Homestake water to be stored in East Slope
Fry-Ark Project facilities. The 1965 contract went on to state:
10(b) The United States hereby grants an option to the cities
to negotiate for additional storage service in the eastern
slope project works over and above the 30,000 acre-feet
contemplated by this agreement, if and when there may be
capacity in the system unused by the Project or uncommitted by
prior agreements.
See attached.
The storage space option referenced in the above paragraph was
specifically not limited to Homestake water and could include native
Arkansas Valley waters that were legally developed by Aurora for
municipal purposes.
In response to subsequent questions concerning the Bureau's ability
to contract with an out-of-basin entity, such as Aurora, for the use of
excess capacity in Fry-Ark facilities, the Bureau has, on two separate
occasions, concluded that such authority indeed exists. These
statements were issued in 1986 and in 2003. See correspondence of Ray
Whelms and John W. Keys attached hereto. However, reference to such
participation by Aurora was previously made as early as 1964 in the
Bureau's memorandum on the proposed water service contract for the Fry-
Ark Project and subsequently in the operating principles for the
Project.
II. Aurora's Water Acquisitions in the Arkansas Valley
Beginning in the late 1970's, Aurora received numerous sale offers
from Arkansas Valley farmers who wanted to sell their decreed
agricultural water rights. Aurora has since acquired and subsequently
received State decrees for approximately 26,000 acre-feet of water from
a number of farmers, ranchers and ditch shareholders. The City of
Aurora has completed the necessary Colorado water court adjudications
required to change the water rights to municipal use, ensuring ``no
injury'' to other water rights and agreeing to a number of decree terms
and conditions as related to the individual adjudications. These have
included yield limitations and revegetation requirements. The City has
operated an office in the lower Arkansas Valley near Rocky Ford and
maintained an ongoing community presence that addresses water
administration, revegetation, local watershed protection issues and
other Arkansas Valley water management matters.
III. Intergovernmental Agreements
In order to implement the various operating agreements and work
cooperatively within the Arkansas basin, Aurora has executed a number
of Intergovernmental Agreements (IGAs) with entities within the area
served by the Fryingpan-Arkansas Project, as well as entities within
the Upper Arkansas basin. The provisions of these agreements extend far
beyond the requirements of state law in preventing injury and providing
mitigation for water transfers. These include the following:
2004 Regional (6-Party) IGA
2003 Southeastern Colorado Water Conservancy District IGA
1994, 2001 and 2005 Otero County IGA's
2005 Rocky Ford School District IGA
2003 Upper Arkansas Water Conservancy District IGA
A summary sheet for each of the above referenced IGAs is attached
hereto. Of particular note, in those documents Aurora voluntarily
agreed to the following:
To support Preferred Storage Options Plan (PSOP)
legislation in a form as referenced in the 2004 Regional IGA.
To refrain from the additional purchase and permanent
transfer of agricultural water rights from the basin for 40 years, with
specific agricultural fallowing and leasing opportunities during
drought recovery periods.
To make multi year, multi-million dollar payments for the
use of unused and available space in Fry-Ark facilities.
To curtail water diversions and exchanges in support of a
flow program and for the aquatic and recreational benefit of the river
reach below Pueblo Reservoir.
To make payment in lieu of taxes (PILT payments) and
other tax loss payments (due to differential land and property tax
assessments) to Otero County.
To compensate the Rocky Ford School District in the sum
of $1.5 million dollars as mitigation for perceived losses resulting
from changes in their tax base--Aurora will complete payments over a
five year period rather than the negotiated 99 year payout to provide
the School District with substantial and effective cash payments in the
near future.
To provide an Upper Basin replacement or softening pool
of water.
IV. Additional Cooperative Activities
Aurora has also extended its comprehensive local community programs
through a variety of additional cooperative activities in the Arkansas
Valley. These include:
Investment in a ``continued-farming, drip irrigation''
project (approximately $2 million) whereby Aurora assists local farmers
with $1,400.00 per-acre for the installation of drip irrigation
systems, $50.00 per planted acre for ten years, and 1/2 acre-foot per
acre of augmentation water annually.
Creation of a partnership with Lake County including the
formation of the Lake County Open Space Initiative (LACOSI) designed to
enhance recreation, historic preservation and wildlife activities along
the upper Arkansas River riparian corridor.
Conduct of a fen (wetland) research project to
investigate, in cooperation with others, tools for wetland mitigation
for this endangered high-altitude flora environment
To date, under the various Bureau contracts, IGAs, and other
governing documents, Aurora has spent almost $35 million dollars on its
operations in the Arkansas Valley and estimates that it will
potentially spend, in the next 40 years, an additional $150 million
dollars. See attached expenditure summary. Aurora is fully vested in
ensuring a successful relationship with the Fryingpan-Arkansas Project
and the people of the Lower Arkansas Valley.
V. Leasing and Sustainable Water Use
In the recent severe drought of the last five years, Aurora's water
storage fell to unacceptably low levels. As a part of an integrated
program to recover the reservoirs, Aurora developed and implemented a
highly effective short-term leasing program for fallowed agricultural
water supplies within the Arkansas Valley. Aurora entered into a
contractual leasing/fallowing relationship with the Rocky Ford Highline
Canal Company whereby 37% of ditch acres were temporarily fallowed and,
in exchange, almost $11 million dollars was placed into the local
economy at a time when drought conditions already precluded an adequate
water supply for crop production. Aurora's financial arrangement with
the farmers, which also included soil stabilization, weed control and
canal structural improvements, was overwhelmingly embraced by local
shareholders and Aurora was only able to subscribe about one-half of
all the water offered to the program.
Aurora believes that the temporary leasing/fallowing concept, which
it has supported legislatively, is a valuable and viable option to the
``buy and dry'' practices of the past. Though it is a complicated
undertaking which is not easily implemented, with the ditch companies
input and cooperation, in coordination with the use of storage
facilities such as those of the Fry-Ark Project, it is a mechanism that
can be employed to the benefit of both municipal and agricultural
entities in the Valley.
Aurora has been a statewide leader in both water conservation and
reclamation. The City's comprehensive water conservation policies and
continuing mandatory watering restrictions have greatly reduced per
capita consumption. In addition, it is ensuring the maximum utilization
of previously developed water supplies, having embarked on the $750
million dollar Prairie Waters Project. This Project is designed to make
successive reuse of its fully consumable return flows in the South
Platte River. Those project facilities include a series of alluvial
wells downstream from the City that will divert water to a 34 mile
pipeline and a state-of-the-art water treatment plant. Indeed, Aurora
is mindful of its responsibility to avoid waste, thereby minimizing and
delaying its need for additional agricultural supplies and transbasin
imports.
VI. Forty-year Contract Request
Since 1986, Aurora has executed a series of year-to-year contracts
with the Bureau of Reclamation for the storage and exchange of water
within the Fry-Ark system. These annual operating contracts have always
been the subject of NEPA reviews. Most recently, consistent with the
provisions of the aforementioned IGAs and Bureau policy, Aurora has
requested a forty-year contract from the Bureau in lieu of the year-to-
year arrangement. This long-term contract will provide additional water
supply certainty to the City.
Aurora has spent approximately four years and over $1.5 million
dollars working with the Bureau in the conduct of an environmental
analysis (EA) which examined the environmental and socio-economic
impacts associated with this long term extension of the existing
practice. This effort, which included extensive modeling of potential
hydrologic and water quality impacts and numerous opportunities for
public comment, concluded that there would be no significant impact
from the proposed action. A FONSI was recently issued by the Bureau.
The final contract terms are now being circulated for further public
comment, though the contract was the subject of public negotiation
sessions.
The following facts ensure that there can be no harm to the Fry-Ark
Project or its beneficiaries as a result of the long-term contract.
Aurora will receive, and has received in the past, no
Project water under the Bureau contracts.
If there is insufficient storage capacity i.e. Aurora
water cannot be stored at the same time as Project water or Project
beneficiary water, Aurora is the ``first to spill''. No Project water
is displaced by the City's use of empty and excess space in the
facilities.
Aurora's contract exchange opportunities under the
contract are subordinate to all present and future exchange requests of
in-district entities.
In addition to the above ``constraints'' on Aurora's use of excess
capacity, the Project will realize significant ``economic benefits.''
These include anticipated payments from Aurora to the Project of
greater than $45 million dollars and, in the case of contract
exchanges, additional water yield. If Aurora is able to exchange water
with the Bureau located high in the basin for water Aurora has stored
lower in the basin, e.g. at Pueblo Reservoir, the Fryingpan-Arkansas
Project can deliver that water to downstream beneficiaries without
incurring the approximately 10% river shrink or loss that would
otherwise occur as the water is moved down stream. The federal
government and project participants benefit by receiving that greater
amount of water for their use.
VII. Conclusion
The City of Aurora appreciates the opportunity to present this
testimony on its longstanding involvement with the Fryingpan-Arkansas
Project. Aurora takes very seriously its obligation to the Project and
Project beneficiaries while it operates its Water System in compliance
with State water decrees and the multiple IGAs with local agencies.
Aurora will continue to cooperate with all involved entities to promote
the Bureau's goals of maximum utilization of existing infrastructure.
Aurora will work with responsible parties to minimize conflicts and
mitigate adverse water development impacts. In fact, as we move into a
new era of water supply management, the Fry-Ark Project can be a
shining example of cooperative efforts designed to ensure sustainable
and balanced water management approaches.
______
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[The response to questions submitted for the record by Mr.
