Carbondale rancher Bill Fales says that in 47 years of ranching in the Roaring Fork Valley, he’s never sees hay production as dismal as in 2020. “I used to think that one of the advantages of ranching here is we had a really stable climate,” he says. Photo credit: Laurine Lasalle/Aspen Journalism
In July, Cold Mountain Ranch and the Colorado Water Trust penned an agreement they hope will improve the Crystal River’s streamflow in dry years. The contract compensates the Ranch owners, Bill Fales and Marj Perry, for adjusting the timing of their water diversions when late summer flows dip.
The Crystal River has its headwaters in the Maroon Bells-Snowmass Wilderness, but as the river descends through the wide pastures above the Town of Carbondale, more than 30 agricultural diversions, representing around 300 cubic feet per second (cfs) of water rights, pull water from the Crystal and its tributaries to irrigate around 4,800 acres of land. In drought years, which are becoming more frequent, sections of the Crystal River run dry.
Created by Imgur user Fejetlenfej , a geographer and GIS analyst with a ‘lifelong passion for beautiful maps,’ it highlights the massive expanse of river basins across the country – in particular, those which feed the Mississippi River, in pink.
“A river is like a circulatory system,” says Alyson Meyer Gould, staff attorney & policy director for the water trust, “if you have a point where the circulatory system doesn’t work, it can have negative effects both upstream and downstream.”
A 2016 report on the Crystal River found there are specific stretches of the lower Crystal River that are most impaired, primarily after major ditches divert water from the river and before their return flows rejoin the Crystal downstream. This change to the river’s hydrology can impact water temperature, habitat quality and habitat availability, diminishing the ecosystem.
Cold Mountain Ranch is right next to one such beleaguered section of the Crystal River. The property has been in Marj Perry’s family since 1924. A cow-calf operation, the ranch irrigates several hundred acres for pasture and hay, utilizes grazing permits on nearby public lands and leases pasture nearby. In a typical year, Fales flood irrigates from early May through early October, moving water via ditches around his property in a three-week cycle. Fales gets two cuttings of hay, and spring and fall pasture with their water rights.
Under the new six-year agreement with the Colorado Water Trust, when river flows dip to 40 cfs or below, Cold Mountain Ranch will decide whether to enact the diversion coordination agreement. The ranch will be paid a $5,000 signing bonus for entering the updated agreement, an acknowledgment of the time and effort required to negotiate such a contract.
In addition to the bonus, for each cfs per day — up to 20 days total per year in up to five years — that they don’t divert during the contract period, they will be paid $250. The agreement will lift when flows hit 55 cfs. If the ranch is able to enact the agreement for their maximum decreed flow rate for the 100 potential days in the agreement, they could be paid $150,000 over five years.
Says Fales, “It’s the right thing to do. I’m not sure it’s a perfect thing to do, but I try not to let perfect be the enemy of the good. We’ll try it, we’ll see if it works and see what we learn from it.”
This is the second time that Cold Mountain Ranch and the Colorado Water Trust have entered such an agreement. The first ran from 2018 to 2020 but was never implemented. In 2018, flows in the Crystal were so low that “there was not enough water available to result in significant benefits instream,” according to the water trust. In 2019, flows were high enough that the threshold was never met. In 2020, heat and drought meant the ranch couldn’t afford to give up any water and still grow the hay and pasture they needed to feed their cows.
Helms Ditch irrigated acreage. Credit: Colorado Water Trust via Aspen Journalism
The water for this agreement will come from the Helms Ditch, which can divert up to around 6 cfs. In late summer this can be about 30% of the ranch’s available water. About half those rights were adjudicated in 1903 and the other half in 1936, making the diversion significantly more senior than the environmental instream flows on the river, which date to the 1970s. Cold Mountain Ranch uses water from three ditches, but the Helms Ditch is not shared with any neighbors, which makes it an easier candidate for an agreement with the water trust.
Crystal River rancher Bill Fales stands at the headgate for the Helms Ditch, with Mount Sopris in the background. As part of an agreement with the Colorado Water Trust, Fales could be paid to reduce his diversions from the ditch when the river is low. CREDIT: HEATHER SACKETT/ASPEN JOURNALISM
One barrier to in-stream water conservation is the fact that water voluntarily left in the river can simply be diverted by another user downstream. In this case, the agreement is designed to alleviate drought stress on a concise stretch of stream, an area that in the dry year of 2012 was completely dewatered. If the water stays in the river for as little as a mile or two, it can make a big difference. As Heather Tattersall Lewin, director of science and policy at the Roaring Fork Conservancy explains, “As little as 6 cfs can make a difference in temperature resiliency, the existence of a cool pool versus a shallow riffle, or the ability for a fish to move from pool to pool or not.”
This agreement with Cold Mountain Ranch is not the only one of its kind for the Colorado Water Trust. In 2012, when much of the state was in a severe drought, there were insufficient laws in place to protect water users who wanted to conserve. In 2013, the Colorado Legislature passed Senate Bill 13-19, allowing some water users to temporarily reduce their water use without jeopardizing their legal rights. Without that protection, a water user who conserved could legally be considered to be abandoning their valuable rights to water, a rule often referred to as “use it or lose it.”
Willow Creek via the USGS
Senate Bill 13-019 was first used by the Colorado Water Trust and a rancher on Willow Creek in 2016. Willow Creek is a tributary of the Colorado River southwest of Rocky Mountain National Park. The rancher had noticed Willow Creek sometimes ran dry during the late summer months and reached out to the water trust. That agreement has been used to restore flows in 2016, 2021 and 2022. According to the water trust, “The project restores a fairly small amount of water to the stream, but because there are no other diverters immediately downstream, that additional water helps to keep Willow Creek connected to the Colorado River.” This style of agreement has since been drawn up by the water trust for four other projects, including Cold Mountain Ranch.
Climate change is impacting both the supply and timing of flows in streams like the Crystal River. Average peak runoff is moving to earlier in the season, extending the amount of time in late summer when streams run low. Warmer temperatures make the soil thirstier, so more snowmelt gets absorbed by the land instead of turning into runoff, even when snowpacks are typical, increasing the frequency of low-flow years.
“The Colorado Water Trust sees diversion agreements as one of many tools in the toolbox to improve flows in Colorado Rivers in the face of climate change,” says Blake Mamich, water transactions coordinator for the water trust.
For some water users, dry years will make changing their diversions more challenging — many agricultural water users on the Crystal River and its tributaries already experience water shortages in dry years. But, continues Mamich, “these agreements may be advantageous to agricultural producers in sub-optimal production years, as a way to diversify income while supporting the health of the river.”
Agriculture represents the majority of water use in Colorado, so ranchers and farmers will need to be part of any major water conservation strategy. But it’s not as simple as just buying agricultural water rights. Farms and ranches around the state are a significant part of the state’s economy and lifestyle — permanently drying them up can have profound negative effects on local communities.
That’s why the water trust is trying these voluntary and temporary agreements, hoping to find a solution that benefits both the environment and agriculture. But, in the quest to improve flows around the state, the water trust uses many statutory tools to get more water in rivers, including purchasing and leasing water rights, creating agreements around the timing of reservoir releases, and more.
The Crystal River widens and becomes shallower just before it passes under the southern bridge into River Valley Ranch. A group of local organizations is working to restore both the stream and the banks. CREDIT: WILL GRANDBOIS / ASPEN JOURNALISM
For the Crystal River, water from Cold Mountain Ranch is just a start. The Crystal River Management Plan cites a need for 25 cfs during severe drought to meet goals for maintaining the ecosystem. The agreement between the water trust and the ranch will, at most, contribute 6 cfs for just 20 days of the year. To continue to build the river’s resilience in the face of climate change, Mamich says it will likely take a combination of various tools, from new infrastructure to additional diversion agreements with more water rights holders in the watershed.
Olivia Emmer is a freelance journalist based in Carbondale, Colorado. She can be reached at olivia@soprissun.com.
FromColorado Public Radio (Michael Elizabeth Sakas):
Colorado was the last Western state to legalize greywater usage in 2013. Officials say that by 2050, our water supply could fall short for over one million people. Climate change makes the future of Colorado water even more uncertain.
Colorado’s Water Plan wants to close the gap and recognizes greywater as one tool to help make that happen. However, not a single state-approved greywater system has been built since it was legalized. Only Denver, Castle Rock and Pitkin County have adopted the code, known as Regulation 86, that regulates how greywater gets done in the state.
Avery Ellis isn’t happy about that. He was closely involved when the Colorado Department of Public Health and Environment set the rules.
“It takes a little civil disobedience and a little public support to push these laws into local adoption,” the greywater installer said.
In his yard in Longmont, there are young trees and shrubs that are watered through one of his greywater systems.
Longmont isn’t Denver or Castle Rock and it’s nowhere near Pitkin County. In addition to his water saving rebellion, Ellis teaches and helps others how to go greywater without a permit. Because so far, even in the places where it’s been adopted, no one has even applied for a greywater permit.
Not a single one.
In Colorado, only two types of greywater systems are legal. This first one is called “laundry to landscape.” The second is more complicated and costly. Wastewater from a shower or sink is collected in a storage tank and is used for the landscape or to flush toilets. There’s internal plumbing and the water needs to be filtered and treated and can’t be stored for more than 48 hours…
There’s been some interest in these water saving systems in Pitkin County, which adopted greywater in 2018, but environmental health manager Kurt Dahl thinks that “due to the complication of the regulation they didn’t see the benefit.”
[…]
The city of Castle Rock is the newest to adopt the state’s greywater rules, but only for new construction. Retrofitting an old home or building isn’t allowed. Mark Marlowe, the director of Castle Rock Water, cites cost as the contributing factor behind that decision…
That doesn’t mean it won’t ever happen, Marlowe said, but they don’t have the resources to allow just anyone to put in a greywater system.
And that’s why some cities and counties have chosen not to take on greywater at all. Douglas County said it would be too complicated and costly for the county to oversee. They also point to the potential for public health risks.
Boulder won’t either, at least right now. Joe Taddeucci, the city water resources manager, said they first need to study if adopting greywater is worth it. One major concern are water rights. Does the city have the OK to use greywater on lawns, instead of sending it back to the river for the next user downstream? How much water would actually be conserved? And what would it take to regulate this?
…One of the only examples of a large-scale greywater system in the state is a dorm at the University of Colorado Boulder. Williams Village North was built with plumbing that collects wastewater from showers and sinks to flush toilets. Since the city of Boulder hasn’t adopted greywater, the system operates under a research exemption.
“Testing for chlorine levels, alkaline levels. And greywater systems of this size and magnitude are still fairly new technology, and we do want to make sure that we understand it better before we implement in a new building.”
At peak use, when students are in school and the dorm is full, the system uses about 2,000 gallons of greywater a day to flush toilets. It’s an example of where some of the biggest year-round savings can happen.
Sybil Sharvelle, an associate engineering professor at Colorado State University in Fort Collins, has been involved in greywater research for nearly 20 years. She also advised the state on the rules and is disappointed to see all the growth and construction over the past 10 years has failed to include greywater.
More than three years after state health officials okayed the use of so-called graywater in homes and businesses [HB13-1044 (Authorize Graywater Use)], the public has shown no interest in using it, a fact that has baffled water conservation advocates and government officials.
