2015 Colorado legislation: Ranchers and farmers on the lower Ark oppose SB15-212

Detention pond
Detention pond

From The Colorado Springs Gazette (Megan Schrader):

Several farmers and ranchers along the Lower Arkansas River remain opposed to a bill they say will harm their water rights, but proponents say [Senate Bill 212 (Storm Water Facilities Not Injure Water Rights)] is essential to protect the public from floods and contaminated water.

“It does harm rights, or it has the potential to harm rights,” said Don McBee, who made the long trek from his farm 10 miles north of Lamar to advocate for a change to the bill Wednesday when it was considered in the House Local Government Committee.

“We lost,” he said after an amendment he supported failed 8-3 and left him still opposing the bill.

The bill would do two things.

It would ensure flood mitigation and filtration systems constructed in response to wildfire burn scars can hold water without having to pay for the water rights of those downstream.

No one takes issue with that portion.

The second half of the bill deals with other water quality detention ponds that hold water to filter out sediments and prevent flooding. The bill stipulates those ponds cannot hold water for more than 72 hours unless it’s more than a five-year flood and then the water must be released within not more than 120 hours. But it also says that those facilities do not hurt downstream water rights and puts the onus of proving harm on water rights holders. In water court, it’s usually the opposite.

McBee said holding water in that way reduces the amount of water that comes during a peak flow, which will reduce the water that is available for junior water rights holders who can only get water when the flow of the Arkansas reaches a certain level.

Kevin Rein, deputy state engineer with the Division of Water Resources, said the farmers’ concerns are not unwarranted and water rights could be impacted by regional detention projects. But he said the bill is necessary.

“We definitely see the value in this bill giving us that codification in the statutes to say that yes, this detention is allowed,” Rein testified Wednesday. “It’s not the perfect bill, but what it does do is provide us that balance.”

McBee and others are particularly concerned about plans for flood restoration and mitigation projects along Fountain Creek, which flows from Colorado Springs to Pueblo where it joins the Arkansas.

Sen. Jerry Sonnenberg, R-Sterling, amended his bill in the Senate specifically to exempt Fountain Creek projects from protections under the bill.

McBee said that wasn’t enough.

Rep. Clarice Navarro-Ratzlaff, R-Pueblo, agreed the bill didn’t do enough to protect downstream water rights. She proposed an amendment that McBee said would have allowed him to support the bill about guaranteeing that peak flows were not injured by detention systems.

The amendment failed. The bill passed out of committee 10-1 with Navarro-Ratzlaff the only no vote. It now goes to the House floor for consideration. If it passes, it will have to go back to the Senate for consideration of a technical change made in the House.

Rep. Terri Carver, R-Colorado Springs, and Rep. Faith Winter, D-Westminster, sponsored the bill in the House.

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