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OLNEY SPRINGS — From satellite view, the land north of the Arkansas River is a seemingly random checkerboard of vital green and desperate brown, quickly fading from a few thriving farm acres to the broad, water-drained desolation of northern Crowley County. 

From the cab of Matt Heimerich’s pickup, each alternating square of emerald corn or desiccated knapweed is a decision by a distant big city — to either share Colorado resources responsibly or toss rural Arkansas River counties to the fate of the hot summer winds. 

That square was reseeded with native grass after Aurora bought the water in the 1970s, Heimerich says. That plot, Colorado Springs dried up and it’s all weeds. That farm, Aurora wants to dry it up soon, but the water court referee wants a better reseeding plan. 

Heimerich’s family is one of the few farmers remaining in the 790 square miles of Crowley County after city water buy-ups shrank the county’s irrigated acres from more than 50,000 in the 1970s to fewer just a few thousand this year. He jumps down from the pickup to clear invasive kochia weeds from a pipe opening gushing cool canal water down a 1,500-foot corn row. 

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. It also appears at wateredco.org/fresh-water-news.

Crowley is just the worst example of what can happen when nobody cares, and nobody pays attention.

Two miles away is downtown Olney Springs, population 310. Crowley County as a whole has only 5,600 residents, and more than a third of those are inmates at two prisons. The only retail operation left in Olney Springs is a soda vending machine against the wall of town hall.

As Heimerich clears his irrigation pipe, he pauses to jab a thumb over his shoulder 150 miles to the north at Aurora, where the population increased by more than 100,000 over 20 years. 

“When you build a new development, at the end of the day, you’re drying up a farm,” Heimerich said. “Where else is it going to come from?”

“Crowley is just the worst example of what can happen when nobody cares, and nobody pays attention,” he said. 

The tiny community serves as an enduring reminder of the cultural and economic ruin that occurs when big cities in Colorado and elsewhere purchase farms, dry up the land and move the water to urban areas. It gave rise to the term “buy and dry,” a practice now widely condemned.

The practice was supposed to end in the Lower Arkansas Valley in 2003 with a hard-fought federal court battle and settlement. Since then, state lawmakers and top water and farm agencies have changed laws and spent millions of dollars testing new protective methods for sharing water temporarily between rural and urban areas. They have also spent heavily to improve water quality for thousands of people living near the river who still don’t have clean water to drink.

The big cities insist they have learned their lessons from the Crowley County disaster.

“The results of what happened in Crowley County are unacceptable and widely recognized as a travesty,” said Colorado Springs Utilities spokesperson Jennifer Jordan. “We’ve taken those lessons to heart.”

But outraged Lower Arkansas growers and water districts say new efforts to protect their farm water aren’t working. At the same time, the big cities say new laws making it easier to share farm water don’t provide enough reliable water to grow their communities.

The cities also say big changes in the future water picture, climate-driven reductions in stream flows and threats to their Colorado River supplies leave them little choice but to draw more farm water.

This year they did that, inking deals in the Lower Arkansas worth more than $100 million to buy and lease land and water, raising alarms among local growers and generating big questions about whether the state is doing enough to protect rural farm communities and the water that keeps them going.

Buy and dry light

The cities say a lot has changed in the past 20 years and that these new deals represent innovations in water sharing. But critics in the Lower Arkansas Valley say these same deals signal that no one is doing enough to prevent “buy and dry” or the the latest tool in the water acquisition quiver, “lease and dry,” in which water is pulled from farmland periodically.

Aurora, for instance, spent $80 million in April to buy nearly 5,000 acres of farms in Otero County and the more than 6,500 acre-feet of water associated with that land. An acre-foot equals nearly 326,000 gallons of water, enough to irrigate half an acre of corn, or supply at least two urban homes for one year. 

Aurora plans to use the water itself in three out of 10 years, leaving it on the farms the rest of the time. Some 4,000 acres of land  will be dried up intermittently when Aurora is using the water, according to Karl Nyquist, a developer and grower who negotiated the deal with Aurora and who is operating the farms for Aurora under the lease agreement.

Colorado Springs has a different arrangement just downriver in Bent County, where it will permanently purchase up to 15,000 acre-feet of water from local farmers. Colorado Springs will also help pay local farmers to install modern center pivot irrigation systems that use less water, allowing the city to keep the saved water for its use.

FIRST PHOTO: Rows of corn are flood-irrigated in Pueblo County on June 23. Water for most farming in Pueblo County is delivered from the Arkansas River via the Bessemer Ditch. SECOND PHOTO: The view looking north from Olney Springs on June 26 shows how “buy and dry” practices have cut cultivated land in Crowley County from 50,000 acres to just a few thousand acres. (Mike Sweeney, Special to The Colorado Sun)

In this deal, Colorado Springs and the farmers will be responsible for revegetating any dried up land. It will use the water in five out of 10 years, and it has agreed to make a one-time, upfront payment of $2.5 million to Bent County plus payments each year based on how much water is taken off the fields. The money is in addition to payments to farmers.

“We wanted to make sure Bent County was kept whole,” said Scott Lorenz, a senior water projects manager with Colorado Springs Utilities.

And in Pueblo County, perhaps the least controversial of the three deals, Pueblo Water agreed to purchase nearly one-third of the shares in the local historic Bessemer Ditch system for $56.2 million. Pueblo continues to lease the water back to the farmers for now. At the same time,  the Palmer Land Conservancy has developed a sophisticated new framework that measures farm productivity on land watered by the Bessemer Ditch and will eventually help direct water to the most productive farms as Pueblo takes its water. The hope is that the new system will increase overall farm productivity on the ditch system and help make up for anything lost when the less productive lands are dried up, according to Dillon O’Hare, Palmer’s senior conservation manager.

Palmer is also working to analyze the impact of the deals on water quality downstream and how to prevent further damage, O’Hare said.

Irrigated farm land is evaporating

The three projects come as new data shows Colorado’s irrigated farmlands are shrinking. Since 1997, the state has lost 32% of these lands, with areas in the Lower Arkansas Valley seeing losses higher than that, according to an analysis of federal agricultural data by Fresh Water News and The Colorado Sun.

Crowley County has lost 90% of its irrigated lands in that period. Pueblo has lost 60.2%, and Bent and Otero have lost 37.6% and 35.2%, respectively.

State agriculture and water officials are worried about the decline, but say they have few tools to prevent it because farmers are free to sell their water rights to whomever they want.

“Am I concerned? Definitely,” said Robert Sakata, a long-time vegetable grower near Brighton, and former member of the Colorado Water Conservation Board who now serves as the director of water policy for the Colorado Department of Agriculture. “We all talk about water being a limited resource, but prime farmland is also limited and it’s important to take that into consideration.”

Not all these losses are due to big city water prospecting. Climate change, market challenges and legal obligations to deliver water to downstream states are also fallowing Colorado farmlands.

Everyone is sympathetic. No one is in charge.

Still, more than 20 years after the intergovernmental peace accords, it wasn’t supposed to be this way.

The Lower Arkansas Valley region is part of the sprawling Arkansas River Basin. The river has its headwaters near Leadville and flows through Buena Vista, Salida, Cañon City, into Pueblo Reservoir and on over the state line east of Lamar.

Its counties were once a sweet spot in the basin’s agriculture economy. The river fed a bountiful chain of tomato, sugar beet and onion fields, as well as acres of luscious Rocky Ford melons, and chiles, corn and alfalfa.