“Unfortunately it’s had very little impact,” said Jon Novick, an environmental public health administrator for the City of Denver.
The Colorado Department of Public Health and Environment approved Regulation 86, as it is known, in May of 2015. It requires that counties opt into the program, creating their own standards and enforcement mechanisms. But Denver, which adopted the rule in 2016, and Pitkin, which adopted it nearly a year ago, are the only two of Colorado’s 64 counties that have chosen to do this. And despite the two counties’ enthusiasm for water conservation, neither the homeowners nor the businesses they serve have sought permits seeking to capture graywater for a second-time use.
Graywater flows out of bathroom sinks, tubs, showers and clothes washers. Nearly half of water used in homes on average goes to these purposes. Reusing it would generate significant water savings, something health officials and water conservation advocates say is critical as Colorado faces escalating water demands—and potential shortfalls— due to population growth, drought and climate change.
Under Regulation 86, homeowners and businesses can capture graywater and then use it to flush toilets and urinals and to water lawns if those lawns have subsurface irrigation systems. Graywater cannot be used in above-ground sprinkler systems.
Graywater is different than recycled water because it requires little treatment. Recycled water, on the other hand, is heavily treated before it is reused because it contains waste water from toilets and other sources.
Brandie Honeycutt is an environmental protection specialist with the Colorado Department of Public Health and Environment. She said it’s important that the regulation be widely adopted. To that end the state is planning a series of meetings in the first quarter of this year to examine how the program might be changed to broaden its appeal.
Colorado is among 20 states nationwide that allow use of graywater, according to Berkeley, Calif.-based GrayWater Action.
But Colorado’s Reg. 86 has numerous requirements, in some cases making it more burdensome than it is in other states. To use graywater indoors, for example, a home or office needs a dual plumbing system, with one set of pipes carrying treated drinking water, and the other set carrying graywater. Even new developments in Colorado don’t typically incorporate these dual-pipe systems, because they are expensive.
And retrofitting older homes and buildings is costly as well, Honeycutt said.
“You’re never going to see this in old construction because you would have to do a whole lot of rework,” Honeycutt said.
In addition, under the regulation, graywater has to be disinfected and cannot be stored for more than 24 hours.
Douglas County is among the dozens of counties statewide who have opted not to adopt the new rule. Officials there declined to comment on that decision, however a statement on the county’s website cited high costs, possible exposure to pathogens, as well as difficulty enforcing the rules as reasons for their decision not to allow the program in the county.
But those concerns did not prevent Pitkin County from moving forward with the new rule.
“We recognize that a number of other counties haven’t adopted [Reg. 86],” said Kurt Dahl, Pitkin County’s environmental health manager. “Being a leader [in water conservation] we thought it was important to go ahead and adopt them. But since we don’t have any takers, we’re going to have to regroup and see how to move this forward.”
Denver’s Novick and Dahl have several ideas they believe will help the graywater program catch on.
Among them is a tweak that would allow an innovative toilet system — one that doesn’t require dual-piping — to be used. Often seen in other states, the new toilets have a direct connection to a sink, so that once someone finishes washing his or her hands, for instance, the water flows into the toilet tank so that it can be reused for flushing.
This new-age loo eliminates the need for a separate tank to store graywater for toilet flushing, something now required under Reg. 86.
Another idea is to create a grant program that would provide low-interest loans or rebates to encourage homeowners and businesses to install these new toilets and sub-surface irrigation systems.
Similar programs exist to encourage installation of solar energy systems and other green technologies.
“We really need folks to install graywater systems so we can start to prove that they are not going to be a risk to public health,” Novick said. “This will increase the state’s comfort level and then we can come up with other technologies to use. We really want to see this program work.”
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.
Lease-fallowing plan so successful, no one notices
After all of the fireworks that accompanied creation of the Arkansas Valley Super Ditch, the actual operation has attracted little notice.
By design.
“We put enough water into the ponds so that no one on the river knows this is happening,” Jack Goble, engineer for the Lower Arkansas Valley Water Conservancy District, told the board Wednesday.
Goble gave an update on the Super Ditch pilot program that is providing water to Fountain, Security and Fowler from farm ground dried up on the Catlin Canal near Rocky Ford. The water is accounted for on a dayto- day basis, with deliveries to the cities each month. The response of all participants has been enthusiastic.
“With crop values down, they want to fallow more farms,” Goble said.
But under [HB13-1248], passed by the state Legislature in 2013, that can’t happen. The law limits 30 percent of the farmland enrolled in the program to be fallowed in any given year, and each farm can be dried up only three years in 10.
This year, only 26 percent of the 900 acres on six farms in the program were fallowed and so far have yielded more water than at the same time last year. Through the end of July, the program yielded 239 acre-feet (78 million gallons). That’s on track to beat last year’s yield of 409 acre-feet.
But that depends on what happens the rest of this irrigation season, Goble said.
Water not used on fields is channeled into recharge ponds, which mimic the runoff and seepage that would have occurred if the farms had been irrigated. The ponds also cover their own evaporative losses. Recharge stations measure the flows on the ditch each day.
Those numbers are plugged into formulas that compute the consumptive use — the amount of water crops traditionally grown in the fields would have consumed.
On a monthly basis, the consumptive use equivalent is transferred, on paper, from Lower Ark accounts to Security and Fountain accounts in Lake Pueblo, where it is transported through the Fountain Valley Conduit.
For Fowler, the water is moved to Colorado Water Protective and Development Association accounts to augment the town’s wells.
“We need to let the water community know, ‘Hey, this works,’ ’’ said Peter Nichols, attorney for the Lower Ark district and Super Ditch.
Participants have had to overcome skepticism, opposition and even lawsuits since 2012 to achieve results that have been favorable to everyone involved, he said.
Leah Martinsson and Megan Gutwein, of Nichols’ Boulder Law office, are writing articles about the success of the program for national water and legal journals. Nichols also suggested presenting a report on the progress of Super Ditch to Colorado Water Congress and the Colorado Water Conservation Board.
“We’ve done a pretty incredible job,” added Lynden Gill, president of the Lower Ark board. “The first year, it seemed like there were nothing but roadblocks. It’s absolutely incredible, the progress we’ve made.”
A section of the lower Crystal River in late summer 2012. Irrigators and other water users in the Crystal River valley are working toward ways to leave water in the river during moderate droughts.
CARBONDALE — In an effort to leave more water in the lower Crystal River in dry years, a growing number of irrigators in the watershed are considering entering into non-diversion agreements and are reviewing ways to deliver water to their crops more efficiently.
The agreements would be a product of discussions surrounding the recently released Crystal River Management Plan, which sets a goal of adding 10 to 25 cubic feet per second of water into the river during moderate and severe drought years.
The additional water could come from paying irrigators to reduce their diversions by 5 to 18 percent, depending on conditions, and by helping irrigators improve irrigation ditches and installing sprinkler systems.
The plan also calls on the town of Carbondale to fix the leaky irrigation ditches it uses to move water from the Crystal River through town and for the town to find ways to get its customers to use less raw water in dry years.
And apparently there is progress quietly being made on the plan’s recommendations.
“We’re really hopeful about this approach and it has had a pretty good response from the folks that we’ve had the opportunity to speak about it with in the agricultural community,” said Seth Mason, the principal hydrologist at Lotic Hydrological in Carbondale, who was the primary consultant on the river management plan.
The plan also cites the potential benefits of a 3,000-acre-foot reservoir at the confluence of Yank Creek and North Thompson Creek, although it notes such a reservoir would cost $9.75 million and it’s not clear who would pay for it.
Today there are 25 water diversions on the main stem and tributaries of the Crystal River and together they can pull up to 433 cfs of water from the river system.
In really dry years, the diversions can leave a section of the lower Crystal disturbingly dry, even if the water is being used to keep fields near Carbondale refreshingly green.
Just how many ranchers and farmers in the Crystal River Valley are now actively weighing their water options is uncertain, as the process to develop the river management plan in concert with local irrigators has largely been conducted in private.
But the acknowledgement section of the Crystal River Management Plan released Thursday does list 12 irrigation ditches among the organizations that “informed and advised” the team that developed the new river management plan.
“A long list of individuals and organizations informed and advised the Project Team throughout the planning process,” the plan states, including “Crystal River water rights holders and agricultural producers, including representatives from the Sweet Jessup Canal, East Mesa Ditch, Lowline Ditch, Ella Ditch, Helms Ditch, Pioneer Ditch, Bowles and Holland Ditch, Rockford Ditch, Carbondale Ditch, Weaver and Leonhardy Ditch, Kaiser and Sievers Ditch, and Southard and Cavanaugh Ditch … ”
No names of any individual ranchers, farmers or ditch company shareholders are included in the plan, but the ditches that are acknowledged account for the majority of diversions from the lower Crystal.
Bill McKee, a rancher and irrigator on the Crystal, has been actively involved in talking with local ranchers about the river management plan and he voiced his support for the plan’s recommendations at Thursday’s public presentation at the Carbondale library meeting room.
“In all our discussions, it’s seen as a good time to strike while the iron is hot,” McKee said.
A slide from Lotic Hydrological as presented to the Colorado River District on May 23, 2016. The slide summarizes key points in the new Crystal River Management Plan.
Drought sparked plan
The planning process for the Crystal River Management Plan started after the drought of 2012 left a section of the Crystal River between Thompson Creek and the state’s fish hatchery, just upvalley of Carbondale proper, with only 1 cubic foot per second of water flowing in it below several diversion structures. That year represented at least a one-in-20-year drought.
(On Saturday, May 28 at 10 a.m. the Crystal was flowing at 851 cfs near the fish hatchery).
“It is a fairly large river channel,” Mason said Thursday. “You can imagine that a channel that size is a pretty astounding sight when there is no water in it.”
During 2012 staffers at the Roaring Fork Conservancy and Colorado Water Trust began talking with ranchers about ways to leave more water in the river.
The Trust eventually reached short-term agreements with seven irrigators to leave water in the river in 2013, which was shaping up to be another drought year. Late-season rains negated the need for the agreements, but the work of the Trust helped provide a foundation for ongoing discussions that shaped the current plan.
The Conservancy then contracted with Mason to develop a technical study of the Crystal River and eventually brought in CDR Associates of Boulder to work with stakeholders. Public Counsel of the Rockies, an Aspen-based nonprofit, also joined the planning process and helped raise funds to pay for the plan.
The process has taken two-and-a-half years and cost over $300,000, said Rick Lofaro, the executive director of Roaring Fork Conservancy.
Before the plan was unveiled Thursday it was vetted by some irrigators, a number of whom are now in active discussions with the Colorado Water Trust about non-diversion agreements, according to Mason.
“There are ongoing conversations that I can’t say too much about,” said Mason, who was able to characterize the conversations both among irrigators and the town as “positive.”
A non-diversion agreement is a tool the Water Trust uses to give irrigators and other water users the option to leave water in rivers under certain conditions and terms, without going through a water court process to change an existing water right.
“Such agreements, which used to present risk to water users under Colorado water law, are now protected by [state] Sen. Gail Schwartz’s bill that passed in the 2013 legislative session, Senate Bill 19,” said Amy Beatie, executive director of the Water Trust.
