Background




The Frying Pan- Arkansas Project

The state of Colorado has always been subject to periods of natural drought as well as intense flooding. After the historic flood of 1921 that devastated towns along the Arkansas, including Pueblo, the need to have some control over natural water flows became quite apparent. In 1962 Congress approved the Frying Pan Arkansas Project, a trans-mountain diversion, collection and storage system which would create a reliable water source for southeastern Colorado. The Fry-Ark Project is meant to act as a supplemental source of water during periods of naturally low water levels for municipal as well as agricultural purposes. In addition, it also provides flood control and recreational benefits.

The system begins in White River National forest along the western slope of the Rocky Mountains. Water is diverted from the Frying Pan River and other smaller streams through the Continental Divide via a series of conduits and reservoirs to the Arkansas River. The Fry-Ark Project services 9 counties in the state which compose the Southeastern Colorado Water Conservancy District, including Bent, Chaffee, Crowley, El Paso, Fremont, Kiowa, Otero, Prowers, and Pueblo counties. The water diverted provides, "…an average annual water supply of 163,100 acre-feet for supplemental irrigation of 280,600 acres in the Arkansas Valley."1 It also provides municipal water supplies to several cities along the eastern slope including, 20,100 acre-feet to Colorado Springs, 8,040 acre-feet to Pueblo, and the rest to various towns which have a need for supplemental supplies. Although the tenants of the Project allocate 51% of the water to cities, and only 49% towards agriculture, there is a clause that states if cities do not claim all of the water allocated to them, then it can be used for agricultural purposes. Currently, agriculture takes about 75% of the Fry-Ark water every year.
 
 

Frying Pan-Arkansas Project Statistics

                        Graph taken from Southeastern Colorado Water Conservancy District pamphlet
 

In total, there are five different dams and reservoirs that are part of the Fry-Ark system. The first, located on the western slope, is Ruedi Dam and Reservoir, followed by Turquoise Lake and Sugar Loaf Dam just east of the Continental Divide. The next two structures are the Mt. Elbert Forebay Dam and Reservoir and Twin Lakes Dam and Reservoir. The last structure is the Pueblo Dam and Reservoir, which is also the largest of all the storage units in the Fry-Ark Project. In addition to the five storage facilities, there are a number of conduits and tunnels that carry the water from reservoir to reservoir, totaling 26.7 miles of pipeline.2

In addition to the numerous benefits the Fry-Ark water provides for municipal, agricultural, and recreational purposes, it is also the site of two hydro-electric plants. The Mt. Elbert pumped storage powerplant is located along Twin Lakes and generates around 200,000 kilowatts of power. The water which drops through the two turbine-generators into the lake is then pumped back up to the original forebay during low electrical rate hours in order to be used again and again for power generation. The other, much smaller powerplant is the Otero plant located near Crystal Lake generates about 11 megawatts annually.3

The cost of the Frying-Pan Arkansas Project to taxpayers was around $500,000,000. The Southeastern Colorado Water Conservancy District, the group that monitors the water allocations in the southeastern portion of the state, is responsible for payback of $150,000,000 of the total bill. This money is generated partially by the sale of water. Every acre foot of Fry-Ark water is given a price of $7 with an additional surcharge of $1 which helps pay for the costs of the Pueblo dam. The annual revenue generated from these water sales are around $800,000. Of the total cost of the Project, 40% is considered non-reimbursable through activities such as wildlife, flood control and recreation, benefits which cannot payback the cost of the structures.4

The whole project is under the management of the Bureau of Reclamation, with several smaller groups controlling different features of the project. The Southeastern Colorado Water Conservancy District is one example of such a group, which monitors the allocation of water to municipal and agricultural uses. At Ruedi Reservoir and Turquoise Lake, the recreational and fishing facilities are managed by the United States Forest Service. The Pueblo Dam and Reservoir are under the management of the Colorado Department of Natural Resources.
 

                                         Map of the Frying Pan Arkansas Project, Colorado

  Map taken from U.S. Bureau of Reclamation website 5/15/2000
 
 

Although the Frying- Pan Arkansas Project is the major trans-mountain project affecting southern Colorado, there are several smaller projects as well. One such project is the Homestead Project which brings water from the Rockies to the Cities of Aurora, Colorado Springs and Pueblo. This project provides about 6,000 acre-feet a year to the cities. The rights for this water were bought in lower Arkansas, but diverted from the western slope. Another larger-scale project is the Colorado Big Thompson project which brings water to towns north of Denver.
Western Water Law

Water law in the western United States is very complex due to the fact that water is a scarce resource. In order to fully understand the issues of water use in the Arkansas River Basin, it is important to know the history and origins of water law in the west. This section of the website is meant to give the reader a basic understanding of federal water law in the west, Colorado state water law and other important legal issues that pertain to the case study of water use in the Arkansas River valley.
 