Cities say these latest deals, which they call “water sharing” agreements, will bolster the agricultural economies and keep remaining water on farm fields forever. But the term “sharing” doesn’t sit well with some local farmers and water officials who have a deep distrust of the cities they blame for the region’s decline.

“I call it a charade,” said Mike Bartolo, a retired Colorado State University extension research scientist who farms in Otero County near Rocky Ford. “You dry up an acre, you’re drying up land that was formerly irrigated. That’s buy and dry.”

While the state’s highly touted Water Plan cheers for the concept of cities helping rural areas thrive after water losses, there is no mechanism or state law or bureaucracy to watchdog new sales. 

After the 2003 agreement in the Lower Arkansas Valley, state and local water leaders began testing new ways for cities and farmers to temporarily share water, something that had been almost impossible under older water law.

I call it a charade. You dry up an acre, you’re drying up land that was formerly irrigated. That’s buy and dry.

But Aurora and Colorado Springs say the early experimental programs didn’t provide enough water at reasonable prices to fulfill their fast-growing community needs permanently.

Lorenz, the Colorado Springs Utilities manager, said the city does lease some water in the valley, but it hasn’t been enough to ensure the stability of its long-term water supply.

“The major concern is that we would lease from a particular farmer, and then a different city would come out and buy those water rights and the farmer wouldn’t lease to us anymore,” he said.

And in fact that is what just happened in April, when Aurora purchased the Otero County farms, which had formerly leased water to Colorado Springs.

Colorado Springs Utilities formally opposes the latest Aurora water deal, as do the Southeastern Colorado Water Conservancy District based in Pueblo, and the Lower Arkansas Valley Water Conservancy District in Rocky Ford. 

But their anger has so far been expressed by passing resolutions, not filing lawsuits.

How Aurora Water and other cities have treated Arkansas River counties like Crowley after past buy-ups leaves nothing but suspicion about newly announced deals, local leaders say. 

Though Aurora says it is not attempting any more permanent dry-ups of local land, “I don’t think any of us believe them,” said Heimerich, Crowley County’s representative on the Southeastern Conservancy board. Heimerich also is a member of the board of Water Education Colorado, which is a sponsor of Fresh Water News. “They’ll do whatever they need to do and apologize later.”

Thornton and Larimer and Weld counties conducted a similar debate publicly — from the 1990s to this year — as Thornton bought up 17,000 acres of northern Colorado farms and their water rights and began drying up the land. County commissioners and other local officials brought their legal weight and bully pulpits to bear in demanding extensive concessions from Thornton. The Adams County city has been reseeding dried up land with native grass and backfilling lost property taxes, but gets mixed reviews from locals. 

First photo: Seasonal workers harvest cabbage near Vineland on July 6. Pueblo County farmers operate on some of most fertile land in the state and irrigate their crops from water taken from the Arkansas River. But water-rights sales have changed the way they manage their land. Second photo: Water flows in the Bessemer Ditch near Vineland on June 23. Pueblo Water acquired rights to one-third of the ditch, but has been working with local farmers to help ensure their farmland remains productive. (Mike Sweeney, Special to The Colorado Sun)

The latest Lower Arkansas water deals are also pitting Colorado’s big cities directly against each other in conflicts not seen for decades. When the board of Colorado Springs Utilities passed a resolution earlier this year condemning Aurora’s Otero County deal, it was a direct shot from leadership of a city of nearly 500,000 — the Colorado Springs City Council is the utility board. 

“The idea is that there’s Denver, there’s a Denver metro complex and they’re going to just do whatever they want to do and the rest of the state has to go along with it,” City Councilman Brian Risley said.

But Alex Davis, a top Aurora Water official, said Colorado Springs’ ire is unwarranted.

“Aurora has worked in close partnership with Colorado Springs for decades and that will continue,” she said. “This is a case where we disagree.”

Peter Nichols, general counsel for the Lower Arkansas Water Conservancy District in La Junta,  said he is deeply concerned by what cities are proposing now. “We thought we were through with all of this. We thought we had it under control,” he said of the Aurora and Colorado Springs purchases. 

Nichols is among those who have spent much of the past 20 years creating a system, now known as the super ditch, that allows seven local irrigation companies to negotiate leases with cities.

Importantly, it also won the legal right to move leased water stored in Pueblo Reservoir out of the valley, via the federal Fryingpan-Arkansas Project and the Otero Pipeline, removing what had been a key barrier to leasing.

Nichols said local growers and water districts have worked hard to find ways to share water so that it doesn’t permanently leave the valley. That the cities are now jumping the line with these new deals isn’t OK with him.

A farmer’s — and a county’s — greatest asset 

Colorado Springs and the other thirsty Front Range cities want farmers like the young Caleb Wertz to be the new face of urban water agreements. 

On a recent 95-degree summer afternoon, Wertz high-tailed it across Bent County driving an ambulance to take an injured neighbor to the hospital. He had planned to be on his farm, but that’s life in the Lower Arkansas Valley. 

Colorado Springs is reimbursing the farmers to turn those corners into pasture land or to revegetate. … Even if it is not producing corn, it’s not just becoming wasteland.

The population is shrinking, and everyone has too many jobs to count. The local farmer is also a first responder. Your primary care provider is a farmer’s wife. 

Arriving back at the farm just after 5 p.m., Wertz talks about what is perhaps the most controversial decision he has ever made: Selling a portion of his agricultural water to fuel housing growth in Colorado Springs.

The deal will pay him enough so that he can install modern irrigation systems, drying up portions of the fields, known as corners, that won’t be reached by the new, center pivot sprinklers, and allow Colorado Springs to buy the saved water.

He is also planting cotton alongside his traditional corn, and he believes he is the first in the state to do so. A new modern variety is supposed to use half the water, just one acre-foot per acre, rather than the two acre-feet of water that older types, such as those grown in Arizona, use.

For Wertz, the agreement will give him enough money to keep farming and enough new technology to make his remaining agricultural water go farther. He will become a rarity in the area: A young farmer with enough land and water to continue the business his family started in 1919 and to expand it.

“The water purchase makes it a lot more doable because we can farm those acres so much more with pivots,” Wertz said. “That’s the case even though we’re drying up the corners. … That has a bad connotation to it. But Colorado Springs is reimbursing the farmers to turn those corners into pasture land or to revegetate. … Even if it is not producing corn, it’s not just becoming wasteland.”

But to some of his neighbors in the valley, Wertz has entered a hostile no-man’s land, facilitating yet another dry-up of farm land in a region that has already lost too much water and land to urban thirst.

“I know people don’t like it and people are entitled to their opinions, but a lot of those are the older generation who don’t like seeing it because of what happened years before I was even born,” said Wertz, who is 23. “I was glad to see the Springs come in and ask questions about working with us. 

“We were quite leery at first. But they have proved it to us. It is extending the water use for them and us, and allowing my brother and I to start taking over some of these acres that haven’t been farmed for awhile because there isn’t enough manpower.”

But can the land come back after fallowing? 

Another worry for Lower Arkansas growers is whether new methods that allow cities to take the water off the fields for one or more years and then return it at a later time, do more harm than good. They’re not sure farmland in the region is resilient enough to bounce back from cycles of city-caused drought.

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Perry Cabot, a research scientist and specialist in farming practices and farm economies, has spent years studying the issue. He says that there is hope for fallowing, after years of experiments and tests, but only with crops such as alfalfa and other grasses and sometimes corn.