(Please see a related story, “City considers 10-year agreement to leave more water in the Roaring Fork.”)
A slide from a recent presentation by Lotic Hydrological to the Colorado basin roundtable. The graphic illustrates the drying up of the Crystal in 2012 and four threshold questions posed by stakeholders during a recent river management planning process.
Private process
Mason helped clarify the situation for many local ranchers with a graphic that illustrates extremely low flows on the lower Crystal in late summer of 2012 in relation to various irrigation ditches.
He also developed a detailed scientific study of the Crystal River watershed and a model that could show what would happen in the river under various scenarios.
During the planning process, it became clear to Mason and other project team members that many local ranchers were not comfortable attending public meetings that included a bevy of professionals from various organizations.
“We did have other folks in the room at a couple points and that did not go the way we wanted it to,” Mason said. “We had some negative reactions to that and we’re very protective of the process. We wanted to make sure that the agricultural community knew that this process wasn’t a process run by folks who didn’t care about their livelihoods or their importance to the local community.”
The project team also learned that there were some threshold questions that needed to be answered.
One question was whether the periodic lack of water in the Crystal was really “the largest constraint on the ecological function,” as Mason put it.
By studying many different aspects of the river, including sediment flows, Mason concluded that yes, having enough water in the lower Crystal River is a key factor in its ecological health.
Another important question posed by stakeholders was, “How much water is enough to make a difference?”
In answering that question, Mason found that using the state’s instream flow right of 100 cfs in summer on the Crystal below Avalanche Creek as a planning goal was unacceptable to local ranchers.
“The agriculture community was not interested in talking about the state’s instream flow as the benchmark for ecosystem health,” Mason said.
He explained that the 100 cfs figure, which the state adopted in 1975 as the amount of water needed to protect the environment of the Crystal “to a reasonable degree,” was tied to average conditions, not drought conditions, and was therefore unlikely to be met in a really dry year.
What was acceptable to water users was working toward a “moderate,” but not “optimal,” level of flow between between Thompson Creek and the fish hatchery during one-in-five-year and one-in-ten-year droughts.
They also, notably, did not set a goal of reaching moderate flows in a one-in-20-year drought, such as 2012.
Mason concluded that during a severe one-in-10-year drought, an “optimal” flow level in the targeted stretch of river was 55 cfs, and a “moderate” flow level was 44 to 55 cfs.
During a one-in-five-year drought, he found the optimal flow level was 58 and moderate flow level ranged from 46 to 51 cfs.
To fill the expected gap between low river levels and the targeted moderate flow levels, the plan calls for 25 cfs to be left in the river from non-diversion agreements in a 1-in-10-year drought, and for 10 to 15 cfs to be left in the river in a one-in-five-year drought.
The plan states that stakeholders “indicated tolerance for moderate ecosystem risk under average to moderate drought conditions.”
A slide from Lotic Hydrological that illustrates the targeted flow rates for dealing with moderate and severe droughts on the lower Crystal River.
Range of options
After developing a solid scientific foundation and a model to help answer “what if” questions, Mason then developed options for each major irrigator on the Crystal.
These ditch-by-ditch options are not included in the plan, but Mason has been working with willing irrigators to help them understand how a non-diversion agreement might work for them, especially if they are joined by other water users.
The plan also calls on the town of Carbondale to take steps to reduce its diversions from the river, along with the agricultural community.
“Carbondale does have a few big ditches that move quite a bit of water from the river,” Mason said. “That water supports all the lovely large trees that we see down here that wouldn’t be here normally.”
Those steps include lining more of the town’s irrigation ditches to prevent leaking of water and using market forces to curtail use of raw water in dry years.
The new Crystal River Management Plan could be a potential model that could be used to develop other stream management plans, as the state’s recently released Colorado Water Plans calls for such plans on 80 percent of the state’s rivers.
James Eklund, the director of the Colorado Water Conservation Board, which produced the state water plan, complimented the planning process in the Crystal River valley.
“Our quick read says that this plan is based on sound science, examined viable alternatives, and engaged many stakeholders,” Eklund said Friday when asked for comment. “Continued collaboration with water users is required in order to implement effective solutions, but the Crystal River is headed in the right direction.”
Editor’s note: Aspen Journalism, the Aspen Daily News and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published this story on Sunday, May 29, 2016.
Arkansas River issues took center stage at this week’s meeting of the Colorado Water Conservation Board at Otero Junior College.
The board awarded 11 grants totaling $734,000 to projects in the Arkansas Valley, while touring some other projects in the La Junta area that already are underway. It also reviewed the progress of a pilot program by the Arkansas Valley Super Ditch, which was authorized under legislation in 2013 and heard plans by the Lower Arkansas Valley Water
Conservancy District to introduce new water banking legislation.
Diane Hoppe at CFWE President’s Award Reception 2012
The board paused for about an hour Wednesday to remember Diane Hoppe, who chaired the board until her death last month. Hoppe was a former state lawmaker who had been active in state water issues for more than 30 years.
On Tuesday, the CWCB staff and board toured the Catlin Canal, a channel-clearing project at North La Junta and a flume-replacement project on the Fort Lyon Canal.
The Catlin project is overseen directly by the CWCB under HB1248, which allows the state to do administrative water transfers without changThe Lower Ark district is championing the Super Ditch as a way to allow farmers to keep water rights while leasing some water to cities.
In the Catlin project, river flows are augmented by releases of water stored in Lake Pueblo and recharge ponds that have been built on farms. Cropland is dried up for no more than three years in 10, and the water is leased to Fowler, Fountain and Security.
At Wednesday’s session, Lower Ark attorney Leah Martinsson explained new legislation that would expand the concept to allow the CWCB to administer small transfers of water through a new kind of water bank. Past efforts to establish water banks relied on storage, while the new concept would allow direct flow rights to be leased.
“This is a different kind of tool,” Martinsson said. The bill, not yet numbered, would be sponsored by Democrat Reps. Jeni Arndt of Fort Collins and Ed Vigil of Fort Garland and Sen. Larry Crowder, R-Alamosa.
Like HB1248, the new law would put a 3-in-10 year limit on dry-ups, require approval by the state engineer and prohibit transfers out of basin. It would rely on court-approved rules to allow transfers, but would not create a new kind of water right. It covers small transfers over a 10-year period to avoid large-scale speculation, Martinsson said.
The draft bill released to the CWCB is 19 pages long and fairly complex. CWCB member Patricia Wells asked whether the board would be expected to review many small transfers using such complicated criteria.
Martinsson replied that the rule-making process and ongoing review by the state engineer would simplify the process.
Peter Nichols, Lower Ark and Super Ditch attorney, said the proposed water bank would be more useful to farmers than existing statutes, giving them flexibility without altering water rights.
“It’s a better way to do this,” Nichols said. “It adds rigor to the process without going to water court for major changes.”
Meanwhile, the CWCB awarded a grant to study flood control on Fountain Creek. Here’s a report from Chris Woodka writing for The Pueblo Chieftain:
Visions, studies and arguments over flood control on Fountain Creek have consumed attention in El Paso and Pueblo counties for the past decade.
Real work may finally be just around the corner — give or take a few bad floods.
The Colorado Water Conservation Board gave its approval this week to a $41,800 grant that will be added to $37,500 in local funds to begin evaluating potential sites for a dam or other flood control structures on Fountain Creek between Colorado Springs and Pueblo.
Like the creek itself, getting even to this point has been a meandering process, hitting snags and jumping out of the channel, as Larry Small, executive director of the Fountain Creek Watershed Flood Control and Greenway District explained to the CWCB.
“We first chose two scenarios to move forward,” Small said, explaining that a U.S. Geological Survey studied identified a dam or series of detention ponds between Fountain and Pueblo as the best way to protect Pueblo from intermittent flooding. “The water rights protection task came first.”
After a study last year confirmed flood control on Fountain Creek could be attained without harming water rights, the district moved to the next step of identifying where structures might be located. The existing study by the Army Corps of Engineers is limited to big projects and more than 40 years out of date.
The water rights issue doomed an earlier grant request at the Arkansas Basin Roundtable. Since then, the state Legislature passed a law that allowed storage of flows for flood control for up to 72 hours, except on Fountain Creek. The Fountain Creek district completed its study of water rights last year, however, and it passed roundtable scrutiny.
“We resolved the differences between stakeholders,” Small said. “It showed that water rights are a top priority in future projects.”
The preliminary work is needed as the Fountain Creek district prepares to receive $50 million over a five-year period specifically for flood control projects to protect Pueblo. The district is looking at the money to leverage more funding that would be needed to complete at least $150 million in projects already identified in plans.
The $50 million is a condition of a 1041 permit issued by Pueblo County for construction of the Southern Delivery System pipeline from Pueblo Dam to the El Paso County line.
A Grand County rancher has become the first person in Colorado to use a 2013 state law to intentionally leave water in a stream without fear of diminishing his water right. Working with the Colorado Water Trust , Witt Caruthers developed a plan to curtail diversions from Willow Creek when its flows drop to critical levels.
The additional flows will benefit half a mile of Willow Creek and then four and a half miles of the upper Colorado River before encountering the next downstream diversion, where another water user could potentially take the water. This stretch of the Colorado River has been heavily impacted for decades by upstream diversions across the Continental Divide to Front Range cities and farms.
The 2013 law, Senate Bill 13-019, allows some Western Slope water right holders to reduce their water use in up to five out of any consecutive ten years without having the use reductions count against them in water court calculations of “historic consumptive use.” This reduces the “use it or lose it” disincentive for conservation in Colorado water law.
The law applies only to water users in Colorado Division of Water Resources Divisions 4 (Gunnison River Basin), 5 (Colorado River Basin) and 6 (Yampa, White and North Platte River Basins). In order to qualify for the law’s protections, the water use reductions must be the result of enrolling land in a federal land conservation program or participating in an officially-sanctioned water conservation or banking program.
Jim Pokrandt of the Colorado River District, which approved Caruthers’s conservation program, told the Sky Hi Daily News that “we’re glad to be in the vanguard and helping the agricultural community protect their water rights when they want to lend the water rights to environmental purposes.” The same article quotes Caruthers as saying that he and his partners sought to “one, preserve our water rights but also to contribute to the overall maintenance of the ecosystem there by leaving water in the stream when it wasn’t needed.”
The Colorado Water Trust has also pioneered the use of other voluntary and market-based tools for landowners to share water with streams without diminishing their water rights. These include a 2003 law that created a streamlined process for water users to make short-term leases of water to the state for environmental purposes. The Trust first used this tool in 2012 by brokering a deal to support flows in the Yampa River. It has since been used in several other places.
Support and funding for such innovative water conservation efforts is rising as Colorado and the other states and cities that share the Colorado River are seeking ways to prop up water levels in Lakes Powell and Mead in the face of long-term drought.
FromNational Geographic (Sandra Postel and Todd Reeve):
A groundbreaking 2013 Colorado law provides new flexibility that allows water rights owners to allocate water to a river during times of critical low flow.
In the Colorado River headwaters, just outside of Rocky Mountain National Park, Willow Creek is providing a test case for the new law.