Tauer follows:]
June 28, 2007
The Honorable Grace Napolitano
Chair, U.S. House Subcommittee on Water and Power
Committee on Natural Resources
1522 Longworth House Office Building
Washington, DC 20515
The Honorable John Salazar
U. S. House of Representatives
1531 Longworth House Office Building
Washington, DC 20515
Dear Chairwoman Napolitano and Representative Salazar,
This letter is in response to your follow-up questions at the June
1, 2007 Water and Power Subcommittee hearing in Pueblo, Colorado.
Question asked by Chairwoman Napolitano:
``How do you balance asking your customers to save water through
conservation with the need to maintain revenues to keep your
balance sheet in good condition?''
The City of Aurora has adopted a revenue neutrality approach to
budget management during periods of significant and sustained water
restriction programs. A surcharge was added to the user fee to account
for projected lower revenues so the Utility's Debt Service Coverages
were maintained and operating funds were available. During the recent
drought, the annual revenues were within five percent of projected
revenues and this has allowed the Utility to maintain its high credit
rating which is essential given the City's major investment in new
water source development in the South Platte River basin. That program
to develop the City's new water sources exceeds $750,000,000 in capital
cost and will be completed in 2010.
This responsible approach to maintaining revenues during extended
drought periods was not adopted by Metropolitan Water District of
Southern California, which saw an accumulated deficit in revenues
during that same time period.
Question asked by Representative Salazar:
``Your statement seems to indicate that since Aurora has a larger tax
base that you have the right to take water from the Lower
Arkansas Basin and leave communities depressed. Do you believe
that water policy should be based on only serving the needs of
the wealthy?''
Aurora does not get to set water policy to serve a singular or its
own interest--the setting of state water policy is reserved to the
State of Colorado's legislature and is promulgated under Rules and
Regulations and the State's Constitution. Colorado administers the use
of water as a public property right under the Appropriation Doctrine--
that doctrine respects a ``first in time, first in right'' allocation
of beneficially used waters. It is a Doctrine that recognizes the
scarcity of water resources and includes numerous mechanisms for the
change of beneficial use (for example from agricultural to municipal
use), location of use by exchange, transfer or direct delivery. All of
Aurora's decreed water rights, including those in the Arkansas Valley,
are established through Water Court proceedings.
For the record, Aurora is not alone in seeking to transfer
agricultural rights to municipal or industrial use as a part of free
market transactions. As of this time, other transfers the City of
Aurora is aware of include:
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Further, the State of Colorado Department of Agriculture has
estimated that, on average, 140,000 acres per year of agricultural land
are transferred to alternative land uses including conservation
easements, dry-land farming and urbanization. Approximately 28,800
acres (about 20% of total) of irrigated acreage per year are
transferred to urban uses, primarily in Boulder, Larimer and Weld
Counties. There are numerous reasons for individual farmers choosing to
sell their ranches, farms and water rights. These range from individual
decisions based on family dynamics, economics, federal farm pricing
policies, federal farm subsidies, social issues etc. These changes in
farming are not confined just to Colorado. As noted in U.S. News and
World Report, June 11, 2007:
The fertile soil of Iowa has made its agricultural exports
second only to California...Between 1974 and 2002, the number
of people operating farms in the state declined from about
102,000 to about 62,000; agriculture now makes up less than 5
percent of the State's gross domestic product.
A similar change is occurring in Colorado where urban-centric
economies now dominate the State's economic well-being and agriculture
produces less than 2 % of the Gross State Product. These are all trends
that are blind to Aurora's legal acquisitions of water resources to
reliably serve the needs of the 306,000 people in the City and the
numerous cornerstones, including the Fitzsimons/ VA Medical Complex,
Buckley Air Force Base and other additions, that contribute to
Colorado's future.
The responsible development of water resources to meet the needs of
the State of Colorado and its many users is complex and recognized by
the State legislature as well as municipalities. While Aurora
represents less than 15% of the anticipated population growth in the
Denver metropolitan area in the next 25 years, the City has embarked on
a responsible program to develop reliable water supplies for its
citizens. This investment includes a $754 million program to recapture
city water rights north of the metropolitan area and to treat and
deliver those flows to our customers.
This maximization of sustainable use of previously developed water
resources is acclaimed at all levels of government and the
environmental community as an example of Smart Water Project Planning.
At the same time, we will protect our previously developed water
resources, including those in the Arkansas Basin, that are controlled
by water decrees, intergovernmental agreements, operating agreements
and contracts.
We would be pleased to share further information on how Aurora's
foresight in water supply planning is leading Colorado in meeting the
water demands that we are all facing.
Sincerely,
Edward J. Tauer
Mayor
______
Mr. Lamborn. Thank you, Mr. Mayor, for your testimony.
Mr. Peternell.
STATEMENT OF DREW PETERNELL, DIRECTOR, COLORADO WATER PROJECT,
TROUT UNLIMITED, BOULDER, COLORADO
Mr. Peternell. Thank you, Mr. Chair. My name is Drew
Peternell. I'm an attorney for Trout Unlimited and the director
of Trout Unlimited's Colorado Water Project.
TU is a national nonprofit fisheries conservation
organization, and the Colorado Water Project works specifically
to maintain stream flows for the benefit of fish. We have an
interest in the rivers and streams that are impacted by the
Fry-Ark Project. Trout Unlimited is not opposed to water
resources development. We understand that water resources
development is important for our state, our economy, our
agriculture, open spaces, our growing population.
As we outlined, however, in our 2005 report entitled
``Facing Our Future,'' which I have a copy of if the panel is
interested, as we outlined in that report, our support for new
water development projects depends on the project being smart,
and principles of smart water supply from our perspective
include making full and efficient use of existing supplies
before increasing transbasin diversions, integrating
conservation, efficiency, reuse, nonstructural approaches into
water resources planning, rehabilitating existing facilities
before building new ones, and probably bottom line, adopting
water supply solutions that minimize harm to or create benefits
for the environment, the economy, and the local communities.
As the panel knows, there are currently a number of water
development proposals on the books or on the table that would
involve Fry-Ark Project facilities, and TU's position on those
projects depends on the degree to which they are developed in a
smart manner. And it seems to us there are two things that the
Federal government can help to assure that water development in
the Fry-Ark area is smart. One would be to study the
feasibility of a variety of means of meeting water supply, and
the other is to study the impacts of water supply arrangements.
On the first point, both Representative Salazar's H.R. 1833
and Representative Lamborn's H.R. 2277 would authorize the
Department of Interior to conduct a study of the most feasible
method of meeting water supply demands in the Fry-Ark Project
service area. TU is supportive of having the Bureau conduct
such a study, but to ensure that the study is fully informed
and actually results in smart water supply choices, we think
it's important that the study look at a variety of options or
combinations of options for meeting demand.
Looking at storage only we think is too narrow and is
inadequate. What we have in mind is looking at these
nonstructural approaches, like efficiency, water-sharing
arrangements, conservation, either nonstructural approaches
which can be less environmentally damaging and less expensive
to build.
In addition to addressing a variety of needs of meeting
demands, the other way the Federal government can help to
assure smart water supply in the Fry-Ark area is to conduct a
study of the impacts of various supply arrangements. Assessing
the impacts of water development is the cornerstone of smart
water supply. Therefore, Trout Unlimited is supportive of the
provision of Representative Salazar's bill that directs the
State of Colorado to conduct an impact evaluation.
One of the sets of impacts of the Fry-Ark Project results
from the diversion of water from the Colorado Basin to the
Arkansas Basin that are felt in the Colorado Basin. And as it's
currently written in H.R. 1833, it is a little bit unclear as
to whether those impacts would be addressed in the evaluation.
We think that it's important they be addressed and we suggest
that the legislation make that point clear, that you're going
to be addressing the impacts felt in the Colorado Basin of
diversions to the Arkansas Basin.
H.R. 1833 also must provide the impact study, which again
would be conducted by the State of Colorado. The impact study
is not a replacement for need for compliance. Before the
Department of Interior and the Bureau of Reclamation takes
action on any proposals related to the Fry-Ark Project, it must
comply with NEPA, and in fact, given all of the changes to the
Fry-Ark Project since it was authorized in 1962 and given all
of the proposals for future changes to the Fry-Ark Project, we
think that now might be an appropriate time for the Bureau of
Reclamation to perform a programmatic environmental impact
statement on Fry-Ark in general. This would be something in
addition to the state analysis called for in H.R. 1833.
With that, thank you again for the invitation. I appreciate
the chance to be here, and Trout Unlimited is anxious to
participate in future conversations regarding H.R. 1833 and any
other similar legislation.
Mr. Lamborn. Thank you, Mr. Peternell.
[The prepared statement of Mr. Peternell follows:]
May 29, 2007
United States House of Representatives
Committee on Natural Resources
Subcommittee on Water and Power
1324 Longworth House Office Building
Washington, D.C. 20515
Re: Fryingpan-Arkansas Project Field Hearing
Dear Representatives:
Please accept this letter as my written testimony in connection
with the June 1, 2007 House Natural Resources Committee, Subcommittee
on Water and Power field hearing regarding the Bureau of Reclamation's
(``Reclamation's'') Fryingpan-Arkansas (``Fry-Ark'') Project.
Trout Unlimited (``TU'') is a national, non-profit fisheries
conservation organization with approximately 160,000 members nationwide
and approximately 10,000 in Colorado. TU's mission is to conserve,
protect and restore coldwater fisheries and their habitats. TU's
Colorado Water Project works to maintain and restore stream flows for
healthy coldwater fisheries and to increase meaningful public
participation in decisions regarding water allocation. The Colorado
Water Project and TU's Colorado membership are interested in the
conservation and protection of the rivers and streams affected by the
Fry-Ark Project.