 

Federal Water Law in the West

The original basis for western water law was born in the mining camps that brought so many Americans westward with hopes of striking it rich (5). During settlement of the west and especially the gold rush, the first person to file a mining claim was allowed priorities over later claims. Also to keep ones mining claim, one had to take possession of and work the claim productively. Because water was actively used in the ore removal process of mining, the same type of law was easily adapted for water rights in the west. This basis for water law, the prior appropriation doctrine, which was born in mining camps, has had a profound influence on the west. It has had huge effects on the way the west has been settled; it has been and will continue to be the subject of many huge legal battles.

The Doctrine of Prior Appropriation as we know it today has five basic tenants, priority, beneficial use, diversion, private property, and forfeiture.

Priority, as borrowed from the mining laws, means essentially that the earlier owner of a specific water source water has priority over a later owner. The easiest way to conceptualize this is to think of two water users and a drought situation. If there is not enough water to satisfy both water users, the one the earlier claim gets to satisfy his needs while the other does not. The phrase that captures this ideology is "first in time, first in right". In a sense, this part of the doctrine created security for the first western settlers in a hydrological system that was very uncertain.

The second tenant of the Doctrine of Prior Appropriation is beneficial use. The basis of this is that one’s right to claim water is only circumscribed by one’s ability to put it to a beneficial use. A beneficial use in the eyes of the law is anything that will increase economic gain. "Beneficial Use" is defined more specifically in some states than others, but in general beneficial use is not differentiated. That is, there is no merit to having a more beneficial use".

The third tenant of the doctrine is that of diversion. In order to have a water right, one has to divert the water. This means that you have to physically take it from the river or stream. You make a water right yours by taking water. This aspect of the law has become important as people and government have begun to consider the environmental values of leaving water in rivers.  Some states have changed their policy towards the tenant of diversion as concern over instream flows has taken new precedence.

The forth tenant of the doctrine is that of private property. Water is the private property of the owner. Unlike the eastern United States water law, where land is owned but water cannot be, water is ownable in the West. This tenant is important for a number of reasons. Most importantly, water is not seen as tied to the land and can therefore the property right can be separated from the land. It is because water is considered private property that it can be sold or traded to anyone else.

The fifth and final basic tenant of the Doctrine of Prior Appropriation is that of forfeiture. This tenant can be summed up by the phrase "use it or lose it". If a water right is not used, under law it can be revoked. Because of logistics and the ease of "using" water, forfeiture is generally very hard to prove. The government very rarely revokes water rights.
 
 

Another important aspect of federal water law is that of "equitable apportionment". The basic idea of this is that water must be equally divided among states that use the same source of water. This came out of a court case in which Colorado was trying to sue Kansas out of a fear that Kansas was going to take all of the water from the Arkansas River. The federal court ruled that water must be divided equally and thus "equitable apportionment" was born. This forced the creation of intrastate compacts on all major rivers in the West. The idea of equitable apportionment will continue to play a key role in the west as cities and populations grow rapidly, forcing the issue of water scarcity to become more of a reality.
   The year of 1902 forever changed the western United States. It was in this year that the federal government stepped in to make water work for people. While water projects had been funded and constructed privately for profit, the Reclamation Act of 1902 created the Bureau of Reclamation, allocated federal funding and greatly increased the level of development in the West. This was the beginning of the federal funding and heavy subsidization of water projects in the and west that still occurs today. The west WW needed to be populated, water was needed to populate it, and the government committed itself to making sure that there was water to be had for the masses of citizens who were migrating west. The Act created the Bureau of Reclamation as a federal agency to construct the new dams and water projects. In addition, the Bureau contracted water deliveries with local irrigation districts in a manner that encouraged growth and development.
 
