From The Pueblo Chieftain (Chris Woodka):
A flex marketing water right bill that passed the state House earlier this year would, in effect, overturn a state Supreme Court decision that prevented moving water out of the Fort Lyon Canal. That’s the opinion of Peter Nichols, water attorney for the Lower Arkansas Valley Water Conservancy District, who has been working to change the bill, HB1026, to provide more assurances that agriculture would remain the primary use under the new type of water right.
“The way the bill has been amended overturns the High Plains decision,” Nichols said, referring to a 2004 ruling by former water judge Dennis Maes that was upheld by the state Supreme Court.
High Plains claimed multiple uses for unnamed end users in counties throughout Eastern Colorado in its attempt to move water out of the Fort Lyon Canal. Maes rejected the application under the state’s anti-speculation doctrine that requires an end user to be named in a water change case.
“The way it’s written, if you had 1,000 acres, you could dry up 999 acres every year,” Nichols said. “That seems like a Trojan horse for a permanent buy-and-dry.”
The district is working with key lawmakers to try to put better limits on the bill that would make it conform to current laws which limit the frequency of years when water could be put to alternative uses and the amount of land that can be dried up.
The Lower Ark district promotes the Arkansas Valley Super Ditch, but helped create it with the intent that water would be treated as another “crop” and not permanently removed from the land.
Nichols also suggested that removing ag water too often from fields would create environmental consequences for wetlands and return flows to rivers.
“For some reason, the environmental community has not paid attention to this bill,” Nichols said.
More 2014 Colorado legislation coverage here.