The way the story goes, the one Fort Collins resident Aaron Million first told more than a decade ago, the whole thing started with one of those ah-ha moments, a split-second grasp of some sliver of grand opportunity.
Million, who in the mid-2000s, was pursuing a master’s degree in agriculture and resource economics at Colorado State University, was holed up in the library on a Sunday night. At some point, Million’s attention wandered to a collection of early 1900s Colorado state maps. Million fixated on a 41-mile stretch of the Green River that briefly swerves in and out of the Northwest corner of the state.
“I was just staring at the map,” Million said. “Then comes the light bulb, as dim as it was.” Million envisioned a project that would tap into the Green River and transport that water through a pipeline to the Front Range. Million made the idea the subject of his master’s thesis, and has been working on the concept on and off since then.
The current version of the project calls for taking 55,000 acre-feet of water from the Green River just below Flaming Gorge reservoir in Utah and carrying it via 338 miles of pipe east across southern Wyoming and south to Colorado’s Front Range. The plan would also produce between 500 and 1,000 megawatts of in-line hydroelectric power as the water is moved east. “Like any project, we’ve been carefully moving forward,” Million said. “It takes some time — to a large degree it’s the same project.”
Recently, Million announced the company he founded to be the development and operation arm of his thesis-turned-multibillion-dollar project, Water Horse Resources, landed a new development and investment partner, MasTec, a Florida-based infrastructure company. Water Horse also named Buster Gray as president; Gray was previously president of a Texas oil and gas pipeline engineering company, EnSiteUSA.
“Water and other products have been efficiently and safely transported in large diameter, cross-country pipelines for decades,” Gray said in a statement, “and while Water Horse may be the nation’s longest proposed water pipeline, it won’t be the last.”
Million, Water Horse’s CEO, said he also had another new investor but declined to name them. He also declined to identify the size of either financial investment. “With a couple billion dollar project, you end up with some bigger horses to help pull the wagon,” Million said. “We have another firm that has a similar reputation that has asked to stay confidential.”
Whose water?
At the moment, the answer to the question of whether the Water Horse wagon will ever be pulled to its final destination — a completed project — could lie in a district court in Daggett County, Utah.
In January 2018, Water Horse submitted an application for a right to divert water from the Green River below Flaming Gorge reservoir before it snakes into Colorado. Water Horse believes there’s a legal mechanism that allows this. The reasoning, Water Horse contends, is embedded in the language of the 1922 Colorado River Compact, and a sort of sister document, the 1948 Upper Colorado River Basin Compact.
The 100-year-old compact divided the seven states that use water from the Colorado River Basin into two camps, the Upper and Lower Basins. Colorado, Wyoming, Utah, and New Mexico up top, and Nevada, Arizona, and California below. The compact allotted equal amounts of Colorado River water for use in the two basins, 7.5 million acre-feet for each. (An acre-foot is roughly the amount needed to cover a football field in 12 inches of water, or about 325,000 gallons.)
For the Upper Basin, however, there’s something of a catch. The compact also includes a provision that says the four Upper Basin states “will not cause” the flow of the river at a specific gauge, Lees Ferry, to fall below an aggregate of 75 million acre-feet for any period of 10 consecutive years. In technical parlance, it’s referred to as a “nondepletion” requirement. (As of 2021, the rolling 10-year average at Lees Ferry is at about 88 million acre-feet.) This part of the compact has effectively given the Lower Basin states the advantage of receiving a fixed amount of water each year, while the Upper Basin states are left to divvy up whatever remains.
“When I give Colorado River 101 talks, I say ‘the compact divided the river equally between the Upper Basin and Lower Basin — sort of,’” said Anne Castle, a senior fellow at the Getches-Wilkinson Center at the University of Colorado Law School. “If you have a fixed obligation at a point below the Upper Basin, what that essentially means is that whatever the total is, you subtract that out and the Upper Basin gets what’s left.”
Given this setup, the subsequent Upper Basin Compact assigned each of the four states an allotment on a percentage basis. Colorado gets 51.75%; Utah 23%; Wyoming 14%; and New Mexico 11.25%. According to a Department of Interior report that averages numbers from 2016 through 2020, and factors in reservoir evaporation and channel losses, the Upper Basin is collectively using around 4.6 million acre-feet.
Herein lies part of Million’s argument playing out in Utah court: The Upper Basin is not using anywhere near 7.5 million acre-feet, and he believes there’s language in the Upper Basin Compact that gives him the right to access some of that water in Utah, move it to Colorado, and count the water toward Colorado’s 51.75% portion.
In an order dated Nov. 17, 2020, the Utah state engineer disagreed, denying Water Horse’s application for a conditional water right. The state engineer outlined multiple concerns. Notably, the denial indicated that since Colorado had not directly weighed in on the question, it would be “presumptuous and inappropriate” to assume how this application would relate to Colorado’s compact allocation of Colorado River water. Barring some indication from the state of Colorado, the Utah state engineer determined that it would instead have to consider this water as part of Utah’s allocation of the river, and that applying part of Utah’s portion of that water to another state would be contrary to Utah’s “public welfare.”
Water Horse petitioned for summary judgment, arguing that the Utah state engineer’s ruling misapplied the law. “The compact says clearly that waters can be used from any Upper Basin state into any other Upper Basin state and no individual government entity can prevent that from occurring,” Million said. “That single authorization is crystal clear.” Million said he expects a decision in the case this fall.
Citing the pending litigation, the Utah state engineer’s office declined to comment, other than to confirm the rejected application and that the case is under review.