The Fry-Ark Project is a Reclamation project that diverts water
from the Fryingpan River and Hunter Creek in the Colorado River basin
for delivery to the Arkansas River basin. The project consists of a
series of dams, reservoirs, diversion structures, pumps, pipelines and
other infrastructure. Water is delivered initially to Turquoise Lake,
near the top of the Arkansas River basin, and the terminal reservoir in
the Fry-Ark system is Pueblo Reservoir, near the City of Pueblo. The
project came on-line in 1975 and since that time has delivered an
average of 55,000 acre-feet of water annually from the Colorado River
basin to the Arkansas River basin for agricultural and municipal use.
TU is not opposed to water resources development. We recognize that
water development is necessary to sustain Colorado's agricultural
heritage and growing population. As outlined, however, in our 2005
report, Facing our Future: A Balanced Water Solution for Colorado, our
support for new water development projects is contingent on the project
being ``smart.'' Principles that undergird smart water supply include:
making full, efficient use of existing supplies before increasing
transbasin diversions; integrating conservation, reuse, water sharing
arrangements and demand management into water supply planning;
rehabilitating or enhancing existing infrastructure before building new
projects; and adopting water supply solutions that minimize harm to, or
create benefits for, the environment, the economy and local
communities.
Water providers on Colorado's Front Range and eastern slope
currently are planning for or recently have undertaken four new water
development projects that rely on Reclamation's Fry-Ark Project
facilities. The four projects are:
Reclamation recently issued a record of decision
approving a 40-year contract with the City of Aurora for exchange and
storage of non-project water using Fry-Ark facilities. This contract
facilitates the delivery of Aurora's Arkansas River water rights to
Aurora's service area in the South Platte River basin. Many of Aurora's
Arkansas River water rights were obtained through retirement of
irrigated lands in the lower Arkansas Valley.
Colorado Springs is pursuing a project, known as the
Southern Delivery System (``SDS''), that would transport water through
a pipeline from Pueblo Reservoir to Colorado Springs. The project could
enable additional diversions of water from the Colorado basin to the
Arkansas basin and could deplete the Arkansas River between the outlet
of Pueblo Reservoir and the confluence with Fountain Creek--a reach the
City of Pueblo and the U.S. Army Corps of Engineers recently spent
millions of dollars to restore. Colorado Springs would exchange SDS
wastewater effluent down Fountain Creek, potentially exacerbating the
water quality and flooding problems on the Fountain which already are
the subject of a lawsuit between Pueblo and Colorado Springs.
Working with the Southeastern Colorado Water Conservancy
District (``SCWCD''), communities in the lower Arkansas Valley are
pursuing the Arkansas Valley Conduit project. The conduit would deliver
water from Pueblo Reservoir through a pipeline to cities and towns
downstream in the Arkansas Valley.
The SCWCD is promoting a plan, known as the Preferred Storage
Options Plan (``PSOP''), to enlarge Pueblo and Turquoise Reservoirs for
the benefit of a number of eastern Colorado water providers. Depending
on the operational details, PSOP could dramatically alter the
environment in both the Colorado and Arkansas River basins.
TU's position on these and other water supply projects depends on
the degree to which they are developed in a manner that is smart.
As a precursor to expanding Fry-Ark facilities as contemplated in
PSOP, two separate bills pending before the House Committee on Natural
Resources--Representative Salazar's H.R. 1833 and Representative
Lamborn's H.R. 2277--would authorize the Secretary of Interior to
conduct a study of ``the most feasible method of meeting the present
and future water supply and related storage requirements within the
area served by the Fryingpan-Arkansas Project...'' An analysis such as
this is a first-step towards planning for smart water supply. To ensure
that the analysis results in smart water supply choices, however, the
legislation should require that the study consider a variety of methods
or combinations of methods of addressing water demand, specifically
including water conservation, efficiency improvements, water sharing
agreements and other non-structural approaches to supplying water and
lessening water demand. The implementation of non-structural approaches
could reduce or eliminate the need for new or renovated water diversion
or storage facilities, which often are expensive, environmentally-
damaging and culturally-disruptive. Any legislation authorizing a study
of the feasibility of methods of meeting demands also should direct
that the analysis account for demands for stream flows for
environmental and recreational purposes and should require that
Reclamation perform the study according to a process that allows for
public involvement.
Smart water resources planning depends not only on evaluating the
feasibility of a variety of methods of satisfying demands, but also on
assessing the impacts of various water supply arrangements.
Individually, PSOP and the other water supply projects being pursued
could impact fishery and ecological resources. Collectively, the raft
of projects could have broad impacts on the environment, especially
when considered in light of other alterations to natural flow regimes
in the Colorado and Arkansas River basins, including on-going Fry-Ark
operations. Projects that transfer water from one location or use to
another also can have significant economic, social and cultural
impacts. Assessing these impacts and implementing measures to avoid
them is a cornerstone of smart water supply. Together with the
feasibility study called for in Representative Salazar's and
Representative Lamborn's legislation, an analysis of the impacts of
Fry-Ark operations would serve as the basis for smart water resources
planning in the Arkansas basin.
Pursuant to NEPA, Reclamation prepared an environmental assessment
to address the impacts of the excess capacity contract with Aurora.
Reclamation also is in the process of preparing a NEPA environmental
impact statement on Colorado Springs' Southern Delivery System. But,
neither Reclamation nor anyone else has prepared an in-depth analysis
of the cumulative environmental, recreational, economic, social and
cultural impacts of current and future Fry-Ark Project operations.
Before agreeing to any of the pending water supply proposals that would
rely on Fry-Ark Project facilities, and before committing federal
dollars to expanding Fry-Ark facilities, it is important that the
cumulative impacts of Fry-Ark operations be evaluated. Section 3 of
Representative Salazar's bill calls for the State of Colorado to
conduct such an impact evaluation. Because Representative Lamborn's
bill does not include a similar provision, TU supports H.R. 1833 over
H.R. 2277.
One set of impacts of the Fry-Ark Project results from the
diversion of water from the Colorado basin to the Arkansas basin. As
currently written, H.R. 1833 creates some confusion as to whether the
analysis contemplated in Section 3 would address these impacts. Section
3(a) of H.R. 1833 provides that the impact study is to evaluate the
effects of water transfers from the Arkansas and Colorado basins to
communities outside of those two basins. Section 3(b) is broader than
Section 3(a), calling for evaluation of certain activities, such as
exchanges and expansion of Fry-Ark facilities, that do not necessarily
involve the transfer of water to areas outside the Colorado and
Arkansas basins. The language of Section 3(a) should be expanded to be
more consistent with Section 3(b) and to specify that the study is to
address impacts in the Colorado basin of diversions to the Arkansas
basin.
H.R. 1833 should also require that the State of Colorado conduct
the Section 3 impacts study using a public participation process
modeled after NEPA. In particular, TU is concerned that the public
process include an opportunity to comment on the scope of the impacts
study and on draft and final versions of the study document. Further,
while the legislation should require that the state conduct the impacts
analysis with the benefit of public involvement, H.R. 1833 should
provide that the Section 3 impacts study is not intended to satisfy the
requirements of NEPA as applied to any individual federal action
related to the Fry-Ark Project. In fact, depending on the timing of the
various proposed federal actions relative to the timing of the Section
3 impacts analysis, and depending on the scope of the Section 3
analysis, it may be necessary for the Bureau of Reclamation to
supplement the H.R. 1833 impacts analysis with a NEPA programmatic
environmental impact statement addressing Fry-Ark Project effects on
the Colorado and Arkansas River basins.
Thank you for the invitation to provide this testimony. I look
forward to the dialogue at the field hearing on June 1. Trout Unlimited
also is anxious to participate in more detailed discussions regarding
PSOP, H.R. 1833 or any other similar legislation.
Sincerely,
Drew Peternell
Director and Counsel
Colorado Water Project
Trout Unlimited
______
Mr. Lamborn. Mr. Treese.
STATEMENT OF CHRIS TREESE, MANAGER, EXTERNAL AFFAIRS, COLORADO
RIVER WATER CONSERVATION DISTRICT, GLENWOOD SPRINGS, COLORADO
Mr. Treese. Thank you, Mr. Chairman. My special thanks to
the Chairwoman for not only this hearing, but your commitment
to personal travels throughout the West to visit firsthand and
hear from water users and water interests on the challenges of
sustainability. Appreciate it very much.
I am the only Western Slope representative before you
today, and I appreciate Mr. Udall's recognition that western
Colorado is in fact a part of the Fryingpan-Arkansas Project,
with corrections to President Kennedy, that is not just the
source of water for the Fryingpan-Arkansas Project. And that
was made clear in the authorizing legislation, western Colorado
is part of the project.
In fact, western Colorado, from the headwaters of the
Roaring Fork River above Aspen, including the Fryingpan
tributary, all the way down to the Colorado River at Grand
Junction, is specifically listed as part of the service area to
the project. We do supply water. We also receive water and
benefits from the project.
As a result of Colorado water law and Congressional
leadership back in the 1950 and '60s, Ruedi Reservoir was
constructed in western Colorado for the express purpose of
addressing project impacts and ensuring that project benefits
would accrue to western Colorado. Additionally through the
Congressional authorization process, specific operating
principles were adopted and incorporated by reference into
Federal statute. I'd like to read into the record and for
everyone's understanding the opening paragraph of these
principles.
It says that, quote, the project contemplates, A, the
maximum conservation and use of water; B, the protection of
western Colorado water uses, both existing and potential, in
accordance with the declared policy of the State of Colorado;
and C, the preservation of recreational values. The Colorado
River District calls for nothing more than a rededication to
these original and guiding principles of the Fryingpan-Arkansas
Project.
