From the Water Education Colorado Blog (Willow Cozzens, Samantha Grant, Amelia Nill, and Andrew Primo):
This is the second blog post in a series on diversity, equity and inclusion in Colorado agricultural water planning. Find the first post here.
As discussed in our previous post, Colorado has an exciting opportunity to create a truly sustainable future for residents by making its water plan update process more inclusive. There are at least three groups that have been historically excluded from Colorado statewide agricultural water planning: the Colorado Ute tribes, those who operate under acequia management systems, and urban agriculture producers. While these groups have been included at an interstate level and at the local level through the Basin Roundtables, intrastate coordination and statewide inclusion of these folks is in need of improvement.
The 2015 Colorado Water Plan (CWP) acknowledges federally recognized tribes within Colorado and their federally reserved water rights, these important topics are only covered at a high level without in-depth examination of more local nuances. Additionally, the term acequia is mentioned only once in the entire 2015 CWP, in a footnote of a farmer profile.
Colorado should thoughtfully integrate more explicit inclusion for these groups not only in the Colorado Water Plan 2022 update, but also within the Interbasin Compact Committee, the Colorado Water Congress, and the Colorado Water Conservation Board (CWCB). The CWCB has made efforts to initiate more inclusion in the CWP update process through the newly announced Equity Committee. This Committee will constitute two representatives from each of the nine river basins, plus one representative from each of the two Colorado Ute tribes. The true purposes and outcomes from this committee, however, remain to be seen. To create a more thoughtful and equitable Colorado water planning process, the equity committee must focus on creating robust measures for water justice in each element of the Colorado Water Plan Update.
This post will focus particularly on agricultural stakeholders who have been excluded from Colorado water planning. The following sections will provide background and discussion for the three groups identified. While these groups are related in that they were not adequately included in the 2015 CWP, each community is quite distinct. Both acequia water management systems and tribal water users have a rich history in Colorado that must not be ignored in planning discussions. Separately, urban agriculture, while not entirely novel, is a rapidly emerging practice in Colorado’s cities and may serve as an important tool not only to preserve agricultural viability but also to facilitate water stewardship and education. These three communities each have uniquely valuable and important perspectives on regional water issues in the state and should be given specific consideration in the planning process.
Acequias in Colorado
For communities in Colorado and northern New Mexico, an acequia is a physical system, an irrigation ditch, but it is also a deeply embedded philosophy of community and governance. The philosophy revolves around loyalty to the community and a common understanding that water is both a shared resource and a shared responsibility. This ideology has shaped relationships between humans and the environment for centuries in Colorado, creating a resilient natural and cultural system that supports families, communities, and the food system.
Acequia water management systems have been largely excluded in Colorado’s state water planning process, despite the fact that there are thousands of acres of acequias between Colorado’s Rio Grande and Arkansas River Basins. Among the Statewide Water Supply Initiatives, the 2015 Colorado Water Plan, the 2017 Technical Update, and the 2019 Ripple Effects Report, the word acequia is mentioned only once一in a footnote in the 2015 Plan. Acequias are briefly discussed in the 2015 Rio Grande Basin Implementation Plan, and they are not mentioned in the 2015 Arkansas Basin Implementation Plan.
Acequia stakeholders are often absent from statewide planning process meetings and forums. The newly established Colorado Water Equity Task Force does not include any representation for acequia stakeholders. Excluding acequias from the Colorado water planning process shuns an entire population of Coloradans一primarily farmers of color一from statewide water planning and funding. Farmers and others who operate under acequia management must be recognized and included in the statewide planning process for the 2022 CWP update.
Colorado water planners may look to acequia management in New Mexico to model pathways for inclusion. Despite the similarities in culture and natural resource demands in the San Luis Valley, Colorado’s and New Mexico’s governance approaches to acequias are starkly different. Acequia recognition has been written into New Mexico law since the mid-19th century. Furthermore, throughout New Mexico’s statewide water plan, almost every time that agriculture or irrigation is discussed, so are acequias. For example, as mentioned above, the culture of shared scarcity that underlies acequias is crucial to farmers in times of drought. New Mexico’s Water Plan explicitly acknowledges this strength, illustrating that this type of water sharing should be encouraged to support holistic agricultural viability. Colorado water planning could benefit from a similar outlook on the resilience of acequias.
Though the 2009 Colorado Acequia Recognition Statute codified that acequias hold unique powers and rights under Colorado water law, the statute only allows acequias with written bylaws to have the special powers and unique rights recognized under Colorado law. This can be a barrier for acequia communities, as some producers may not have the means to hire a lawyer to draft legally acceptable bylaws. New Mexico’s Water Plan also discusses how the state supports acequia bylaw creation. Such programs are absent in Colorado, where acequia users rely on non-governmental organizations and academic institutions, such as the Getches-Wilkinson Center Acequia Assistance Project and the Sangre de Cristo Acequia Association, rather than on funds directly from the state.
Colorado water planners should consult with stakeholders within Colorado’s acequia communities on how to best include planning and funding for acequias in statewide water management. Historically, the relationship between acequia managers in the San Luis Valley and in the Arkansas Basin with the Colorado Water Conservation Board has not been the strongest. CWCB should be inclined to add another seat to the equity committee specifically for acequia representation to try to remedy this historic exclusion.
Colorado Ute Tribes
The Ute peoples are the oldest continuous inhabitants of the land now called Colorado. They have been intimately tied to the waters of the region for many centuries, long before incursion by European colonizers and settlers. However, beginning in the mid-19th century, the United States federal and Colorado state governments began systematically dispossessing the Ute people of their land and separating them from their sources of water.
By the end of the 19th century, the only three bands of Ute peoples remaining in the state had been relegated to its southwest corner, in what are now the Southern Ute Indian and Ute Mountain Ute reservations. Although the Ute people had been gradually pressured to adopt a settled agricultural lifestyle, they were removed to some of the least suitable lands for agriculture in the state.
Despite these setbacks, both tribes have fostered successful agricultural communities on their reservations; the Ute Mountain Ute Tribe’s Farm and Ranch Enterprise, for instance, has been repeatedly recognized at both state and national levels for its products.
Much has been done in the last 30 years to address some of the historical inequities created by the separation of the Colorado Ute Tribes from their ancestral lands and traditional water sources. The 1988 Colorado Ute Indian Water Rights Settlement Act and subsequent 2000 Amendments clarified and quantified the Tribes’ reserved rights and authorized a reduced Animas-La Plata Project as well as deliveries from McPhee Reservoir to provide a reliable source of water to the tribes. Both tribes are active members of the Southwest Basin Roundtable and are represented on the Colorado Water Equity Task Force, and the importance of Tribal reserved rights is addressed in the 2015 Water Plan.
Both tribes, however, still face significant supply and infrastructure challenges, as detailed in the 2018 Colorado River Basin Ten Tribes Partnership Tribal Water Study. Some of these infrastructure projects, such as the Pine River Indian Irrigation Project, are nominally maintained by the federal Bureau of Indian Affairs, although that agency’s budget and staffing challenges make adequate upkeep difficult.
As holders of federal reserved water rights, the Southern Ute Indian and the Ute Mountain Ute tribes are invaluable partners to the State of Colorado and the Southwest Basin in addressing water management challenges, particularly issues of interstate compact compliance. Much of the groundwork for this partnership has been laid in the Ten Tribes Partnership Study, which provides detailed data on the challenges faced by the Colorado Ute Tribes, as well as opportunities that working closely with the tribes can provide state and regional water planners. The study provides an excellent starting point for addressing the challenges faced by the tribes and highlights their importance in addressing the water challenges faced by the State and the region.
Given the challenges and opportunities posed by the tribes’ unique water rights and the long history of oppression and exclusion of Indigenous peoples by both the federal and state governments, particular considerations of equity and justice must be extended to the Colorado Ute Tribes in regards to water issues. This is particularly important because tribes’ vital cultural, spiritual, and ceremonial uses are often not adequately addressed in Western legal and economic structures.
Careful, intentional, and respectful consultation with the tribes一as well as inclusion in statewide deliberative water planning processes一is essential to developing a robust understanding of their needs, as well as the cultural significance and intended uses of water.
Urban agriculture (UA) is most simply defined as “all forms of agricultural production occurring within or around cities.” In any given urban area, this may include quite a variety of operations and projects, including ground-based outdoor gardens and farms, indoor hydroponic or aquaponic growing, rooftop gardens and farms, landscaping and nurseries, urban livestock, and more. The sector is growing as cities become home to more UA-focused organizations, citizens get more creative with urban landscapes, and policies incentivize green infrastructure. Such programs or policies are often intended to promote public health, economic development, and enhance socio-ecological relationships.
Over time, UA has taken on a new form and meaning. With connections now to social justice and environmental sustainability, urban farming has taken root in countless large and small city centers across the nation, oftentimes appearing in the form of community gardens, rooftop gardens, and greenhouses. UA is not recognized in the Colorado Water Plan, or many other western state water plans, despite its growing popularity across the nation. UA offers a multitude of exciting opportunities to foster resilience within western water planning and our food systems.
Regardless of the form it takes, all UA operations require water. Water resources may be utilized on a wide spectrum of UA irrigation tactics一from traditional flood irrigation in peri-urban fields to precision application in a vertical farm. The increasing prevalence of UA operations in Colorado cities requires more attention from water planners, especially as food production technology advances and local food becomes more popular among citizens. The CWP update should not only provide support for both existing operations, but also recognize the potential water-efficient food production in the future of UA. This will be especially important as Colorado could see a shifting food system in the face of climate change and urbanization. The current trajectory of UA could provide a significant contribution to water resilience planning and food production for Colorado.
Though this growth may represent an exciting shift in the food system, it is crucial to recognize UA’s capacity for exacerbating environmental injustices. Often, initiatives led by non-residents may be detrimental to local communities. This is especially prevalent when mostly young, white non-residents have led initiatives in predominantly Black and/or Latinx neighborhoods, “unintentionally excluding people of color from participating in or reaping the benefits of such efforts.” Furthermore, residents of lower-income communities and/or people of color are more likely to experience difficulty accessing land, funding, and political support for UA projects than white and middle class individuals or organizations. Therefore, in order to avoid perpetuating injustice, UA implementation must be nuanced and place-based. A successful and anti-racist CWP update will recognize possible inequities and provide support for urban residents to facilitate UA projects within their own neighborhoods.
This overview intends to provide the background and ethics necessary to integrate the Colorado Ute Tribes, acequias, and urban agriculture considerations into the Colorado Water Plan update. In an effort to begin the process of elevating voices of underrepresented communities, this research team hosted a virtual listening session and working meeting for water planning professionals and UA stakeholders. This event was meant to serve as a platform for stakeholder and administrator collaboration with the goal of creating a more equitable and inclusive CWP update. Our next post will detail the process and results of this meeting.
