DENVER | In a historic move , the state water board voted unanimously last week to accept water rights tied to the Shoshone hydropower plant, a major step toward securing those flows in perpetuity for the Western Slope.

The Colorado Water Conservation Board said the Shoshone water rights, which are some of the oldest and most powerful on the mainstem of the Colorado River, can be used to benefit the environment. 

“The Shoshone acquisition makes a lot of sense to me, and I’m very proud to be a part of the work that everybody’s put into it,” said Mike Camblin, who represents the Yampa, White and Green river basins on the CWCB. “I hope that our children and our grandchildren look back and realize we made the right decision on this.”

The Glenwood Springs-based Colorado River Water Conservation District plans to purchase the Shoshone water rights for $99 million from Xcel Energy, but the district first needed the approval of the CWCB, which is the only entity in the state allowed to hold instream-flow water rights to benefit the environment. Because the water is returned to the river after it runs through the hydroplant’s turbines, downstream cities, irrigators, recreators and the environment all benefit.

River District General Manager Andy Mueller called it a fantastic day in Colorado history. 

“I think that was the right decision for the Colorado River and the right decision for our whole state,” Mueller said. “I think the state for generations to come, centuries in the future will benefit from having that water in the Colorado River.”

Importantly, the instream-flow agreement approved by the board says that the Western Slope, along with the CWCB, will retain some control over exercising the rights. The River District and its constituents drew a hard line in the sand regarding this point and said they would walk away from the deal if they had to cede control solely to the CWCB.

Though not totally unprecedented, co-management is a departure from the norm, as the CWCB has never shared management of an instream-flow water right this large or this powerful with another entity. 

In attendance at Wednesday’s CWCB meeting in Golden were representatives of ditch companies, elected officials and water managers from across the River District’s 15-county area. Some of the attendees said during their public comments that if the River District didn’t retain some control over the water rights, they would pull their funding and withdraw their support from the Shoshone campaign. 

Mesa County Commissioner Bobbie Daniel said the joint-management proposal is a safeguard that ensures that Western Slope interests are not pushed aside. Mesa County has committed $1 million toward the purchase of the water rights.

“The Shoshone call is one of the great stabilizing forces on the river, a heartbeat that has kept our valley farms alive, our communities whole and our economy steady, even in lean years,” Daniel said. “If a joint management is not adopted, Mesa County will withdraw its support for this acquisition. It’s not out of anger or politics, but because anything less would fail the people that we serve.”

Blow to Aurora and the Front Range

The CWCB’s decision was a blow to Front Range water providers, who objected to the River District’s having a say over how to manage the water rights, even though they supported the overall goal of protecting flows for the environment. Denver Water, Northern Water, Aurora Water and Colorado Springs Utilities argued that the CWCB has exclusive authority over the rights, according to state statute. 

Critically, because the Shoshone plant’s water rights — one that dates to 1902 for 1,250 cubic feet per second and another that dates to 1929 for 158 cfs — are senior to many other water users, they have the ability to command the flows of the Colorado River and its tributaries upstream all the way to the headwaters. This means that the owners of the rights can “call out” junior Front Range water providers with younger water rights that take water across the Continental Divide via transmountain diversions and force them to cut back. 

The fact that Front Range water providers take about 500,000 acre-feet annually from the headwaters of the Colorado River is a sore spot for many on the Western Slope, who feel the growth of Front Range cities has come at their expense. These transmountain diversions can leave Western Slope streams depleted. 

The Shoshone call pulls water west much of the time. But the Front Range parties wanted assurances that during extreme droughts or emergency situations, the call would be “relaxed,” allowing them to take more water to their cities’ millions of customers. 

Alex Davis, assistant general manager with Aurora Water, said the CWCB should retain the ability to relax the call as a “backstop” under extremely rare circumstances. 

“It is asking that in those emergency situations, the board has the ability to step in and say: We’re going to do what we think is best for the state of Colorado,” Davis said.

The agreement approved by the board lays out a collaborative process to consider a call relaxation, with a stakeholder panel of water managers from both sides of the divide. The specific wording of this agreement was hashed out during Wednesday’s meeting, with lawyers representing the CWCB and River District conferencing to tweak language and make edits.

The CWCB had been set to decide on the Shoshone rights at its meeting in September, but the River District granted an eleventh-hour 60-day extension so they could address issues raised by the board and try to negotiate a consensus with the Front Range parties. 

Despite all the detailed arguments laid out by the parties, thousands of pages of technical and legal documents, and hours of testimony and public comment over the September and November CWCB meetings, the board’s scope of decisionmaking remained narrow: Should the CWCB accept a perpetual interest in the Shoshone water rights and will these rights preserve the natural environment to a reasonable degree? 

In the end, the board decided yes, and also determined that it did, in fact, have the authority to allow the River District to co-manage the Shoshone water rights alongside it.

“I really think it’s pretty incredible that there’s no objection to the environmental aspects of this flow and the purpose of this water right for environmental purposes,” said CWCB Director Taylor Hawes, who represents the mainstem of the Colorado River where the Shoshone plant is located. “(The River District is) donating that water right. It seems like they should have a say. And while I realize this case is unique, I don’t see anything in the statute or the rules that prohibits us from doing this.”

But the fight to keep Shoshone flowing west is not over for the River District. The CWCB, River District and the water rights’ current owner, Xcel, now plan to file a joint application in water court to make the deal official by adding the instream-flow use to the water rights. 

The water court process will decide another contentious issue that is sure to again highlight disagreement between the Western Slope and Front Range as they compete for the state’s dwindling water resources: precisely how much water is associated with the water rights, a number based on the plant’s past use.

“I also very much understand the concerns of both sides of the divide in not wanting the other side to have a windfall,” Hawes said. “That has been kind of the heart of all of this. And I hope we can all trust that the water court’s process will give us a result where we don’t have to worry about that. Everyone’s concerns will be addressed in that process.”

Aspen Journalism is a nonprofit, investigative news organization covering water, environment, social justice and more. Visit http://aspenjournalism.org.