A couple other elements of those operating principles which
I would like to call note to, one is the protection of stream
flows on the Roaring Fork River above Aspen. Authorized in the
original project was a second west slope reservoir; however,
none was found feasible and none was ever constructed. The
impacts to stream flows, however, continue to occur without any
mitigation from such a reservoir.
To further protect the upper Roaring Fork River, minimum
stream flows were included in the principles. These are not
being met consistently with attendant impacts on stream health
and local recreational opportunities, and they deserve
attention.
Finally, I'd like to raise a looming issue of concern
regarding repayment of Ruedi Reservoir. Ruedi Reservoir is a
separately allocated feature of the Fryingpan-Arkansas Project
for repayment purposes. There is no sponsoring entity like the
Southeastern District for Ruedi Reservoir. At the time of
authorization, Ruedi repayment was anticipated to come
principally from a burgeoning oil shale industry and water
service contracts to that industry.
That industry has not materialized, in fact, has not
materialized after two booms and busts in the energy cycles.
There are numerous critical water contracts from Ruedi
presently; however, they are much smaller contracts, bringing
in less than the annual revenues required for repayment to the
Federal government. The result is a negative amortization on
the project. And the combination of an increasing repayment
cost, in fact, the original cost of the repayment cost of the
project was about 17 million, is now well over $30 million, and
we have less time in which to repay it. Repayment is due no
later than 2019. The result is the cost of water, annual
service cost of water, is increasing geometrically and will
soon become cost-prohibitive well in advance of 2019.
I anticipate discussing this issue with the committee,
Secretary of Interior and others who can help address this
issue. It should also be noted that Ruedi, in addition to
providing critical waters to west slope farms, cities and
municipalities, is also a critical water source for water for
the recovery of four endangered fish species listed under the
endangered species act residing in the Colorado River.
The Colorado River District, my district, looks forward to
working with this committee, the Congress, and all project
interests to ensure sustainable water in the future. We need to
honor first and then fulfill the past commitments, and then we
can move forward toward the admirable and necessary goal of a
sustainable water future.
Mr. Lamborn. OK. Thank you, Mr. Treese.
[The prepared statement of Mr. Treese follows:]
Statement of Christopher J. Treese, Manager, External Affairs,
Colorado River Water Conservation District, Glenwood Springs, Colorado
I want to thank Chairwoman Napolitano for this opportunity to share
the Colorado River Water Conservation District's concerns and
recommendations regarding the Fryingpan-Arkansas Project and the
important goal of a sustainable water future. I also want to extend my
District's gratitude to the Chairwoman for her commitment to the
subcommittee's field hearings and her personal travels throughout the
West to see and hear first-hand the issues facing Western water users.
The Colorado River Water Conservation District is the principal
policy body for the Colorado River within Colorado. We are an
independent, political subdivision of the State of Colorado responsible
for the conservation, use, and development of the water resources of
the Colorado River basin to which the State of Colorado is entitled
under the 1922 and 1948 Colorado River compacts. The Colorado River
District includes all or part of 15 counties in western Colorado,
including the Fryingpan and Roaring Fork Rivers which serve as the
source waters for the Fryingpan-Arkansas Project. We offer the
following testimony in a spirit of cooperation and partnership to
ensure that adequate and safe water supplies are developed and
maintained in a manner that is both timely and compatible with the
competing values for water in the arid West.
I would like to further commend the chairwoman for the topic of
today's hearing. The Fryingpan-Arkansas Project, or ``Fry-Ark,'' is a
fitting lens through which to view the challenges and opportunities
inherent in the goal of sustainable water supplies. The Fry-Ark
project, like so many throughout the arid West, faces competition for
its water supplies. Competing values place stresses on the source
waters, delivered waters, water quality, and management of the
project's facilities. Agricultural beneficiaries struggle to maintain
viable business operations in the face of lower commodity prices and
increasing municipal demand for agriculture's water supplies. Other
competing interests seek higher reservoir lake levels for recreation,
while downstream interests compete for different water release
schedules. White water enthusiasts favor higher flows during rafting
season, while anglers seek more consistent flows that optimize trout
habitat and are safe for wading. Accordingly, the Fry-Ark project, like
other Western water projects, faces on-going challenges to sustainable
and acceptable operations.
Ruedi Reservoir
As a federal transmountain water diversion project with a Colorado
water conservancy district sponsor, the Fry-Ark project is subject to
unique conditions of Colorado water law. The Colorado River basin, as
the basin-of-origin for the project's water supply, enjoys certain
protections in law not required of non-conservancy district water
projects. Colorado law requires the conservancy district to ensure that
present and future water uses in the Colorado River basin are not
``impaired nor increased in cost at the expense of the water users
within the natural basin.'' (Colorado Revised Statutes 37-45-
118(b)(II)) To fulfill this provision of state law, a central feature
of the Fry-Ark project is Ruedi Reservoir. Congressional authorization
for the Fry-Ark, in fact, specified that Ruedi Reservoir be the first
project feature constructed.
The Colorado River basin is not just the source water for the Fry-
Ark project. Congressional authorizing legislation and related
documents clearly establish Western Colorado as part of the project's
service area. Today, Ruedi Reservoir provides supplemental water
supplies to cities, towns, commercial interests and individual water
users in Western Colorado. As a direct result of Ruedi's operations,
Colorado's longest stretch of Gold Medal trout fishing extends from
Ruedi dam to the Fryingpan River's confluence with the Roaring Fork
River and onto its confluence with the Colorado River at Glenwood
Springs.
Western Colorado will continue to advocate for fair and equitable
treatment of the Fry-Ark project's western service area in existing
operations and any future changes to operations or expansions.
Operating Principles
Like many of today's water projects, the Fry-Ark was originally
envisioned as a much larger water project. The original ``Gunn-Ark
Project'' proposed nearly 500,000 acre-feet per year of diversions.
Local opposition, however, resulted in project changes and assured
operating conditions that ensured a viable project that provided a
sustainable water supply without decimating the basin-of-origin. These
conditions and the related operating principles were officially
incorporated into the Fry-Ark's Congressional authorization in House
Document 130. (Operating Principles Fryingpan-Arkansas Project, 87th
Congress, First Session. March 15, 1961.) Interpretation and
fulfillment of some of these permit conditions and project compromises,
however, remain an area of contention.
The Operating Principals of the Fry-Ark Project were incorporated
as Sec. 3 of the authorizing legislation. (P.L. 87-590, 87th Congress,
H.R. 2206. August 16, 1962.) The opening paragraph of these Principles
states:
``The project contemplates--
(a) The maximum conservation and use of water;
(b) The protection on Western Colorado water uses, both
existing and potential, in accordance with the declared policy
of the State of Colorado; and
(c) The preservation of recreational values.''
(Operating Principles, Fryingpan-Arkansas Project. Page 1.)
The Colorado River District calls for a rededication of the U.S.
Bureau of Reclamation (``Reclamation''), along with the project's East
Slope and West Slope beneficiaries, to these guiding principles.
To address the additional transmountain diversion of water by the
private Twin Lakes Reservoir and Canal Company, the Operating
Principles state, ``in order to offset adverse streamflow (sic)
conditions of the Roaring Fork River above the town of Aspen which
might occur as a result of the project enlargement of the Twin Lake
Reservoir, the Ashcroft Reservoir on Castle Creek, or some reservoir in
lieu thereof, shall be constructed on the Roaring Fork drainage above
Aspen....'' (Operating Principles, Fryingpan-Arkansas Project. Sec. 2;
Page 2.) The Principles go on to acknowledge that any such mitigation
reservoir for the upper Roaring Fork River had to first be found
feasible by the Secretary of the Interior. No feasible project was, in
fact, found, and the communities in the upper Roaring Fork basin
continue to be concerned about project impacts to stream health and
water quality.
Moreover, the Operating Principles include minimum monthly average
in-stream flow thresholds for the Upper Roaring Fork River above the
City of Aspen that were established by the U.S. Fish and Wildlife
Service in cooperation with the (then) Colorado Department of Game and
Fish. There are also ``hard minimums'' below which stream flows are not
ever to be reduced by diversions. Both these recommended average and
``hard'' minimum flows are consistently not met. Proposed further
development of East Slope water employing Fry-Ark facilities threatens
to further aggravate this situation.
The Fry-Ark Operating Principles also provide for a 3,000 acre-foot
exchange between the Twin Lakes Company and the Project as an
obligation of the Project. The current agreement implementing this
exchange expires in 2014. The Project yield from diversions on the
Hunter Creek are dependent on a long-term or permanent Twin Lakes
Exchange agreement, as does the health of the upper Roaring Fork River.
Reclamation is a necessary party to a future extension of this
agreement and must provide leadership to ensure the requirements of the
Operating Principles are carried out for the long term benefit of both
the East and West Slope portions of the project's service area.