“The programs we have done saw alfalfa return almost with a vengeance,” Cabot said. “Grass hay is the second-best candidate.”

Nyquist, the developer and grower who is leasing back and farming the land he recently sold to Aurora, agreed, saying fallowing programs do work, but they are not good for small growers who don’t have the cash to buy the necessary new equipment and nutrients that are needed to help fully restore the crops once water returns.

Still, Jack Goble, general manager of the Lower Arkansas Valley Water Conservancy District in Rocky Ford is wary of plans that take water from parts of farm fields over long periods of time.

“And I haven’t found a farmer yet that believes that that’s a viable farming situation, ” he said. “It’s tough to bring that land back.” 

For years, valley water hasn’t been drinkable

Anger aimed west and north from Lower Arkansas Valley towns extends to water quality issues, not just water volume. 

For many decades, groundwater wells and the river have been contaminated by farm runoff, mining operations and some naturally occurring pollutants.

The same federal Fryingpan-Arkansas Project that in 1962 created Pueblo Reservoir was also supposed to solve the drinking water problem for 40 communities downriver by building the 130-mile Arkansas Valley Conduit to move clean water from Pueblo Reservoir. But it wasn’t until 2023 that final funding for the $610 million pipeline arrived. 

Some downstream leaders are galled that Aurora can start taking more fresh water out of the Arkansas before serious pipeline construction has begun to serve the 50,000 people in long-suffering downstream towns.

“My whole life has been under drinking water restrictions, not being able to attain safe drinking water except to go buy it or to go through extraordinary measures to treat it,” said Dallas May, whose family ranches 15,000 acres north of Lamar. May also is on the Southeastern Colorado Water Conservancy District board.

The Colorado Department of Public Health and Environment’s Water Quality Division, which tests Lower Arkansas water a few times a year, classifies most of the river below Pueblo Reservoir as not supporting drinking water or “aquatic life use.” The classification calls the Lower Arkansas suitable for “warm-water aquatic life” and recreation. The state did not respond to requests for more detailed assessments of Lower Arkansas water health. 

Asked if state efforts were improving water quality on the Arkansas, a spokesperson said in an email, “Trend studies require extensive data over a significant period of time. The water quality in watersheds is influenced by a wide variety of factors, including precipitation and weather trends that can highly influence the water quality from year to year.” 

Some Lower Arkansas farmers and officials are tired of waiting. They see the problem getting worse as, for instance, Aurora takes more water out of Otero County, “What happens is all of the bad things are concentrated into what is left,” May said, “and that is a huge problem.” 

First photo: The Catlin Canal winds its way through southern Otero County near Rocky Ford on June 8. Aurora Water earlier this year paid $80 million for rights in the canal. Second photo: A screen bubbler helps filter water for pivot irrigation operations like this one near Rocky Ford. Farmers in the Arkansas Valley draw water from the Arkansas River via a system of canals and ditches to irrigate their crops. (Mike Sweeney, Special to The Colorado Sun)

Silence at the state level?

The Colorado Water Conservation Board spent years writing the statewide Water Plan, convening forums and task forces, and conducting listening sessions on the tensions between city water needs and the survival of agricultural communities. They say they are concerned about new city water buys, but add they have no authority to influence any deals because water rights are private property rights and can be bought and sold at will. 

The board declined an interview request about Aurora’s water purchase or the broader water use questions. 

“The Colorado Water Plan sets a vision for meeting the state’s future water needs and was broadly supported by local communities,” Russ Sands, the board’s water supply planning chief, said in email responses to questions. “But the decisions that happen in local communities regarding their water purchases and planning are largely outside of the state’s control. Accountability for staying true to the vision of the Water Plan is a collective responsibility.”

The loss of irrigated farmland isn’t expected to slow anytime soon as climate change dries up streams and population growth drives cities to buy more. The Colorado Water Plan’s forecast shows the population of the Arkansas River Basin, which includes Colorado Springs and Pueblo, surging more than 60% by 2050, increasing the pressure to tap farm water.

Sakata, the state water policy advisor, who farms near Brighton, said protecting the state’s irrigated farmland will take more work. “We can’t just say lease the water for three out of 10 years. We need to have agreements so that water sharing will be really available.”

As an onion grower, Sakata can’t do interruptible water supply agreements because he has long-standing yearly agreements with suppliers that require him to deliver vegetables. If he fallows his land for a year, the money he would likely be paid wouldn’t be enough to compensate him for the loss of onion sales and the need to support his employees during the break.

Farm research scientist Cabot would like to see the state begin buying irrigated farms, using conservation easements to protect them from development or purchase, and then leasing that land and its water to young growers.

What else state leaders can do to preserve what’s left of Colorado’s irrigated land isn’t clear yet, but Alan Ward, a Pueblo native who is also director of water resources for the Pueblo Water, said the state needs to reexamine its policies and goals.

“There is only so much water available, and I don’t think it’s realistic for the state to continue to think that we can control our urban areas and grow them fast without impacting agriculture.”

Clarifying that he was speaking as a private individual, rather than a water official, he said, “I’d rather have the farms continue and not have the urban growth, but I am probably in the minority on that.”

Where does the battle flow next? 

Water veterans such as Cabot said the state is likely doing everything it can right now to protect irrigated ag lands. But like Sakata, he says more work needs to be done to shore up farm markets and to create easier, more lucrative water sharing arrangements.

“I don’t want to oversimplify this,” Cabot said, “but the simplest way for cities to get this water is to go to farmers and say ‘How much did you make last year?’ and then offer them 10% more. … These are not just fields. They are farm enterprises.”

Kate Greenberg, Colorado’s agriculture commissioner, is overseeing multimillion-dollar efforts to protect farm lands by improving soil health, solving market challenges and making farm water use more efficient. She says the people of Colorado are on board with her agency’s efforts.

“We did a study last year that showed over 98% of Coloradans believe agriculture is an integral part of our state. If we’re taking water out of agriculture, where are we putting it to beneficial use?

“Are we conserving it to grow urban developments and do we want to see that over preserving agriculture and biodiversity. We need to answer that question as a state.”

Bartolo, the retired CSU researcher, hopes the answer comes soon, before any more of the valley water is siphoned off for urban use.

As news of the deals spreads, Bartolo’s sense of deja vu is growing and his fears for the future of the valley’s irrigated ag lands is growing too. No one knows yet what will happen when Aurora’s contract to use the Fryingpan-Ark to deliver water expires in 2047.

“Having lived through it in my lifetime, I have seen the drastic changes,” Bartolo said.  

What worries him, and other growers too, is “what happens if they come back after 2047? What happens then?”

Colorado tribes want to offer online sports betting. But their tax status, and other issues, has some people worried that allowing the Southern Ute and Ute Mountain tribes to offer remote wagering on professional sports might siphon valuable revenue away from Colorado water projects.

The Colorado Department of Revenue declined to comment on the specifics of the dispute, while tribal representatives say they are frustrated with the state’s refusal to allow them to offer it.

In November, a proposition referred to the ballot by lawmakers in House Bill 1436, will ask voters to allow the state to keep more of the revenue generated by sports gaming. Taxes collected on those bets, which were authorized in 2019, are projected to generate $34.2 million in tax revenue in the state’s next fiscal year, which begins July 1. 

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. It also appears at wateredco.org/fresh-water-news.

Under the current sports gaming law, the state cannot collect revenues in excess of $29 million. If voters approve the ballot measure, that cap would be removed, potentially generating millions of dollars more for water programs.