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From Water Education Colorado (Laura Paskus and Caitlin Coleman):
When Water Justice is Absent, Communities Speak Up
Two years ago, a company that analyzes property data crunched the numbers on more than 8,600 zip codes in the United States and found that America’s most polluted neighborhood was in northeast Denver. The study, from ATTOM Data Solutions, shows that Denver’s 80216 zip code, which includes Globeville, Elyria-Swansea and River North, topped its “environmental hazard index.” As of 2017, the U.S. Environmental Protection Agency’s Toxic Release Inventory reported that 22 facilities were still releasing toxic chemicals in 80216, chemicals such as nickel, lead, methanol, creosote and more.
“The neighborhood is parked between gas refineries, the former airport, and then, also, what was at one time an Army base making mustard gas,” says University of Denver law professor Tom Romero, II, who has spent his career dissecting the factors behind environmental injustices in Colorado. There are two Superfund sites and six brownfield sites in 80216, plus the knot of Interstate 70 and Interstate 25 severs the neighborhood from the rest of Denver and increases pollution from highway traffic. The area is also home to a predominantly low-income, Hispanic and Latinx community, says Candi CdeBaca, Denver City Councilwoman for northeast Denver’s District 9.
Last year, CdeBaca became the first person from the neighborhoods to represent on the Denver City Council, ever. She points to an opposition campaign to the Central 70 Project as the beginning of the neighborhood rallying to achieve representation against environmental inequities.
The Central 70 Project broke ground in 2018 to widen the highway through Denver. It will demolish the viaduct that carries I-70 over Elyria-Swansea, replacing it with a below-grade highway. Residents had a list of worries: losing their homes to eminent domain, living even closer to the highway, and unearthing a Superfund site, which they feared would re-expose harmful heavy metals and increase health risks, CdeBaca says.
Their opposition campaign didn’t stop the highway work, but the community came together and won in one sense—the Colorado Department of Transportation will pay for a long-term health study, collecting data to determine whether toxins in the air, soil and water are making residents sick. They also gained a louder voice. “Those losses were the first start of me galvanizing some community power around environmental racism,” says CdeBaca. “Now we have this amplification of groups who never had representation in our government from the neighborhoods that were polluted.” She points to the importance of local voice and representation in all issues, particularly for communities that want to bring about environmental justice. “There is nothing that I support more than activating people power,” CdeBaca says.
With water affordability, access and quality challenges—all of which can translate into health impacts—the role of water in Colorado isn’t always one of fostering healthy communities, yet it could and should be. What contributes to these less-than-whole communities? And what does it take to recognize the issues and how they evolved, address power imbalances, engage the community, and restore equity where it’s been missing?
What is Environmental Justice?
Environmental injustices in Colorado, or anywhere, can span cities and suburbs, sovereign tribal lands, and rural communities. They have their roots in narratives of immigration, development and industry, and political power dynamics, further influenced by evolving legal and regulatory frameworks.
In 1990, EPA Administrator William Reilly created an Environmental Equity Workgroup to assess evidence that “racial minority and low-income communities bear a higher environmental risk burden than the general population.” The agency, which went on to establish an Environmental Equity office in 1992, later changing its name to the Office of Environmental Justice in 1994, defines environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” It has since expanded to offer a range of programs that provide services from grant funding to technical assistance and training. It also runs a National Environmental Justice Hotline.
Another early definition of environmental justice came from University of Michigan professor Bunyan Bryant, who said it refers to places “where people can interact with confidence that the environment is safe, nurturing and productive. Environmental justice is served when people can realize their highest potential.”
Scholars add additional layers to the term—it’s not just about identifying who is or isn’t harmed but includes some form of restitution, says Kelsea MacIlroy, an adjunct professor and PhD candidate in the sociology department at Colorado State University.
“There are a lot of different ways to talk about justice that aren’t just about who and how but also about a long-term social justice component,” MacIlroy says. “Does the community actually have an authentic seat at the table in addressing the ills?”
80216 may feel it all. “Denver was segregated, and that segregation manifested itself in a variety of ways in terms of water,” Romero says. “It meant that Denver’s communities of color, particularly African Americans and Mexican Americans, were living in close proximity to the areas with heavy industry, where the affordable housing is.” That’s a pattern and practice, he says, that was established in the 20th century and continues today. Many environmental justice cases have similar roots, as repeated practices that ultimately create winners and losers.
When Government Fails
Americans watched one of the most high-profile environmental justice cases unfold in Flint, Michigan, in 2015 and 2016 when corroded lead pipes poisoned the population.
To save money, in April 2014, the city switched its drinking water source and began supplying residents with Flint River water that wasn’t treated under federal anti-corrosion rules. The population was predominantly black, and more than 40 percent of residents were below the poverty threshold. According to the National Institute of Environmental Health Sciences, no level of lead exposure is safe but higher lead exposure leads to more health challenges including anemia, kidney and brain damage, heart disease, decreased IQ and more. In children, the impacts are especially toxic.
Residents began noticing a rusty tint to their tap water in the summer of 2015, but it wasn’t until October 2015 that the governor ordered Flint’s water source switched. By then, though the new water was safe, the plumbing wasn’t—corroded pipes continued to leach lead into drinking water. Bottled water and free faucet filters to remove lead at the point of use were distributed.
More than five years after the crisis in Flint began, the city and its residents are still recovering. The city’s FAST Start program is removing and replacing lead and galvanized steel service lines across the city, but it’s a big, expensive job. FAST Start has been funded with $25 million from the State of Michigan and $100 million allocated by Congress through the Federal Water Infrastructure Improvement for the Nation Act of 2016. As of December 2019, less than 40 percent of the city’s pipes had been replaced, with many residents still relying on faucet filters or bottled water.
Fifteen state and local officials were charged with various crimes, including involuntary manslaughter—some took plea deals and most cases were dropped. Residents now mistrust their water and water providers. That mistrust has flooded the nation, with many more communities now coping with elevated lead levels and lead pipe replacement.
According to the independent Flint Water Advisory Task Force’s final report, released in 2016, breakdowns in protocol, dismissal of problems, and failure to protect people occurred at nearly every level of government. Not only were customers supplied with unsafe drinking water, government officials were slow to acknowledge the problems and rectify the issue by providing safe water. According to the 2016 report, the Flint water crisis is a “story of government failure, intransigence, unpreparedness, delay, inaction, and environmental justice.” Had there been local control of resources and decisions, they write, the problems wouldn’t have occurred in the first place.
Coping with Forever Chemicals
Flint’s toxic water is not unlike the water quality issues discovered in 2016 in the Colorado towns of Fountain and Security-Widefield. That’s when water providers and residents learned that PFAS chemicals, short for per- and poly-fluoroalkyl substances, were detected at levels above EPA’s new 2016 health advisory levels. The source of the chemicals: firefighting foam used for decades to extinguish training fuel fires at the U.S. Air Force’s Peterson Air Force Base. The Air Force now uses a replacement foam at the base, and in 2019, the Colorado Legislature enacted restrictions and bans on PFAS foam, but the damage has been done. PFAS are known as “forever chemicals” because they bioaccumulate and remain in the environment for a long time, with half lives (the amount of time it takes the chemical to decrease to half its original value) in humans of two to eight years, depending on the chemical. They have been linked to cancers, liver and kidney damage, high cholesterol, low infant birth weight, and other ailments.
“We ended up having 16 family members that lived within that area that had cancer, and five of them died of kidney cancer,” said Mark Favors, during a public event on PFAS at Colorado School of Mines in January 2020. Favors is a former resident of Security, a U.S. Army veteran, a PFAS activist, and member of the Fountain Valley Clean Water Coalition. “A lot of [my family] are military veterans. One of my cousins, while he was doing two combat tours in Iraq, the Air Force was contaminating their drinking water. That’s the crazy part. How they’ve admitted it and it’s just hard to get any type of justice on the issue,” Favors says.
These southern El Paso County towns aren’t home to what are often considered disadvantaged populations—the poverty rate is between 8 and 9 percent, slightly less than the statewide average; about 60 percent of residents are white, and about 20 percent are Hispanic or Latinx, according to the 2017 U.S. Census. However, census numbers don’t represent military personnel who temporarily reside in the area. According to El Paso County’s Health Indicators report, published in 2012, four military bases in the county employ 40,500 military personnel and about 21,000 contract personnel.
When EPA tightened its health advisory levels in 2016, they were 10 times more restrictive than what the agency had previously advised, and water providers realized they had a problem. They acted quickly to provide residents with free bottled water and water filling stations while they suspended use of the aquifer, then worked to broker deals to purchase clean water from other municipalities. Some of those deals were only temporary. Since June 2018, the City of Fountain has worked to get back on its groundwater supply, treating the groundwater with granular activated carbon units provided by the Air Force. Now it is working with the U.S. Army Corps of Engineers to construct a full, permanent groundwater treatment plant. The story in Security is similar—the Security Water and Sanitation District has been importing water, primarily from Pueblo Reservoir, to meet the needs of its residents since 2016, which involved building new pipelines and purchasing extra water from Colorado Springs Utilities—an added cost. Security avoided raising water rates for a time, paying those costs out of its cash reserves. By 2018, residents had to absorb a 15 percent rate increase, with another 9.5 percent increase in 2019.
The Army Corps of Engineers is constructing a treatment facility in Security, too, which should be complete by the end of 2020. Once the plant is finished, Security will switch back to a combination of groundwater and surface water, and rates should stabilize once the costs of those pipelines are recovered, says Roy Heald, general manager at Security Water and Sanitation Districts.
Who pays to protect the health of those who rely on this water? “What responsibility did [the Air Force] have in rectifying this? What about the local sanitation districts? They have to deal with this. It’s not their fault but they’re tasked with giving clean water,” says MacIlroy at Colorado State University.
“The Air Force really has stepped up,” Heald says. But they may have to step up further—in 2019, the Security Water and Sanitation Districts and the Pikes Peak Community Foundation, another affected entity, sued the Air Force to recoup the costs of purchasing and piping in clean water. Their lawsuit cites negligence for disposal of chemicals, remediation of contamination, and breaching a responsibility to prevent dangerous conditions on the defendant’s property. Heald wouldn’t comment on the pending lawsuit, but says, “As long as [cash] reserves are at an adequate level, if we received a windfall there would be no place else for it to go besides back to our customers.” Those recouped costs would likely take the form of lower or stabilized rates.
Residents are also pushing for justice through a class-action lawsuit brought by the Colorado Springs-based McDivitt Lawfirm, which has teamed up with a personal injury law firm in New York to file against 3M, Tyco Fire Products, and other manufacturers of the firefighting foam.