Project Repayment
Ruedi Reservoir is a separately allocated feature of the Fry-Ark
project for repayment purposes. Ruedi's repayment was anticipated to
come from West Slope water service contracts. There is no sponsoring
water conservancy district with repayment responsibilities for Ruedi
Reservoir. At the time of project authorization, Ruedi's repayment was
projected to predominantly derive from water service contracts with the
then-anticipated oil shale industry. Since the anticipated oil shale
industry and its attendant industrial water demands did not
materialize, scheduled annual payments to the federal government have
been delinquent. However, there is no sponsoring local agency
responsible for these payments. As a consequence, negative amortization
of the project is occurring. Congressional authorization requires that
the project's costs, including the original $17.5 million reimbursable
portion of Ruedi Reservoir's construction costs, be repaid to the
federal government by 2019. With negative amortization, this price is
currently over $30 million and growing geometrically. The result is an
increasing project cost and a further reduction in water demand because
of the resulting increased price for Ruedi water. While a new round of
interest in oil shale development is present today, changing
technologies and newly proposed project locations outside the Colorado
mainstem largely preclude oil shale as Ruedi's repayment solution. The
Colorado River District anticipates discussing this matter with this
committee and the Secretary of the Interior in the next few years to
address these repayment conditions and to ensure the perpetual benefits
to Western Colorado of Ruedi Reservoir as an integral feature of the
Fry-Ark Project.
Finally, it should be noted that Ruedi Reservoir today is a key
source of water for the cooperative Recovery Program for the Four
Endangered Fishes of the Upper Colorado River (``Recovery Program'').
Over 21,000 acre-feet of water in Ruedi is dedicated to the
preservation and recovery of four local fish species listed as
endangered under the Endangered Species Act. Only half of that 21,000
acre-feet, however, is permanently dedicated to the Recovery Program.
The long-term use of Ruedi water and the attendant repayment
implications are uncertain but must be addressed.
Conclusion
Western Colorado is an often overlooked project beneficiary of the
Fryingpan-Arkansas Project. Ruedi Reservoir is an integral element of
the project. In addition to fulfilling the mitigation requirements of
Colorado water law, Ruedi provides vital water supplies to West Slope
municipalities, industry and agriculture. Lingering issues of
compliance with the project's Operating Principles and emerging issues
of repayment and future water allocations must be addressed to the
mutual satisfaction of all project beneficiaries and the U.S. Bureau of
Reclamation.
______
Mr. Lamborn. And Mr. Stealey is our next witness.
Mr. Stealey, I notice that you have not submitted a written
statement prior to your statement, like everyone else has and
which the rules of the committee call for. Will you be able to
do that after your testimony?
Mr. Stealey. After 28 years in government, I have never
written anything down, and I'm not starting today.
Mrs. Napolitano. Mr. Lamborn, the Chair agrees that it's
always preferable to have written testimony and to have that
testimony submitted at least 48 hours before the hearing, and
many times that is not done, and we still admit it into the
record. The Chair submits that Rule 4B provides clear
discretion for the Chair to allow the witness to speak without
a written statement and will allow Mr. Stealey to testify, and
I welcome his participation and his appearance.
Mr. Lamborn. Please continue.
STATEMENT OF WALLY STEALEY, ARKANSAS VALLEY RANCHER, PUEBLO,
COLORADO
Mr. Stealey. Well, Committee, Madam Chairman, we are glad
you're here. Welcome to the world of Colorado water buffalos.
If you spend a lot of time with them, you will learn very
rapidly that the most important thing you can remember is this
statement, the difference between the sin of omission and the
sin of commission. They will never lie to you, and they'll
never tell you the whole truth unless your question is
extremely specific as to what they know. I truly enjoy them.
Many of them are my friends. I lobbied in the water area in
Colorado many, many years.
My first physical job as a young man was working on a
transmountain diversion ditch, the (inaudible) ditch in Ouray
County with an elevation of 11,000 feet, moving water from the
west fork of the Cimarron River into the Cow Creek, and thus
the Uncompahgre River and back down into the Gunnison. That
ditch was dug in the late 1800's, the early 1900's, by one
(inaudible). My family's been here all too long.
Most of the people in the room either know me or heard of
me. You heard everything there is to hear, so I'm just going to
try to summarize this from just--I guess the best way to
describe myself is the cowboy who happened to go to college.
The biggest danger we've got--and I drafted a piece of
legislation when I was Chairman of the District, the biggest
danger we've got is diminishing the taxpayers' role in the
Fryingpan-Arkansas Project by allowing PSOP participants to
diminish our stock, just like in the business world. If I buy
stock in your corporation and you add more stock and don't give
me more, you have diminished my holding in the company.
That is extremely dangerous. PSOP participants claim they
have 11 or 12 members, but let me tell you how that's really
going to work. It's created for the big three: Pueblo, Aurora,
Colorado Springs. And when it comes time to pony up the water
for the dam, the smaller communities are going to have to say,
``We probably don't have it.'' And Aurora has already said to
one of those communities, ``Well, we'll put your money in for
you.''
This is a very dangerous project. If you want this to be
still a public project, like a municipal golf course, please do
not let them put a country club on top of our municipal golf
course. It would be very bad for this valley.
The exchange issue is most fascinating. It is not really
covered in Colorado law, but we allow it. It took us years to
get legislation through that would allow a water judge in
Colorado to consider water quality. They don't have to deliver
it. They can now consider it. We consider that a big step. We
don't do anything with exchanges.
We've got a little office out there in Crowley County with
a nice young man--older man now--controlling and watching all
of the exchanges. He knows where they go, Pueblo knows where
they go, Aurora knows where they go, Colorado Springs knows
where they go. And when I asked the state engineer to give me a
list of all of the exchanges for a six-month period, he said,
``I don't have a clue what the hell they're doing.'' That's the
water engineer for the State of Colorado.
This has got to be stopped. Exchanges need to be
controlled, because they can do their studies until hell
freezes over, and when you take all of the good water out of
the top of the river, it's going to get worse at the bottom of
the river. And as soon as we put this package together, I'll
bet every one of you that Kansas comes walking in the door and
says, ``You're not going to do that.'' They have a stake in
this too. And they should.
We have watched one of our counties, Crowley County,
totally destroyed by the purchase of their water. Let me
address the water concept of property rights. Justice Douglas
wrote in his famous decision, allowing for cities to control
for aesthetic purposes planning and zoning was declared a
property in the United States was not a right like the right of
free speech or the right to a lawyer, but in fact it's a
privilege to be used in conjunction with the benefit of the
community. And it is not up to the United States government or
the State of Colorado to provide farmers with a market for
their water.
They've got to join in there just like the rest of them.
God, I love them. I'm a water right holder in the Bessemer
ditch. I have water in Fremont County on my ranch, and I cry
every time I hear of a ranch going under. But let me tell you
one thing they won't admit to. Whenever there's a ranch or a
farm for lease, somebody gobbles it up immediately. So it must
not be all that bad out there in terms of making a living. They
can lease that land immediately.
Mr. Lamborn. Mr. Stealey, thank you for your testimony. And
you can----
Mrs. Napolitano. I will give him some of my time.
Mr. Stealey. I would only ask one privilege. I could go on
forever, but I would like to recognize two people that have not
been recognized. They both preceded me as Chairman of the
Southeast District, and both of these gentlemen have spent
many, many years working on this project. I was only on the
board five years, and they both go over 20 years, and that's
Glen Everett and Alan Hammill, and with the Chairman's
permission, I'd like to have them stand and be recognized.
[Applause.]
Mr. Lamborn. OK. Thank you.
Mr. Stealey. Thank you very much, Mr. Chair.
Mr. Lamborn. OK. At this point we'll have questions. I'll
start out, and then we will go down the line here and finish up
with Chairwoman Napolitano.
Mr. Peternell, by calling for the kind of study that is
explained in Representative Salazar's bill, not just
feasibility, but things like economic, social, and cultural
factors, do you understand that this is an unprecedented kind
of study for a project like this?
Mr. Peternell. It may be unprecedented. I don't know that
myself, but it may be. I'll accept that representation from
you. Nevertheless, we think that studying the impacts of water
development is the cornerstone of making smart choices and
choosing water supply arrangements that have the least impact
on the environment and on the communities.
Mr. Lamborn. OK. Thank you.
For Mr. Treese. PSOP wouldn't result in any more
transmountain diversion from the Western Slope or for that
matter from the Pacific watershed, would it, compared to what's
happening right now?
Mr. Treese. It does not specifically authorize it, and it
does have mitigation provisions if additional transmountain
diversions do occur, so I think additional transmountain
diversions are in fact anticipated in the language of the
legislation. Not required, excuse me, but anticipated that they
are possible.
Mr. Lamborn. OK. For Mr. Tauer. Mr. Mayor, what assurances
are you able to give anyone in the Arkansas Valley that water
quality will be dealt with by the City of Aurora as things
would go forward?
Mr. Tauer. In the future or up to--now?
Mr. Lamborn. In the future. Should PSOP take effect, then
what--and you've heard some concerns about water quality. What
is your response? What is the City of Aurora going to do about
that?
Mr. Tauer. Well, I think maybe we can make a couple of
points. The first one is that remember water quality was
mentioned in some of the original legislation. So it's a
concern that goes back decades. And so it's not something that
necessarily popped up recently. For example, the conduit was
part of some of the original legislation. So some of those
water quality issues have been around for decades, and they're
not a direct result always of how water is transferred. So
there's a lot of things that feed into that.
One of the things that we did was last year we supported a
water quality bill in the State of Colorado that says that the
state engineer has the ability to control the movement of water
when it goes below a certain level. And so we would support
that kind of legislation and those kinds of rules.
Mr. Lamborn. OK. Thank you. My last question is for Mr.
Peternell. Isn't it true that Colorado Springs and the City of
Pueblo and others have an agreement that protects flows of
water through Pueblo and that improves these flows above and
beyond what otherwise would have been?
Mr. Peternell. It's true that there's an agreement in place
between various entities, including Pueblo and Colorado Springs
and Aurora, which protects some minimum flows under certain
conditions. Not under all conditions, under certain conditions.
Whether that agreement improves flows I can't speak to. I don't
think that's in fact true. I don't think that's true.