  Another significant part of federal law in the West that effects water use is the environmental regulations of the 1960s and 70s. From 1968 to 1976, the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act and the Clean Air Act all were passed by Congress, reflecting changes in values among our society. These new laws reflected the general public opinion that human impacts on our natural environment are of great importance, and that we care about and want clean air and water. Moreover, it would be national policy to protect the environment. Changes were made in the way dams were operated, pollution controlled and projects built. A good example of the clout of these regulations can be seen in the federal decision not to build the Two Forks Dam, a much needed storage facility on Colorado's front range. It was turned down because of the negative environmental effects the project would have on the surrounding area. Currently, these environmental laws and regulations play a very significant role in how we manage our water resources.
 
 

Colorado State Water Law

Through the 1866 Mining Act, the 1877 Desert Lands Act and subsequent legislation, Congress provided that states could establish their own water laws and create property rights to unappropriated water. While Colorado's water law is based on the Doctrine of Prior Appropriation and its central tenants, there have been some changes made to deal with certain problems that the state faces. Most important, in the context of this case study, are issues having to do with water transfers due to the market value of water as a private property.
 

Colorado has attempted to create a type of compensation policy for areas from which water is transferred. Under this policy, the, transfer of water out of the Colorado River Basin had to be preceded by the construction of reservoirs in the basin. While this is not happening everywhere in Colorado due to the fact that some of these compensatory storage units sit virtually unused, some problems of basin of origin protection are being solved through negotiation settlements and sale agreements. In the Arkansas River valley, the cities buying the water to be transferred have agreed to maintain minimum flow levels and to revegitate the land that they are drying up in order to make sure that environmental degradation does not occur on account of the water transfer.
 
  While the policy of beneficial use, as issued by the Doctrine of Prior Appropriation, would view in-stream flow protection as wasted water or water to be appropriated, changing views on water use and the environment have created new types of policy.  Colorado, among other states, has come to realize that there are environmental, aesthetic, and even economic benefits to natural stream flows.  The state’s water conservation board (CWCB) is allowed to make and enforce senior appropriations to maintain minimum stream and lake levels for environmental purposes to a reasonable degree.  The program requires the board to consult with and take into account federal agency recommendations, including those of the Forest Service and the U.S. Fish and Wildlife Service. The ultimate decision as to the amount of water appropriated is up to the Board.

Other Important Legal Issues

After bargaining, bickering and negotiating for almost a decade about water use and allocation, Kansas and Colorado created the Arkansas River Compact in 1949. This was by no means an easy task. Many different interest groups, irrigators, city planners, and industrialists all had different opinions about how to manage the Lower Arkansas River. In addition, many divisions of the federal government (Army Corps of Engineers, the Federal Power Commission, Bureau of Reclamation, and the Fish and Wildlife Service) had differing and often opposing views on managing the river.

Among all of the debates, there seemed to be one issue that all parties agreed upon as a necessity: John Martin Dam and Reservoir, built in the mid- I 940s, was an integral part of the solution (6). The dam would end litigations, if and only if, opposing parties could agree upon how to manage it. The Compact of 1949 did exactly this, creating a new management plan for the dam and reservoir in Southeastern Colorado. The Compact was created in order to make the dam work best for interest groups in both Colorado and Kansas. The Arkansas River Compact itself was essentially an accounting procedure for dividing water through the use of the John Martin Dam. The final Compact was a great success at the time in that all parties came to an agreement, but the wording of the Compact led to different interpretations, leading to more disputes over the allocation of water in the Arkansas River Valley.
 
 

The relative peace created by the Arkansas River Compact of 1949 did not last long. In fact, Kansas and Colorado have been almost constantly arguing over apportionments of the Arkansas River in numerous court cases. It was not until recently that decisive action was taken on the subject. In U.S. Supreme Court case Kansas v. Colorado, originally argued on March 21, 1995 and decided on May 15, 1995, the court dealt a major blow to Colorado water users. Judge Rehnquist found that post-Compact well pumping in Colorado resulted in a violation of Article IV-D of the Compact. This article holds that the Compact is not intended to impede or prevent future beneficial development-including construction of dams and reservoirs and prolonged or improved functioning of existing works-provided that such development does not "materially deplete" stateline flows "in usable quantities or availability for use"(7).

The wells that were built for irrigation and other purposes in Southeastern Colorado were found to have significantly depleted the amount of Arkansas River water delivered to Kansas. While the amount of compensatory payment for the damages of this long-term depletion is still being figured out by courts, it will be settled relatively soon. Colorado economists say the damages amount to approximately $9 million, whereas Kansas' economists believe the damages to amount to $64 million. The difference in these figures lies mainly in the interest rate used. While this is a big blow to Arkansas River water users in Colorado, it could have been worse. Kansas failed to prove that Colorado's Winter Water Storage Program violates the Compact and failed to prove that Colorado's failure to abide by the Trinidad Reservoir Operating Principles is a violation of the Compact.
 