“There’s going to have to be some sort of accountability and justice for these people who unknowingly, for years, drank colorless, odorless high amounts of PFAS,” says Favors. He calls for better oversight and demands that polluters are held accountable.
As for coping with PFAS-related health challenges, there are still a lot of unknowns, but El Paso County was selected to participate in two national Centers for Disease Control and Prevention studies to better assess the dangers of human exposure to PFAS, and to evaluate exposure pathways.
Locally, the study and lawsuits might help recoup some financial damages—but PFAS-related water contamination isn’t isolated to these Colorado communities. In July 2019, the Environmental Working Group mapped at least 712 documented cases of PFAS contamination across 49 states. Lawmakers in the U.S. House of Representatives, hoping to implement a national PFAS drinking water standard, estimate the number is even higher: 1,400 communities suffer from PFAS contamination. A U.S. Senate version of a PFAS-regulating bill has yet to be introduced. But in February, EPA released a draft proposal to consider regulating PFOS and PFOA, just two of the thousands of PFAS.
Justice through Water Rights
Environmental justice isn’t exclusively an urban issue. Injustices involving pollution, public health, access, affordability and water can be wrought anyplace—including rural and suburban areas. For rural communities, the issue comes to a head when people, organizations or entities in power seek more water for their needs at the cost of others.
In southern Colorado’s San Luis Valley, acequia communities fought for years to protect their water rights and way of life. Acequias are an equity-based irrigation system introduced by the original Spanish and Mexican settlers of southern Colorado. “What it means is that the entire community is only benefitted when all resources are shared,” says Judy Lopez, conservation project manager with Colorado Open Lands. There, Lopez works with landowners to preserve wildlife habitat, forests, culturally significant lands, and ag lands—including those served by acequias.
The Town of San Luis, the heart of Colorado’s acequia community, is one of the most economically disadvantaged in the state. It’s in Costilla County, where more than 60 percent of the population is Hispanic or Latinx—more than any other county in Colorado—and 25 percent of the population live in poverty, according to the 2017 U.S. Census. But the people there are long-time landowners, never separated from the land their ancestors settled, four to seven generations back, Lopez says. They have the state’s original water rights to match, including Colorado’s oldest continuously operated water right, the San Luis People’s Ditch, an acequia established in 1852.
Prior to statehood, the territorial government recognized acequia water rights. But when the Colorado Constitution established the right of prior appropriation, the priority scheme of “first in time, first in right” became the law, challenging communal rights.
“It was very difficult for [acequias] to go to water court and say, ‘This guy is taking my water,’” Lopez says. “It was very difficult to quantify the use and who was using it.”
It wasn’t until 2009 that the Colorado Legislature passed the Acequia Recognition Law. The law was developed by Rep. Ed Vigil with the help of the Sangre de Cristo Acequia Association, an entity that represents more than 73 acequias and 300 families who depend on them. Amended in 2013, the law solidifies the rights of acequia users. According to the Colorado Acequia Handbook, it allows “acequias to continue to exercise their traditional roles in governing community access to water, and also strengthens their ability to protect their water.”
In order to be recognized under the Acequia Recognition Act, acequias needed bylaws. Over the past six years, Colorado Open Lands, the Sangre de Cristo Acequia Association, and the University of Colorado Boulder have partnered to help 42 acequias write bylaws, thereby protecting their water. “The bylaws were still based, in large part, on those oral traditions,” Lopez says, “and included protective language that said, ‘If a water right is sold, or a piece of land is sold, that acequia gets the first right to purchase those rights.’”
Even having water rights doesn’t guarantee water access: Over the past few decades, the federal government has settled longstanding water rights cases with sovereign tribes, in many cases backdating tribal water rights to the dates of their reservations’ establishment. Although the tribes now have the nation’s oldest established water rights, they haven’t always, and they still come up against structural and financial barriers that prevent them from developing water and getting the real benefit of those rights.
Of the more than 570 federally recognized tribes in the United States, as of 2019 only 36 tribal water rights settlements had been federally approved. The Ute Mountain Ute and Southern Ute tribes in Colorado are among that small number, but despite their long journey, the tribes still don’t have access to all the water they own.
Tribal water rights have their roots in the Winters Doctrine, a 1908 case which established tribal water rights based on the date the federal government created their reservations—thereby moving tribal water rights to “first in line” among users.
In the 1970s and ‘80s, the U.S. government filed and worked through claims on behalf of the Ute Mountain Ute and Southern Ute tribes to surface waters in southwestern Colorado. In the 1980s, Congress approved a settlement between the tribes, the federal government and other parties; in 2000, the Colorado Ute Indian Water Rights Settlement Act was amended, entitling tribes to water from the U.S. Bureau of Reclamation’s proposed Animas-La Plata Project (A-LP), as well as from the Dolores Project’s McPhee Reservoir. Construction on A-LP began in 2001, and the project’s key feature, Lake Nighthorse—named for Sen. Ben Nighthorse Campbell—began filling in 2009.
Prior to the Dolores Project, many people living in Towaoc, on the Ute Mountain Ute Reservation, did not have running water and instead trucked it in to fill water tanks at their homes, says Ernest House, Jr., senior policy director with the Keystone Policy Center and former director of the Colorado Commission of Indian Affairs. His late father, Ernest House, Sr., was pivotal in that fight for water. “I was fortunate, my father was able to see A-LP completed. I think he probably, in his own right, couldn’t believe that it would have been done and could be done,” he says. But even today, some Southern Ute and Ute Mountain Ute communities still lack access to water, and aging infrastructure from the 1980s needs updating and repairs.
“Our tribes as sovereign nations cannot maintain or move forward without access to water,” House says. “We have to remind people that we have tribal nations in Colorado, and that we have other tribes that continue to call Colorado home, that were removed from the state, either by treaty or forced removal,” he says, adding that acknowledging the difficult past must be a part of conversations about the future.
Those conversations include state, regional, and federal-level water planning. The Colorado tribes are engaged in Colorado’s basin roundtable process, with both tribes occupying seats on the Southwest Basin Roundtable, says Greg Johnson, who heads the Colorado Water Conservation Board’s Water Supply Planning Section (and serves on the Water Education Colorado Board of Trustees). Through the roundtables, local stakeholders conduct basin-wide water planning that is eventually integrated into the statewide Colorado Water Plan. However, until recently, tribal involvement in regional Colorado River negotiations between the seven U.S. basin states and federal government has been nonexistent. Change is brewing—a 2018 federal Tribal Water Study highlighted how tribal water resources could impact Colorado River operations, while a new Water and Tribes Initiative is working to build tribal capacity and participation in water negotiations throughout the basin.
“The Utes have been in what we call Colorado for the last 10,000 to 12,000 years,” House says. “It would be a shame if we were left out of the conversations [about water].”
The External Costs of Industry
Government is vital to addressing the legacy of environmental injustice, and preventing future problems, but finding solutions also demands reconsidering how business is done.
Consider Colorado’s relationship with the extraction industry, visible in the 19th-century mines that pock mountain towns, uranium-rich communities like Nulca, and the escalation of oil and gas drilling today. Colorado is an “epicenter” of extraction and environmental justice issues, says Stephanie Malin, associate professor at Colorado State University and a sociologist who studies energy development and extraction.
Lack of local control in the past has been especially frustrating, Malin says, since private corporations earn profits off the resources but then outsource the impacts. In the end, extractive industries have a track record of leaving communities and governments to bear the costs of cleanup.
Take Gold King Mine as one high-profile example. In August 2015, wastewater from an abandoned mine in San Juan County contaminated the Animas River between Silverton and Durango. Contractors hired by EPA accidentally caused 3 million gallons of mine waste, laden with heavy metals, to wash into the Animas. New Mexico, Utah, and the Navajo Nation all filed to sue EPA, with farmers reporting that they couldn’t water their crops and others saying they had to truck in alternative water supplies. But those responsible for the contamination were long-gone. Like tens of thousands of other mines in the region, the Gold King Mine was abandoned in the early 20th century.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—more commonly called Superfund—which Congress passed in 1980, was originally set up as a “polluter tax” on oil, gas and chemical companies at risk of contaminating communities or the environment. But Congress never reauthorized the tax, which expired in 1995. By the early 21st century, the fund was bankrupt. Today, these cleanups are funded entirely by taxpayers.
“It’s part of a bigger pattern of privatizing profit and nationalizing, or socializing, risk,” Malin says. “Then, communities and the environment are left holding the ‘external’ costs.” Those external costs, she says, are nearly unquantifiable: “The intergenerational impacts in particular are so hard to gauge, in terms of what the communities are absorbing.”
While these problems can seem intractable, there are solutions, Malin says. For example, the bond amounts companies are required to pay up-front should better reflect the actual cost of cleanup, she says. Last year, Colorado lawmakers made strides to unburden taxpayers in just that way, with an update to Colorado’s old mining law.
The new Colorado law, HB19-1113, makes sure water quality impacts from mining are accounted for and long-term impacts are avoided. The law says that the industry can no longer self bond—a practice that allowed mine operators to demonstrate they had the financial resources to cover clean-up costs rather than providing the resources up front. Without self bonding, taxpayers won’t be left paying for remediation if the company goes bankrupt. It also requires mine operators to factor water quality protection costs into their bond—and requires most to develop a water quality treatment plan. This means that reclamation plans must include a reasonable end date for any needed water quality treatment, hopefully ensuring Colorado will avoid new perpetually polluting mines.
State lawmakers are currently looking at a more encompassing environmental justice bill, HB20-1143, introduced in January 2020. At press time the bill was still under consideration. If it moves forward as introduced, the bill would increase the maximum civil fine for air and water quality violations—from $10,000 per day to $47,357 per day, which would be adjusted annually according to the consumer price index—reallocating some of the financial burden back on polluters. It would also authorize the use of the money in the state’s water quality improvement fund, which is where those water quality violation fines go, to pay for projects addressing impacts to communities. The bill would also bolster the state’s environmental justice efforts, with a new environmental justice advisory board and environmental justice ombudsperson who would run the advisory board and advocate for environmental justice communities.
Speaking up for Tomorrow’s Climate
Environmental justice can’t be about a single issue, says Lizeth Chacón, executive director of the Colorado People’s Alliance, a racial-justice, member-led organization based in Denver and Pueblo. That means looking at water-focused environmental justice alongside related issues such as climate change, racial justice, inequities, poverty, housing, power dynamics, and more.