Mr. Lamborn. OK. Thank you. At this point I'll turn over
questioning to Representative Udall.
Mr. Udall. Thank you, Congressman Lamborn.
I wanted to direct my first and it may be my last question,
but I think there's a lot to be further heard from Wally
Stealey. We've heard Mr. Stealey's description of the problem.
What's the solution? Where do we go from here? What advice
would you have for the delegation sitting up here as we move
forward? I really look forward to your comments.
Mr. Stealey. Congressman Udall, you can't unring the bell.
We all know that. So I think what we're really urging the
committee and the full committee when you get back to the
House, is the next time the bell tolls, you've got to get it
right. And one of the things you can't do and get it right is
to walk into a community like Rocky Ford and buy the ditch and
say, ``We've left all of this money on the table.'' When it
comes right down to it, it's not a tip for a damn good
waitress.
They ain't leaving any money. They've destroyed the school
district. They've basically destroyed the town. The Rocky Ford
cantaloupe industry is gone. But we left $250,000 on the table.
You don't have a right to destroy us.
I hear that Aurora's got a plan for their future. I hear
Colorado Springs has got a plan for your future, but let me
submit this into the equation. If the mayor of Aurora says
water is life, my question to you, Mr. Mayor, is why do you
insist on killing us? That's not right. And I don't think under
the Colorado constitution you have a proper right to do that.
I would further submit to you that our constitution could
be read in terms of your right is only for the use of that
water, not to transfer that water. I taught constitutional law
for 25 years. And I said to a lawyer one day, didn't you learn
anything when you read the constitution? We have a major
problem, gentlemen.
Water releases, let me address that, Mark, for just a brief
second. We have water leases that are perfectly legitimate on
both sides of the contract, but when the growth gets to the
point and the water lease period runs out and the judge is
required to make a decision, he's not going to tear Alice,
Mary, and Molly, that he's taken water out of their house
merely because there's a bunch of water buffalos who drew up a
lease that expires next week. That ain't going to happen,
folks. So I warn you that a water lease is a sale with
continued revenue. I don't think you'll ever get it back. So
you have to be very, very careful.
I'm going to let the Bureau off with just a slight slap. I
totally agree they don't have the authority. I thought they
were going to be playing poker with us with deuces in the hole
ever since I've been on the board out there. But I do wish they
would represent all of us and quit becoming the Bureau of Urban
Development. That's not their role.
Some of us are very angry at them, because it appears--I'm
not saying that it is, but you get political perceptions. A
perception of the Bureau is that it is being run out of
Arapahoe County, and that's not right. I think I'll quit, Mark.
Mr. Udall. Mr. Stealey, if you could wave a wand, what
would the solution look like to you?
Mr. Stealey. Number one, nobody in Pueblo County that I
know of has said that Colorado Springs Utilities and Colorado
Springs does not have a right to the water they already have in
the Arkansas and they certainly have a right to move it up
there. And I'm very aware of the fact they pay more money in
now that they didn't in the beginning. We need to stop the
transfer of water where it is now--according to the IGA that
Mr. Rivera was bragging about, it says that Aurora will not
take any more water.
There's supposed to be fences there, but Aurora in fact
yesterday, trying to change the IGA from a three-out-of-ten-
year deal to a five-out-of-ten-year deal. And if you go to the
(inaudible) down in the valley and you take that water for five
years off, you're going to find out you've got to keep the
water for five years on before you can grow a decent crop
again. You've in effect taken the water off the land period.
Because then you've got to irrigate it for five years to get
ready to grow a crop, and not going to lease it for five years.
It's gone. It's just gone.
So we need to stop. We need to take them at their word.
Peter Banning said, ``We don't want any more water.'' Peter is
a good friend of mine. We don't agree on anything, but he's a
good friend of mine. He's from New Zealand, you know. He's not
a Coloradan.
Mr. Udall. Mr. Stealey, on that point, I see my time is
expired. I do know the Chairwoman has informed we're going to
have a second round of two minutes each, so we'll come back
around. But what I hear you saying, that there's a sweet spot
here we've got to keep as we sit at the table, and that's the
only way we are going to resolve this. Thank you.
Mr. Lamborn. OK. Representative Salazar.
Mr. Salazar. Thank you, Mr. Chair. My first question, of
course, is to Mayor Tauer. Mayor Tauer, I have friends in both
Colorado Springs and Aurora. As a matter of fact, you have a
new constituent in Aurora, my son, Jesus, who just moved there
from Dallas, Texas.
You know, there was a (inaudible) poll that was done in
2006 that showed that even most urban and suburban Coloradans
are opposed to their community expending of water if it comes
from farms. So far you've been utilizing agricultural water
mainly because it's the cheapest source of water, or the most
inexpensive source of water, I would say. But this goes against
your constituents' expressed wishes. Could you address that?
Mr. Tauer. I'm not familiar with the poll, Senator--or
Congressman. A little early for that maybe, calling you
Senator. But I think that that's one of the reasons why the 6-
Party Agreement that I know you're familiar with, that we've
limited the amount of water that Aurora will take out of the
basin. And I was just informed that, you know, in most years
it's limited to 24,000 acre-feet, and this glass of water does
count against that allotment as I understand it, and we were
willing to accept that.
Mr. Salazar. Just make sure you use the bathroom in Pueblo.
[Laughter.]
Mr. Salazar. Thank you, Mayor. I do appreciate it. I want
you to know that this hearing is not specifically targeted at
Aurora. I mean, we have to find a perfect solution here so that
we don't destroy farms and ranches in order to make other
greenery in the urban areas. You know, we have the ability, I
think, and the technology available for urban areas to continue
to reuse water. Water, as long as you do not waste it, can be
used to infinity over and over again, which basically does not
limit your growth. I think it's critical though that we
continue to protect our urban water supply.
Mr. Treese, I have a question for you. You're familiar with
the Warren Act, correct?
Mr. Treese. [Nods head.]
Mr. Salazar. The Warren Act is the early 1920's amendment
to the Reclamation Act. It governs much of the BOR's
operations. It's relevant to the proposed 40-year lease. It
limits the Bureau into entering long-term excess capacity
leases to only agricultural purposes. Does the Bureau's intent
of entering the 40-year contract to provide water for urban use
go against Federal legislation?
Mr. Treese. Congressman, thank you. I'm not--I am not
qualified to provide a legal opinion, but I think the PSOP
legislation, one of the reasons western Colorado, the Colorado
River District is supporting the PSOP legislation is that it
addresses the Warren Act on a project-specific basis, without
either ignoring it nor trying to make any blanket west-wide
changes to the Warren Act. It addresses the issue as it
pertains to the Fryingpan-Arkansas Project.
Mr. Salazar. So the Bureau entering into this agreement
then would specifically not go against the Warren Act.
Do I get additional time now to speak?
Mrs. Napolitano. Yes.
Mr. Salazar. Thank you.
Mayor Tauer, as you know, my bill versus Doug Lamborn's
bill, of course basically his is PSOP bill and mine is
basically a bill that would actually conduct a study concerning
the impacts of water on the basin when water comes in and out
of the basin. What's your reasoning for opposing a cumulative
impact study for when water moves out of basin?
Mr. Tauer. Well, I think probably the biggest issue is that
it looks to address things that were acknowledged to be done
legally in the past and kind of try and reset the clock back 45
years. And I think to look at things that are moving forward,
that's one thing. To go back and say we want to restudy things
that have been done in the past that have openly been
acknowledged to be done legally, I think that's----
Mr. Salazar. Don't you agree that by looking at the past,
we have reasonable data to show what the impacts have been?
We're not calling for mitigation for past action. We're just
basically calling for an understanding of what happens when
water is moved out of a basin.
Mr. Tauer. We think there are some open-ended questions in
doing it that way, and that's why we think that the original
PSOP legislation that so many of the people in the valley have
agreed to support has some advantages in that area.
Mr. Salazar. Mr. Treese, a quick question. You are aware of
H.R. 1833, which is my bill, and H.R. 2277 that is Mr.
Lamborn's bill?
Mr. Treese. Yes.
Mr. Salazar. There's Western Slope protections in my bill
which basically does not allow any further movement of water
from the Western Slope. Are you aware that Mr. Lamborn's bill
does not address that?
Mr. Treese. Yes.
Mr. Salazar. Thank you.
Mr. Stealey.
Mr. Stealey. Yes, sir.
Mr. Salazar. Could you respond to Mr. Tauer's comment on
the study on impacts in the basin when water is moved out of
the basin? Why is it that cities are so afraid to actually look
at the relevance and the true impacts of water when it is moved
out of a basin? Could you address that, please?
Mr. Stealey. Well, let me quote an old state representative
from down in Prowers and Baca counties. He told me when I first
went to the legislature when Dick Lamm got elected Governor and
I was his legislative aide that I needed to learn up front and
fast that there were only two kinds of water thieves in the
State of Colorado. There were Republican thieves and Democratic
thieves. I'm a Democrat, and I want to keep the water at home
and he's a Republican thief and he wants to take it to his
home. That's never going to change. Water in Colorado is not
really a partisan issue; it's a geographic issue. And it's
going to continue to be a geographic issue. But there is a
finite supply of water. And we have to begin to recognize
former Senator, now Congressman Ed Perlmutter, which he
understood much better when he was leading the anti-growth
fight in the Senate than he is now--got ya, daddy. At any rate,
there's a big danger in this equation. It's the 51/49
agriculture/municipal. Unless that is cleared up in the law so
that it isn't used as an incentive to buy a farm, to take it
out of production, and increase the number of gallons that
relates to the term 51 percent, they can use that formula
legally to dry up the entire damn state.