 

The Winter Water Storage Program in the Arkansas River Valley stores water in the winter in order to increase the availability and usefulness of water for summer irrigation.  The program was approved by Congress as part of the Fryingpan-Arkansas Project in 1962, but under Colorado law could not begin unless the water court entered a decree or there was unanimous consent to the project by all participating water users (along with other water users as well) and water officials in the State and Division engineers office.

Over ten years later, in 1975, by the time that the Pueblo Dam was working as part of the Fry-Ark Storage System, a consensus was reached by water user and winter water storage began.  The major feature of the program had been established; Publo Reservoir was closed to capture the flows of the river above the dam (except for the passing of small amounts of water for senior water users who were not participating in the project) and groundwater and return-flows from below the dam were stored in downstream reservoirs such as Lake Henry.

The allocation of water storage was debated and disputed for almost another decade until a decree was finally entered by Colorado water court.  In 1884, the SCWCD along with thirteen other applicants filed an application for a water court decree that greatly changed the flow of the river during the winter months.  Under the decree, all reservoirs on the Arkansas and its tributaries must store water continuosly from November 15th to March 15th annualy.  Direct flow users may not use their water during this period unless their priority date is senior to March 1, 1910Currently, 120,000 acre-feet of winter water are stored annually in Pueblo reservoir for irrigation use in the summer months.  The decree changed the dercree for over 2,000 c.f.s. of water and hundred of thousands of acre-feet of storage (8).  Today, Pueblo Reservoir holds approximately 120,000 af of winter water each year.
 
 

Previous Water Sales (9):

1955- Otero ditch sold 9,000 AF of consumptive use
1971- Las Animas Town sold 5,800 AF of consumptive use
1972- Booth Grove orchard sold 2894 AF of consumptive use
        - Hobson sold 1488 AF of consumptive use
1981- Resource Investment Group purchased land and water
1983- water rights sold for off land use
1985- Colorado Canal sold 80534 AF of consumptive use
1988– The Federal government introduced the CRP (conservation reserve program).It is a farming subsidy program that
           purchases the production rights of dry land from farmers for a 10-year period. Once the land is taken out of
           production the land must be revegetatedto prevent the spreading of noxious weeds and erosion.This revegetated land
           is often used for grazing of cattle and game hunting.
1998-As a follow up program the PFC (production flexibility contract) was introduced.90% of the land subsidized by under
         CRP utilized a PFC. This contract buys the crop base that a farmer historically produced from their land.This amount
         of compensation that the landowner acquires decreases each year.
 
 
 

1. U.S. Bureau of Reclamation website. http://www.gp.usbr.gov/co/fryark.html May 14th, 2000.
2. U.S. Bureau of Reclamation website. http://www.gp.usbr.gov/co/fryark.html May 14th, 2000.
3. U.S. Bureau of Reclamation website. http://www.gp.usbr.gov/co/fryark.html May 14th, 2000.
4. Averschoug, Steve, General Manager, Southeastern Colorado Water Conservancy District.
    Personal communication, Monday, May 8th, 2000.
5.Reisner, Marc. and Bates, Sarah. Overtapped Oasis: Reform or Revolution for Western Water,
   Washington D.C.: Island Press, 1990. p.62.
6. Sherow, James Earl. Watering the Valley: Development along the High Plains Arkansas River, 1870--1950, Lawrence,
    Kansas: University Press of Kansas, 1990, P.162.
7. Legal Information Institute, Supreme Court Collection. Kansas v. Colorado (No. 105), 514 U.S. 673
    (1995). At website:
    LE=S&URL=HTTP:SUPCT.LAW.CORNELL.EDU/SUPCT/IITML/105ORIG.ZS.HTML#WSCAT HIGHLIGHTER
    FIRST MATCH
8. Holme, Howard, Thompson, Tommy, and Pratt, Kevin. The Arkansas River Winter Water Storage Program, From : “1989
    Annual Conference Proceedings” of American Water Works.
9. Howe, Charles. The Economic Impacts of Agriculture-to-Urban Water Transfers on the Area of Origin: Case Study of
    the Arkansas River Valley in Colorado.American Agricultural Economics Association vol. 72 #5 pp. 1200-1204
    December 1990