From The Sterling Journal-Advocate (Jeff Rice):
Two proposed water management bills filed for the 2021 Colorado General Assembly session could prove to be problematic to water interests. Both bills were discussed Tuesday during the Lower South Platte Water Conservancy Districts board of directors meeting in Sterling.
One bill, originated by State Rep. Richard Holtorf, R-Akron and co-sponsored by Sen. Jerry Sonnenberg, R-Sterling, calls for an evaluation of ways to implement underground water storage, as called for in the five-year-old Colorado’s Water Plan. Another seeks to clarify the rights of various members of a mutual ditch company, especially when some shares of the company are owned by non-irrigators.
LSPWCD manager Joe Frank told his board he has “some concerns that we’re mixing apples and oranges” with the underground storage bill. Frank said that, although it’s a statewide bill, it still comes down to taking unappropriated water out of the South Platte River Basin and storing it outside the basin.
“You’d have to move the (water) out of the South Platte basin into a designated basin,” Frank said. “Almost any underground storage inside the (South Platte) basin is going to be alluvial to the river.”
That means attempts to store the water underground inside the basin would only result in water being pulled out of the river in times of excess flow and pumped right back into the river’s aquifer, resulting in no actual benefit. Instead, the water would have to be pumped and piped to a designated basin outside the South Platte basin, such as the Ogallala Aquifer, to be pumped out again at a later time.
The other problem, Frank said, is getting the water into the storage basin in the first place. He said designated basins are best recharged by pumping water into a surface reservoir and letting it seep into the aquifer below. Otherwise, high-powered pumps are required for deep injection well storage.
According to Holtorf’s bill, the Colorado Water Conservation Board would contract with “a Colorado institution of higher education” to do the study, but no specific college or university was mentioned in the draft bill.
The second draft that Frank discussed concerns water rights for members of mutual ditch companies. Sometimes called irrigation companies or just ditch companies, these companies are owned by member shareholders who receive water during the irrigation season according to the size of their shareholdings. As the name implies, the shareholders mutually agree on who gets their water when. Irrigators don’t receive their water continuously during the irrigation season, but in large quantities over short periods of time. Over the course of an irrigation season, all shareholders get their share of the water, just not all at the same time.
Problems arise when non-irrigators, such as municipalities or industries, own shares of mutual ditch companies. That ownership occurs through a change-of-use case adjudicated in Colorado Water Court. Those “change cases” can cause confusion in the running of a ditch company because the new users generally want their water continuously during the irrigating season.
There also is contention over what happens to water that a shareholder doesn’t use; at issue is whether the unused water can be used by other shareholders or must be turned back to the river or reservoir from which it came.
At the heart of the matter is a 1975 water case, Jacobucci v. District Court, which should have settled the matter. A key passage in that decision states, “the benefit derived from the ownership of such stock is the right to the exclusive use of the water it represents …” Exclusivity, as understood by most in the legal profession, means “if it’s mine and I don’t use it, you can’t use it either.”
Most ditch companies, however, don’t actually operate that way, but allow the use of unused water as long as it’s put to beneficial use. It is, according to LSPWCD Vice President Gene Manuello, a matter of common sense.
“It’s just common sense that we all work together,” Manuello said during the meeting Tuesday. “That’s why it’s called a mutual ditch company, we work to our mutual benefit. Let’s not change how we run a mutual ditch company.”
The draft legislation seeks to clarify the rights of mutual ditch company shareholders but, according to the discussion at Tuesday’s meeting, it does anything but that.
Frank told the board the bill has “a lot of moving parts,” and seems to have been inspired by recent change cases. He said attempts to figure out exactly what the bill means haven’t been very helpful. Manuello, who sits on a number of water boards and committees, said he was on a conference call about the bill recently and gained no new insight from the meeting…
The draft legislation was submitted by Rep. Jeni Arndt, D-Fort Collins, who chairs the House Agriculture, Livestock and Water Committee, and Rep. Marc Catlin, R-Montrose, who is the ranking Republican on that committee.