Mr. Salazar. Thank you. I appreciate that.
Mr. Lamborn. OK. Representative Perlmutter. You get a
chance to protect your reputation here.
Mr. Perlmutter. Thank you. And----
Mrs. Napolitano. Don't waste your time.
Mr. Perlmutter. I'm not going to waste my time. Mr.
Stealey, you should all know, was my advisor and friend until
today. No, I'm kidding.
I would like to start with Mayor Tauer. One of the things
that the Chairwoman brought up at the very outset was a concern
on her part about conservation and conservation techniques.
Can you describe for us a number of the steps that Aurora
has taken when it comes to conservation and efficient water
use.
Mr. Tauer. Sure. Thank you, Congressman.
Let me start with the things that we do at home. We have a
wide range of programs to cut down indoor use, where we can
help reimburse part of the cost for existing homes when they
put in low-flow fixtures. We also have very strict requirements
for low-flow fixtures in any kind of new homes. We limit the
amount of lawn that you're allowed to put on any kind of new
home. For example, Congressman Salazar's son is moving into a
new area of Aurora. We would limit the kind of lawn that he
would be allowed to put in on his property to something
typically around 40 to 45 percent of the landscapable area.
But aside from that, we have two very large projects. The
first one is that we take some of the wastewater and use that
to irrigate any public areas on the north half of the City of
Aurora. And we just sited a new reservoir, which should be on
line in about four years, to double that capacity. But in
addition to that, we have an $800 million project to reuse some
of the water that after it's used by the city of Aurora, would
go into the South Platte.
We have a project that brings that back, as Congressman
Salazar was alluding to, and lets us reuse a part of that
water. And that's the biggest project of its kind in the State
of Colorado and in the long run will allow us to yield
something on the order of 10 to 15,000 acre-feet from water
rights we already own.
Mr. Perlmutter. Can you explain the sort of lease in
allowing a part of a farm to go fallow? That part of your water
purchase or water lease approach?
Mr. Tauer. Well, we believe, as we were talking about
earlier, that the future is not in a confrontation between
agricultural and municipal users. It's in finding ways to
cooperate. And one of the ways that we hope to be able to do
that is through different kinds of fallowing programs. And the
local farming community has to say how that program works best
for them, but the basic idea would be that a part of the water
that they might typically use to farm would be leased to a
city, that area of the farm would lay fallow, and that would be
rotated through a number of years. And I believe in Colorado
law, it is now limited to a quarter of their farm that can be
fallowed and have that water transferred to a city.
Mr. Perlmutter. Isn't it true, sir, that--and with respect
to Mr. Stealey, I think, was using a little rhetorical license
when he talked about killing a town or taking away a way of
life. Did you--Aurora--are you aware of any coercion or threat
or other type of means when you purchased or leased water
rights from anybody down here in this basin?
Mr. Tauer. No, Congressman. In fact, most of the time
people come to us. In just the last month, I've had a couple of
different people in the Arkansas Valley call my office and say,
``Would you be interested in purchasing or leasing our water?''
So when we go down, it's always a willing seller, and most of
the time, it's people coming to us, not the other way around.
Mr. Perlmutter. Because they found farming isn't for them
at that point?
Mr. Tauer. Either farming isn't for them or they can't make
a profit doing it. And so there's a variety of reasons why they
might do that. But it's not something where we can come and
take the water. It has to be somebody that wants to sell the
water to us. And the same would be true of Colorado Springs or
Pueblo or anywhere else.
Mr. Perlmutter. A couple more questions. First is has the
city reached--or who has the city worked with--in trying to
reach compromises and cooperative agreements in connection with
the Fryingpan-Arkansas Homestake Project?
Mr. Tauer. Pueblo, Pueblo Board of Water Works, Southeast
Conservancy District, Upper District, Colorado Springs,
Fountain, Colorado Springs Utilities, and we've also had
discussions with the lower basin as well.
Mr. Perlmutter. Last question, Mr. Treese, this is for you.
You know, it seems to me there's a deal in here that really is
beneficial to all parties concerned, and Mr. Stealey, I know
that that's really what you wanted to say, that if good minds
are coming together, we can work something out that really will
benefit the area--Aurora, Colorado Springs, and the west slope.
I was concerned about your comments about not being able to pay
back the debt on the Ruedi Reservoir. If there's something--you
know, you were looking for a sponsoring agency, I would just
facetiously, but also in truth, suggest you take a look at
Aurora, Colorado Springs, or Pueblo.
Thank you, Madam Chair.
Mr. Lamborn. OK. Chairwoman Napolitano.
Mrs. Napolitano. Thank you. You might find it odd that my
colleague has been chairing the last portion of the meeting.
That's the way I run my meetings and I enjoy having him run
them.
Mr. Ryan, would you kindly come up and take the mike? I
have a question for you, sir.
Mr. Ryan. Yes, ma'am.
Mrs. Napolitano. On the Bureau's side, does the proposed
40-year contract violate the Warren Act?
Mr. Ryan. No, ma'am.
Mrs. Napolitano. And has the solicitor's office considered
this and is it in writing?
Mr. Ryan. If it's in writing, I have not seen it, but I
have had conversations with our legal counsel. And as
Congressman Salazar, I believe correctly noted, the Warren Act
involves moving nonproject water through project facilities for
irrigation purposes. I'm aware of only one other project in
reclamation that has authority similar to the Warren Act, but
for municipal purposes, that's in California, the Central
Valley Project, through the Central Valley Improvement Act.
Mrs. Napolitano. Would you kindly ask your solicitor to put
it in writing at my request?
Mr. Ryan. Yes, ma'am.
Mrs. Napolitano. Thank you, sir. Appreciate your answer.
For Mayor Tauer, are you familiar with what happened in
California in the Owens Valley, and it took place quite a while
ago where Los Angeles started buying water rights, turned into
a bit of a dust bowl, and it took decades and millions upon
millions of dollars to restore it. How will this be prevented
in southeastern Colorado, or has the loss of the farmland
already caused adverse effects on the communities?
Mr. Tauer. Well, I'm certainly not an expert in what
happened in California. I can tell you that the City of Aurora
has two things that we have to do. The first one is that
anytime that we would, let's say, hypothetically purchase a
farm and transfer its water, we are required to revegetate that
farm back to its natural condition, OK, to its pre-farm
condition. And we do that. We will do that.
We've offered many times if someone finds a property that
we revegetated that has a problem with it, come see us, we'll
fix it. So that's first.
Second, with the 6-party intergovernmental agreement, we're
capped with where we are roughly now on our ability to move
water out of the farm right now to the valley. So we really
can't move a lot more farm water out of the valley to Aurora
under these intergovernmental agreements.
Mrs. Napolitano. That may be so, but I am looking at some
news article where they're showing a dust bowl again. Is that
part of what the water rights that you have picked up?
Mr. Tauer. Ma'am, the areas where we've purchased water
rights off of a farm have been revegetated or are in the
process of being revegetated back to their native condition.
And again, anybody who sees an issue with one of those is
welcome to call my office, and we'd come down and take a look
at it and make sure it's done directly.
Mrs. Napolitano. I appreciate that, sir.
For Mr. Peternell. Was the environmental assessment that
the Bureau completed on the proposed excess capacity contract
with the City of Aurora sufficient, or do you think that a
formal environmental impact statement, or the EIS, should be
prepared?
Mr. Peternell. I have to make an admission that I'm
embarrassed to make, but I haven't had a chance to read the
environmental assessment yet.
Mrs. Napolitano. Your opinion?
Mr. Peternell. I haven't read it, so I can't make an
opinion.
Mrs. Napolitano. Thank you. I'll take that. Are there
potential environmental concerns connected with the PSOP, the
Arkansas Valley Conduit, the Southern Delivery System, or the
long-term Bureau contracts with the City of Aurora?
Mr. Peternell. There are potential concerns related to all
of those projects. The point I was trying to make in my
testimony earlier was that before those projects go forward,
it's smart and important to assess what those impacts might be
by way of an impact statement such as the one called for in
H.R. 1833, Representative Salazar's bill.
Mrs. Napolitano. Thank you. Mr. Tauer, the City of Aurora
certainly has adopted some aggressive water conservation
measures utilizing water recycling, and I noted you use
wastewater. Is it tertiary treated?
Mr. Tauer. Yes.
Mrs. Napolitano. Yet in the past the city has threatened to
fine at least one individual for using gray water on their
lawn, while other cities have encouraged the use of gray water.
Is the use of gray water as a water conservation measure
something that the city is in favor of or has looked into?
Mr. Tauer. Under Colorado water law, there are limitations
on what somebody individually can do with gray water, because
of a lot of the treatment issues, it has to go through a
licensed agency to do that. So most individuals can't do that.
So there are times when for health and safety reasons we'll go
to somebody and say, ``Hey, you have to obey Colorado water
law.''
For large-scale things like some of our public facilities,
we're the ones doing it, so it's easy for us to control that,
because we have the licenses in place for us to do that on a
large scale for those kinds of projects. And that's much more
efficient than trying to get a lot of individuals to do it in
their home when they may not do it properly and it could create
some health issues.
Mrs. Napolitano. Thank you. And I know my time has expired,
Mr. Chair, but there was one statement that you made that you
do conservation--or you have several programs that you utilize
with your residents. Do you have projects that go into
conservation for the whole area to be able to conserve the
water that you have? And also have you looked at additional
possibility of underground water storage in aquifers?
Mr. Tauer. Let me take the first part first, if that's all
right. You mean in other parts of the Denver metro area have we
been working on conservation or just in our area?