There, Witt Caruthers, a ranch owner with rights to divert a portion of Willow Creek’s water, decided to develop a plan allowing him to leave water in the creek for up to five years during a 10-year period—without the threat of the “use it or lose it” provision.
The water for Caruthers’ ranch, which is delivered through two irrigation ditches not far from where Willow Creek meets the Colorado River, fills stock tanks for cattle and irrigates 70 acres (28.3 hectares) of pasture. Typically, the diversions begin in May and continue through late summer. By that time, rivers and streams that rely on snow melt are running low – and after diverters take their share of water, many streams are at risk of running completely dry. Such was the case with Willow Creek.
For Caruthers the conservation project offered a chance to do something positive for Willow Creek and to set a precedent for other rivers in the drought-stricken West.
“Colorado’s water system created an incentive to use our water even in times when it’s not absolutely necessary,” Caruthers told the Denver Post. “When you’re under that pressure to use it or lose it, you’re almost forced to abuse it. That’s to the detriment of all.”
Caruthers and his partners worked with the Denver-based Colorado Water Trust (CWT) to design the project. It essentially involves curtailing diversions from Willow Creek when flows drop dangerously low. Because there are no other diverters immediately downstream, the enhanced flows will benefit not only the lower half mile of Willow Creek, but also some 4.3 miles of the upper Colorado –including populations of brook and brown trout.
Although the project restores only a small volume of water to the stream, that additional flow at crucial times of the year can help keep Willow Creek connected to the Colorado River, enhance water quality, and sustain fish and other aquatic organisms.
This past June, the chief engineer of the Colorado River District approved the CWT-Caruthers conservation program.
The Willow Creek project also sets a precedent that could be a game-changer for other Colorado rivers, as well as for farmers and ranchers that have the ability to use less water and share any surplus with a river. For those who desire to balance economic productivity with recreation interests, fish and wildlife needs, and community benefits, this new law offers a positive step forward.
The beauty of the new law, says Amy Beatie, CWT’s Executive Director, “is that it allows for a very simple, low-risk and flexible way for a water user to experiment with leaving water in a river.”
“It is one of the most straightforward programs the state has ever created to allow flexibility in water use,” Beatie continued, “and it has potential to benefit entire water user communities that are interested in collaborating to keep water in the river.
This 2013 Colorado law provides added flexibility and longer-term benefits for rivers than a 2003 state law that was designed to ensure that rivers aren’t denied water when they need it most.
The 2003 law was first tested during the drought of 2012 on the Yampa River, another upper Colorado tributary and the heartbeat of the popular tourist town of Steamboat Springs. That law allows farmers, ranchers and water districts to temporarily lease water to rivers and streams in times of need.
The following year, CWT and partners replicated that leasing approach on several other rivers, including the Fraser, another headwater tributary. The Fraser suffers not only from low flows during droughts, but also from trans-continental tunnel systems that divert its water to the Denver area.
Colorado’s 2013 law also gives water-rights protection to participants in the Colorado River System Conservation Program, an $11 million pilot initiative of the US Bureau of Reclamation and the water agencies supplying the four largest cities drawing upon the Colorado River – Denver, Los Angeles, Las Vegas and Phoenix. Some $2.75 million will be spent in the upper Colorado River Basin.
Although a small step for the restoration of the state’s rivers, Colorado’s new law breaks important new ground. And it may just inspire other western states to add flexibility to their systems of water rights so that more rivers can keep flowing.
Sandra Postel is director of the Global Water Policy Project and Freshwater Fellow of the National Geographic Society. Todd Reeve is CEO of the Bonneville Environmental Foundation. They are co-creators of Change the Course.
Change the Course, a partnership of National Geographic, Bonneville Environmental Foundation and Participant Media, provided funding to support the flow restoration projects in the Willow Creek, Fraser and Yampa Rivers.
A three-pronged approach to restore local water flows got a shot in the arm on Tuesday when Pitkin County supported a $35,000 Healthy Rivers and Streams grant to help a Front Range nonprofit’s plan to keep more water in the Roaring Fork River.
The project looks to provide a pathway for water right holders to leave more of their allocation in the Roaring Fork without being penalized, and assess availability of other water sources to combine the total for maximum benefit for the river.
The Denver-based Colorado Water Trust is spearheading the project, which aims to extend a non-diversion agreement for the city-owned Wheeler Ditch; look into the utilization of up to 3,000 acre-feet of water that would otherwise be diverted through the Independence Pass Transmountain Diversion System to bolster flows near Aspen; and study ways to use more water in Grizzly Reservoir to benefit the Roaring Fork.
The funding will go toward coordinating the project; the completion of a feasibility analyses; forecasting instream flow needs for the upcoming irrigation season; performing outreach; and monitoring and reporting of streamflow and project benefits, according to a supplemental budget request from Lisa MacDonald, of the Pitkin County Attorneys Office.
Amy Beatie, executive director of the Colorado Water Trust (CWT), said this is a “real opportunity” to put water back in the Roaring Fork River, especially in the stretch between the Salvation Ditch and Castle Creek…
Wheeler Ditch non-diversion agreement
Aspen City Council partnered with the Colorado Water Trust in 2013 on a one-year Wheeler Ditch non-diversion agreement to improve streamflow conditions on a section of river that flows through the city. This area stretches from the ditch, which is located near the eastern edge of town, down to the Rio Grande Park, the CWT grant application noted. The agreement was also renewed in 2014.
When the water level in the river fell below 32 cubic feet per second (CFS), the city reduced the Wheeler Ditch diversions to keep water in the river, leading to an increase of about 2 to 3 CFS from mid-July through the end of the irrigation season.
Under the new proposal, this Wheeler agreement would be extended for 10 years, but only five of those years are covered under SB-19.
The water trust’s hope is that once others with water rights see the success of non-diversion agreements, they too will allow more water to remain in the Roaring Fork without penalty.
Beatie added that the city of Aspen has given the CWT a “resounding thumbs-up” in its efforts.
“[The non-diversion agreement] is an informal agreement where a water user decides not to use its water right for its decreed purposes,” she explained. “But can instead leave it in the river. There’s no transfer obligations, it’s a very simple and private process and it’s a private contract between the trust and the city to experiment with leaving water in this section of river.”
More water from Grizzly Reservoir
Beatie said a right to 800 acre-feet of water in Grizzly Reservoir was acquired in a settlement by the Colorado River Water Conservation District in an application for a junior right enlargement.
John Currier, chief engineer with the Colorado River Water Conservation District, explained that out of the first 2,400 acre-feet that’s diverted in any given year under the junior water right, 800 goes to the river district.
“Through agreements with the city and county, that water is to be used in various ways, primarily for instream flow purposes,” he said.
Currier added that the real task of the overall project is figuring out how to marry the three sources and maximize the benefit.
“This was water that the river district secured,” Beatie noted. “It’s 800 acre-feet, about 750 of which can be used by a combination of the river district and Aspen for environmental purposes.”
Beatie said the river district is allowing CWT to analyze how the water can best be used and “sow this supply together with the Wheeler Ditch project.”
The CWT then intends to investigate how to best utilize the Grizzly water to enhance Roaring Fork streamflows, especially in years in which the Wheeler Ditch isn’t being diverted.
According to the CWT grant application, the first 40-acre feet of Grizzly Reservoir water would “be held in a mitigation account for subsequent release to enhance flows in the Roaring Fork during the late irrigation season.”
“The remaining water is to be stored either in Grizzly Reservoir in a Colorado River Water Conservation District account (up to 200 acre-feet) or held in [Twin Lakes Reservoir] storage,” the application continued.
Commissioner Steve Child asked if Grizzly Reservoir could be enlarged to provide more water on the West Slope.
Currier said that while nothing is in the works yet, the idea has “been on the radar screen.”
Water from the ‘Exchange’
In the third part of proposal, known as the “exchange,” the CWT will also investigate, in partnership with the water district, how to restore flows via the Independence Pass Transmountain Diversion System.
This could provide up to 3,000 acre feet of water “in exchange for equivalent bypasses from the headwaters of the Roaring Fork River,” the CWT grant application noted.
But Beatie said that while this arrangement has been implemented, it’s never been formally approved.
“The state engineer cannot administer an agreement, they need to administer a water right,” she said. “There may be more steps that need to be undertaken, both to secure this water right as instream flow, and then to have it protected.”
Wide support for effort
The Pitkin County commissioners supported the HRS grant allocation for the project, and praised the city’s involvement.
“From the bottom of my heart I want to applaud the city for taking the lead on this during the drought and continuing and following through,” said Commissioner Rachel Richards. “It’s just been fabulous.”
Dave Nixa, vice chair of the Healthy Rivers and Streams Board, said data from this project could provide a huge opportunity to increase local flows, calling it the most comprehensive grant request that HRS has ever received.
“We’re talking about, could some of those places be Snowmass Creek and the Crystal [River]?” he said. “Where we could use the value of this as a catalyst to encourage others to participate.”
April Long, stormwater manager for the city, said Aspen is looking at creating a river management plan for the Roaring Fork, calling it a top priority.
“It’s something that we’ll be working with the county very closely on, and all the other stakeholders in the suburb section of the watershed in the next two years to develop an operational river management plan for how we can maintain flows in drought years,” she said.
The CWT had already attained a matching grant from the Colorado Water Conservation Board, and the total budget for the project is approximately $70,000, according to a letter from Beatie to the HRS board.
“The idea behind this application is that it’s a really good start,” Beatie said, “Our experience is that one step forward into solving flow shortages is often the catalyst to bring more energy and enthusiasm and other water rights and water users into the program.”
For 139 years, state enforcers have said farmers, cities and ranchers who don’t use all the water they are entitled to could have their rights curtailed. Critics have said that discourages conservation.
A first deal in the works, made possible by a 2013 law, lets a ranch owner near Granby leave water in Willow Creek, a tributary of the overtapped Colorado River, without facing penalties.
A second deal would leave more water in the Roaring Fork River, another Colorado River tributary, in Aspen.
Colorado Farm Bureau leaders said they’re watching to make sure water left in rivers by those who don’t exercise their senior rights stays available to next-in-priority irrigators.
“We’re definitely taking a wait-and-see approach,” CFB president Don Shawcroft said. “We had a certain understanding when the law was passed, but it’s certainly up to the interpretation of the court and lawyers.”
The Colorado law says not using water won’t diminish or cancel a water right if the owner is enrolled in a conservation program with local approval.
Colorado River District officials last week approved the Willow Creek deal. Water saved initially will be small, flows of a few cubic feet per second into stream channels.
But the emerging alternative to Use It Or Lose It — developed by the Colorado Water Trust — marks a milestone in modernizing the state’s first-come, first-serve system for allocating water.
“We can look at the local water rights and determine if leaving water in a particular section of a river would create environmental benefits,” said Amy Beatie, director of the trust, devoted to saving rivers.
“The benefits could be significant,” Beatie said. “On a stream, one cubic foot a second can make a big difference.”[…]
Given the water pressures in the West, Louisiana-based ranch owner Witt Caruthers this year decided to try the new approach at his head-gates along Willow Creek.
“Colorado’s water system created an incentive to use our water even in times when it’s not absolutely necessary. When you’re under that pressure to use it or lose it, you’re almost forced to abuse it. That’s to the detriment of all,” Caruthers said.