Colorado voters approved limited gaming in 1990 and the Ute Mountain Ute and Southern Ute tribes opened their own casinos soon after. 

Remote sports betting is offered by casinos in Black Hawk, Central City and Cripple Creek, but the tribes have so far not been allowed to participate because of a failure to reach an agreement with the state on how it would operate, according to Peter Ortego, a lawyer representing the Ute Mountain Ute tribe, in Towaoc. Ortego said the Ute Mountain Ute have not taken a position on the new ballot measure.

Representatives for the Southern Ute Tribe in Ignacio did not respond to a request for comment. 

One of the issues is taxation. Because tribes are sovereign nations, they are exempt from paying state taxes. That tax-free status is problematic from the state’s perspective because if tribes allowed other commercial gaming companies to locate remote sports betting kiosk on tribal land, it too would be exempt from taxation, shrinking the amount of money the state could collect for water programs including conservation, habitat restoration, stream protection and planning and storage, according to state Rep. Dylan Roberts, D-Frisco.

“When the legislature referred the sports betting initiative to voters in 2019, a key part was the state collecting tax on the revenues and dedicating 90% of that money to water projects,” Roberts said. “Now there is a concern that if the physical locations moved to tribal lands, we would lose most of the funding for water.”

The Colorado Gaming Association’s stance on the issue is not clear. The trade group did not respond to a request for comment.

Lawmakers are expected to take up the issue later this summer when a special interim committee on tribal affairs meets, Roberts said.

“I would be open to finding a middle ground. The complication is that tribal lands are not subject to state law, so lawmakers have very little ability to work in that space,” Roberts said.

Previous attempts to break the impasse have failed. The Ute Mountain Ute’s Ortego said it’s not clear when — or if — the dispute will be resolved.

“We want the opportunity to do what every other casino in the state is allowed to do,” Ortego said. “And we believe we have the right to do so.”

As the drought-strapped Colorado River struggled to feed water into Lake Powell to keep its massive storage system and power turbines from crashing in 2021 and 2022, the U.S. Bureau of Reclamation, its operator, was scrambling to bring in extra water from Flaming Gorge and Blue Mesa reservoirs. 

Since the return of healthier flows in 2023, water levels in Flaming Gorge and Blue Mesa have been restored, as required under a 2019 Colorado River Basin drought response plan.

But the subsequent shifting of water in 2023 to balance the contents of Powell and Lake Mead, required under a set of operating guidelines approved in 2007, resulted in an accidental release of 40,000 acre-feet of water that will not be restored to the Upper Basin because it is within the margin of error associated with such balancing releases, according to Alex Pivarnik, supervisory hydrologist with Reclamation’s Upper Colorado Basin Region.

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. It also appears at wateredco.org/fresh-water-news.

“Under the 2007 Interim Guidelines, this was the first time Reclamation balanced the contents between lakes Powell and Mead in near real-time, working against quickly changing hydrology over the course of just a few months. Getting it within 0.5% is pretty remarkable, given the circumstances,” Pivarnik said via email, referring to the hundreds of thousands of acre-feet of water that was being moved at the time relative to the size of the mistake.

Though 40,000 acre-feet of water isn’t much on the massive Colorado River, it is enough to serve some 80,000 houses for one to two years, to irrigate 20,000 acres of corn on the Eastern Plains or to keep the taps flowing in the Grand Junction-area for two years.

“Some people might wonder what’s the harm,” said Mark Ritterbush, water services manager for Grand Junction. The city is one of three water providers in the Grand Valley, some of whom also rely on the Colorado River. “But does it matter? Absolutely. It is all one water.”

The seven-state Colorado River Basin is divided into an upper and lower section, with the Upper Basin covering Colorado, New Mexico, Utah and Wyoming and the Lower Basin comprising Arizona, California and Nevada.

The Upper Basin is home to four major reservoirs. Flaming Gorge, on the Utah-Wyoming border, Colorado’s Blue Mesa, New Mexico’s Navajo, and Lake Powell. They serve as liquid bank accounts, ensuring the Upper Basin states can meet their legal obligations to deliver water to states in the Lower Basin, where Lake Mead serves a similar function.

Looking ahead, Upper Basin states say the way the reservoirs are managed during drought emergencies needs to change to protect against such mistakes and to better protect Upper Basin water supplies.

“Reclamation missed its operating target for releases by 40,000 acre-feet. Everyone should recognize that this is a shortcoming of the 2007 guidelines,” said Chuck Cullom, executive director of the Upper Colorado River Commission, which oversees the Colorado River for the Upper Basin states.

“It’s almost impossible to hit perfect. But this is a function of trying to balance contents (of Powell and Mead),” Cullom said.

Despite the drought response and a healthy water year in 2023, lakes Powell and Mead have returned to critical low levels, leaving the system vulnerable in ways similar to those that existed prior to the emergency loans from the Upper Basin states, according to the Colorado Water Conservation Board (CWCB), whose staff presented a memo on the topic at its May meeting. The CWCB is the state’s lead water planning agency.

As the giant river system continues to struggle to serve 40 million people, tribal communities, farmers and Mexico, tense negotiations to redo the 2007 operating guidelines, which expire in 2026, are underway.

“With regard to future reservoir operations in the post-2026 negotiations,” Cullom said, “I would say that the upper division states have learned a great deal from the operation of the (drought response plan), and in the event that the federal government wants to continue to have the flexibility to move the water from upper basin units to protect the operation of Lake Powell. … I would expect those lessons would be reflected (in the new operating guidelines).”

One year after the U.S. Supreme Court removed federal regulations protecting wetlands and streams from development pressures in its Sackett v. the EPA decision, Colorado is the first state in the nation to pass legislation replacing those regulations, according to a new national report.

The report, by the Clean Water For All coalition and Lawyers for Good Government, shows that eight other states have taken action to restore some level of protection or are trying; five launched failed attempts to impose further cutbacks; and one state, Indiana, rolled back protections further. Thirty-five states have taken no action.

Environmentalists say the spotty response is a clear indication that Congress must intervene to create consistent, clearly defined protections that work for all states, and which protect rivers and wetlands that cross state boundaries.

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. It also appears at wateredco.org/fresh-water-news.

“Different states are struggling to see how to respond to it,” said Kristine Oblock, senior campaign manager for the Clean Water for All coalition. “And the state-by-state solutions are not going to be enough to protect our waters. … Our goal is to restore federal protections.”

The problem is particularly acute in Colorado and other Western states, where vast numbers of streams are temporary, or ephemeral, flowing only after major rainstorms and during spring runoff season, when the mountain snow melts. The Sackett decision said, in part, that only streams that flow year-round are subject to federal oversight. It also said that only wetlands that had a surface connection to continually flowing water bodies qualified for protection. Many wetlands in Colorado have a subsurface connection to streams, rather than one that can be observed above ground.

The Sackett decision came after decades of federal court battles over murky definitions about which waterways fall under the Clean Water Act’s jurisdiction, which wetlands must be regulated, and what kinds of dredge-and-fill work in waterways should be permitted.  There also were long-running disputes over what authority the act had over activities on farms and Western irrigation ditches, and what activities industry and wastewater treatment plants must seek permits for.

Finding a clear, bipartisan solution that Congress might embrace isn’t likely to be easy. “It’s only been a year, so a lot of different entities are still working out the path forward,” said Jonathan Wood, vice president of law and policy at Montana-based Property and Environment Research Center, or PERC, a conservative think tank that filed a brief supporting the Sacketts,  in last year’s Supreme Court case. The Sacketts are private landowners.

