Sopris Sun – Decemeber 16, 2021
Editor’s note:
Water supply, climate change and the Colorado River seem to be in the news constantly. The West’s major reservoirs have reached record lows and scientists have released discouraging forecasts for future supplies. This article seeks to provide local context for these headlines by reviewing the state of the Crystal River watershed, the rules that govern the use of its water and some perspectives from people who rely on it. This article was reported as part of the Colorado Media Project 2021 Water Journalism Fellowship.
In the spring of 2018, Matt Shmigelsky’s showerhead ran dry mid-suds. After some sleuthing, he and neighbors in his subdivision of 10 houses realized the problem wasn’t an aging pipe or malfunctioning pump. Their well, permitted 50 years ago and reliable until that point, had gone dry.
For about 10 days, he and fellow residents of Carbondale’s Crystal View Heights Filing 1 subdivision went without water in their taps while they hurried to drill a new, deeper well.
“It was really eye opening, just how much we rely on it. It’s so funny — even days after [it ran dry], you’d still go to the faucet and turn it on out of habit. It’s just ingrained in your mind that you have water,” Shmigelsky says.
Just a few months later, he and his neighbors received notice from the Colorado Division of Water Resources (DWR) that their 1971 right to use Crystal River water was “out of priority.” In Colorado, water rights are tied to a date, with older, or “senior,” rights getting first dibs. Water rights holders on the downstream Ella Ditch weren’t getting enough water out of the Crystal River to fulfill their 1902 water right.
Those holders asked the state to enforce their senior right. This typically means shutting off junior water use upstream. This “call” on the Crystal River revealed that some taps in the towns of Carbondale and Marble and at least five subdivisions didn’t have plans in place to back up their junior water use in a shortage.
DWR did not prohibit the nearly 200 impacted homes from using water, but informed them that their access to water during future shortages depends on creating an “augmentation plan.”
Such a plan substitutes the amount of water they are using during a call from higher up in the watershed.
In terms of flow, Shmigelsky and other junior water-rights holders affected by the 2018 Ella Ditch call need to be able to provide for peak water replacement in July, with just over 0.5 cubic feet per second (cfs). One cubic foot is about the size of a basketball.
Despite his fraught access, Shmigelsky’s property is flanked by water. It sits a few hundred feet west of the Crystal River at an elevation of almost 6,500 feet. About 30 yards behind his house runs the Sweet Jessup Canal, which moves water out of the Crystal River and traverses north to irrigate ranchlands west of Carbondale.
According to documents with the Division of Water Resources, Shmigelsky’s subdivision’s well was decreed at 0.222 cfs. In comparison, the Sweet Jessup Canal — one of the major agricultural diversions on the Crystal River — has rights to divert about 75 cfs.
“We’re diverting so little water but yet we have to find the solution, and we have to pay for the solution,” Shmigelsky says of augmentation planning. “The older water rights have so much authority and everybody else is sort of left hanging.”
First in time, first in right
The Crystal River begins in Gunnison County’s Elk Mountains and runs approximately 40 miles, passing through Pitkin County to its confluence with the Roaring Fork River in Garfield County. It is in the Upper Colorado River Basin, a watershed that spans parts of Colorado, New Mexico, Utah and Wyoming that provides, on average, 90% of the Colorado River’s annual flow.
The year Shmigelsky’s tap ran dry was one of the driest on record for the basin. Locally, 2018 was marked by higher than average temperatures, unusually light and infrequent summer monsoon rains and smaller, earlier than average peak flows. The Lake Christine Fire raged nearby and, in some stretches, the Crystal’s flow dropped to ankle-deep.
That 2018 call by the Ella Ditch was the first-ever local, senior call on the Crystal River, which supports agriculture on about 4,800 acres of irrigated land in the Crystal and Roaring Fork river valleys.
Many of the area’s most senior water rights are tied to this agriculture. The call drew attention to the growing threat of water scarcity that looms both in this area and throughout the West, and the need for planning to support people, protect the environment and minimize conflict.
In 2016, the Roaring Fork Conservancy (RFC) — a nonprofit that educates about and advocates for the local watershed — released the Crystal River Management Plan. This blueprint for balancing competing water needs was the result of years of effort by towns, ranchers, environmental groups, water managers, federal and state agencies and scientists — all seeking to identify management strategies that would protect existing water uses, improve ecological health and respect historic agricultural use.