“When we are talking to our members, we are talking to them about the fact that they are working two jobs and still cannot put dinner on the table in the week, talking that they live in fear of being deported and being separated from their families, talking about the fact that they are sick, or have headaches, or have to spend money on water because they can’t drink the water coming out of their tap like other people can,” she says. “It can’t be seen as one issue … This work has to be holistic.”
Currently, the Colorado People’s Alliance is working on a climate campaign directed by its members in Commerce City. “They said, ‘This is something that’s impacting all of us, regardless of where we’re from, whether we’re undocumented or documented, what our economic status is,’” she says. The Alliance is focused on greenhouse gas emissions, which have immediate health impacts and long-term water effects.
Another approach in northeast Denver is proceeding thanks to an EPA environmental justice grant, in which organizers will convene youth, local leaders, and scientists to create a community science project that leads to a more fishable and swimmable Denver South Platte River. The river flows through Elyria-Swansea and Globeville, but it used to be a dumping ground, with a landfill beside its banks. Clean ups and improved recreational access, much of which has been spearheaded by the nonprofit Greenway Foundation since its founding in 1974, have created opportunities for kayakers downtown, but river access in northeast Denver, beyond the popular Confluence Park, is limited. In addition, E. Coli levels are often high, making swimming inadvisable. Access to a healthy waterway makes communities more vibrant and whole, supporting health, wellbeing, recreation, and cultural and spiritual practices, but also connection. This may be the only recreational water access available to some urbanites.
“Rivers are one of the major pathways to healing the environment and healing ourselves,” said Jorge Figueroa at an initial workshop for this project in December 2019, where they began to establish a youth advisory board. Figueroa runs El Laboratorio, an organization that brings people together from different disciplines and cultures to creatively solve environmental challenges. (He is also on the Water Education Colorado Board of Trustees.) He’s working on this project with Lincoln Hills Cares, a nonprofit that provides outdoor education, recreation and experiences to youth who may not otherwise have these opportunities; and Colorado State University, which is developing a new campus at the National Western Center, called Spur, in the neighborhood. The partners expect to have a plan ready by the end of 2020, and the project should begin in 2021.
Figueroa, who grew up and has family in Puerto Rico, also witnessed, up close, the wave of climate refugees who left his home state after Hurricane Maria devastated it in 2017.
“It’s critical for us to invest in climate-resilient infrastructure and in the reliability of our municipal potable water systems,” Figueroa says. “But from an equity perspective, we need to ensure that the more than a trillion dollars that will be invested in the nation’s public water systems provide the most benefit to the most people.” His suggestion to build climate resiliency in an equitable way: water conservation. “Water conservation can be a supreme water equity tool: It provides cheaper water for the community and more resiliency and reliability for the system. It’s not only an ideal climate change adaptation strategy but also is one of the top, by far, equity water strategies.” When you don’t consider equity in water decisions, you can make vulnerable communities more vulnerable, he says.
Whether working to improve environmental justice structurally and physically through conservation and resiliencies, or politically and financially through new regulations, bonding or taxation, there are many opportunities to do better. But there are also social justice elements to work on. Chacón recommends involving community members at the beginning of a process—not at the end. She says it’s important to listen—and to not dismiss people when they disagree.
Looking forward, it’s up to everyone in positions of power to actively create space for disadvantaged communities to lead, says Chacón. “To us, the people who are closest to the pain are the ones closest to the solution because they know what’s happening in their community best of anyone.”
Some of the principles of engaging communities in these situations are “almost universal,” says Colorado’s Michael Wenstrom, an environmental protection specialist in EPA’s Environmental Justice Program. Wenstrom worked in Flint over the course of a year following the water emergency, “assisting them to connect with processes, in understanding what their rights are, and helping them learn how to raise their voices effectively,” he says.
He says that where communities and families are already overburdened—with poverty, crime, racism—they often don’t have time, expertise or resources to recognize the problems, nevermind address them. “In addition, people in low-income communities may be less inclined to raise their voices for various reasons,” Wenstrom says. Reasons could include racism, job discrimination, or, for some, the fear of being identified as an illegal resident.
He says officials like him who come into communities as outsiders must be careful, persistent, and work to build trust. “As trust builds, we can then start pointing people toward tackling issues related to pollution or public health,” he says. But, Wenstrom cautions, if people don’t believe they can make a difference, they won’t raise their voices in the first place.
Laura Paskus is a reporter in Albuquerque N.M., where her show, “Our Land: New Mexico’s Environmental Past, Present and Future,” airs on New Mexico PBS. Caitlin Coleman is editor of Headwaters magazine.
A presentation at the town council meeting on the water monitoring had been arranged, Pioneer’s Senior Public Relations Advisor, Karen Brown, told the meeting’s attendees, “So you all could hear more about what it is we do to protect the water that is coming off of the discharges CBM production…the intent (of the presentation) is to open the discussion, provide some information about how Pioneer is approaching this, that we want to approach it from a scientific perspective and have documentation to prove that, in fact, water is, in fact, within its permit limits.”
Pioneer has been discharging around the Apishapa River since 2005, though none of its four outfalls are on the Apishapa River’s mainstem. Pioneer is currently discharging at a rate of 1.8 acre-feet of water, or 600,000 gallons, per day. Pioneer has about 2,450 wells in the basin. The National Pollution Discharge Elimination System permit it has applied for, according to Pioneer’s senior energy environmental advisor, Gerald Jacob, would allow for a maximum surface discharge amount of 999,999 gallons per day.
The discharge permitting process begins with the preparation of a draft permit, of which are considered possible impacts of the proposed discharge levels, measured against the water quality standards as adopted by the Water Quality Control Commission. The standards consider variables like effluent limits based on in-stream water quality, the quality and types of expected effluents coming from the discharge facility and as well as impacts on the stream at extreme low-flow periods…
The three monitoring stations deployed on the Apishapa River — at Lisonbee, Eichler and Nations — were placed and are monitored by the Norwest Corporation, a environmental consulting firm specializing in hydrology. Norwest’s stations monitor in 15-minute intervals water levels and salinity at their deployment points, as well as conducting flow measurements and water quality sampling every two weeks. Processed data and the resultant charts are uploaded to the website, apishapawatershed.org, after several weeks, though each station also contains a direct display that updates every minute. “I really encourage you to use the website, and if you’re concerned and you want to keep track of stuff…we post all the lab data results, we’re comparing it to what we’re finding in the stream…it’s a really useful tool,” Hyrdrologist Angela Welch of Norwest said. “We really are trying to help you guys out by protecting your assets, which is your stream.”
On June 4, 2009, Colorado Governor Bill Ritter signed HB 09-1067 (pdf) into law. This new legislation becomes effective today, August 5, 2009. This exciting piece of legislation creates the Instream Flow Tax Credit program, which provides a tax credit of up to 50% of the value of a water right donated to the Colorado Water Conservation Board (“CWCB”) for use in the state’s instream flow program. This program encourages voluntary water rights donations to preserve Colorado’s streams and lakes. Please note, however, that the amount of annual revenue which the legislature can spend is limited by state statute. The ISF tax credit will not be allowed in years (such as this year) in which revenues are not expected to exceed this limit.
A Douglas County development — Sterling Ranch near Chatfield Reservoir — hopes to incorporate rainwater catchments into the design. Here’s a report from Andrew Simons writing for The Denver Post. From the article:
[Harold Smethills the major investor of Sterling Ranch] hopes Sterling Ranch will be one of 10 pilot residential developments to get statehouse approval for a rainwater collection system for use in the development. The rest of the rain that falls along the Front Range “is lost through evaporation” or is absorbed by native plants, such as field grasses, Smethills says…
Within the development, Smethills plans to install systems that will capture, store and recycle rainwater. These systems, Smethills says, will reduce the development’s consumption of municipal water by 50 percent…
For example, Sterling Ranch planners will install tanks underneath street roundabouts. Roads in the development will be constructed so rainwater will flow into the roundabouts. “This process utilizes tributary water in average or better rainfall years supplemented with storage and Denver Basin water in drought years,” according to the Sterling Ranch website. “This plan maximizes natural stream flows, traditional water storage, and by using the Denver Basin, we will dramatically reduce the water losses from evaporation while ensuring a dependable supply.”
Other water storage systems could include roof capture, where water is directed from a roof through a special gutter system and stored in a tank at the home. According to a study done by Headwaters Corp., a typical residential system where water is stored underground would run about $10,000 to $15,000…
In June, Gov. Bill Ritter signed HB 1129 into law. Getting permits won’t be easy. Prospective pilot projects must ensure water that’s captured in a neighborhood would not otherwise go into streams.
More Coyote Gulch 2009 legislative session coverage here.
Here’s a look at S.B. 09-080 which allows collection of precipitation for properties that have an exempt well, from Bob Berwyn writing for the Summit Daily News. From the article:
Some of the early news stories on the change were unclear about the change in the law, creating an expectation that this “new” source of water would be widely available. But the new rule is very limited in scope. It doesn’t enable everyone to start catching and using rain water willy-nilly. In fact, the only people eligible are those who have a well permit from the state. “We’re starting to get some calls on this,” said local water commissioner Scott Hummer. “You can only use rain water for the same domestic indoor uses authorized by a well permit.”
In other words, people who get their water from a utility are not allowed to capture and use rainwater. The fundamental premise of state water law is still that every drop of rain needs to flow back into a river or into the groundwater, where it becomes part of a downstream water right owned by someone else who previously claimed it.
The tiny new exception is only for people who use a well for domestic water. And it only allows them to use the water for the same purposes specified by the well permit. In most cases, that means only indoor domestic use. It’s not legal to capture the rainwater and use it on outside plants, and it’s not legal to fill a hot tub with it, Hummer explained.
More Coyote Gulch 2009 Colorado Legislation coverage here.
From the Associated Press via the Aspen Times (Stephen K. Paulson): “It will be legal for homeowners to use rainwater for fire protection, animals, irrigation and household use,” [with an exempt well].
Here’s the New York Times article that got everyone’s attention.
House Bill 09-1185 (pdf) will become state law on Wednesday. The bill allow electronic filing of documents for water rights applications. From the Durango Herald:
House Bill 1185 allows people filing paperwork for water rights to e-mail the application instead of mailing four paper copies to state regulators. Rep. Scott Tipton, R-Cortez, and Sen. Jim Isgar, D-Hesperus, were the sponsors.
•SB 80 allows homeowners with a well permit to collect rain and snow from their rooftops for use in the house, to water a garden and for stock watering. Isgar and Rep. Marsha Looper, R-Calhan, were the sponsors.
Here’s the link to the new streamlined water court rules also slated for their debut on Wednesday.