He and his partners turned to the Colorado Water Trust to take advantage of the new law. Without it, he said, “You’re caught between taking what you need and taking what you are entitled to.”
When drought nearly dried up the Roaring Fork River a few years ago in Aspen, city officials began thinking about how to ensure a minimal flow by leaving water they divert from their Wheeler Ditch to irrigate parks and feed fountains.
Yet their efforts to leave water in the river led to legal challenges by competing users, who claimed the city’s senior rights must be reduced if it stops diverting its full allotment, said Phil Overeynder, utilities engineer for special projects.
“Aspen is interested in doing this. Leaving a little water in that stream is what we are trying to accomplish,” Overeynder said.
Agricultural irrigators are wary of changing Colorado water law, said John McKenzie, director of the Ditch and Reservoir Company Alliance. Yet the system causes many to flood fields with more water than they need for fear that government will list their water as abandoned, McKenzie said.
“We want to protect ditch company water rights,” he said. “But if there’s a mechanism where a ditch company that doesn’t need the water could allow it to flow down a river, and there was no ‘abandonment’ of that water, it could help a ditch company. There are costs to diverting water.”
A state engineer’s review of a plan to lease water from the Catlin Canal to upstream cities will move to the Colorado Water Conservation Board later next week. The state board is scheduled to review the plan on Jan. 26, the first day of its two-day meeting in Denver.
The plan is the first pilot project under 2013 legislation, HB1248, that allows the CWCB to review projects that lease water from farms to cities on a long-term, temporary basis. In order to provide the water, agricultural land must be dried up during the lease. No more than 30 percent of any given farm may be fallowed during the 10-year lease period.
Seven farms with 1,128 acres on the Catlin Canal will be dried up on a rotational basis to provide up to 500 acre-feet (163 million gallons) per year to three municipal water users: Fowler in Otero County, and Fountain and the Security Water and Sanitation District in El Paso County. If approved, the lease would begin this year.
The CWCB accepted the project in September, but will look at the details in the upcoming review. The state engineer’s office reviewed the plans in a way similar to a water court application or substitute water supply plan.
Bill Tyner, assistant Water Division 2 engineer, told the Southeastern Colorado Water Conservancy District Thursday that a review of the application has been completed and will go to the CWCB next week with a recommendation to proceed.
The review included concerns about impacts on other water rights from Southeastern and other groups in the Arkansas Valley.
“It’s an important time in the Arkansas River basin for those who have tired to get a lease-fallowing program going. It’s finally going to occur,” Tyner said.
The program is supported by the Arkansas Valley Super Ditch, a corporation that includes members from several ditches, as well as the Lower Arkansas Valley Water Conservancy District.
More HB13-1248 coverage here. More Arkansas River Basin coverage here.
The Colorado Water Conservation Board last week approved a pilot project that will provide the town of Fowler water from several farms on the Catlin Canal over the next 10 years. The project is the first to be attempted under 2013 legislation, HB1248, that authorized demonstration projects that determine if lease-fallowing projects are a viable alternative to permanent dry-up of farms. It is also the first test of the viability of the Arkansas Valley Super Ditch.
Participating farms would be dried up no more than three years of the next 10 in order to supply 500 acre-feet (163 million gallons) annually to Fowler. Seven farms with 1,128 acres will be dried up on a rotational basis to provide the water under a plan filed by the Lower Arkansas Valley Water Conservancy District and the Arkansas Valley Super Ditch.
The CWCB reviewed comments on the project expressing concern from Aurora, the Lower Arkansas Water Management Association, Tri-State Generation and Transmission Association, the Southeastern Colorado Water Conservancy District and Colorado Beef, a Lamar feed lot. The comments were similar to filings made in the past in water court cases that sought to permanently change water rights. Most expressed concern that their water rights would not be injured by the program and sought to assure that measurements in the program are accurate. Some were supportive of the program and all wanted to be notified of progress or changes in the program.
“We’re trying to see if a lease-fallowing program is viable,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District. “We’re trying to keep the water in the Arkansas basin. That’s what it’s all about.”
The state will spend $175,000 to study the amount of water returning to the Arkansas River from fields on the Fort Lyon Canal. That will be matched with $50,000 from the Lower Arkansas Valley Water Conservancy District. The Colorado Water Conservation Board approved the grant last week as a way to address contentions from farmers that the amount of tailwater return to the Arkansas River has been overestimated. The outcome could affect the formulas used by the Colorado Division of Water Resources in administering the Arkansas River Compact and rules that govern wells or surface irrigation. It could also make more water available to farmers to lease under the Super Ditch or other rotational lease-fallow programs.
The grant was approved in July by the Arkansas Basin Roundtable.
The state now recognizes a 10 percent return of water from fields, or tailwater, that are flood irrigated. That water must be replaced under state rules adopted during the 24-year Kansas v. Colorado court case.
The Fort Lyon Canal is 100 miles long and irrigates 94,000 acres, so farmers contend water soaks into the ground and never makes it to the river. It is anticipated that the collection and analysis of data will take about two years to complete, at which time further work could be contemplated.
Leaky ponds are good news for farmers in the Lower Arkansas Valley. The second year of a pond study in a normal water year is showing similar results as last year, when drought gripped the region.
“We’re not seeing a significant difference,” said Brian Lauritsen, a consultant on the study being funded through the Lower Arkansas Valley Water Conservancy District and the Colorado Water Conservation Board.
Water leakage on more than 20 ponds averaged about 20 percent this year, compared with 18 percent last year. Most are on the Fort Lyon Canal. It had been thought the numbers would be higher when the ground was drier.
“Usually, you don’t want to see ponds leaking,” said Jack Goble, engineer for the Lower Ark district.
But in this case, there is a chance the state will adjust its formula used to determine how much water irrigators owe for return flows that are reduced through more efficient irrigation techniques such as sprinklers. More leakage means less water owed to the river.
The Lower Ark also has built two ponds on the Catlin Canal designed specifically to leak. Called recharge ponds, they are designed to return water to the Arkansas River over time, the way that water flows through the aquifer in farming operations. One pond fills part of the need for Rule 10 surface irrigation plans, while the other is credited to Rule 14 well plans. One pond contributed 135 acre-feet (44 million gallons) in a month, while the other leaked 120 acre-feet (40 million gallons) in 21 days.
“I hope we’re able to get more of these ponds, especially in the lower part of the basin,” said Jay Winner, general manager of the Lower Ark District.
More HB13-1248 coverage here. More Lower Arkansas Valley Water Conservancy District coverage here.
From email from the Colorado Division of Water Resources (Kevin Rein):
During the 2013 legislative session, the General Assembly enacted HB-1248 to provide for fallowing-leasing pilot projects. At its November 2013 Board meeting, the CWCB approved Criteria and Guidelines for the pilot projects and in December, the CWCB received an application for selection and approval of a pilot project for the Town of Fowler. That application was subsequently withdrawn.
On June 5, 2014, CWCB staff will hold an informal workshop to review the Fowler Pilot Project and discuss the lessons learned through the application and review process. The CWCB’s objective is to apply lessons learned to any upcoming pilot project applications.
Fowler Pilot Project
Lessons Learned Workshop
June 5, 2014
9:00 am to Noon
1313 Sherman Street
Room 318
Chris Woodka is at the Colorado Water Congress’ annual summer shindig up in Steamboat Springs. Yesterday the interim water resources review committee met and implementing last session’s HB13-1248 was part of the discussion. Here’s Mr. Woodka’s report:
Lawmakers are hoping a bill that would expand opportunities for demonstrating projects that share water between farms and cities is implemented as quickly as possible. The interim water resources review committee Wednesday heard from the prime backers of SB-1248, the Lower Arkansas Valley Water Conservancy District and the Super Ditch, on the need for it.
“I think this is about having a conversation about keeping agriculture vital in the Arkansas River basin,” said Jay Winner, general manager of the Lower Ark District.
“Agricultural-municipal transfers have to become the preferred alternative, rather than continued buy-and-dry,” added Peter Nichols, attorney for both the Lower Ark and Super Ditch.
At the heart of the bill is an attempt to streamline state procedures in order to allow transfers to occur on a short-term, limited basis, said Kevin Rein, deputy director for the Colorado Division of Water Resources. Winner said the current structure of law and engineering hung up a pilot project to transfer 250 acre-feet (81 million gallons) last year over the timing of delivery of 23 gallons in the 74th month of return flows. The new law gave the Colorado Water Conservation Board authority to look at programs that could sidestep those types of issues in order to allow water users to work out details of such plans. Rein said the CWCB should develop criteria and guidelines by November.
Legislators want the program to be implemented soon and smoothly. “My concern is that CWCB is on board to implement it in as timely fashion as possible and that we’re not going back to rehashing arguments made against HB1248 when we were passing it,” said Rep. Randy Fischer, D-Fort Collins, chairman of the House ag committee.
The arguments included that it bypassed water court proceedings meant to prevent injury to other water users. The bill also has been criticized because it disallows transfers only from the Colorado River and Rio Grande basins, while ignoring more exports from the Arkansas River basin.
“I want to make sure there is the opportunity for public input, comments and concerns,” Sen. Gail Schwartz, D-Snowmass, said. “There needs to be the opportunity for the public to weigh in.”
More coverage from Chris Woodka writing for The Pueblo Chieftain:
The U.S. Forest Service is evaluating its policies as it deals with the damage from two years of large wildfires in Colorado and other Western states. “The unfortunate side effect of fires is flood and mud,” Dan Jiron, regional forester for the Forest Service told the interim water resources review committee of the state Legislature Wednesday. He cited recent damage in Manitou Springs from last year’s Waldo Canyon Fire as an example.
In Colorado, 60 percent of the water that affects the population comes off Forest Service lands. “We still have a very active fire season,” Jiron said. “Even though there were large fires earlier, we continue to fight fires every day. The Forest Service is looking at partnerships, as well as redirecting resources, to mitigate large fires and prevent future blazes, he said.
About $500,000 already has gone into rehabilitation of the West Fork Complex near Creede, which has been difficult because much of the fire was in steep canyons in an inaccessible wilderness area. That’s part of $35 million in resources the Forest Service has put into firefighting and remedial work in Colorado.
Sen. Ellen Roberts, R-Durango, questioned whether the Forest Service would look at changing policies in wilderness areas to allow more proactive thinning. “We were west of the West Fork Complex and it looked like an atomic bomb cloud,” she said.
“It would not have been safe to put firefighters on the ground at West Fork,” Jiron said. While firefighters are sometimes deployed in wilderness areas, the steep slopes in the West Fork Complex were more of a factor than wilderness declaration. “A lot of Forest Service land is not in wilderness,” he said.
Partnerships with timber companies, utilities, counties and water districts are providing more proactive protection in areas prone to fires, Jiron added. “It’s important how we pull together at a regional level to put resources in place, to be proactive and to protect communities,” committee chairwoman Sen. Gail Schwartz, D-Snowmass, said. “We are at a very important juncture. This is critical.”
A special hearing is scheduled for next month, when Douglas County commissioners will hear from Sterling Ranch and the public to see whether the county will give a thumbs-up to the project, which includes up to 12,050 new homes in the Chatfield Basin.
