The Uncompahgre Valley Water Users Association, which operates the Montrose & Delta Canal, placed a call on the Upper Uncompahgre last Wednesday, May 2, because sub-average snow pack and early run-off have resulted in excessively low seasonal flows.
The call affects not only the City of Ouray but other junior upstream water users including the Tri County Water Conservancy District which controls the water in Ridgway Reservoir; the reservoir must release its inflows downstream while the call is in effect.
Ouray may be much further upstream than the M&D Canal’s multiple users, but proximity to a watershed’s headwaters does not factor into the complicated calculus of Colorado water law. What matters is who filed and adjudicated their water rights first. As the Colorado Division of Water Resources puts it: “The essence of a water right is its place in the priority system.” And when it comes to senior water rights on the Upper Uncompahgre River, the M&D Canal is the biggest dog in the fight.
Its most senior rights were filed from 1883-1885 and were adjudicated (established in court) in 1897, said Jason Ullmann, Assistant Division Engineer for Water Division 4 (of which the Uncompahgre River is a part).
While the City of Ouray’s water rights on Weehawken Spring (its sole municipal water source, and a tributary to the Uncompahgre River) have appropriation dates as early as 1881, the rights were not adjudicated until 1904, thus forever saddling the city with junior water rights compared to thirsty downstream irrigators.
Colorado's ‘first in time, first in right’ or ‘prior appropriation’ doctrine applies to both surface water and groundwater tributary to a surface stream, according to the CDWR. In times of water shortage, a senior right may place a ‘call’ on a stream to obtain a full supply.
Only once in the recent past has Ouray’s water been subject to call. That was during the devastating water year of 2002. If the letter of the law had been explicitly followed at that time, the city should have stopped its diversion of Weehawken spring.
City council and staff have been actively addressing the issue of water rights in the decade since. Wright Water Engineering, a Durango-based company, has headed up an effort to conduct an inventory of city water rights and assess options for augmentation.
An important part of the solution is the pending acquisition of the Red Mountain ditch, a historic trans-basin diversion that starts in the Animas River Watershed near the top of Red Mountain Pass and is piped into the Uncompahgre River Watershed.
City staff has been working with Pete Foster, the city’s water engineer with Wright Water Engineering, on completing the purchase and conducting repairs on the Red Mountain Ditch for about two years.
If Ouray succeeds in acquiring these rights, water that would otherwise flow into Mineral Creek in the Animas River Basin would instead be flowing into the Uncompahgre River. It would be enough for Ouray to keep its municipal water flowing, while still satisfying the downstream needs of senior water rights holders.
The acquisition effort is currently being considered in water court in Durango, the headquarters of Water District 7 of which the Animas River Watershed is a part.
Much work has already been done on this project and City Administrator Patrick Rondinelli said he is optimistic Ouray will be successful in acquiring these water rights and improving ditch infrastructure by fall.
But that doesn’t address the immediate problem of how to offset the city’s municipal water use in response to the call.
Short-term creative water supply options being considered include purchasing water in the Ridgway Reservoir from Tri-County Water and releasing that into the river, and purchasing or leasing existing water shares that aren’t actively being used on the M&D Canal.
Another part of the solution could be to use water currently being stored in Crystal Lake reservoir south of Ouray in Ironton Park to offset Ouray’s municipal use, since the Forest Service intends to drain the lake anyway this summer to conduct dam repair.
The City of Ouray has submitted a draft emergency substitute water supply plan to the CDWR outlining these various ways in which it may be able to meet the demand of the water call to prevent its municipal water from being shut off. The plan is still awaiting review and approval by the CDWR state engineers office in Denver.
While city officials and consultants are busy handling the legal end of the problem, the ramifications of the water call for Ouray’s citizens remain a bit unclear.
The vast bulk of the water consumed in Ouray – about 95 percent – eventually goes right back into the watershed after passing through the city’s water treatment plant, according to the CDWR. What doesn’t flow back into the river is lost to evaporation.
The CDWR determines how much extra water needs to stay in the river for downstream senior water rights holders during a water call, using a formula that takes into account the average daily municipal water consumption – an estimated 350 gallons per day for each residential unit in the town – and requiring that five percent of this amount be replaced into the river to make up for evaporation. The estimated surface evaporation from the Ouray Hot Springs Pool is also factored into the equation, as is water used for lawns and gardens.
Altogether this turns out to be roughly 62 acre-feet of consumptive use that must be replaced into the Uncompahgre River from now through September.
Ullmann said that it is not uncommon in drought years for municipalities to have calls placed on their water supplies, but added that most cities already have augmentation plans in place, ready to go into effect as soon as a call is placed.
The City of Ouray is unusual in that it is only now piecing together an augmentation plan of its own. This process started in 2002, the last time a call was made on Ouray’s municipal water supply.
It may seem unfair to deprive a town of its water supply, but the state legal system and the CDWR are set up to protect the assets of senior water rights holders.
When a senior water rights holder makes a call, the water commissioners must shut off all junior priorities until senior users get their right fulfilled.
“Our office is statutorily required to protect senior water rights from injury,” Ullmann stressed.
That means, if the city were to fail to find a solution to the problem, that the CDWR would by law have to shut off the town’s water diversions at Weehawken Springs as well as other sources.
“An augmentation plan allows us to not shut you off, because replacement water is flowing into the river to replace your out-of-priority water usage,” Ullmann explained. “I think Ouray is on its way. They have some options to stay on; it isn’t likely we will be shutting them off.”
Rondinelli, too, remained optimistic of a positive outcome regarding the city’s water augmentation efforts, as he briefed the Ouray City Council on the situation at a meeting on Monday, May 7. But, he warned, solving the problem will cost the city lots of time and money.
Council discussed the possibility of asking residents and businesses to curtail their domestic water consumption – for example, flushing and bathing less, and adopting conservative lawn-watering habits – but this would be more a mark of good will in response to anticipated drought conditions, than a means of resolving the water call.
“Unfortunately, conserving water doesn’t make your water rights any more senior,” Ullmann said.