Passed by the legislature during the 2009 session, House Bill 1067 creates a new incentive for individuals to contribute to the long-term health of important stretches of stream in all of Colorado’s river basins. Under current law, the Colorado Water Conservation Board (CWCB) can receive donations of water rights to protect stream flows and benefit the environment. The legislation authorizes the Colorado Water Conservation Board to award tax credit certificates to donors of water rights that the Board deems worthy of such consideration. The Board negotiates the tax credit values with the water right donor.
“Giving Colorado’s family farmers more options in deciding how to benefit from their property will help our agricultural communities,” said Kent Peppler, President of the Rocky Mountain Farmers Union. “As good land stewards, family farmers will look favorably upon this program as an alternative to selling their rights to water developers who often export the water to urban and suburban parts of the state.”
House Bill 1308 (pdf), introduced by Rep. Kathleen Curry, D-Gunnison, sets new ground rules for water produced from the development of coal bed methane gas wells. “It probably was one of the most important bills of the whole session because it really is a new section in Colorado water law,” [State Senator Jim Isgar] said. “We’ve been working on it for several months with the State Engineer’s office, the Water Congress, the oil and gas industry, and senior water rights holders.” The new law, presuming the bill is signed by Gov. Bill Ritter, creates a process for determining whether produced water has a beneficial use and whether shallow wells that are used in energy production are on tributaries that can cause injury to senior water users.
The Fountain Creek Flood Control and Greenway District, signed into law last month by Gov. Bill Ritter, has no money yet, and in fact won’t officially come into existence until July 1. Ritter will attend an event to mark the formation of the new district at 5:30 p.m. Monday at Fountain City Hall. In the meantime a governing board created by the Fountain Creek Vision Task Force has been meeting. It will next meet at 10 a.m. May 29 at Fountain City Hall. The interim board has met to provide continuity and many of its members probably will sit on the district board in July. The nine-member board will have equal representation between the two counties. A joint appointment by the Pueblo County commissioners and City Council should be made in the next month. About a dozen people had applied before the deadline for applications closed Friday, [Pueblo County Commissioner Jeff Chostner] said.
The district will get $50 million over five years from Colorado Springs if the Southern Delivery System is completed from Pueblo Dam. Colorado Springs Utilities is now doing a business evaluation of the costs of their preferred route or an alternative through Fremont County.
Here’s a look at last week’s ruling by the Colorado Supreme Court which upheld a water court decision that water produced from coalbed methane wells is a beneficial use of the water and therefore subject to regulation by the state, from Randy Woock writing for the Trinidad Times-Independent. From the article:
The Supreme Court’s decision cited the Water Right Determination and Administration Act of 1969, which defined beneficial use as “…the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.” The court’s decision stated that, “Under the language of the Act, the (CBM) process “uses” water – by extracting it from the ground and storing it in tanks – to “accomplish” a particular “purpose” – the release of methane gas. Consequently, the extraction of water to facilitate (CBM) production is a “beneficial use” as defined in the Act and a “well” as defined in the Colorado Ground Water Management Act. ” The produced water from the CBM process had previously been considered a waste by-product, but the court’s decision rejected such a classification. “We reject the argument that water used in (CBM) production is merely a nuisance rather than a ‘beneficial use.'” the decision stated. “On the contrary, the use of water in (CBM) production is an integral part of the process itself. The presence and subsequent controlled extraction of the water makes the capture of methane gas possible.”[…]
Pioneer Natural Resources, the largest operator of CBM wells in Las Animas County, issued a response Thursday to The Times regarding the Supreme Court’s decision in the Vance case. “Pioneer has been following the case for some time and is presently evaluating the ramifications of the Supreme Court’s ruling,” Tom Sheffield, Vice President of Pioneer’s Rockies Assets Team, stated. “We appreciate the foresight of Representative (Kathleen) Curry, Senator (Jim) Isgar and the (SEO) for introducing a measure providing adequate time for a coordinated roll out of activities required by the new ruling while protecting existing tributary water rights in the state. That legislation, House Bill 1303, will be key to all Las Animas County water owners when it is passed and signed into law.”
According to Curry, House sponsor of HB 09-1303, the bill would provide breathing space for the large number of operators whose wells were just rendered out of compliance by the court’s decision. The bill would extend the amount of time available to operators to bring their wells into compliance with the permitting process as required by the court’s decision from 60 days to 270. “If I hadn’t run (HB 09-1303)…the Vance case affirms that about 5,000 gas wells would have been shut down, so we ran that bill to make sure there was a permitting process in place for (CBM) wells,” Curry said. “If we hadn’t run the bill, the Vance case, based on the ruling…all of those wells would have been out of compliance; we were guessing the the Supreme Court would rule that produced water is a beneficial use.”
Curry described the primary goal of the bill as setting up a regulatory process to “ensure that preexisting water users aren’t injured,” while also creating a process to brings all the CBM wells into the SEO’s regulatory framework. “It implements the decision, so I think we did a preemptive strike, knowing that the decision could put us in a position where they (the SEO) could have to review well permits for 5,000 wells in a 60 day period, and that’s just not practical,” she said. “They only do 1,000-2,000 well permits a year, and there would have been a 60 day period where all the operators on those (CBM) wells would have had to come into the (SEO) to get a permit. At least this way now we’ve got a way where the state can handle the workload and the operators can come into compliance.” HB 09-1303 also provides a requirement for augmentation for wells that might be depleting senior domestic water rights or existing domestic wells, and gives the state engineer the right to set additional guidelines for determining tributary versus non-tributary waters, along with the right to take the necessary steps to bring an operation into compliance should the operator have failed to have done so within the 270 day period. The bill stated that it was the legislature’s general intent to “clarify the circumstances under which permits are required when non-tributary ground water is removed in conjunction with the mining of minerals.” Non-tributary water is defined by HB 09-1303 as possessing several characteristics, such as being “withdrawn from a well that is completed in a confined sedimentary bedrock formation,” in addition to, “the well is not completed…in the Raton Basin and the well is located more than (12) miles from any point of contact between the aquifer and any natural stream, including its alluvium.”
House Bill 1233 promotes and encourages the continued operation of acequias, or historic community ditches such as those located in Vigil’s home county of Costilla County. The bill also promotes the viability of the historic communities that depend on this system as a means of irrigation and cultural preservation in southern Colorado. Democratic State Senator Gail Schwartz, who also represents the San Luis Valley as part of her senate district, was the Senate sponsor.
The acequia bill was a significant victory for freshman legislator Vigil who introduced the bill in the House of Representatives. It was personally significant for the representative because his great grandparents were the first water rights owners in Colorado. “The passage of this bill has been long overdue. It is important that we recognize all of Colorado’s diversity,” Vigil said. “House Bill 1233 attempts to tell a story of the culture and history of some of Colorado’s first Hispanics to move to southern Colorado, specifically the San Luis Valley. San Luis is the oldest town in Colorado, and home of the state’s first water right and the San Luis People’s ditch. I am extremely proud and thankful to my colleagues in the House and Senate to recognize the importance of this legislation.”
Here’s a look at S.B. 09-147 — legislation that will give some groundwater irrigators a break on water they pumped from the South Platte alluvial aquifer prior to 2003 — by allowing augmentation using leased water, from K.C. Mason writing for the Sterling Jounral Advocate. From the article:
A new law allowing South Platte River well users to use leased water for payment of past depletions in decreed augmentation plans is being hailed as proof that groundwater and surface users can resolve their differences. The heavy hitters attending a recent bill-signing news conference emphasized the importance of Senate Bill 147 to the agriculture economy of northeastern Colorado…
The measure, sponsored by Sen. Mary Hodge, D-Brighton, and Rep. Kevin Priola, R-Henderson, will allow groundwater irrigators to buy or lease water from wherever they can, including the Colorado-Big Thompson project, for use in substitute water plans that are recognized in water court. Before the new law, well users could not get decreed water rights without paying back depletions from pumping between 1974, when wells were brought into the prioritization system, and 2003, when the Colorado Supreme Court ruled in the Empire Lodge case that the state engineer no longer could approve annual substitute plans. “The key is that they won’t have to keep going back to water court to amend their augmentation plans, which is both costly and time consuming,” [Harris Sherman, DNR director] said.
We missed it but Governor Ritter signed H.B. 09-1174 (pdf) which would let groundwater irrigators off the hook for pre-1974 well depletions on March 25, 2009. Here’s a report from the Associated Press (Steven K. Paulson) via Forbes.
William and Elizabeth Vance and James and Mary Fitzgerald sued the state engineer’s office in 2005, claiming that coalbed methane wells were depleting their water wells. They won in a La Plata court in 2007. The case, Vance v. Simpson, is on appeal to the state Supreme Court. A ruling is expected any time. Sen. Jim Isgar and others worry the court could require every one of Colorado’s 38,000 gas wells to get a water well permit, which would overwhelm the state engineer’s office. So Isgar, D-Hesperus, and Rep. Kathleen Curry, D-Gunnison, drafted House Bill 1303, which brings coalbed methane wells into Colorado’s water rights system. Without the bill, the court decision could force the state engineer to roll all coalbed methane wells into the legal water system in two months. Other observers have said the court decision could apply to every gas or oil well in the state. “We aren’t in session until next January, and if this ruling comes out the day after we adjourn, we leave the state engineer in the position of having to approve 3,000, 4,000 wells in 60 days,” Curry said.
The House Agriculture Committee passed the bill on a 13-0 vote Wednesday, sending it to the full House…
The bill allows the state engineer to make rules for when a gas well should be treated as tapping “nontributary” water – that is, deep water that will not harm nearby water rights. For tributary wells, it allows time for gas drillers to prepare a substitute water supply plan, just like farmers use when they’re using well water for irrigation. HB 1303 puts a three-year moratorium on integrating gas wells into the water system, to give the state engineer and the gas companies time to adjust.
Coalbed methane wells pump out water before they start producing gas. The wells are especially plentiful – and rich – in La Plata and Archuleta counties. The Raton Basin near Trinidad also has many coalbed methane wells.
Here’s a look at the fallout from the shut down of wells earlier in the century in the South Platte Alluvial Aquifer, from the Associated Press via CBS News. From the article:
The farmers’ plight traces back to the late 1800s, when reservoir and ditch companies bought senior rights to the Platte. Some 30 years later, farmers drilled their first wells in the South Platte River Valley…
For years, the state water engineer worked out ad hoc deals with farmers, allowing them to pump their wells without replacing water required by the law. There was enough to go around, and senior rights holders were satisfied. But trouble cropped up during drought years earlier this decade. In 2003, the state Supreme Court ordered the engineer to force individual farmers to adhere to the law to satisfy the needs of senior rights holders. “We’re not interested in putting anybody else out of business,” said Tim Buchanan, an attorney for Harmony Ditch Company, a contingent of alfalfa farmers in Logan County. “We just want our share of the water.” The decision ultimately shut down or severely curtailed pumping at 4,000 area wells, said Doug Sinor, a water court attorney. As many as 2,000 farmers were affected: Potatoes, corn, beans, cabbage and sugar beets all dried up.
