Washington Evening Star humorist Philander Chase Johnson created a great character named Senator Sorghum. A 1902 piece called “A Delicate Distinction” had one character saying, “That friend of yours seems to have a clear conscience.” Senator Sorghum answered, “No, not a clear conscience; merely a bad memory.”

A convenient memory is common in politics. And current negotiations regarding the Colorado River District’s attempt to purchase the Shoshone water rights from Excel Energy provide a perfect example. Water providers up and down the Front Range, and especially Denver Water, seem to be conveniently forgetting the agreement made more than a decade ago – to support the purchase, and even help finance it.

No water rights question in Colorado has larger implications than Excel’s old Shoshone power station in Glenwood Canyon, whose 1902 water rights are senior to all transmountain diversions. They are among the oldest water rights on the Colorado River, so the “Shoshone call” can curtail diversions to the Front Range, which otherwise amount to roughly half of the main stem of the Colorado River.

$100 million water rights deal

Ever since I can remember, the Western Slope has feared that Denver Water might persuade Excel to sell those water rights, allowing even more transmountain diversions and curtailing more junior rights in Garfield and Mesa Counties. That’s why the Colorado River District proposes to purchase Shoshone’s rights, even though the price is almost $100 million.

Until recently, Excel always had a short response: the Shoshone rights were not for sale. But if that’s changed, the Western Slope must protect itself.

Keep in mind, there is nothing wrong with the Shoshone plant, which has a 15-megawatt capacity and has been significantly upgraded in recent years. Its Unit A turbine was completely rebuilt in 2023, along with other equipment and facility upgrades, lowering costs, increasing efficiency, and further extending its lifespan. Excel has no plans to shut it down, nor would the River District; it would simply guarantee that should the plant ever close, its water would not be available to the Front Range. That is one reason the River District’s deal now seems unlikely.

The River District has allocated $20 million, and the Colorado Water Conservation Board (CWCB) has approved another $20 million, and roughly $17 million is pledged by local governments. But the other $40 million depends on a federal grant, which the Biden Administration awarded, but President Trump suspended.

But the real trouble came with the River District’s request to convert those water rights – should Excel close Shoshone – to instream flows. The CWCB must agree because only CWCB can hold instream flow rights. When the River District finalized details, suddenly the Front Range developed a “convenient” memory lapse.

Before agreeing to the plan, CWCB has to quantify the instream flow. The River District computed Shoshone’s average use of 845,000 acre-feet during a normal 30-year period (1973-2003). But Denver Water and other Front Range cities objected, demanding inclusion of the last 20 years – knowing that in recent years the maintenance and upgrades mentioned above required the lengthy shutdowns. Shoshone was offline 143 days in 2021, 91 days in 2022, 307 days in 2023, and 221 days in 2024. Including that period in the “historic average” would dramatically reduce the water right, to Western Slope disadvantage.

The ‘Shoshone call’

Worse, the thirsty cities now insist that CWCB, not the River District, decide when to enforce the “Shoshone call.” Why would the River District spend $100 million on water rights it cannot control? River District Manager Andy Mueller correctly calls that a “deal-breaker.” After all, only one of CWCB’s nine voting members is from the Colorado River basin.

Front Range objections to both the River District’s quantification of the water right, and future determination of the “Shoshone call,” seem perfectly framed to kill the deal. Do they remember the 2013 Colorado River Cooperative Agreement, strenuously negotiated between Denver Water and the Western Slope? “It is the goal of the signatories to achieve permanent management of the flow of the Colorado River so that the flow mimics the Shoshone call flows, whether or not the senior Shoshone call is on…” Further, “Denver Water agrees that it will support such acquisition [of Shoshone water rights by a West Slope governmental entity] and will take such reasonable actions as may be necessary to assist the West Slope governmental entity in completing the acquisition…”

Now that the acquisition is on the table, Denver Water joins other Front Range cities in working to scotch the deal. For Denver that may be a convenient memory lapse, but it leaves the Western Slope with a clear conscience if the deal falls apart.

Greg Walcher is former director of the Colorado Department of Natural Resources, and a Western Slope resident.