“It’s possible that Congress could act,” Wood said. “I think there is an appetite for it but it seems unlikely. And if the suggestion is to just go back to how it was applied pre-Sackett, I don’t see a path forward for that.”

Polls in Colorado and nationwide show majority support among Democrats, Republicans and independents for restoring protections. 

Colorado lawmakers were able to win bipartisan backing for their bill after weeks of intense negotiations. Whether the same thing could occur at the national level is a big question.

“Bipartisan is easier at the state level because you aren’t trying to regulate different hydrologies across the country. Any time you’re trying to establish a rule that applies to New England and the West, it is difficult,” Wood said. That Colorado lawmakers were able to agree on regulatory exemptions for agriculture, developers, some cities and other industries also likely helped propel the measure to passage, Wood said.

And there are other options besides Congress. PERC’s mission is to find free market solutions to environmental problems. Wood said PERC would like to see incentives for private landowners to protect wetlands, something Indiana lawmakers approved this year, even after removing other protections. PERC would also like to see industry held accountable for paying the costs of restoring the wetlands that have already been lost.

“Wetlands reduce pollution from someone else, so why not make the polluters pay,” Wood said. “These kinds of opportunities all provide a path forward that is less conflict ridden than the Clean Water Act regulations that have applied for the last several decades.”

Still, environmentalist plan to keep their eyes on Congress, said Josh Kuhn, senior water campaign manager for Conservation Colorado.

“It’s clear that there is bipartisan support for this effort from the public and we need them to make their voices heard,” Kuhn said. “Doing so will create the political will to address the threat of deteriorating water quality and the impacts of climate change.” 

Fast-growing northern Colorado won approval for two major water loans from the state this month that will help finance a new dam outside Loveland and a major regional water project northwest of Fort Collins.

Vetted by the Colorado Water Conservation Board and approved by a bipartisan group of lawmakers May 1, the $155 million for Chimney Hollow Reservoir and the $100 million for the Northern Integrated Supply Project, or NISP, are among the largest financing packages the state has approved in recent years, according to the board.

“Is it a lot, yes,” said Jeff Stahla, a spokesperson for Northern Water, the agency that is sponsoring the projects for a group of cities that includes Loveland, Broomfield, Erie, and Greeley.

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. It also appears at wateredco.org/fresh-water-news.

“We know that these were big asks, and we are grateful for the support. We also recognize that these projects are going to benefit hundreds of thousands of people in the fastest-growing part of the state right now,” Stahla said.

The full costs of the water projects, $561 million for Chimney Hollow and roughly $2 billion for NISP, are being financed by water users, as well as the state, Stahla said.

The loans come as forecasts show the state’s streams shrinking as much as 30% due to the warming climate while the area’s population continues to grow.

Kirk Russell, the board’s finance section chief, said the two loans combined make up 20% of the  agency’s $1.1 billion revolving loan fund. The program operates by providing cash to borrowers below market rates. The interest that is generated, in turn, helps finance loans for new borrowers as these are repaid.

The mega loans mean the state will have somewhat less to lend next year, Russell said,  for the state’s 2025 fiscal year, which begins July 1.

“I estimate we will have about $50 million to $60 million in loan funds available next fiscal year. That’s about our average annual total (in available loan funds) for the last few years,” Russell said via email.

The loan program is funded with cash generated by interest and loan payments, as well as federal mineral lease payments and severance taxes collected from oil and gas production, Russell said.

Among its other major loans in recent years is the Arkansas Valley Conduit in southeastern Colorado, which received a $90 million loan, and Aurora’s Prairie Waters Project, which received a $60 million loan, according to Russell.

Rep. Karen McCormick, D-Longmont, said she and her fellow lawmakers are pleased the state has been able to provide the financial help. McCormick was one of the bipartisan group of lawmakers who sponsored House Bill 1435, the legislation authorizing the loans.

“These projects are super important, especially to my area of Colorado,” McCormick said. “To have these new reservoirs completed is critical. A lot of different water providers are depending on this.”

The projects are not without controversy, however. Federal permitting for both began 20 years ago, according to Stahla, and each has been delayed numerous times after environmentalists sued over concerns about the impact on the drought-strapped Colorado River, the supply that will eventually fill Chimney Hollow, and the equally stressed Cache la Poudre River, whose flows will be used by NISP.

In fact, the Chimney Hollow loan grew from its original $90 million to $155 million in part due to the cost of litigation and increases in construction costs, Stahla said.

Though Chimney Hollow is under construction, NISP continues to face delays due partially to a lawsuit by Save the Poudre against the federal agencies that approved the deal. It was filed in January.

And it will also have to eventually win an OK from the city of Fort Collins, which has historically opposed the project. Mayor Jeni Arndt declined to comment on the state funding, but said the project would still have to undergo review by the city.

How quickly that might occur isn’t clear. Gary Wockner, head of Save the Poudre, said he expected years of additional delays before NISP would have all of its government approvals in place.

“We will see how this goes. … The drama will continue for a long time,” Wockner said.

Colorado lawmakers gave the thumbs-up to 10 water measures this year that will bring millions of dollars in new funding to help protect streams, bring oversight to construction activities in wetlands and rivers, make commercial rainwater harvesting easier and support efforts to restore the clarity of Grand Lake.

Money for water conservation, planning and projects was a big winner, with some $50 million approved, including $20 million to purchase the Shoshone water rights on the Colorado River.

Sen. Dylan Roberts, D-Frisco, chair of the Senate Agriculture and Natural Resources Committee, expressed gratitude for the legislature’s focus on water issues and for funding the Shoshone purchase. “This continues to show the state’s financial investment in our water future,” he said, “and we’ll now ask voters to retain even more money from sports betting to continue that funding commitment.”

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. It also appears at wateredco.org/fresh-water-news.

Roberts was referring to a ballot initiative that will ask voters in November to allow the state to hold onto more of the tax revenue generated by sports betting.

Another major law created a new permitting program to protect wetlands and streams from construction, road building and development activities. Those federal regulations were wiped out last year by the U.S. Supreme Court in its Sackett v. EPA decision. Two competing measures were initially introduced, but lawmakers joined forces toward the end of the session to arrive at a bipartisan consensus.

In another action, lawmakers approved a narrow change to storm water storage rules that will allow an innovative commercial rain-water harvesting pilot program in Douglas County’s Sterling Ranch development to proceed.

“Dominion is excited to continue to advance the only regional rainwater harvesting project in the state, which now can be completed in a cost effective and timely manner with the unanimous support of the Colorado Legislature and the governor,” said Andrea Cole, general manager of Dominion Water and Sanitation, which is conducting the pilot program and which serves Sterling Ranch.

And lawmakers also approved two high-profile resolutions, one supporting efforts to restore clarity in the state’s Grand Lake, and a second resolution urging Congress to provide funding to help repair aging water systems serving tribal communities and others in southwestern Colorado. A third identifies projects eligible for funding through the Colorado Water and Power Development Authority. Resolutions, unlike laws, don’t usually come with money and have little legal weight.

Here’s a look at the most significant measures that passed.