S.B. 09-141 which would authorize the Fountain Creek Watershed, Flood Control and Greenway District is awaiting Governor Ritter’s signature. Here’s a report from Chris Woodka writing for the Pueblo Chieftain:
The new district — officially named the Fountain Creek Watershed, Flood Control and Greenway District — has numerous boundaries with varying authorities. Its overall purpose is to address flooding, drainage, water quality and erosion problems within the creek’s basin.
Initially, El Paso County officials complained that the district included too much of northern county and not enough of Pueblo County. Pueblo County officials, meanwhile, argued that was because most of the creek valley is up north, and most flood or drainage problems naturally begin there. That’s why the 60-page measure includes four different boundaries, each with limited authority…
The last major battle over the measure came in how to define its boundaries. The full boundaries of the district include all of El Paso and Pueblo counties, but a fee and taxing area includes an area smaller than that, but larger than the actual Fountain Creek drainage. The last, and smallest boundary is the flood plain area, a narrow strip that extends from the south end of the city of Fountain to Pueblo’s northern edge. Only there would the district have powers over land-use issues. While the district will have the ability to address wastewater issues, the bill makes it clear that it would be unable to regulate that activity because the state already does that. The House had placed language in the bill to prevent it from addressing wastewater, but it was later taken out. “The amendments in the House were problematic, but they were stripped out, so basically it was the same version that came out of the Senate,” Tapia said. “I talked to the principal players, and they were very happy with how the bill came out. We have a document that we can be pleased that Pueblo is going to be taken care of, and Colorado Springs can buy into.”[…]
The bill also limits to 5 mills how much the district may ask voters to approve to pay for improvements. That amount would raise only about $30 million a year. The district, however, hopes to see more money come to it from a $50 million Southern Delivery System mitigation fund, which it would use to receive a $150 million matching federal grant. That’s where U.S. Rep. John Salazar, D-Colo., is expected to come in.
S.B. 09-165 passed the Colorado House on second reading last Thursday, according to a report from the Fort Morgan Times. From the article:
[State Senator Cory Gardner] was joined on the bill by Rep. Cathleen Curry (D-Gunnison), Sen. Isgar (D-Hesperus), and Sen. Penry (R-Fruita). The bill creates the “Small Communities Drinking Water and Wastewater Grant Fund” and directs up to $10 million a year to small communities across Colorado. The bill does not raise taxes or fees but instead utilizes existing severance tax dollars.
“The passage of SB 165 is a great victory for the people of rural Colorado,” Gardner said. “The funding of these water projects can be very difficult for a small community to bear on their own, and this grant fund will provide the assistance they need to provide clean water for their citizens.” Gardner’s bill will help offset the cost of unfunded federal and state mandates on drinking water and water treatment systems.
The House is expected to take up SB 165 on third reading this week, and if the bill passes it will be sent to the Governor’s desk to be signed.
Senate Bill 165, co-sponsored by Sen. Jim Isgar, D-Hesperus, and Sen. Josh Penry, R-Grand Junction, and sponsored in the House by Reps. Cory Gardner, R-Yuma, and Cathleen Curry, D-Gunnison, creates the Small Communities Drinking Water and Wastewater Grant Fund and directs up to $10 million a year to small communities across Colorado. It passed on second reading in the House last week. The bill does not raise taxes or fees but instead uses existing severance tax dollars. Gardner said the funding would help offset the cost of unfunded federal and state mandates on drinking water and water treatment systems.
State Senator Jim Isgar’s bill that would allow limited rainwater catchments for rural properties that have an “exempt” well has passed the Colorado House, according to a report from Charles Ashby writing for the Pueblo Chieftain. From the article:
The measure, SB80, allows for the collection of rainwater from up to 3,000 square feet of roof, but only from a residence that is not connected to a domestic water system that serves more than three single-family homes. Additionally, the water can only be used for ordinary household purposes, fire protection, watering of livestock and irrigation up to 1 acre of gardens or lawns. “This is another historical moment in Colorado water law,” said Rep. Marsha Looper, R-Calhan. “For over 100 years, the state engineer would tell you that it’s against the law to capture rainwater in rain barrels. This will allow us to relieve stress and pressure from our groundwater supplies and our stream systems.”
Under the bill, property owners who want to collect rainwater must get a permit from the engineer’s office, and pay a fee for it. The bill, which cleared the Senate early last month, requires a final House vote. Because of changes in the House Agriculture, Livestock and Natural Resources Committee, it will have to return to the Senate to agree to those changes before it can head to Gov. Bill Ritter’s desk.
Colorado’s two U.S. Senators are looking closely at the deal struck between the Lower Arkansas Valley Water Conservancy District and the Bureau of Reclamation over Reclamation’s long-term storage contract with Aurora. Part of the deal is pegged to federal legislation that would authorize Aurora to use Fryingpan-Arkansas Project facilities to move water out of basin — via exchanges enabled by storage in Lake Pueblo — something that Arkansas Valley irrigators and water providers have opposed on the grounds that such movement was not part of the original authorizing legislation for the project. Here’s a report from Chris Woodka writing for the Pueblo Chieftain. From the article:
Other members of the delegation were asked if they would look at such legislation. Sens. Michael Bennet and Mark Udall, both Democrats, responded to the question Monday. “Senator Bennet looks forward to speaking with the parties to the settlement to learn more details and to determine what next steps may be necessary,” said Deirdre Murphy, spokeswoman for Bennet. “Understanding that the two parties have spent the past several years negotiating this process, (Bennet) will work with them and with members of the congressional delegation to ensure that the needs of the water users in the Arkansas River Valley are addressed.
“(Udall) appreciates that the two sides have reached a settlement. He understands that an element of that settlement may involve federal legislation,” said Tara Trujillo, spokeswoman for Senator Mark Udall. “(Udall) plans to work with all parties – including the Bureau of Reclamation – to review the settlement and make sure that the farmers and other water users in the Arkansas River Valley are protected.”[…]
Should a federal water project intended to help farms and cities in the Arkansas Valley be used to wheel water? If legislation were adopted, what kind of limits would you put on it? If legislation were adopted, what kind of mitigation should be made to the Arkansas Valley?
Here’s an update on legislative efforts to stretch oil and gas severance tax revenue and adequately fund the Colorado Division of Water Resources, from K.C. Mason writing for the Fort Morgan Times. From the article:
While about $200 million still needs to be cut from state government spending in the next 10 weeks, several rural lawmakers, including Rep. Jerry Sonnenberg, R-Sterling, and the Democratic chairs of both the House and Senate Agriculture Committees, are looking at severance taxes to help fill a $2.5 million gap in the state engineer’s budget. The budget hole is partially to blame for the freezing of eight water commissioner positions statewide. “There’s water running right now and we have to have people on the ground administering our prior appropriations system in Colorado immediately,” Sonnenberg said. “If not, we better increase our law enforcement because there will be fights at the headgates.”
State Engineer Dick Wolfe said the frozen positions are a problem, but not as large as Sonnenberg fears. “It’s a matter of determining the highest priority,” Wolfe said. “Some things will go unadministered and we will reprioritize and reassign commissioners where they are most needed.” Wolfe said his division also will continue to trust the water users themselves. “A lot is based on the trust of the people out there,” he said. “We have a pretty good compliance with our water users and don’t spend a lot of time on enforcement. That’s not to say people might not do mischievous things but generally people are pretty cooperative.”[…]
[Senator Jim] Isgar and [Representative Kathleen] Curry also are co-sponsoring a bill that would move the water resources division into a better position to get funding from severance tax revenue. By doing so, they hope to avoid substantial fee increases that officials have proposed for well permits and inspections, dam design review and administering substitute water supply plans. “We’re trying to get more money to the (water) division to cope with expected budget cuts the next two years,” Curry said. “If the fees are not increased, then we have to find a way to fund this division. These people are needed out in the field to administer our water.”[…]
House Bill 1308 (pdf), with Curry and Isgar as the primary sponsors, puts the state engineer’s office in the same category as all other agencies within the Department of Natural Resources to receive a share of funding from the operational account of the Severance Tax Trust Fund. Currently, the water division is the only DNR agency that gets most of its funding from the general fund. The rest, including the Colorado Water Conservation Board, the Division of Wildlife and the Oil and Gas Conservation Commission, are the so-called Tier One agencies that are funded from the operational account. Other programs funded from the operational account are considered Tier Two programs and include LEAP, the Endangered Species Trust Fund and the Water Supply Reserve Account. The diminishing severance tax revenue only adds to the competition among those funds.
Scheduled for debate on the House floor later this week is Senate Bill 216, which originally contained the proposed $2.5 million worth of fee increases to make up for general fund budget cuts to the state engineer’s office. The House Agriculture Committee approved Sonnenberg’s amendment to delay the fee increases until at least July 1 and replace them with $500,000 from unallocated funds within the Governor’s Energy Office. “This is not a long-term solution; it only deals with the shortage of trying to manage the waters of the state in this fiscal year,” Sonnenberg said. “Rather than funding the state engineer with premature fee increases, we look at unused funds in the governor’s office.”
Rep. Jack Pommer, D-Boulder, defended the JBC’s original version of SB 216 and indicated he would seek to restore the fee increases. “The point of the bill was to move costs of providing various water-well and related services from the general public to the people who use those services,” Pommer said. “Right now we’re taxing everyone to subsidize a small group who receives services.” Committee members countered that water administration is a statewide issue.
S.B. 09-141 — the bill that would set up the Fountain Creek Watershed, Flood Control and Greenway District — received preliminary approval in the state House, according to a report from Charles Ashby writing for the Pueblo Chieftain. From the article:
A measure that officials on both sides of the Pueblo-El Paso County line hope will end the water war between the two is only two more steps away from a gubernatorial signature. That happened Monday when the Colorado House gave preliminary approval to SB141, which would create the Fountain Creek Watershed, Flood Control and Greenway District…
The measure garnered no negative votes or comments, but did generate jokes about how Pueblo and Colorado Springs — termed by more than one lawmaker as the Hatfields and McCoys — could quit feuding over the creek. After several lawmakers came to the microphone praising each other’s work on the bill, Rep. Elizabeth McCann, D-Denver, who was running floor debate on the bill, asked: “Would we all like to sing Kumbaya now?” she said. The measure requires a final House vote, which could come as early as today, before heading back to the Senate for a last vote. After that, it will head to Gov. Bill Ritter’s desk.