The hearing comes after a judge blocked the project in August. Citing state law, the judge argued that Sterling Ranch had not lined up enough water and needed to prove it had enough water secured though build-out.
Douglas County appealed that ruling, and then sought and received a change in state law this legislative session. Now, Sterling Ranch officials believe the project can finally move forward.
Joe Hanel sums up this year’s legislative session in his article running in The Durango Herald. Click through and read the whole thing. Here’s an excerpt:
During the last 120 days, Democrats used their majorities in the House and Senate to push through a progressive agenda that’s been pent up for a decade.
Election Day voter registration. Background checks for guns. Renewable-energy mandates. More health care for the poor. A $100 million tax break for low-wage workers. Civil unions for same-sex couples, and in-state tuition for students in the country illegally. Democrats in many other states can only daydream about the goals that Colorado Democrats achieved during the 2013 legislative session, which ended Wednesday.
For good or ill, Capitol veterans called it the most consequential session in memory.
“Each one of these things was epic,” said Senate Majority Leader Morgan Carroll, D-Aurora. “We were (able) to do public-safety measures with commonsense background checks that Congress couldn’t get done. Any one of these things by themselves would have been historic and epic for a session, and we did one after another after another.”
Recent weather patterns in the Upper Arkansas River Valley precipitated discussion of snowpack and water supplies during the Thursday meeting of the Upper Arkansas Water Conservancy District. District hydrologist Jord Gertson reported that all district reservoirs are full, except for DeWeese Reservoir in Custer County, which is at 89 percent of capacity.
Gertson presented Natural Resources Conservation Service data compiled May 1 that show Upper Arkansas River Basin snowpack at 93 percent of average and 287 percent of 2012 snowpack levels. Gertson said Snowpack Telemetry sites at Fremont Pass and Brumley show the snow water equivalent at 101 percent and 109 percent of median, respectively. The Fremont Pass SNOTEL site also reports precipitation at 106 percent of average for the current water year, which began Oct. 1. Gertson also showed snowpack charts indicating measurements at upper basin SNOTEL sites are “way better than last year,” including sites at Porphyry Creek, Independence Pass and St. Elmo.
District directors also reported good news about the Frying Pan-Arkansas Project, which is expected to import 47,000 acre-feet of water from the Western Slope this year, compared to 14,000 acre-feet in 2012. Diversions of Fry-Ark Project water into the Arkansas Basin average approximately 52,000 acre-feet of water per year. In 2011, the project imported 98,000 acre-feet of Western Slope water, the second highest amount in the project’s 50-year history of operations.
In other business, directors heard a legislative report from consultant Ken Baker. Baker’s report mainly focused on House Bill 1130, which, he said, targets Arkansas Basin water and is expected to be signed by the governor.
Baker said HB 1130 would create a “selective application” of a 130-year-old Colorado water law. The bill would create the potential for 30 years of interruptible-supply agreements that are currently limited to a maximum of 10 years. The state engineer would have authority to approve these agreements, changing the use of the water and bypassing Water Court proceedings that are currently required to change the use of a water right. Baker said the bill mainly benefits Aurora, allowing the city to take Arkansas Basin water without having to pursue a change-of-use case in Water Court.
To gain the votes needed to pass the bill, Baker said a special exclusion was added that exempts Western Slope water.
In other business, Upper Ark directors:
Approved a modification to a Nestlé Waters North America augmentation agreement for 200 acre-feet of Fry-Ark Project water per year for 35 years.
Agreed to stipulate out of Poncha Springs case 09CW138, subject to favorable review of the stipulations by district engineer Ivan Walter.
Approved an agreement with law firm Wilderson, Lock and Hill to provide legal counsel for a flat fee of $2,000 per month.
Received an update on an integrated water agreement with Buena Vista.
Approved a cooperative water agreement with Colorado Parks and Wildlife.
Learned that the gate wheel at O’Haver Lake has been replaced after the old one was damaged by a vehicle.
Received an update on the Trout Creek Ditch exchange case, 08CW106, which is scheduled to go to trial June 11 if the Department of Corrections, division engineer and Colorado Water Conservation Board do not agree to proposed stipulations.
Upper Arkansas Water Conservancy District directors heard a report about the potential for underground water storage in Chaffee County during their Thursday meeting. Tammy Ivahnenko and Ken Watts with the U.S. Geological Survey said areas identified for further study include aquifers near Salida, Nathrop, Johnson Village, Buena Vista and north of Buena Vista.
Watts said the locations were identified based on slope (less than 3 percent), soil texture at a depth of 5 feet (loam, sandy loam or gravel preferred) and surface geology (alluvial or gravel deposits).
Another important factor, Watts said, is the “stream-accretion response time factor,” which provides an indication of how long water will stay in an aquifer before draining into a stream.
Ivahnenko described “water budgets” she developed for Cottonwood, Chalk and Browns creeks and the South Arkansas River.
The water budgets include irrigated acres, consumptive use by crops and amount of water diverted for irrigation, and help determine how much water may be available for storage at a given time.
Watts said he conducted “slug tests” at 29 wells to determine hydraulic properties in the aquifers, including conductivity and permeability. He also reported on findings from Colorado State University monitoring wells. Hourly readings from the monitoring wells documented seasonal changes in water level and temperature, showing seasonal changes in groundwater levels and surface-water infiltration.
Some wells showed significant influence from surface irrigation while others indicated a more stable, natural water level.
Upper Arkansas Water Conservancy District officials are developing plans to increase water storage capacity in the Upper Arkansas River basin. An important component of those plans is underground storage in alluvial aquifers, which would eliminate evaporative water losses and provide augmentation water through natural recharge to surface waters.
Conservancy district officials said they will rely on USGS findings to help determine possible locations for underground water storage projects.
More Upper Arkansas Water Conservancy District coverage here.
Colorado is moving quickly to develop a state water plan by late 2015, culminating more than a decade of work. “I think it’s exciting for Colorado, when you look at all the work that’s been done,” said Alan Hamel, who represents the Arkansas River basin on the Colorado Water Conservation Board. He made his comments during a report to the Arkansas Basin Roundtable Wednesday.
The CWCB is going through changes, with executive director Jennifer Gimbel leaving in June and an ongoing search for a new chief.
Gov. John Hickenlooper has asked the CWCB and the Interbasin Compact Committee to speed up efforts to develop a plan for future water supply that meets the need for more urban growth while preserving water for the environment and agriculture.
“During my reign of terror as state engineer, at least one legislator every year would stand up and say, ‘We have to have a state water plan,’ ” said Jeris Danielson, who represents the basin on the IBCC. “We might actually get something done.”
Both Danielson and Hamel cautioned the roundtable that the state’s prior appropriation system, administered through water courts, needs to be preserved. But it can be tweaked to allow certain types of flexibility to share water for more than one purpose.
One example of that is House Bill 1248, which breezed through both legislative houses this year after it was altered to have a statewide focus. The bill allows rotational fallowing demonstration projects that would allow farmers to lease water to cities with the oversight of the CWCB. Originally, the bill just included the Arkansas River basin, which has received several CWCB grants designed to gauge the impact of water transfers related to the Arkansas Valley Super Ditch.
“We are ahead of the other roundtables in terms of planning,” Hamel said.
More IBCC — basin roundtables coverage here and here.
Aurora prevailed in the final days of the state Legislature after a conference committee largely unraveled a Senate committee’s changes to a water transfer bill. A bill that would give the state engineer up to 30 years authority over water transfers was approved by the House Wednesday on the last day of the Colorado legislative session. The Senate approved the bill Tuesday. It now goes to Gov. John Hickenlooper for his signature.
“In general, it’s not too far from where we started,” said Gerry Knapp, who oversees Arkansas Valley and Colorado River operations for Aurora. House Bill 1130, backed by Aurora, was heavily amended in the Senate agriculture committee in April, but most of those changes were undone in conference committee Monday.
The bill makes changes in the interruptible water supply law, which allows cities to lease water from farms for three years in any 10-year period. The amended version of the bill allows two renewals by the state engineer, with certain conditions, although it expands the water court appeal period for renewals to four months.
The state House Tuesday passed a bipartisan resolution to protect Colorado’s water supply and recognize the benefits irrigated agriculture provides to Colorado. “We want to make sure we protect water, it’s a precious resource,” said Rep. Lori Saine, R-Dacono. “Water is the lifeblood of our state. I’m glad to see bipartisan support for this resolution.”
House Joint Resolution 1026 calls on the Legislature to work with Gov. John Hickenlooper and Colorado’s water community to continue addressing Colorado’s predicted water supply-demand imbalance. HJR1026 recognizes the importance of Colorado’s irrigated agriculture and encourages investment in outreach and education to increase Coloradans’ awareness of how beneficial irrigated agriculture is to Colorado.
The Colorado Water Conservation Board and Interbasin Compact Committee have been working on meeting future demand for more than a decade. Hickenlooper wants to have a state water plan in place by 2016. “Agriculture contributes about $40 billion to our state’s economy,” Saine said. “We have to make sure that water rights are protected.”
More than 85 percent of Colorado’s water use is for agriculture, but a growing amount is required for city and industrial uses.
“Our water demands will only increase going forward,” Saine added.
HB 1316, sponsored by Democratic Reps. Dickie Lee Hullinghorst of Gunbarrel and Joe Salazar of Thornton, would require the state to undertake the same stringency of groundwater testing in the oil-rich Wattenberg basin as it does across most of the state…
HB 1316 passed the House on its third and final reading in that chamber Wednesday morning and now goes to the Senate for consideration…
The Colorado Oil and Gas Conservation Commission (COGCC) in January changed its rules to require companies to conduct one groundwater test per quarter-section, the equivalent to four tests per square mile, in the Wattenberg area. Due to the number of wells drilled and planned in that area, the new standard will result in a database of 11,000 samples, according to the state. HB 1316 proposes to change the new rule and require companies working the Wattenberg to sample up to four groundwater sources within a half mile of the new well…
The Colorado Oil & Gas Association, an industry trade group, opposes the bill because it undermines the influence of the state regulatory agency charged with overseeing the oil and gas industry, spokesman Doug Flanders said. “A statewide ‘one size fits all’ water sampling rule does not fit Colorado, is unnecessary and fails to account for unique characteristics of specific areas of the state,” he said.
More coverage from Steve Lynn writing for the Northern Colorado Business Report. Here’s an excerpt:
House Bill 1316, sponsored by House Majority Leader Dickey Lee Hullinghorst, D-Boulder, and Rep. Joe Salazar, D-Thornton, would require the Colorado Oil and Gas Conservation Commission to adopt uniform groundwater sampling rules. It passed by a narrow 34-29 vote. Northern Colorado was partially exempted from the new rules in January, when they were adopted by the Colorado Oil and Gas Conservation Commission.
Coincindentally, the new rules also took effect Wednesday. The new rules require companies to sample as many as four water wells within one-half mile of a new oil and gas well before drilling. Two more samples of each well must be taken between six and 12 months and again between five and six years…
Neither oil industry representatives or environmental groups embraced the new monitoring rules. Stan Dempsey, president of the Colorado Petroleum Association, criticized HB-1316, saying that it disregards scientific data presented during the creation of groundwater testing rules and derails efforts to address the needs of local communities.