Mrs. Napolitano. Aurora.
Mr. Tauer. We recently led an effort in the metro area,
including Aurora, to have where even this year, where many of
our reservoirs are full, to continue with our water management
programs. That's why this year, even though technically we
wouldn't need to, we're still limiting the amount of water that
our citizens can use on their lawns.
We also have a tiered rate structure, so that the more you
use, the more expensive it gets, and really drives people to
use less water. So those are going to continue even when we
have very wet years, because that's something that we need to
do as being part of Colorado.
Mr. Lamborn. OK. In the last minutes of our time, and we do
have to give up this room, I believe, at 12:30 or so, each
representative will have two minutes for either a closing
statement or any final questions.
I'll go ahead and start, and first I want to thank you, the
audience, for coming today. You've been very attentive.
[Applause.]
Mr. Lamborn. And we need to bring this kind of cooperation
to these important and critical issues, so thank you for coming
and being here today. And Chairwoman Napolitano, thank you for
holding this hearing. It's been informative and helpful to all
of us, so thank you.
Mrs. Napolitano. You're welcome.
Mr. Lamborn. Mr. Treese, a final question for you. Which
version of PSOP does your district support and do you have
agreements in place stating your support for the bill of the
type that I have already introduced this session?
Mr. Treese. Thank you. The river district has not--my board
has not had an opportunity to review Mr. Salazar's bill. We do
have agreements in place and would support your bill as it is
consistent with the bill that was introduced three Congresses
ago, which we also supported, consistent with the agreements
that we have reached.
Mr. Lamborn. OK. Thank you. And in conclusion, I just want
to say that we've had a good discussion here today. We have
aired our views and our concerns. We are marching ever so
slowly, but we are marching forward to a resolution, and I hope
today was a step in that direction.
I look forward to working with my colleagues here on the
panel and for everyone else here today who can help us find a
resolution to these important issues.
Next we will go to Representative Perlmutter.
Mr. Perlmutter. Thank you, Mr. Lamborn. Just a couple of
statements and then I have a question.
Again, I think that this really is an issue of property
rights. It's an issue of the future. It's an issue of
cooperation. I think the best way to have started this hearing
was to watch President Kennedy and his ability to look to the
future and to deal--he said, you know, what we're worried about
here in 1962 is 300 million people that are going to be in the
United States, and we're right at about that point. And it's
our job to look into the future, to look--you know, Mr. Scanga
talked about the changes that are occurring in the farming
communities, municipalities, and recreational use on this river
and vice versa. This is the time when communities really do
have, again, just as they did in 1962 and states got together,
but this is a time when people have to get together, put their
intelligence to use, and work out the appropriate arrangements
for the next 50 years.
We've been 45 years since this thing started. There is
talent in this room that can take care of it from this point
forward.
Mr. Mayor, last question, why do you need a 40-year lease?
Mr. Tauer. I think--the primary thing is that it lets all
of the parties come to a limitation. It's part of an agreement
that we had in 2004, and it was a negotiated agreement where
everybody gave some things, everybody got some things. And what
it does is it puts the ability to use this out of being a year-
to-year argument and says, it's here, it's here for 40 years,
and lets us go on past that.
I think the most--I think the most important thing that it
does is it lets us move from talking about how to use these
facilities to how do we really cooperate going forward? And I
think that that's the most important thing we need to move to,
and in my mind, that's the most important thing we can do next.
Mr. Perlmutter. Thank you, Madam Chair.
Mr. Lamborn. Representative Salazar.
Mr. Salazar. Thank you, Mr. Chairman. Mr. Ryan, I believe
that you just reaffirmed my theory on the violation that the
Bureau of Reclamation is actually committing, because we talked
about the Bureau of Reclamation having the authority to enter
into a 40-year contract for excess capacities for irrigation
uses. You are entering into a 40-year contract for excess
capacity for urban uses, so I believe this is in direct
violation of the Warren Act. And so I would really appreciate,
you know, a brief on that, if you would.
You know, several years ago, I used to watch our ditch
meetings basically at the headgates of almost every ditch in
the San Luis Valley when I served on the Rio Grande Water
Conservation District.
Many of our discussions were settled with shovels and rocks
and angry words. I really appreciate the opportunity to be able
to sit here and hear both sides of the issue. I think we can
resolve the issue, but I think it's extremely critical that
people in this state begin to understand what happens to a
basin when you take water out of a basin. What happens to its
environment, what happens to its economy, and what happens to
the people that are left behind.
The farmer that reaches an agreement with Aurora and takes
$250,000 or whatever the price is agreed to, that's fine. He
leaves and he's got money in his pocket. But the community that
stays behind is the one that suffers. So I would appreciate the
mayor of Aurora, the mayor of Colorado Springs, the mayor of
Pueblo, and all of the other mayors to start looking at
studying the impacts, the socioeconomic and environmental
impacts of a basin when water leaves a basin. Thank you very
much.
[Applause.]
Mr. Lamborn. Representative Udall.
Mr. Udall. Thank you, Mr. Lamborn. If I might, I'd like to
direct a request of Mr. Treese and then a question and then
conclude with a very short statement.
You talked about the payback of Ruedi, and Congressman
Perlmutter brought it up. And if you would submit for the
record any thoughts you have about changing the theoretical
plan for repayment, so we can look at that, because that did
call my attention as well.
Mr. Treese. Thank you. I'd be happy to.
Mr. Udall. On page 3 and 4, you talk about the way the
operating principles for the Fry-Ark Project relate to concerns
about additional diversions from the Roaring Fork River and the
Arkansas Basin, and you go on to say Reclamation must provide
leadership to ensure the requirements of the operating
principles are carried out for the long-term benefit of both
the east and west slope portions of the project's service area.
Would you elaborate on what you mean and what kind of
leadership you think Reclamation should demonstrate?
Mr. Treese. Reclamation is the operator of the project. The
operating principles are the requirements established by the
State of Colorado, the proponents of the original project, and
incorporated in Federal statute. Simply I think others have
said before, that we need to ensure that we're learning from
the lessons and providing for the best possible project now
before we proceed into the future. I think a good start would
be a rededication to those operating principles and some of the
specifics of the operating principles that I mentioned.
Mr. Udall. Thanks for that response, and I will
refamiliarize myself with those principles so that I can also
be an advocate in that regard, because there were some things
that you talked about concerning minimum, maximum, hard and
soft flow rates and so on that I think we ought to pay
attention to.
Let me just conclude by saying just a few days ago, I stood
high on the planks of Culebra Peak. I've had a long-time goal
to climb all the Fourteeners in the state, and had one left,
and I stood up there--and by the way, I'll tell you, when you
have one left, it's more interesting than when you've climbed
them all. You're just run of the mill once you've climbed them
all, but you wonder why you haven't climbed the one that's
left. But what I want to say, as I stood up there, I didn't see
the East Slope. I didn't see the West Slope. I didn't see the
valley off to the northwest or the San Juans to the far west. I
just saw Colorado. And I think that's the spirit in which we
have to continue to engage in this discussion.
And I know all of us here are working to achieve consensus,
but I want to say in doing so, I will never forgot the need to
carefully consider the impacts on all concerned including those
in the area for which water is proposed for diversion. So thank
you, Madam Chair, for coming all the way from California. We
look forward to your presence and your future visits here to
the great State of Colorado. Thank you.
[Applause.]
Mr. Lamborn. Now Chairwoman Napolitano.
Mrs. Napolitano. Thank you, Mr. Chair. And this is not my
first visit to Colorado. This is about my third or fourth. My
son was stationed in Colorado Springs many, many years ago.
What I hear here reminds me of California's north and south
water wars, very simply--whiskey is for drinking, water is for
fighting--is very true as well in California. And I hesitate
because if you'll remember Colorado, and somebody was pointing
some fingers, you water hogs in California, we were taking 5.2
million acre-feet out of the Colorado River because California
grew so exponentially. It's only the world's sixth largest
economy, and we were mandated by the Department of the Interior
to reduce the take to 4.4 million acre-feet per year several
years ago. And this is a request of all the states, that they
felt they needed their fair share of the water, because you
were growing. Fine. That's absolutely correct.
California through conservation, recycling, storage,
desalination, reached the 4.4 mark almost two years ago. So it
can be done, ladies and gentlemen, if you work together. The
CalFed program in California, is for the overall health and
wealth of California. And you're right, you need to work
together. Congressman Udall is very correct. Together you can
do a lot of things. Separately, not only will you fail, but the
only ones that benefit, I'm sorry, are the attorneys. Fact or
not.
And in closing, I just want to say to the Coloradans,
you've been great. Your colleagues, your representation is
wonderful. They are very concerned. They care about what
happens, and that's the reason I'm here. And I want to thank
Mr. Lamborn for taking over the last part of the segment. He
jumps right in. And so I thank you for hosting us. I thank the
community college, Mr. Salazar for helping me get here, for my
staff, and I want to remember--never forget actually my
Republican colleague staff.
So with that, I thank you very much for your patience and I
am truly amazed that many of you have remained and stuck with
us. God bless.
Mr. Lamborn. This hearing is adjourned.
[Whereupon, at 12:19 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
[A letter submitted for the record by Steve Golnar, City
Administrator, City of Salida, Colorado, follows:]
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[A letter submitted for the record by The Honorable William
F. Jackson, Mayor, City of Canon City, Colorado, follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[A letter submitted for the record by Thomas H.
Piltingsrud, City Manager, City of Florence, Colorado,
follows:]
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[A letter submitted for the record by The Honorable Mark F.
Thonhoff, Mayor, Town of Poncha Springs, Colorado, follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]