From the Colorado Springs Gazette (John Schroyer): “SB141 was introduced only after the deal was approved last year by both counties’ boards of commissioners. In El Paso County, the proposal passed 3-2. It would create a new governmental entity to oversee Fountain Creek and address issues such as water quality, erosion and flood control.”
The district’s nine-member board, which would be made up of officials and appointees from both counties, will have the power to impose new fees and place mill levy increases on county ballots. Placing a tax increase on the ballot would require the support of at least seven members, and a mill levy hike would be limited to 5 mills. That could raise up to $30 million a year for new projects. For the time being, the board will have at least $10 million a year for the next five years, which could be doubled by federal funds. The initial money comes out of the budget for the $1 billion Southern Delivery System, the pipeline from the Pueblo Reservoir that Colorado Springs Utilities plans to build. The district would include all of Colorado Springs and Pueblo. Four smaller districts would be created within the umbrella district, which stretches from south of Pueblo, where Fountain Creek feeds into the Arkansas River, to north of Colorado Springs, where the creek begins. The four districts would have separate powers, and new fees would likely differ between them.
The bill was approved unanimously by the House Agriculture Committee and is expected to head to the full House. But [Rep. Marsha Looper, R-Calhan] said she won’t breathe easy until it’s signed by the governor. “Water bills, they’re an unusual beast. Things will fly through (the Legislature), and then on second or third reading they can die,” she said.
Part of the settlement announced last week by the Lower Arkansas Valley Conservancy District and Reclamation hinges on authorizing legislation that would allow Aurora to use Fryingpan-Arkansas facilities to move water out of basin. The Lower Ark and Reclamation should have talked to Colorado’s congressional delegation before they struck the deal. Congressman John Salazar is opposed to Aurora moving the water out of basin. Here’s a report from Chris Woodka writing for the Pueblo Chieftain. From the article:
At least one lawmaker was caught off-guard by the proposal, and raised doubts about whether he could support such legislation in any form. “It upsets me and maybe gives me just cause to not support any legislation,” U.S. Rep. John Salazar, D-Colo., said Friday. Other lawmakers in the area’s congressional delegation have not yet weighed in on the deal.
Salazar acknowledged that he had not seen the agreement, but he made it clear that Aurora has little say in whether the Arkansas Valley Conduit, a $300 million water supply pipeline for the lower valley, is approved in Congress. Support for the conduit is one piece of the new agreement, but Salazar said it appears the conduit is being “held hostage” by the two groups.
Legislation which should move to the house floor next week has been suggested by the Southeastern Colorado Water Conservancy District and would use excess-capacity revenues – including Aurora’s lease, but with many more leases within the Arkansas Valley – to repay construction costs of the conduit. Salazar said if legislation is introduced, it should be written so that Aurora is not able to take any more water from the valley. “If we continue bleeding the Arkansas basin, it will just be Pueblo and Colorado Springs left,” Salazar said. While the agreement would provide opportunity for the Super Ditch, a corporation formed by farmers with the help of the Lower Ark district to lease water, Salazar said he is concerned about the impact of taking more water out of the river and what that will do to local economies. “I still have concerns with the Super Ditch concept,” Salazar said. “I’m not sure I’m happy about this stuff.”
More coverage from the Pueblo Chieftain (Chris Woodka):
The authorization, which would be only for Aurora and no other out-of-basin water user, has not been introduced in Congress, but Lower Ark and Aurora officials plan to talk to members of Congress about it later this month. The authorization would remove the two key elements of a 2007 federal lawsuit filed against Reclamation by the Lower Ark district that challenges Aurora’s ability to use the Fry-Ark Project because it was not authorized in either the 1962 Fryingpan-Arkansas Act or the 1958 Water Supply Act. “We have not been asked to, and I’m not sure we’d be willing to support that agreement,” Salazar said Thursday. “We were caught off-guard that it was even in the works.”
The agreement is the culmination of four years of on-again, off-again negotiations related to the Preferred Storage Options Plan between Aurora and the Lower Ark that Salazar and his brother, former U.S. Sen. Ken Salazar, helped launch in 2005. Lower Ark attorney Peter Nichols explained Wednesday that talks had broken several times over the four-year period, most recently last June. Talks restarted in January, leading to the agreement approved this week. Any new legislation should not be used to give Aurora more water and the conditions in the agreement unnecessarily link the Arkansas Valley Conduit’s future to Aurora’s ability to move water. “I believe at the very least, there would not be a single drop of more water going to Aurora through this proposed legislation,” Salazar said. “I have serious concerns that there are no conditions in this agreement to stop any more water from leaving the Arkansas Valley.”
Salazar said the Arkansas Valley Conduit would continue to move through Congress as part of the Public Lands Bill that won Senate approval for the second time Thursday. The bill will go back to the House, where it failed for lack of a two-thirds vote last week, and will only need a simple majority to pass…
The Southeastern Colorado Water Conservancy District, sponsors of the Fry-Ark project, the conduit and PSOP, was supportive of the Aurora-Lower Ark agreement during a brief presentation Thursday, and some expressed hope that PSOP might be resurrected as a result. Aurora could pay more than $50 million over 40 years under excess-capacity contracts with the Bureau of Reclamation signed in 2007. The conduit legislation proposes using those revenues, along with other excess-capacity contracts, to repay construction costs of the conduit and other underfunded parts of the Fry-Ark project. District officials have said Aurora’s participation is helpful, but not necessary to make the plan work. The agreement between Aurora and the Lower Ark would put the federal lawsuit on hold for up to two years until legislation could be adopted, at which time, the Lower Ark would move to dismiss the case with prejudice, Nichols said. That means the Lower Ark could not file another lawsuit over the contract.
More coverage from the Pueblo Chieftain (Peter Roper):
The $300 million pipeline project [Arkansas Valley Conduit] that Colorado lawmakers have been prodding through Congress is just one item in a lengthy public lands bill that the Senate approved on a 77-20 vote Thursday. It was the second time since January that the Senate approved the legislation, but the public lands package was rejected in the House just a week ago. That’s not expected to happen a second time. Hoping for fast action, House Speaker Nancy Pelosi, D-Calif., had brought the bill to a vote on “special consideration” – a procedure that requires a two-thirds majority – and House Republicans, plus some Democrats, stopped the bill by keeping the final tally two votes short of two-thirds. Pelosi has said she will bring the measure back for another vote soon and a simple majority will be all that’s needed. It passing is very likely given the Democratic majority in the House.
More coverage from the Pueblo Chieftain (Chris Woodka):
Last week’s potential settlement of a federal lawsuit about using a project intended to provide more water to the Arkansas River basin to move water from the basin stirs long-standing issues with yet another agreement…
In late 2004, and often since then, the Lower Arkansas Valley Water Conservancy District ook a hard line opposing the authority of the Bureau of Reclamation to allow Aurora to use the Fryingpan-Arkansas Project to move water out of the valley…
In 2007, after Reclamation approved a 40-year deal for Aurora to store and move water upstream, the Lower Ark dug its heels in and filed a federal lawsuit against Reclamation. The suit was joined by Aurora and Arkansas Valley Native, a group of four influential men who own water rights and also opposed the contract. It was the most rigorous challenge to the deals with Aurora since 1986, when Reclamation began leasing excess-capacity space in Lake Pueblo to the city of 300,000 east of Denver…
With the federal court challenge, however, it became evident there was never clear authority for Aurora’s involvement in the Fry-Ark Project. While Reclamation claimed the authority has always been implicit in federal statutes, the Lower Ark challenged the leases under specific legislation by Congress in 1958 and 1962. The [Southeastern Colorado Water Conservancy District] was never comfortable with Aurora’s participation in the Fry-Ark Project – which dates back to the beginnings of the Homestake Project in the 1950s – and sought to incorporate formal authority as part of its suggested Preferred Storage Options Plan legislation, which continually failed in Congress.
However, Aurora is able, under the agreement, to buy new water rights in the valley if a new pipeline that would take water out of the valley is built. The Southern Delivery System, still in the permit process, is not counted as a new pipeline under the agreement. The agreement reads: “Should additional delivery systems, which are neither promoted, financed nor used by Aurora, become operational that allow for the delivery of additional agricultural water rights from the mainstem of the Arkansas River for use in other locations, the parties recognize that the competition for agricultural water rights will increase significantly and that it is in the best interests of the owners of such rights to maximize the market for such water.”[…]
While the Lower Ark has spent much of the last five years fighting Aurora, Lower Ark officials believe they may have enlisted an ally in keeping other water interests outside the valley at bay. “We continuously worry about Aurora, but what about Denver and the South Metro District?” asked Jay Winner, general manager of the Lower Ark district. “This agreement with Aurora will help keep other pipelines out of the basin.” Provisions requiring Aurora’s support for studies of past water transfers, water quality in the Arkansas River basin and regional water management are also important to preserving water for the basin, Winner said. Aurora’s support on the conduit legislation is needed to assure the project will continue to move smoothly through Congress and into reality, he added…
Beyond the old fight with Aurora, there are numerous opportunities for partnerships built into the agreement. Besides the water leasing and studies, there are provisions that allow the Lower Ark, primarily on behalf of the Super Ditch, to gain storage space in existing reservoirs like Lake Henry and Lake Meredith in Crowley County, and in future projects like Box Creek Reservoir in Lake County. Aurora will also share the expertise it has gained in its farming programs under the Rocky Ford Ditch – where it worked with farmers to study drip irrigation and alternative cropping – with the rest of the valley. Aurora also committed to working with Crowley County on revegetation. The city revegetated lands under its court decree for shares of the Colorado Canal it purchased in the 1980s. However, over time and especially following the 2002 drought, weeds overcame the dried-up farmland, creating conditions for a tragic brush fire last year. While the negotiations for the current deal occurred out of the public eye – they’ve been going on with staff and lawyers since January, but were not discussed in an open meeting until last week – it’s no secret that Aurora and the Lower Ark have had on-again, off-again talks since 2005…
“We are confident that our agreement with Aurora Water mitigates our concerns and we are pleased to have their financial and technical support for future projects that benefit the Lower Arkansas Valley,” said Pete Moore of Crowley County, who was elected chairman of the Lower Ark board in January.
SB09-141 cleared the House Agriculture, Livestock and Natural Resources Committee this week, according to a report from Charles Ashby writing for the Pueblo Chieftain. From the article:
House members from Pueblo and El Paso counties applauded Wednesday’s vote by the Agriculture, Livestock and Natural Resources Committee in support of the flood- and water-quality district. “We have all sorts of issues that have needed to be addressed over the many years but, because it was difficult to get many of the stakeholders on the same page, we were not able to address those issues,” said Rep. Marsha Looper, R-Calhan, who’s carrying the bill in the House with Rep. Sal Pace, D-Pueblo. “But Representative Pace and I, along with the elected officials (from both counties), can say those days are behind us,” she added. “Those communities, El Paso County and Pueblo County, have joined together in this extremely important piece of legislation to move those counties forward.” The 60-page measure, which Sen. Abel Tapia, D-Pueblo, ushered through the Senate last month, would establish a nine-member board that would oversee the flood plain from Fountain to Pueblo.