Cold Mountain Ranch
Bill Fales has been raising cattle in Carbondale since he arrived in 1973. He has experienced droughts in the last five decades, but used to think the idea of the Crystal River running dry was laughable.
“But now…” he says, “It’s not so far-fetched anymore to say that the river is going dry.” Fales’ ranch has ample senior rights to water on three ditches, which he typically uses May through October to grow hay and pasture. Not just concerned with his operation’s bottom line, Fales also thinks about his carbon footprint and how his management of land and water affects local wildlife.
“I used to be pretty smug,” admits Fales. “I thought, ‘I’ll still be standing out here with my shovel, irrigating my alfalfa, and the guys in Denver will turn on the faucet to brush their teeth and nothing will come out.’”
These days, he suspects that water scarcity is going to dramatically change the way water is used in the future. As growing cities and towns search for more water, it’s not hard to imagine a future in which more water transitions from agricultural use to municipal use. Currently, more than 80% of Colorado’s water is used by agriculture.
Cold Mountain Ranch has been in Fales’ wife Marj’s family since 1924. Their ranch, and others like it, helped shape the character of Carbondale.
Fales says, “We run our cows right through Carbondale and 99% of the people [we encounter] say ‘Oh it’s the best thing ever, we love it.’”
The community seems to value the jobs, local food and verdant landscape that the area’s ranches provide. But, at the same time, some community members look askance — especially in drought years — at the large amount of water flowing in the ditches, and not in the river.
Water for the river’s sake
In the late summer of dry years, sections of the last several miles of the Crystal River can have so little water that “it would be hard to keep the fish wet,” says Heather Lewin, director of science and policy at RFC.
It wasn’t until the environmental movement started in the 1970s that rivers themselves were given water rights to support ecosystems.
The lower Crystal River has a 100 cfs summer “instream flow” water right from 1975, a right that is fairly low in the pecking order, given that some of the agricultural rights in the area are almost 100 years older. In the driest part of the river in 2018, instream flows got as low as 4 cfs — just 4% of the water right intended to protect the natural environment.
The 2016 Crystal River Management Plan concluded that the status quo is endangering the river’s ecosystem below the large irrigation diversions.
The plan determined that reducing diversions by 5% to 18%, depending on drought severity, would meaningfully reduce risk to the ecosystem. But, in very dry years ranches may not be able to afford to give up any water.
Many of the ranches along the Crystal River are cow-calf operations that have to feed animals for multiple years, and therefore can’t afford to suddenly grow less hay or pasture in a dry year. Even if they can conserve water, some water rights owners fear the degradation of their water rights, citing the adage, “use it or lose it.”
Use it or lose it
The state’s water laws require water be put to “beneficial use” and can regard water rights as “abandoned” if they aren’t being used. But, as the head of the region’s DWR office, James Heath, says, water rights holders “don’t have to divert their full water right every single day that they’re in priority.”
According to a report by the Colorado Water Institute, “conservation actions do not typically contribute to an abandonment determination.” Even so, some rights holders remain nervous about reducing their diversions, even temporarily.
“You have to have somebody [conserve] and show that it works and then have it hold up in water court. And water courts are a very expensive prospect when your operation is already strained,” RFC’s Lewin says.
In 2018, Rancher Bill Fales entered into an agreement with the Colorado Water Trust (CWT) that would pay him to shift when he takes water from the river, in order to leave that water in the river when it most needed it. But during that agreement’s three-year term, it was either too wet or too dry to try the plan laid out by the contract.
In 2018, flows in the river were so low that even if Fales had temporarily diverted less water, it wouldn’t have had a meaningful impact on the river’s ecosystem. In 2019, there was already enough water in the river. In 2020, the irrigation season was so hot and dry that the ranch couldn’t afford to give up the amount of water in the agreement.
“It’s hard for the rancher to give up any water when the flows are very low,” Lewin says. “If you could clearly show that you couldn’t compromise your water right and you were able to involve more water rights holders in the process, then it might be easier for 10 people to give one cfs than one person to give 10 cfs.”
CWT is currently working on a new agreement that can account for drier years and changing climatic conditions, as well as the economic needs of its agricultural partners. The Crystal River valley has a history of neighbors working collaboratively to manage water when the river was low. But as demand grows and supply shrinks, it gets harder to rely on hand-shake agreements…Continued
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Sopris Sun
Olivia Emmer