House Bill 1435 — Colorado Water Conservation Board projects

This is an annual bill that provides grants and loans to projects requested by the Colorado Water Conservation Board. None of the money is from the state’s general fund; it includes interest earned from CWCB loans, severance taxes and sports betting revenue. The largest amounts this year are for two CWCB loans: up to $155.65 million for the Windy Gap Firming Project, and up to $101 million for the Northern Integrated Supply Project. The balance is for grants that include:

• $23.3 million to help implement the state water plan (all of it from sports betting revenue, up from $10 million last year)
• $20 million to support the purchase of Shoshone power plant water rights by the Colorado River Water Conservation District
• $4 million for drought planning and mitigation projects
• $2 million for the turf replacement program.

House Bill 1379 — Regulating dredge and fill activities in state waters

This bill grew out of the May 23, 2023 U.S. Supreme Court decision in Sackett v. U.S. Environmental Protection Agency, which narrowed the scope of waters protected under the federal Clean Water Act. It ruled that federal regulation of dredge and fill activities applies only to wetlands that have a “continuous surface connection” to rivers and other permanent bodies of water where it would be difficult to determine where the river stopped and the wetland began, eliminating federal protection to large areas of wetlands and seasonal streams in Colorado.

House Bill 1379 requires the Water Quality Control Commission in the Colorado Department of Public Health and Environment to develop rules by Dec. 31, 2025, to implement a state program that is at least as protective as the guidelines developed under Section 404 of the Clean Water Act. It covers discharges to “state waters,” which are defined as “any and all surface and subsurface waters that are contained in or flow in or through the state, including wetlands.” House Speaker Julie McCluskie, D-Dillon, said that by shifting from a “gap” program that covers only those waters left unprotected by Sackett to a “state waters” approach “we ensure clarity and certainty.

The bill exempts certain activities and excludes some waters from coverage. Activities not requiring a permit include normal farming, ranching and forestry operations, along with maintenance of currently serviceable structures and construction or maintenance of irrigation ditches. Excluded waters include those in ditches and canals, wetlands adjacent to ditches or canals that are supported by water in the ditch or canal, and artificially irrigated areas that would revert to upland if irrigation ceased. Rep. Karen McCormick, D-Longmont, said that “codifying in statute the exemptions rather than leaving it to rulemaking” avoids some of the “unpredictability that existed at the federal level.”

Senate Bill 148 – Rain water harvesting, storage

Allows, with proper authorization, those operating an approved rain water harvesting pilot project to store water in a detention facility.

Senate Bill 197 — Water conservation

Senate Bill 197 contains provisions that were either recommendations or items discussed by the Colorado River Drought Task Force the General Assembly created last year. The bill allows the owner of a storage water right to loan water to the CWCB for stream sections where the CWCB does not hold an instream flow right. It permits the creation of agricultural water protection programs statewide instead of just in the South Platte, Republican and Arkansas river basins in eastern Colorado, and authorizes an irrigation water right holder to request a change in use to an agricultural protection water right that would allow the lease, loan or trade of up to 50% of the water.

The bill also allows electric utilities that plan to close coal-fired power plants in the Yampa River basin in northwestern Colorado from losing their water rights if they decrease or do not use the water for a specified period of time. Roberts said this would allow electric utilities “to temporarily toll their water rights and protect them from abandonment while those companies explore alternative energy development” to align with the state’s clean energy and greenhouse gas reduction goals.

The drought task force included a sub-task force to study tribal matters, which recommended a provision in the bill that requires the CWCB to reduce or waive any matching requirements for state water plan implementation grants awarded to the Ute Mountain Ute Tribe or the Southern Ute Indian Tribe.  

House Bill  1436 — Sports betting revenue

Sports betting revenue has been used to help fund implementation of the state water plan since passage of Proposition DD by the electorate in 2019, which legalized sports betting and taxed its proceeds. The amount of revenue that can be used to support the state water plan was capped at $29 million, a figure that is likely to be exceeded this year. Rather than refund the excess money to casinos and licensed sport betting operators that paid the tax, House Bill 1436 refers a ballot measure to the voters in November asking them to remove the cap and allow the state to keep all revenue and use it to fund water conservation and protection projects.

The bill’s fiscal note projects that sports betting revenue will exceed $29 million this fiscal year by $2.8 million, by $5.2 million in fiscal year 2025, and by $7.2 million in fiscal year 2026 (the actual revenue is distributed the year following its collection and spent the year after). Rep. Marc Catlin, R-Montrose, noted that sports betting revenue has exceeded expectations, and if the voters approve, “this seems to be the easiest way to fund these kinds of projects (because) you don’t have to go and ask for property tax revenue or for tax money out of the state general fund.”                 

Senate Bill 5 — Prohibiting certain landscaping practices to conserve water

Faced with climate change and increasing water demand, Senate Bill 5 is designed to reduce water used for landscaping in new development projects. It prohibits local governments from allowing the installation of nonfunctional turf — grass that is not used primarily for recreational purposes — in commercial, institutional, industrial or common interest community property, street rights-of-way, parking lots, medians or transportation corridors after Jan. 1, 2026. It does not apply to residential property or to turf that is part of a water quality treatment program, native grasses or artificial turf on athletic fields. The bill also prohibits the Department of Personnel from installing the same types of turf in any new state facility construction project after Jan. 1, 2025.

Roberts noted that irrigating nonfunctional turf “is responsible for what is believed to be up to 50% of municipal water use,” and pointed out that Senate Bill 5 builds on legislation passed two years ago that provides funding for a turf replacement program.  

Senate Bill 37 — Green infrastructure to improve water quality

Senate Bill 37 calls for a study of how “green infrastructure” might replace traditional concrete and steel wastewater treatment plants in managing water quality. Green infrastructure, according to bill writers,  is “a strategically planned, managed, and interconnected network of green spaces, such as conserved natural areas and features, public and private conservation lands, and private working lands with conservation value.” It can improve water quality by reducing stormwater runoff as pollutants are absorbed into soils and filtered before entering waterways, and lessen the need for expensive wastewater treatment plants, also known as gray infrastructure.

The bill requires the University of Colorado and Colorado State University — in collaboration with CDPHE — to conduct a feasibility study of how green infrastructure can be used as an alternative to gray infrastructure in complying with water quality regulations, and the types of new funding mechanisms that might support it. The universities, with CDPHE’s approval, may conduct up to three pilot projects to test their findings. CDPHE and the universities must complete the study by April 1, 2026, and submit a report summarizing its findings and any recommendations to the General Assembly’s Water Resources and Agriculture Review Committee no later than Nov. 1, 2026.

Sen. Cleave Simpson, R-Alamosa, noted the cost-effectiveness of green infrastructure, especially in rural communities like those in his district where “to invest tens of millions of dollars in a new wastewater treatment plant to serve small numbers of people is just problematic.” He views Senate Bill 37 as offering “a different path forward where you can get the same outcomes but with more natural investments.”

Thousands of acres of Colorado wetlands and miles of streams, left unprotected by a U.S. Supreme Court decision last year, would be shielded under a hard-won measure that was approved this week by a bipartisan group of state lawmakers.

Environmental advocates say Colorado leads the nation in adopting such regulations, which will replace certain Clean Water Act rules that were wiped out last year in the U.S. Supreme Court case Sackett v. EPA.

“Colorado is the first state to pass legislation on this issue,” said Josh Kuhn, senior water campaign manager for Conservation Colorado. “It had a lot of attention because of the magnitude of the bill. There were dozens and dozens of meetings to try and strike the right balance. We’re really happy with this final piece of legislation.”

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. It also appears at wateredco.org/fresh-water-news.

