The fight for Western Slope water rights

Mark Hermundstad preserves water for future generations

If there was ever a person you wanted on your side of the ditch, it’s Mark Hermundstad. Although he retired from practicing law in December, Hermundstad has left his legacy in Colorado, fighting for Western Slope water rights for more than 30 years.

Hermundstad, 61, always planned to go into law, but not water law specifically. Growing up in Wisconsin, water wasn’t a big issue.

“In the Midwest or the East, the problem is getting rid of water, not trying to collect it,” he said. “It was a fairly foreign concept to me. Water is so important in Colorado and such a scarce resource. I’ve enjoyed being involved in some fairly big matters that will shape the course of Colorado in the future.”

Jumping into Colorado’s water

With an undergraduate degree in political science, and minors in math and environmental studies from the University of Wisconsin–Stevens Point, Hermundstad headed west to Colorado. He graduated from the University of Colorado’s law school in 1980 and was hired by Williams, Turner & Holmes, PC, in Grand Junction.

“Andy Williams needed help and took me under his wing, getting me involved in water matters,” Hermundstad said. “I learned water law not from school, but from a practical standpoint; from Andy Williams and by reading many good water law resources.”

Hermundstad has heard many people complain that water law is complex, but he feels it isn’t if you understand a few of its basic rules.

“In order to get a water right in Colorado, you basically have to do three things: You have to divert or control the water—build a dam or dig a ditch—and then apply it to some beneficial use whether it’s irrigation or a municipal use,” he explained. “The third step is going to court to show that you’ve done the first two steps. Then the courts issue a decree and you are plugged into the water priority system. The older your priority is, the more likely you are to get the scarcity of a stream.”

In Colorado, water right matters are of such high importance that they skip the Court of Appeals and go directly to the Colorado Supreme Court.

Standing up for water users

“There’s a common misconception that all the water in Colorado has been spoken for already,” said Hermundstad.

Representing Western Slope farmers and ranchers in court ensures they have water rights for their crop or livestock operations.

“Priority comes into play in years of low snowmelt or rainfall, or at the end of the season when there may be a shortage,” he said. “One client in the Ouray area had a ranch in their family for 100 years that they had water rights for, but they never went to court for the final decree. I helped them get that, but they had lost 100 years of priority.”

Hermundstad has represented Ute Water since 1986. Other clients include irrigation organizations, such as Grand Valley Water Users Association and Orchard Mesa Water District, as well as energy companies, such as Chevron.

Western Slope vs. Front Range

“Denver water has always been an adversary to the Western Slope,” said Hermundstad. “They have water rights on the Western Slope to divert water.”

In fact, he said, the phrase ‘Denver water’ has historically caused tension.

In 2006, Denver started approaching western Colorado entities regarding water rights.

“Instead of dealing with Denver piecemeal, we formed a coalition on the Western Slope from the headwaters of the Colorado River to the state line,” said Hermundstad. “It was pretty contentious because we’re not a homogenous group. We negotiated for eight years to resolve all the issues, and I was the prime negotiator for the Grand Valley. Our primary goals were trying to keep water flowing down to the Grand Valley.”

This involved two vital pieces. First, maintain and keep in place the senior water rights of the Shoshone power plant in Glenwood Canyon. Second, secure the continued use of the Green Mountain Reservoir between Silverthorne and Kremmling, offsetting some of the water the Front Range was taking.

The result of all this conversation was the Colorado River Cooperative Agreement (CRCA), the framework for actions that benefit water supply, water quality, recreation and the environment and the beginnings of a long-term partnership between Denver Water and the Western Slope, according to the Colorado River District. The agreement, which was signed in 2014, is among Hermundstad’s proudest accomplishments.

“It’s going to usher in a new era of relations with Denver,” Hermundstad said. “The CRCA will keep the lines of communication open to look for solutions in the future, which will benefit both sides of the mountain.”

Up and down the river

The settlement of the Orchard Mesa Check case, a time-consuming project Hermundstad worked on in the ’90s, is another of his proud legacies. Complicated in nature, the controversy centered around numerous entities drawing on water in the Palisade area.

“We instituted a procedure 20 years ago that is still taking place today,” he said. “Major entities up and down the river get together on a weekly conference call…to talk about what is going on with their systems, and how water could be better managed so all parties are satisfied.”

Improvements to irrigation systems require less water from the Green Mountain Reservoir, so as part of the Orchard Mesa Check case settlement, some water is held until the end of the season when flows are low. Then it is released to benefit four species of endangered fish that need the water.

“The endangered species act…can trump state water law, so if the fish ain’t happy, ain’t nobody happy,” said Hermundstad.

Present and future water issues

Most of Hermundstad’s career has focused on Colorado water, but recent fluctuations in climate and water levels across the country have changed that.

“It’s been a real interesting turn in my practice over the last half-dozen years,” he said. “We’re looking less at what’s going on in Colorado and more on what’s going on river-wide.”

Drought has caused Lake Powell to diminish by 50 percent, and Lake Mead is only at 38 percent capacity. Hermundstad hopes the 16-year drought is temporary, as there have been periodic droughts on the Colorado River going back 2,000 years. Nevertheless, measures are being put in place to make up for the lack of water flowing from upper-basin states like Colorado to the lower states and Mexico.

Although he’s retired, Hermundstad isn’t leaving water behind. He leads New Dimensions classes for adults 50 and older, works part time for Ute Water and is interested in exploring volunteer opportunities that keep him involved.

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