From the Durango Herald (Joe Hanel): “The Legislature’s budget committee wanted to increase well fees to $665 starting March 1, a dramatic and sudden jump from the current $100. Senate Bill 216 was the last and most controversial part of the budget-balancing package for the 2008-09 year. Rural lawmakers forced the bill to be sent to the House Agriculture Committee, which voted 9-4 against the fees Tuesday. Instead, the bill now takes about $530,000 out of the Governor’s Energy Office to make up this year’s deficit in the State Engineer’s Office, which administers water rights…
“The fight is far from over. The full House and full Senate have to approve the Agriculture Committee’s action on SB 216, and even then, the bill doesn’t provide enough money to hire more water commissioners who will be needed this spring, said State Engineer Dick Wolfe. And Wolfe’s office is $2.5 million short for the next budget year, which starts July 1. Curry’s Agriculture Committee will continue to work on providing funds for the State Engineer’s Office budget today.
“The Colorado Water Congress supported a smaller fee increase, and several representatives said Tuesday that water fees will have to increase in the future to keep the State Engineer’s Office properly funded.”
SB09-165 is sailing through the state legislature so far, according to a report from K.C. Mason writing for the Sterling Journal-Advocate. From the article:
“There’s no money for the foreseeable future,” said Rep. Kathleen Curry, D-Gunnison, who along with Rep. Cory Gardner, R-Yuma, is the House sponsor of Senate Bill 165 (pdf).
The measure creates a new fund from severance taxes for grants from the Water Quality Control Commission to communities with a population of 5,000 or less. The grant program already exists, but hasn’t had any funding for three years. Under the bill, the state would have to collect at least $200 million in severance taxes for any money to go into the new fund. The latest estimates show severance tax revenue dropping from $238.3 million this year to $77.6 million next year and $171.4 million in fiscal year 2010-11. “The water providers in these communities are facing extreme challenges to keep up with unfunded federal and state mandates,” Gardner said. “There is a $1 billion backlog in funding for communities like Hillrose, Eckley, Julesburg and Brush.” SB 165 unanimously cleared the House Agriculture, Livestock and Natural Resources Committee earlier this week and is scheduled for floor debate on Monday…
Here’s a look at State Representative Ed Vigil’s HB09-1233 which would recognize acequia ditch corporations under Colorado water law, from Charles Ashby writing for the Pueblo Chieftain. From the article:
Long before [prior appropriation] laws were put in place, Hispanic settlers in Colorado had and still use a different way of allocating water use among themselves, using something called acequias. Now, under a bill working its way through the Legislature, ancestors of those first settlers will be able to ensure that practice can continue by forming their own ditch companies to help manage water use. An acequia (pronounced “a-see-ke-a”) is Spanish for “community ditch.”[…]
“The Hispanic culture has a communal way of doing business,” Vigil told the Senate Local Affairs Committee on Tuesday, which approved his HB1233 on a unanimous vote. “This is the way the water was managed, not by ownership, not as a commodity, but rather a shared ownership to the water. This is to preserve that land, to preserve that water, and to preserve these people’s continued way of life.”
The bill would ensure that the communal practice of allocating water and maintaining a ditch are as they’ve always been while, at the same time, allow it to operate similar to any other ditch company. Under the bill:
District members can hold elections based on each landowner getting a single vote.
Require each landowner who gets water from the acequia to contribute to the labor needed to maintain or repair the ditch or pay an assessment in lieu of doing that work.
Hold a right of first refusal on any sale, lease or exchange of surface water from an acequia that is used to irrigate long-lot land…
Most acequias in the state operate along tributaries near small towns along the New Mexico border.
Here’s an update about State Representative Ed Vigil’s bill that would authorize Acequia Ditch Corporations, from Larry Winget writing for the Conejos County Citizen. From the article:
According to the office of State Senator Gail Schwartz, (D-Dist. 5), Schwartz is sponsoring the bill in the Senate and it has already been approved on its first reading by the Senate Committee on Local Government and Energy. Her office said it would go to the full Senate for a second reading on Tuesday, March 10. If it passes there it would be scheduled for a third reading in the Senate, and if passed then, would be sent to the governor for his signature.
The original version of the bill amended Colorado Revised Statue Article 2 of title 37 concerning “Acequia conservancy district-subdistrict-creation-conversion-definition.” The amended bill affects CRS Article 42 of title 7 and reads, “Acequia mutual ditch-definition-powers.”
Both versions concern irrigation ditches created before Colorado statehood that historically treated water as a community resource and which attempted to allocate water based on equity rather than just priority.
The bill concerns acequia ditches located wholly in Conejos, Costilla, Huerfano, and Las Animas Counties.
FromKJCT8.com: “The Senate gave final approval Monday to House Bill 1174 (pdf), which would excuse the farmers from having to replace water their wells drew before March 15, 1974, from an aquifer that supplies the river…
“The bill is intended to help farmers whose wells were shut down in a water rights dispute in 2006. Greg Hertzke of the Central Colorado Water Conservancy District says the bill would benefit the owners of about 100 wells.”
Representative Ed Vigil’s bill, HB09-1233, was approved last week by the Colorado House of Representatives and wending its way through the state senate, according to a report from Ruth Heide writing for the Valley Courier. From the article:
The legislation is specific to the counties of Costilla, Conejos, Huerfano and Las Animas. House Bill 09-1233, regarding acequias (community irrigation ditches), is now before the state senate which assigned the legislation to its local government and energy committee on Monday.
State Senator Gail Schwartz, who also represents the San Luis Valley as part of her senate district, is carrying the bill in the senate.
The acequia bill:
• Allows the creation of acequia conservancy districts, acequia conservancy sub-districts, acequia water conservancy districts and acequia water conservancy sub-districts.
• Allows an existing conservancy district or water conservancy district or sub-district to convert to an acequia conservancy district or an acequia water conservancy district or sub-district, respectively.
• Specifies the eligibility and other requirements for the creation and conversion of such districts. For example, petitions requesting the creation or conversion of an acequia conservancy district must be filed with a district water court and the court must hold a hearing and determine if the requirements have been met to create a new district or convert an existing one. The bill only authorizes the creation of acequia conservancy districts in the four counties listed above.
• Allows such a district to: Hold its elections pursuant to a one landowner-one vote system; require owners of land irrigated by an acequia within the district to contribute labor to the maintenance and repair of the district’s acequias or pay an assessment in lieu of such labor; and hold a right of first refusal regarding the sale, lease, or exchange of any surface water right that has historically been used by the acequia to irrigate long-lot land within the district…
When Colorado adopted the prior appropriation system as its water law under the state constitution, it was “inconsistent with the community-based principles upon which acequias were founded,” Vigil’s legislation stated, so the communities that historically used the acequia system continued through informal methods “to allocate water based upon equity in addition to priority and to treat water as a community resource.”
The legislation concludes, then, that it is important to recognize this long-used practice. “Recognition by the general assembly of the continuing existence and use of acequias, while continuing to comply with the constitutional requirements of priority administration of tributary water, is critical to preserving the historic value that acequias provide to the communities in which they are located. The general assembly hereby declares that the purpose of this act is to promote and encourage the continued operation of acequias and the viability of the historic communities that depend on those acequias.”
The bill would allow an existing water conservancy district to convert to an acequias conservancy district, an acequia water conservancy district, or a subdistrict. Under 09-1233, such a district would: Hold elections pursuant to a one landowner-one vote system; Require owners of land irrigated by an acequia within the district to contribute labor to the maintenance and repair of the district’s acequias or pay an assessment in lieu of labor; Hold a right of first refusal regarding the sale, lease, or exchange of any surface water right that has historically been used by the acequias to irrigate long-lot land within the district.
Section 37-2-107 defines an acequia as a community irrigation ditch with several features. One: an acequia must have originated in Spanish Law and Land Grants prior to Colorado’s Statehood. Two: It has historically treated water as a community resource and has therefore attempted to allocate water based upon equity in addition to priority. Three: It relies essentially on gravity-fed surface water diversions. Four: It supplies irrigation water to long lots that are perpendicular to the stream or ditch to maximize the number of landowners who have access to water. Five: It has historically been organized pursuant to a one landowner-one vote system. Six: An acequia has historically relied on labor supplies by the owners of irrigated land within the acequias community.
The House bill concerns acequia conservancy and acequias water conservancy districts to be formed which are located “wholly in one or more of the Counties of Costilla, Conejos, Huerfano and Las Animas.” In the reasoning placed into the bill for its adoption, Vigil mentions that the Town of San Luis is recognized as the oldest town in Colorado. He states that citizens of San Luis brought the acequia system of community irrigation with them from colonial Mexico and that the San Luis People’s Ditch is the oldest water right in Colorado. It carries a priority date of April 10, 1852, in the amount of 21 cubic feet per second from the Culebra Creek, in Costilla County. In the bill, it is written that Colorado’s Territorial session laws from 1868, 1872, and 1874 recognized the validity of acequias within the Counties of Costilla, Conejos, Huerfano, and Las Animas. The bill states, “Upon adoption of Colorado’s Constitution, the prior appropriation system became the law governing water allocation; and The prior appropriation system is, in fundamental ways, inconsistent with the community-based principles upon which the acequias were founded.”
The Pueblo city council is taking a long look at the IGA between the towns and counties that will enable the authority. SB09-141 is the enabling legislation. Here’s a report from Chris Woodka wrting for the Pueblo Chieftain. From the article:
Council is the last governmental body to sign on to a proposed intergovernmental agreement on Fountain Creek among Pueblo County, El Paso County, cities in both counties and the Lower Arkansas Valley Water Conservancy District. It will take at least two meetings, one next week and one in March, to approve an ordinance entering the IGA.
The agreement and SB141, which would create the Fountain Creek Watershed District, envisions a nine-member board that could funnel money into projects to improve the creek, charge fees and even – if voters desire – levy taxes. The primary goal is to control the periodic floods which eat up parts of Pueblo and other communities further up the creek, but there is also plenty in the IGA and bill about recreation, wildlife and wetlands.
In SB141, authority is limited to the narrow corridor of the 100-year flood plain from Fountain to Pueblo, fee authority to the watershed, although all of both counties would be included as a possible tax base. The documents even suggest a nine-member board which would include a representative from the City of Pueblo.