The Sackett case sharply limited the streams and wetlands that qualify for protection under the Clean Water Act, a decision that water observers said had a particularly broad impact in the West. In Colorado and other Western states, vast numbers of streams are temporary, or ephemeral, flowing only after major rainstorms and during spring runoff season, when the mountain snow melts. The Sackett decision said, in part, that only streams that flow year-round are subject to oversight. It also said that only wetlands that had a surface connection to continually flowing water bodies qualified for protection. Many wetlands in Colorado have a sub-surface connection to streams, rather than one that can be observed above ground.

The legal decision came after decades of federal court battles over murky definitions about which waterways fall under the Clean Water Act’s jurisdiction, which wetlands must be regulated, what kinds of dredge-and-fill work in waterways should be permitted, what authority the act has over activities on farms and Western irrigation ditches, and what activities industry and wastewater treatment plants must seek permits for.

With the passage of House Bill 1379, which passed Monday, Colorado wetlands are once again formally protected, as are ephemeral streams, said Kuhn.

“It also sets the federal regulations as the floor, not the ceiling, so that Colorado can go above and beyond those to ensure we are protecting our resources,” Kuhn said.

House Bill 1379, sponsored by House Speaker Julie McCluskie, D-Dillon, Rep. Karen McCormick, D-Longmont, and Sen. Dylan Roberts, D-Frisco, was one of two proposed bills that sought to address the regulatory gap created by the Sackett decision. Senate Bill 127, sponsored by Sen. Barbara Kirkmeyer, R-Brighton, was the second. 

While Senate Bill 127 ultimately was not approved, a number of exemptions it contained to address concerns of farmers, miners, developers and some cities, were eventually added to House Bill 1379 and Kirkmeyer signed onto the measure as well, becoming a Senate sponsor along with Roberts.

Those exemptions were important to gathering the support of farm and real estate interests, among others, according to John Kolanz, an attorney who represents developers and who served in a state workgroup that helped lay the groundwork for the new regulations.

“There was significant movement from the first draft to the end. Barb’s bill played a big role in that. This is an important program that touches a lot of people, and interests and activities. I think the end result is pretty good,” Kolanz said.

Among the exemptions that were added is a rule that specifically exempts maintenance work on irrigation ditches and canals. Another exempts work that disturbs less than one-tenth of an acre of wetland or 3/100th of an acre of a streambed.

“If you’re a developer … and you’re under those thresholds, you don’t need a permit, you just need to follow best management practices,” said Kuhn, who was among the negotiators who hammered out the details of the final legislation.

In addition, if a pipeline is installed or a ditch is lined, that activity is exempted if it can result in water conservation.

House Bill 1379 also gives regulators the option to add one staff person on the Western Slope to help with program administration in that region, and provides nearly $750,000 in the state 2024-25 fiscal year budget and nearly $250,000 in the next year to get the new regulatory program, housed within the Colorado Department of Public Health and Environment, up and running.

Senate  Bill 127 had proposed housing the program within the Colorado Department of Natural Resources, due to concerns about an existing backlog in the CDPHE’s wastewater discharge program.

With the decision to house the program in CDPHE come requirements that require frequent reporting to lawmakers to ensure that health officials have the resources they need to review and issue permits, Kuhn said.

The Water Quality Control Commission will have until Dec. 31, 2025 to finalize the rules implementing the new law.

The bill is awaiting the governor’s signature.

“In Colorado, where the rivers and streams are the lifeblood of our land, our agriculture, and our communities, the importance of water cannot be overstated,” Kirkmeyer said in a text message. “I believe that House Bill 1379 will be the strongest protection for Colorado streams and wetlands that we have had in the last 50 years.”

Fast-growing Aurora plans to develop a new 200-acre site high in scenic Park County to build the largest reservoir in its system.

The $600 million-plus Wild Horse Reservoir project would store 93,000 acre-feet of water and be nearly twice the size of the city’s existing Park County storage pond, Spinney Mountain Reservoir, which holds 53,651 acre-feet of water. An acre-foot equals nearly 326,000 gallons of water, enough to serve at least two to four urban households for one year.

The proposed reservoir is among the latest moves by the city to secure future water supplies to meet growth-driven demand as streams and rivers shrink because of climate change.

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. It also appears at wateredco.org/fresh-water-news.

Aurora, the third largest city in Colorado, is home to nearly 400,000 people and is expected to add some 300,000 more by 2070, according to the city’s website.

Pre-permitting discussions on the project have begun, according to Aurora Water spokesperson Greg Baker, and the process is expected to take at least two years. The reservoir is part of a larger water supply strategy that includes a recent $80.4 million purchase of farm water in the Arkansas River Valley, a deal that is drawing opposition from the Pueblo-based Southeastern Colorado Water Conservancy District. 

Park County Commissioner Amy Mitchell declined to comment on the Wild Horse proposal, citing the county commission’s legal responsibility to review it under what’s known as a 1041 permit review, a process that gives the county the ability to approve or reject construction projects. That review could happen as early as next year, she said.

Like other cities, Aurora officials say they need to move quickly now to ensure residents and industry will have enough water in the future.

“Are we moving fast? If the opportunity is there, yes, we are taking it. Water will only become more difficult and expensive to obtain,” Baker said.

Other major new storage projects are being planned by cities along the Front Range, with Parker Water and Sanitation District hoping to build a 72,000 acre-foot reservoir in northeastern Colorado as part of a new municipal farm-water collaboration known as the Platte Valley Water Partnership.

The Aurora and Platte Valley projects are expected to be completed in roughly 10 to 15 years.

For Aurora, the Wild Horse project will provide more opportunities to store water it already owns in the Upper Colorado, the Arkansas and South Platte river basins, and to move that water around, Baker said.

The site lies south and east of Spinney Mountain Reservoir.

The city has a large-scale recycled water program known as Prairie Waters, which operates by claiming treated wastewater Aurora owns from the South Platte River on the Eastern Plains, filtering it through a series of gravel beds and then piping it back to Aurora’s water treatment facility where it is purified and mixed with fresh water and then delivered to residents and businesses.

But as the water is reused and becomes more concentrated, salinity levels rise, which means less water can be treated and reused. Wild Horse would allow more fresh water to be sent down the river, providing more “blend water” for Prairie Waters and expanding the amount of reused water it can deliver to its customers, Baker said.

Water storage reservoirs have drawn fierce environmental opposition in the past 50 years, according to Ron Redd, manager of the Parker Water and Sanitation District.

In the past, water utilities would dam rivers, forever altering the ecosystem and harming water quality.

Parker and Aurora hope these new reservoirs will have fewer environmental impacts and won’t set off as many alarm bells because, in part, they won’t dam rivers or streams, Redd and Baker said. Instead, pipelines will be used to deliver water to the storage ponds.

The city of Greeley walked away from an expansion of its Milton Seaman Reservoir on the North Fork of the Cache La Poudre River in 2021, deciding instead to develop a groundwater and aquifer storage project beneath the Terry Bison Ranch, something the city believes will be easier to do and will give it more flexibility in managing its water supplies, according to Sean Chambers, director of Greeley’s Water and Sewer Department.

Gary Wockner, director of Save the World’s Rivers, has battled several reservoir storage projects in Colorado, including the expansion of Denver Water’s Gross Reservoir and the Northern Integrated Supply Project in northern Colorado, sometimes delaying them for years as court cases slogged through the legal system.