Amy Haas, executive director of the Colorado River Authority of Utah, a new entity formed by the state legislature last year to protect Utah’s interests in the Colorado River, said the lack of an official position from the state of Colorado was significant. Haas noted that she does not speak for the state engineer’s office and that the River Authority does not technically have an official position on the application because the authority was created after Water Horse filed for its water right.
“We’re very sensitive to the sovereignty of each of our three sister states; we take that very seriously,” Haas said. “Whatever a particular state wants to do as far as developing its allocation, that is that state’s prerogative.” But, she said, “I don’t think it’s clear where Colorado stands on this application.”
Colorado Water Conservation Board communications director Sara Leonard said CWCB is not involved with the Water Horse project and therefore not able to comment.
Million said he’s asked the state of Colorado for involvement but that there is “no legal mechanism other than a policy objective.”
Another straw
Compact language debates aside, Million’s pipeline deals more broadly with a question facing everyone who manages water in the Colorado River Basin: How much water is there and who gets to use it?
About 40 million people rely on the Colorado River for household water use and farmers and ranchers use the river to irrigate more than 3 million acres of farmland. During the current prolonged drought, which scientists believe is the driest 22-year stretch in the past 1,200 years, water levels in the reservoirs on the Colorado River system have plummeted.
In the past few months alone, the Bureau of Reclamation has announced unprecedented measures to help protect infrastructure and hydropower generation at Lake Powell. The Bureau will hold back 480,000 acre-feet of water in the reservoir that would have been delivered to the Lower Basin this year and is releasing an additional 500,000 acre-feet from Flaming Gorge to help prop up Powell, which as of June 12 was about 27% full.
“The system is really interconnected now,” said Bart Miller, healthy rivers program director at Western Resource Advocates. “It’s hard to think of a project of this size without thinking of the impact it has on other states to develop water and how the hydrology has really dropped in the past 20 years.”
Miller said there are better, simpler solutions out there, such as urban conservation measures and potential water-sharing programs with agriculture. “There are other incremental ways to meet needs; these projects just end up being rather cumbersome and very expensive,” Miller said. “It’s not quite in the ilk of a pipeline from Minnesota but it’s not that different in that it’s talking about hundreds of miles and moving one of the heaviest energy substances there is.”
Western Resource Advocates was one of a long list of groups that signed on to formally oppose the Water Horse application in Utah court. “It speaks to how tight the system is right now,” Miller said, noting that the stretch of the Green River below Flaming Gorge is critical habitat for endangered fish. “It’s worth thinking about this or any large project in the context of the worsening hydrology.”
Trout Unlimited formally opposed the application too. “We think it’s sort of a silly idea given the situation on the Colorado River,” said Drew Peternell, director of Trout Unlimited’s Colorado Water Project. “We feel like there are much better solutions for Colorado’s Front Range than taking more water from the Western Slope.”
American Whitewater opposed the project over questions about how a diversion from the Green River would impact flows downstream of Flaming Gorge. Since then, the group’s interest in that question has become more acute. A year after Water Horse filed its application, Congress designated about 55 miles of the Green below Flaming Gorge as wild and scenic, an official federal classification meant to help protect streamflows. “That amplifies those concerns,” said Hattie Johnson, American Whitewater’s Southern Rockies stewardship director.
Million argues that Flaming Gorge being tapped this year to help fill Powell only underscores how solid the water source is — “extremely firm yield” is how Million described the water production in the part of the Colorado River Basin he wants to pull from. “The release of a half million acre-feet shows the robustness of that system, which, frankly, underpins our project,” Million said. He also said climate change models show the Green River will be wetter than average long term. “The reality is,” Million said, “there’s very little consumptive use in the Green River; it has huge recreational and environmental uses, which need to be protected.”
James Eklund, a Denver attorney who practices water law, said he was approached with this idea back when he was working in the office of the Colorado Attorney General in the mid-2000s. Eklund said he’s gone back and forth on it. “Make no mistake, our water stress has grown so acute that we can ill-afford to dismiss any viable water solution.” Eklund wrote in an email. “However, the past two years have shown that our already dour forecasting was still too optimistic — the Colorado River system is failing — so sticking another straw in that glass again seems unviable to me.”
Castle, the Getches-Wilkinson Center senior fellow, noted that any new Colorado River water development in the Upper Basin would in a way be putting additional stress on existing water rights. “Those additional uses increase the risk for every other water right in the Upper Basin,” Castle said. “It makes it more likely that other uses won’t be able to continue — that’s just not fair.”
Looking at the historical data, Jeff Lukas, an independent climate researcher based in Lafayette, said declines in the amount of water flowing from the Green River into Flaming Gorge match the declines in the rest of the Upper Basin, both about 17% down when you compare the 2000-2019 period against the 1906-1999 stretch. Lukas said that during La Niña weather patterns, the Upper Green tends to fare better than the basins further south, but that that was not the case this year.
The bigger problem, Million argues, is the Lower Basin states overusing their share of Colorado River water. “The Lower Basin could hear the train coming on Lakes Powell and Mead for the last 10, 15 years, and they just never did anything about it,” he said. “Drought having an impact on Lake Powell? Sure. But the primary issue is the Lower Basin drained the reservoirs. You look at the number, statistically a second-grader can figure that one out. Until the train reached the station, the Lower Basin was unwilling to do anything about it.”
Ironically, on the argument of Lower Basin overuse, Million would likely find some agreement among Upper Basin water users. His proposed interstate pipeline solution, however, is a more difficult pitch. For his part, Million said he sees it as one of the only options out there. “As the West continues to manage these issues,” he said, “infrastructure is one of the few alternatives — other than massive conservation — which needs to be at the forefront regardless.”