From The Denver Post (Bruce Finley):
For 139 years, state enforcers have said farmers, cities and ranchers who don’t use all the water they are entitled to could have their rights curtailed. Critics have said that discourages conservation.
A first deal in the works, made possible by a 2013 law, lets a ranch owner near Granby leave water in Willow Creek, a tributary of the overtapped Colorado River, without facing penalties.
A second deal would leave more water in the Roaring Fork River, another Colorado River tributary, in Aspen.
Colorado Farm Bureau leaders said they’re watching to make sure water left in rivers by those who don’t exercise their senior rights stays available to next-in-priority irrigators.
“We’re definitely taking a wait-and-see approach,” CFB president Don Shawcroft said. “We had a certain understanding when the law was passed, but it’s certainly up to the interpretation of the court and lawyers.”
The Colorado law says not using water won’t diminish or cancel a water right if the owner is enrolled in a conservation program with local approval.
Colorado River District officials last week approved the Willow Creek deal. Water saved initially will be small, flows of a few cubic feet per second into stream channels.
But the emerging alternative to Use It Or Lose It — developed by the Colorado Water Trust — marks a milestone in modernizing the state’s first-come, first-serve system for allocating water.
“We can look at the local water rights and determine if leaving water in a particular section of a river would create environmental benefits,” said Amy Beatie, director of the trust, devoted to saving rivers.
“The benefits could be significant,” Beatie said. “On a stream, one cubic foot a second can make a big difference.”[…]
Given the water pressures in the West, Louisiana-based ranch owner Witt Caruthers this year decided to try the new approach at his head-gates along Willow Creek.
“Colorado’s water system created an incentive to use our water even in times when it’s not absolutely necessary. When you’re under that pressure to use it or lose it, you’re almost forced to abuse it. That’s to the detriment of all,” Caruthers said.
He and his partners turned to the Colorado Water Trust to take advantage of the new law. Without it, he said, “You’re caught between taking what you need and taking what you are entitled to.”
When drought nearly dried up the Roaring Fork River a few years ago in Aspen, city officials began thinking about how to ensure a minimal flow by leaving water they divert from their Wheeler Ditch to irrigate parks and feed fountains.
Yet their efforts to leave water in the river led to legal challenges by competing users, who claimed the city’s senior rights must be reduced if it stops diverting its full allotment, said Phil Overeynder, utilities engineer for special projects.
“Aspen is interested in doing this. Leaving a little water in that stream is what we are trying to accomplish,” Overeynder said.
Agricultural irrigators are wary of changing Colorado water law, said John McKenzie, director of the Ditch and Reservoir Company Alliance. Yet the system causes many to flood fields with more water than they need for fear that government will list their water as abandoned, McKenzie said.
“We want to protect ditch company water rights,” he said. “But if there’s a mechanism where a ditch company that doesn’t need the water could allow it to flow down a river, and there was no ‘abandonment’ of that water, it could help a ditch company. There are costs to diverting water.”
More SB13-019 coverage here.