“There were parts of the COGCC’s water sampling rule we would have preferred to see enacted differently,” Dempsey said in a statement. “But we believe that the role of the executive branch should be respected and that the outcomes of extensive rule making ought to be much more carefully evaluated before being overturned.”
Environmentalists have criticized the exemption in the Northern Colorado oil field, calling it the “Anadarko-Noble loophole” after two major producers in the region, Anadarko Petroleum Corp. and Noble Energy Inc.
From the Northern Colorado Business Report (Dallas Heltzell):
Co-sponsored by Rep. Randy Fischer, D-Fort Collins, and Sen. Gail Schwartz, D-Snowmass Village, it now heads to the Senate Appropriations Committee. Lawmakers there will consider a $110,000 appropriation to fund development of gray-water standards by the state Department of Public Health and Environment…
The bill directs the Colorado Water Quality Control Commission to develop minimum statewide standards for gray-water systems and lets cities and towns decide whether to approve them.
Fischer talked with the Business Report about why the bill is needed — and why it failed last year.
Q: What first made you aware that this was an issue in Colorado? Why did you decide to introduce this bill now?
Answer: Dr. Larry Roesner at Colorado State University’s Urban Water Center first contacted me about the need for legislation to authorize use of gray water in late autumn 2010. I was somewhat familiar with gray water systems and their potential to significantly reduce municipal and industrial water consumption. However, I was unaware that Colorado was the only arid western state whose statutes did not recognize or explicitly authorize the installation and operation of gray-water systems. Roesner and his colleague Sybil Sharvelle and I worked to draft legislation and meet with a broad stakeholder group to develop support for legislation. I introduced our bill in December 2011 for consideration during the 2012 legislative session. Regrettably, HB 1003 fell victim to political considerations early in the session. I committed to continuing to work on the bill and reintroduce it in 2013. HB 1044 is the result of literally 2 1/2 years of work on the part of Roesner, Sharvelle and me.
Q: If gray water is safe and beneficial to use, why are gray-water systems illegal in Colorado?
A: Gray water derived from a properly designed and functioning system is safe for indoor use to flush toilets and for outdoor drip irrigation systems. However, current Colorado statutes do not recognize or explicitly authorize its use. The Legislature has likewise never directed the applicable regulatory agency, the Colorado Department of Public Health and Environment (CDPHE), to promulgate rules or to set minimum statewide standards for its use. The absence of authorizing legislation, CDPHE rules and statewide standards has created regulatory uncertainty. This uncertainty prevents people from choosing to install gray-water systems because of the risk that their systems could be ruled illegal. When adopted, HB 1044 will direct CDPHE to promulgate rules and standards that will resolve the current regulatory uncertainty.
Q: What do Northern Colorado and the state have to gain by passing your bill, both environmentally and economically?
A: Gray water systems are capable of conserving 25 percent to 30 percent of the indoor water consumed in a typical residence. The water savings from new residential developments using gray water could be substantial and could be a cost-effective tool for helping to meet Colorado’s water needs for the 21st century. In addition, municipal water and wastewater service providers will realize energy and treatment cost savings in the operation of drinking water and wastewater treatment plants.
Q: This is the second time you’ve introduced a bill of this nature. Why did the first one get shot down, and what is different about this bill?
A: Bills dealing with water issues almost always are assigned to the House Agriculture and Natural Resources Committee. However, last year’s gray-water bill was assigned by then-Speaker Frank McNulty to the House State Affairs Committee for its first hearing. Regrettably, the speaker’s choice of the State Affairs Committee to hear the 2012 bill indicated that he was not going to let it advance for purely political reasons. This year, the political environment for water conservations bills such as HB-1044 is greatly improved, and Roesner and I have had an additional year to continue working with stakeholders to build support for the bill.
Q: If passed, what are the next steps to implementing gray-water systems? Do you foresee any other major hurdles?
A: Upon passage of HB 1044, the CDPHE will be required to promulgate rules and minimum statewide standards for installation of systems and use of gray water. The State Plumbing Board also needs to adopt a version of the International Plumbing Code that recognizes gray-water systems and provides guidance for installers. Finally, local governments will have the choice of authorizing the use of gray water within their jurisdictional boundaries. Local jurisdictions will have to adopt ordinances or resolutions authoring the use of gray water in consultation with local health departments and water and wastewater service providers. After passage of the bill, I hope that education, outreach and public acceptance will grow with time such that gray-water systems become a routine part of new residential development and that the potential for water conservation is realized.
More graywater reclamation coverage here and here.
The work for the 2013 legislators began last summer, with the annual interim water resources review committee. The group of 10 legislators traveled the state last summer and fall, hearing about water conservation and legal issues on water rights. The end result was a recommendation for eight measures for 2013: two joint resolutions and six bills. Three other proposed bills were not approved by the entire com-mittee, but members of the committee sponsored two of those bills anyway.
The group’s legislative agenda was its most aggressive since the 2002 decision by the General Assembly to make it an annual permanent interim committee. Six bills and two resolutions came from the committee’s summer work, and two other bills that were not adopted by the committee got to the legislature anyway, introduced by committee members…
A drought can make legislators do things that they haven’t been able to do in the past, and that may hold best for HB 1044, which would authorize the use of graywater. Legislators, including those on the interim water committee, have tried for several years to get a graywater statute into the books, without success. This year, however, the General Assembly is just one more vote away from making it part of the state’s conservation efforts…
Perhaps the most significant bill on water rights was Senate Bill 13-074, which clarifies water court decrees issued prior to 1937; according to sponsors, that’s most of the decrees.
Prior to 1937, some decrees did not specify the amount of acreage that would be irrigated under a water right; SB 74 says that in a dispute, the court could rely on the historical acreage irrigated in the first 50 years after the decree was entered. Supporters claimed that farmers have counted on that water for generations, and that it has substantial value, including for estate planning purposes.
Opponents, including the Colorado Water Congress, claimed it might harm senior water rights and intends to solve a problem that doesn’t exist. It’s unusual for the CWC to oppose anything coming from the interim committee, according to attorney Steve Simms. He said that the water courts have faced virtually every possible scenario on water rights during the past 100 years, and in 95 percent of those cases, they can go back to the original intent of the decree and figure out how much acreage was to be irrigated. SB 74 says “if you cheat and get away with it, we’ll legitimize it as long as you can hide it long enough,” Simms said.
State Water Engineer Richard Wolfe said there are more than 16,000 water decrees. He said he could not estimate how many would be affected by SB 74 without reviewing each one individually. The bill was signed into law by Gov. John Hickenlooper on April 4…
SB 75 was signed into law by the governor on March 15. It prohibits reductions in the amount of water allocated when a user has undertaken conservation measures. Sponsors, including Sen. Greg Brophy, R-Wray, explained that farmers are implementing better irrigation systems and techniques for water use, but they should not have their water allocations reduced as a consequence, particularly in drought situations.
SB 19 is another one of the bills not supported by the interim committee but that got onto the legislative calendar anyway. The bill, in its final form, applies to three water districts on the western slope, and provides opportunities for conservation, according to Schwartz, its primary sponsor. Some mountain water districts have voluntarily curtailed water use in order to maintain river flows, according to attorney Kristin Moseley, who represented the Eagle River Water and Sanitation District. SB 19 encourages voluntary curtailments without penalizing the water user long-term by reducing their water diversion rights, Moseley said. SB 19 has passed the General Assembly and is awaiting signature from the governor…
SB 41 also deals with water rights and conservation, and another state need: firefighting. State water law is basically “use it or lose it,” and it includes a variety of needs that are considered “beneficial use,” such as irrigation, dust suppression, recreation and domestic. However, water storage isn’t among the approved uses under state law, and that was verified in 2011 by the Colorado Supreme Court. The Court, in stating that storage is not a beneficial use, could have forced the state water engineer to empty reservoirs every year. SB 41 reverses the Supreme Court position to allow water storage as a beneficial use, and it also adds firefighting to that list. The governor signed the bill into law on April 8.
There are two major water bills still moving through the process: HB 1248 and HB 1316.
HB 1248 is the legislature’s attempt to save water rights on agricultural land; it sets up a pilot program on fallowing agricultural land and letting that water be used for municipal purposes. The bill is based upon concerns that Colorado could lose more than a half-million irrigated acres statewide and basins could lose up to 35 percent of their irrigated acreage, all by 2050. “If we do nothing, ‘buy and dry’ becomes the default for meeting 21st century water needs,” according to the bill’s sponsor, Rep. Fischer. “Buy and dry” refers to the practice of permanently selling off agricultural water rights for development purposes.
Under HB 1248, the Colorado Water Conservation Board would authorize up to three pilot programs that would allow for temporary leasing of agricultural water rights, for up to 10 years, for four river districts: the South Platte, the Arkansas, the Rio Grande and certain portions of the Colorado. It doesn’t solve long-term water needs, but according to attorney Peter Nichols, it would create a short-term supply for municipalities during times of drought. The bill is awaiting Senate action.
The last major bill is HB 1316, which passed the House Health, Insurance, and Environment Committee 6-5 on Thursday and ends an exemption for the largest oil and gas field in Colorado and increases groundwater testing. Currently 25 percent of all drilling activity and the most intense growth of development and applications for new drilling occurs in the Greater Wattenberg Area (GWA) in northern Colorado. This month, of the 28 spills that have been reported to the Oil and Gas Conservation Commission, 15 occurred in the GWA.
[Patti] Mason says water rights concerns, specifically the idea that every drop of rain is already bought and paid for, has kept state lawmakers from loosening their grip over graywater usage, despite the fact that using it would help conserve the precious resource…
Senator Ted Harvey, a Republican from Highlands Ranch, agrees. “The bill is different from the one last year,” Harvey says. “This is very voluntary. It does not require local water providers to regulate it, so it’s not a mandate on water providers.” Harvey, who supports the bill, says water conservation is increasingly on the mind of lawmakers at the State Capitol. “This is not a partisan issue; water is never a partisan issue,” said Harvey…
Patti Mason says the graywater bill has a pretty good chance of passing. But she says it’s just the first step in educating lawmakers about the full potential of graywater use.“I do think that broadening the community’s ability to capture precipitation is next,” said Mason. “There are examples of existing policy in place that has allowed for precipitation harvesting to take place in limited scale. “
The graywater bill easily passed through the House, and was approved unanimously in its first Senate hearing. If the bill is approved by both chambers, it would become law later this year.
Slowly, the state legislature has been making minor changes in water accords and laws to reflect the current needs of the state. Senate Bill 41, which was signed into law earlier in April, is an example of those minor changes that can have major ramifications.
“Water law doctrine in Colorado was developed in a much simpler time,” said Denver Water CEO Jim Lochhead. “So this law is a very small step toward simplifying what has become an overly-complex and burdensome water law system.”
As the bill’s sponsor, State Sen. Mary Hodge sees it, it was correcting an oversight. The new law designates that storing water for fighting wildfires and for drought are beneficial uses. How it is currently set up, water can not be stored unless it is for one of three purposes: irrigation, residential use and mining.
“People are concerned when you start storing water that you’re either hoarding water or you’re using it as a speculative purpose,” Hodge said.
