As water-banking bill dies, Fontenelle eyed to relieve drought

Lawmakers tabled a troubled water banking bill as the state eyes new ways to meet its legal obligation to let a minimum volume of water flow out of Wyoming and into the Colorado River Basin system.

Citing new information, Sen. Larry Hicks (R-Baggs) tabled his banking bill earlier this month. Agriculture and water law experts had criticized the measure, questioning whether it was necessary and would accomplish its stated aims. Wyoming will instead explore other options to meet its flow obligations in the face of a 19-year Colorado River Basin drought — obligations that could mandate water-use restrictions.

Those opportunities include capitalizing on a newfound willingness by the U.S. Bureau of Reclamation to allow Wyoming, Colorado, Utah and New Mexico to store and get credit for up to 500,000 acre feet in Lake Powell. That would have to be conserved water — water that has been historically permitted and used by irrigators, industry and municipalities — but is instead saved and tracked downstream to the massive reservoir on the Arizona/Utah border.

“That wasn’t on the table when we met in June, [when he unveiled the water banking bill]” Hicks told the Joint Agriculture, State and Public Lands & Water Committee on Nov. 7. The Lake Powell space “may forestall the need for any water banking on the Green River,” Hicks said.

There’s also a potential for Wyoming to use water that’s owned and stored by the Bureau of Reclamation in Fontenelle Reservoir. Wyoming may be able contract for and use about 220,000 acre feet in Fontenelle to offset drought, Steve Wolff, administrator of interstate streams in the state engineer’s office, told WyoFile in an interview.

“The State of Wyoming could at some point have rights to pretty much all the water in Fontenelle,” Wolff said. That amounts to some 340,000 acre feet annually, he said.

The hope is that the state could acquire some of that water from the BOR and send it downstream to meet flow requirements instead of cutting off Wyoming water users, Wolff said.

The BOR “would have to agree that’s a valid use of the water,” Wolff said. And other states would have to weigh in and approve the plan. “That’s not a sure thing,” he said.

Power level the new Lake Powell trigger point

The four upper division states in the Colorado River Basin — Wyoming, Utah, Colorado and New Mexico — must allow 75 million acre feet to flow past Lee Ferry in a 10-year running average. Lee Ferry is the legal geographic point just below Powell’s Glen Canyon Dam that’s described in the 1922 Colorado River Compact that governs much of the water use among seven Colorado River Basin states.

Wyoming is responsible for 14 percent of that flow and is entitled to the same 14 percent that’s left over, Wolff said. Under the idealized but now-unrealistic conditions set out in 1922, that 14 percent amounts to approximately a million acre feet annually.

Operation of the dam and reservoir, however, includes consideration of the dam’s power plant, which has become key to the regional economy in terms of both electricity and revenue. Today the water level in Lake Powell is as critical as the water itself.

As part of their drought contingency planning, the basin states agreed on a trigger point of 3,525 feet above sea level — 175 feet below full pool — as a minimum level to ensure power generation. Lake Powell on Monday was 113 feet below full pool, leaving 62 feet of water to drain before regulators turn to upper division states and seek more flows.

The effects of drought in the state of Colorado are probably going to reach the lower division states in 2020, Wyoming State Engineer Pat Tyrrell told the committee.

Drought contingency planning — conserving water on a voluntary basis that would otherwise be used for irrigation, industry or municipal supplies — is a way to protect the power level on Lake Powell, he told the committee. “It keeps the lights on.”

If that’s not accomplished “we will have no choice but to go out and curtail uses,” he said. Tyrrell, his staff, other Wyoming officials and officials in the other basin states continue to work on details of a demand management program and protocols for tracking conserved water to Lake Powell.

Hicks outlined elements of such a program that’s been tried in pilot fashion over the last four years, including in Sublette County. “Any program has to be voluntary,” he told the committee. The transfer of conserved water must be temporary and protect agricultural rights. Finally, “it’s got to be compensated,” with water-rights holders being paid for what they give up, Hicks said.

“I think those are good principles,” he told the committee.

The Fontenelle factor

When the federal government began building the Fontenelle Dam across the Green River in 1961 it envisioned much of the impounded 345,000 acre feet would be used for agriculture. But that vision withered in the face of challenging farming in the difficult soil of the desert region.

When reality struck the federal dam-building agency, it cut its losses and did not armor the lower part of the dam’s upstream face. That prevents operators from draining the reservoir below the armor, a practice that ensures waves don’t erode the earthen structure.

The BOR owns the impounded water. Wyoming has a contract to use 120,000 acre feet a year, Wolff said. If the dam were fully armored, another 80,000 acre feet could be utilized.

“It’s already under water right” Tyrrell told the committee about the 80,000 acre feet. That puts it in a different category than the unappropriated water Hicks eyed for storage under a water banking bill.

“It could be, perhaps, a first line of defense if we have to curtail ourselves so we don’t violate the compact.” Tyrrell told the committee. “It’s possible that water under Wyoming’s contract might be able to be released in lieu of regulating our users.”

He painted a hypothetical picture in which Wyoming would be required to let another 10,000 acre feet flow out of the state. Instead of turning off 10,000 acre feet to users, “we simply release 10,000 out of Fontenelle,” Tyrrell said. “That keeps people irrigating … the power plants running and the municipalities diverting their water.”

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Wolff outlined some of the details of such an arrangement in an interview. All told, Fontenelle holds about 265,000 acre feet of useable water and it generally fills every year. An additional 80,000 acre feet could be accessed with a retrofit armoring project Wyoming wants to undertake, making a potential total of 340,000 to 345,000 acre feet.

Wyoming today has rights to market 120,000 acre feet from Fontenelle, Wolff said. It has sold contracts for 46,000 acre feet of those 120,000, leaving 74,000 acre feet in “Wyoming’s pool,” Wolff said. The BOR owns and controls the remaining 220,000 or so acre feet but “they have no contracts on that water,” he said.

The bonus and potential boon for water users in the Green River and Little Snake River drainages? Wyoming has the first right of refusal for any Fontenelle water the Bureau would sell, Wolff said.

“We would possibly hope to use some of the remainder of that [water under contract] to send downstream and not turn somebody off,” he said. Whether that’s a legal use of the water is uncertain, he said, and depends on Fontenelle’s authorizing legislation, among other laws and permits. Lawyers and others are studying the issue, a concept that had never been considered when Fontenelle was built, he said.