Precedent-Setting Decision Made by Colorado Water Conservation Board; First-of-Its-Kind Relationship Built Between Board and Pitkin County for Local Streamflows

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From The Aspen Times (Janet Urquhart):

The nine voting members of the Colorado Water Conservation Board approved a trust agreement with the county Monday in Denver after a four-and-a-half-hour hearing. “Everybody had smiles on their faces — except the opponents,” said John Ely, county attorney, in a telephone interview at the close of the proceedings. The CWCB staff, Pitkin County and representatives of Trout Unlimited and the Colorado Water Trust spoke in favor of the trust arrangement, as did the city of Aspen’s water counsel, Ely said.

Opponents included the Basalt Water Conservancy District, Starwood Metropolitan District, Willow-Herrick Ditch Co. and the Roaring Fork Land and Cattle Co., he said. All of the opponents expressed concern that the county’s plan to devote some of its water rights to in-stream flows in the Roaring Fork River would impact their own water transactions. The Basalt Water Conservancy District, for example, essentially capitalizes on lower flows on the Roaring Fork by selling water to users upstream of the Fryingpan River’s confluence with the Roaring Fork, according to Ely. The users take water from the upper Roaring Fork; it is replaced by water the district owns in Ruedi Reservoir, which is released into the Fryingpan and flows into the Roaring Fork at Basalt.

The trust agreement approved Monday will allow the county to donate 4.2 cubic feet per second of water rights it holds on Maroon Creek to the CWCB, the only the only entity in the state that may hold in-stream flow rights to protect the natural environment. Other water rights can be added to the trust agreement — the allocations must also be approved by the state water court — or withdrawn over time. Or, the trust can be revoked in its entirety. The county doesn’t lose its water rights, it simply donates them to boost river flows for whatever period of time it wants to, Ely said. “We’re not giving it away,” he said. “We still own it.”

More coverage from the Aspen Daily News (Brent Gardner-Smith). From the article:

“It is in the best interest of the state as a whole if the CWCB acquires the water right,” Susan Schneider, an assistant attorney general in the state’s Natural Resources and Environment department told the CWCB board Monday.

After a five-hour hearing, the board approved the proposal unanimously…

The ditch water comes out of Maroon Creek, which flows into the Roaring Fork River just to the west of the Aspen Meadows resort property. To put the 4.3 cfs of water into context, there was 114 cfs of water in the Roaring Fork River below Maroon Creek on Monday. It was the first such trust entered into by the CWCB since the passage last year of Colorado House Bill 1280, which strengthened the ability of the CWCB to protect water rights it is holding for minimum stream flow purposes. The bill was sponsored by state Sen. Gail Schwartz of Snowmass Village.

“This is a precedent setting transaction,” said Amy Beatie, executive director of the Colorado Water Trust. “The trust agreement provides a model for all other water users in the state that have water rights that are not currently being used, such as municipalities that have developed water supplies beyond their immediate needs.”[…]

The trust also includes a provision for the county to transfer another 34 different water rights, equal to about 20 cfs, that it owns into the trust arrangement with the CWCB. The county could also add water rights to the trust that it acquires through its Healthy Rivers and Streams fund…

The Stapleton Brothers Ditch water right owned by the county pre-dates the 1922 Colorado River water compact, which means that states downstream of Colorado, including Arizona, California and Nevada, could not demand that Colorado send the 4.3 cfs of water to them in a drought situation.

More coverage from The Pueblo Chieftain (Chris Woodka). From the article:

The water rights are owned by Pitkin County and were acquired partly for conservation purposes. However, under Colorado water law, only the CWCB can own an in-stream flow right. Traditionally, senior water rights not put to use would become part of the stream flow and available to junior appropriators. Under the 2008 law, the state may buy or lease those senior rights purely for conservation purposes. In January, Pitkin County asked the CWCB to approve the donation of rights through a revocable trust, the first test of 2008’s HB1280. The flow of 19 cubic feet per second comes on Maroon Creek through the Stapleton Ditch, which once served Aspen’s Airport. It is the first of 34 potential water rights in Pitkin County that eventually could be donated.

More HB 08-1280 coverage here.

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