Wockner said, via email, that his organization is tracking Wild Horse but is waiting for more information to be filed during the permitting process before it decides whether to oppose the project.

“We are aware that Aurora claims that all of the water proposed to be stored in Wild Horse is already diverted. … Through the permitting process we will independently verify that claim. If Aurora is just moving already-diverted water around from one spot on the landscape to another, we likely won’t have an interest” in opposing it, Wockner said.

Colorado voters may be asked to let more money flow to water projects by allowing the state to keep all of the sports betting tax revenue it collects, if a measure referring the issue to the November ballot is approved by lawmakers.

House Bill 1436 has bipartisan support, with House Speaker Julie McCluskie, D-Dillon, and Rep. Marc Catlin, R-Montrose, serving as the measure’s main sponsors in the House, and Sen. Dylan Roberts, D-Frisco, and Sen. Cleave Simpson, R-Alamosa, leading sponsorship in the Senate.

The sports betting program was initially approved by voters in 2019, passing with just over 51% of the vote. The measure collects a 10% tax on the proceeds of licensed sports betting. Some of the money is used to cover the cost of regulating betting and the rest, up to $29 million total, is funneled toward water projects. In the event tax collections exceed $29 million, the legislature decides how to refund the money under the Taxpayer’s Bill of Rights.

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. It also appears at wateredco.org/fresh-water-news.

That’s where House Bill 1436 comes in. 

If House Bill 1436 passes but voters reject the ballot measure, the bill directs the state to refund any sports betting tax revenue collected in excess of $29 million to sports betting operators. The provision is aimed at persuading voters to cast a “yes” vote on the question.

While the original sports betting ballot measure received tepid support, the tax question, if it makes the ballot, may win broader support due to ongoing voter concerns about water conservation and protection and the high-profile crisis on the drought-stressed Colorado River, veteran pollster and political analyst Floyd Ciruli said.

“I have not seen any polls that negate what we knew strongly back then, that water conservation and water protection are environmental issues that Coloradans care strongly about,” he said.

Since 2021, nearly $43.1 million in sports betting tax revenue has been transferred to water projects, according to the Colorado Department of Revenue, with annual cash for water projects nearly tripling during that time, rising from $7.9 million at the end of the 2021 fiscal year, to $23.7 million in 2023.

Brian Jackson, director of Western water for the Environmental Defense Fund, helped spearhead the 2019 campaign backing the initial ballot measure. He and a similar coalition of environmental groups are forming to campaign for this latest ballot measure as well, if lawmakers ultimately refer it to the ballot.

“Frankly, we never thought we would hit that cap,” Jackson said. “But revenues and profits have snowballed.”

State forecasts indicate the cap is likely to be exceeded in the next year or two, Jackson said, reaching $31 million this fiscal year, which ends June 30, and $35 million in the next.

Jackson said early polling indicates strong support for a new ballot initiative among Democratic and Republican voters statewide, but he said those who back removing the cap plan to campaign heavily even with the early support, in part because this November’s ballot is expected to be crowded with a number of questions on topics like property taxes and abortion access.

“We are going to run a campaign because this is a great opportunity to invest in our state and to widen the message about conserving and protecting Colorado’s water,” Jackson said.

Voters approved Proposition II, a similar tax-surplus measure related to tobacco taxes for preschool funding, in 2023.

Little formal opposition appears to have formed as of now, although at least one tribal community, the Ute Mountain Ute in Towaoc, has been engaged in a three-year battle with the state over the sports betting program. Among the issues is whether, as a sovereign nation, the tribe should be required to pay the 10% tax on profits, according to Peter Ortego, general counsel for the Ute Mountain Ute.

“We believe federal law makes it clear that we do not have to pay that tax,” Ortego said.  “But we are very far apart from the state on that issue.” The Ute Mountain Ute have not taken a position on House Bill 1436.

The Colorado Department of Revenue did not respond to a request for comment about the dispute with the tribes over sports betting.

The gaming industry spent millions in 2019 in support of the original sports betting ballot measure. Whether it will support or oppose House Bill 1436 isn’t clear. The Colorado Gaming Association did not respond to a request for comment.

The measure has passed the House and is now in the Senate. The 2024 legislative session ends May 8. 

A major southern Colorado water district voted unanimously last week to oppose an $80.4 million agricultural water purchase by Aurora in the Arkansas Valley, saying the deal violates a 2003 agreement that prohibits the fast-growing city from taking more water out of the valley.

Aurora would lease the water back to Arkansas Valley farmers in most years, using it periodically in dry periods.

During a special meeting April 9, the Southeastern Colorado Water Conservancy District said it had numerous concerns with the purchase, which is set to close this month. Southeastern manages the federally owned Fryingpan-Arkansas Project, which includes the Pueblo Reservoir.

Southeastern declined to say what legal action it might take if the deal goes through.

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. It also appears at wateredco.org/fresh-water-news.

The project was built in the 1950s to gather water from the Western Slope and the headwaters of the Arkansas River and deliver it to the cities and farms of the Arkansas Valley. Local residents, via property taxes, have repaid the federal government for most of the construction costs and continue to pay the maintenance and operation costs of the massive project, according to Bill Long, president of the Pueblo-based district’s board of directors.

But since 2003, Aurora has been allowed to use the Fry-Ark project to move farm  water it purchased out of the valley and up to its reservoir and delivery systems in the metro area. As part of that deal, Aurora agreed to pay $25 million over the term of the 40-year agreement. Just over $11 million has been paid to date, according to Southeastern.

“People don’t realize that when the taxpayers build something for their benefit but it winds up being used by someone who is not part of the project, it is extremely frustrating,” Long said.

Alex Davis, Aurora Water’s assistant general manager for water supply and demand, said the city is optimistic Southeastern’s objections can be overcome.

“We are hoping to work this out. I think we understand their concerns and their fears,” she said. “While we disagree with their interpretation (of the 2003 agreement), we are looking for ways to mitigate” any impacts that might occur.

Aurora has had a controversial role in the history of agricultural water in the Arkansas Valley. In the 1970s and 1980s it purchased water in several counties, drying up the farms the water once irrigated, and moving it up to delivery and storage systems in the metro area.

That practice, known as buy and dry, since then has been widely condemned.

Can a lease-back of water protect farm fields?

Under the terms of this new agreement, Aurora will spend $80.4 million to buy 5,200 acres of land in Otero County and the water used to irrigate 4,806 acres of productive farmland from C&A Companies. The land is currently owned by Phillip Chavez, a Rocky Ford farmer and member of the Colorado State Land Board who is under contract to sell the land and water to C&A, a metro area real estate development company.  Chavez declined to comment on Southeastern’s opposition, citing the need for confidentiality prior to the close of the deal.

Aurora’s Davis, and other city officials, say the purchase is structured to protect the agricultural lands because the city would only use the water during dry times, rather than permanently taking it out of the valley.

The urban lease-back provision could be used in three years out of 10, leaving the water on the farms for the remaining seven years.

Under state law, such leases can be done for three consecutive 10-year periods, Davis said.

Still Mike Bartolo, a retired Colorado State University extension agent who lives in the area, says the deal jeopardizes the region’s already fragile, drought-stressed farm economy.

“They’re saying this isn’t going to have much impact,” Bartolo said. “But there is going to be an impact, environmentally and politically.”

What action Southeastern’s board may take if its concerns aren’t adequately addressed isn’t clear yet, but Long said he has agreed to continue discussions.

“We are willing to sit down and have a conversation,” Long said.