Meaning that the resource could be monopolized and cause price gouging. That was how the state’s anti-speculation doctrine was created, said water attorney Joe Dischinger.
The Colorado Water Conservation Board wants to develop strategies that would allow temporary transfers of water from farms to cities that allow farmers to maintain ownership of water rights, staffer Todd Doherty told the Arkansas River Basin Water Forum this week.
“Programs are being set up to reduce the costs of transactions to lease water,” he said. Much of that cost is legal fees by taking cases to water court, but some want to determine how to avoid injury to water rights without going to court.
The CWCB is backing legislation, [HB13-1248], to set up 10 pilot programs in Colorado to explore alternative transfer options under the supervision of the CWCB. The bill passed the House and is now moving in the Senate. The bill allows water to be leased by farmers to cities three years in 10 through rotational fallowing through programs such as the Arkansas Valley Super Ditch. The goal of the programs, along with other efforts already undertaken by the CWCB, is to streamline engineering questions to make sure engineering is correct while other water rights are not injured, Doherty said.
Among the current efforts is a cooperative project among the CWCB, the Lower Arkansas Valley Water Conservancy District and farmers Wes and Brenda Herman on the High Line Canal. The idea is to use a conservation easement to ensure water stays in farming, but allows temporary leases to cities.
From the Summit County Citizens Voice (Bob Berwyn):
A new measure to protect Colorado water quality from fracking impacts narrowly passed a House committee on a 6-5 vote. HB 1316 requires state regulators to adopt uniform statewide groundwater sampling rules and ends an exemption for the largest oil and gas field in Colorado in the Greater Wattenberg area. The measure would require sampling of all groundwater sources (up to a maximum of four wells) within a half-mile of proposed oil and gas wells, as well as follow-up sampling after the wells are drilled.
Conservation groups who slammed Gov. Hickenlooper for creating the giant loophole for the Wattenberg Field said the committee vote is another step toward better protection of public health and the environment…
Currently 25 percent of all drilling activity and the most intense growth of development and applications for new drilling occurs in the Greater Wattenberg Area. Of the twenty eight spills that have been reported to the Oil and Gas Conservation Commission this month, fifteen occurred in that area. The current testing regime requires sampling of only one water source in each quarter section. More widespread sampling will help with early detection of spills and contamination, according to conservation advocates.
“In recent months, Adams County has seen increasing public concern about oil and gas development happening close to homes and neighborhoods. In our community, we see areas with very tight development across our entire county, yet the Greater Wattenberg Area is exempt from this rule,” said Adams County Commissioner Eva Henry. “Why should the wells be treated differently when it comes to monitoring groundwater just because they are on the wrong side of our county? We are relying on the state to create baseline monitoring, which is not possible with two different standards. all of Adams County deserves the same level of protection,” Henry said.
A watered-down version of a controversial bill that would expand state authority to approve water leases is making its way through the Legislature. The legislation, HB1130, was approved this week by the Senate agriculture committee. It would alter the state’s interruptible water supply statute. The statute now allows temporary transfers of water from farms to cities with approval from the state engineer for three years in a 10-year period.
Aurora, supported by farmers on the High Line Canal, is backing the legislation. Aurora leased water from the High Line Canal in 2004-05. Numerous water interests, particularly in the South Platte basin, opposed the original legislation as an end-run around water court. Originally, the bill allowed the state Division of Water Resources to approve water transfers for up to 30 years without going to water court.
The legislation, as amended by the ag committee, now limits renewal to just one 10-year period, and only in the Lower Arkansas Valley (water districts 14, 17 and 67 in water division 2). Aurora argued for two renewal periods in order to give cities more certainty of supply.
The bill also strengthens water court appeals and state engineer notification procedures, while giving opponents 126 days, rather than 30, to respond to notifications.
The bill also prohibits transfer of water across the Continental Divide, at the request of Sen. Gail Schwartz, D-Snowmass Village, who chairs the Senate ag committee. It does not prohibit transfers from the Rio Grande or Arkansas River basins using interruptible supply.
The bill was sent to the Senate floor on Wednesday, and could be approved by the Senate as soon as Monday. The House would then have to reconsider the legislation, since substantial changes were made.
From the Northern Colorado Business Report (Steve Lynn):
The bill, sponsored by Rep. Randy Fischer, D-Fort Collins and Sen. Gail Schwartz, D-Snowmass Village, now heads to the Senate Appropriations Committee. Lawmakers there will consider a $110,000 appropriation to fund development of gray water standards by the state Department of Public Health and Environment.
The measure passed the House Appropriations Committee unanimously earlier this month. “It’s looking pretty positive, I think, in terms of its possibility” of passing the Senate Appropriations Committee, Fischer said. “There’s no opposition to it that I’m aware of.”
Colorado water law allows just one use of water before it goes down the drain, through a wastewater treatment plant and back into the river for others to use. Gray water systems “actually aren’t legal right now,” Fischer said. He pointed out that the University of Colorado at Boulder cannot use a gray water system it installed in a newer residence hall because of state health regulations. “The most important thing the bill does is direct the Colorado Water Quality Control Commission to promulgate minimum statewide standards for gray water systems,” he said.
The bill also lets cities and towns decide whether to approve gray water systems, he said.
Graywater is wastewater in a building that comes from showers, hand-washing sinks and washing machines. It does not come from toilets, urinals or kitchen sinks. Colorado is the only western state that doesn’t allow treated graywater to be used for flushing toilets, landscaping and such, but a proposal scheduled to be heard Wednesday in a Senate committee would change that.
House Bill 1044, by [Senator Gail] Schwartz, D-Snowmass Village, and Rep. Randy Fischer, D-Fort Collins, legalizes the use of graywater, calls for the development of regulations to protect the public health and gives cities and counties the discretion to offer graywater permits to single- or multi-family dwellings.
Bill supporters say a household with four people could save 58,000 gallons a year if it had a graywater filtration system installed.
The House unanimously passed the measure, which will be heard Wednesday by the Senate Agriculture, Natural Resources and Energy Committee. Sen. Greg Brophy, R-Wray, who sits on the committee, said he’s excited to hear the bill. “As long as we can protect the downstream users’ historical rights, there is nothing wrong with this idea,” he said. “A lot of money and energy goes into cleaning up water to bring it to drinking water standards, merely to put it on lawns and flush toilets, and we don’t need to do that.”
Schwartz also addressed that point, saying a number of Colorado’s wastewater treatment facilities are aging and need to be updated. She said the use of graywater would mean less input into those plants.
Fischer said he got the idea for carrying the bill from two Colorado State University professors who have been working on graywater issues. They have a graywater disinfectant vat set up in one of the residence halls and have been testing the system.
Gov. John Hickenlooper signed legislation, Senate Bill 74, to correct a glitch in Colorado water law that threatened the value of senior water rights, specifically pre-1937 decrees.
Sponsored by state Sen. Mary Hodge, D-Brighton, and state Rep. Jerry Sonnenberg, R-Sterling, the new law is designed to mitigate the impact of two recent Colorado Supreme Court decisions, which require senior ditch companies to prove that the farmers who initiated the rights in the 1860s intended to irrigate all the lands and ditches irrigated today.
“If farmers couldn’t find sufficient evidence demonstrating the intent of the original appropriator, the water court reduced the number of acres that could be served by the rights, even though the ditches had been irrigating the acreages for over 100 years,” said Andy Jones, a water lawyer representing the Legacy Ditch Association. “Colorado farmers, especially those in the South Platte River Basin, faced the prospect of having a substantial percentage of their net worth wiped out.”
SB74 restores certainty for Colorado farmers by saying that if a decree was granted prior to 1937 and is silent on permissible acreage, then all acreage [irrigated by the water right] within 50 years of the decree is lawful.
A Sen. Randy Baumgardner-sponsored water rights measure unanimously passed out of the Colorado Senate Agriculture, Livestock & Natural Resources Committee on Thursday. House Joint Resolution 13-1004 calls on the U.S. Forest Service to rescind a 2012 directive that stipulates water rights revert to the federal government upon termination of a special-use permit.
Another bill that seeks to ease the way for cities to lease water from farms is moving to the Senate. The state House unanimously passed a bill Thursday that would allow the Colorado Water Conservation Board to oversee up to 10 pilot programs to determine how other water rights could be affected.
“It would be another method to look at alternative ag transfers to see what works and what doesn’t,” said Alan Hamel, Arkansas River basin representative on the CWCB. “This is something on everyone’s mind in the third year of drought.” HB1248 would allow temporary transfer of water for only three years out of a 10-year period and prohibits any movement of water over the Continental Divide or out of the Rio Grande basin. It would allow transfers between the Arkansas and South Platte basins. The bill also limits fallowing to 30 percent of any farm.
The CWCB has supported several programs to weigh the impacts of transfers proposed by the Arkansas Valley Super Ditch, and this legislation furthers those efforts, Hamel said. “The CWCB supported it at last month’s meeting, and we’re excited about it,” Hamel said. “Ultimately, it could reduce costs when a change of use case goes to water court.” The bill moves to the Senate agriculture committee, whose chairman Sen. Gail Schwartz, D-Snowmass Village, is sponsor of the bill. House ag committee chairman Randy Fischer, D-Fort Collins, is the House sponsor.
The Senate committee Thursday postponed action on HB1130, which is supported by Aurora and some Arkansas Valley farmers. That bill would give the state engineer authority over water transfers for a 30-year period. Opponents of HB1130 say it bypasses water courts for too long a time period.
From the Denver Business Journal (Dennis Huspeni):
Senate Bill 258, introduced Tuesday, is sponsored by state Sen. Mary Hodge, D-Brighton, and Rep. Dominick Moreno, D-Commerce City. If passed, the bill would declare that “each application included in the definition of development permit constitutes a stage in the development permit approval process.”
Its introduction follows a recent ruling from a District Court judge that halted the proposed Sterling Ranch development, which calls for a 12,050-home community in northern Douglas County. Eighteenth Judicial District Judge Paul King ruled that Douglas County commissioners erred when they agreed to rezone the 3,400-acre site in 2011. Commissioners also had decided the developer, Sterling Ranch LLC, could prove it had enough water to serve the community later as each platting of the development was approved. But on Aug. 22, King ruled that the commissioners, in allowing the developer to take an incremental approach later in the planning stages, “exceeded its jurisdiction and abused its discretion.” King’s Nov. 9 order states he followed the letter of the 2008 Colorado law when making his ruling striking down the Board’s decision.
Government and business leaders filed an amicus brief asking King to reconsider, fearing his ruling would strip local governments of their ability to control development and landowners of the right to develop their land, and would have negative economic ramifications for the entire state.
The new bill states: “With respect to the definition of ‘development permit’ as used in connection with the statutory provisions requiring that land development be supported by an adequate water supply, the bill modifies the definition to clarify that each application included in the definition of the term constitute a stage in the development permit approval process.”
From email from State Representative Randy Fisher:
I’m pleased to announce that one of my top priority bills for the 2013 legislative session, HB-1044, was passed in the House on third reading on April 5. If the bill becomes law, it will authorize the use of graywater recycling in Colorado and will provide Coloradans with a powerful and readily available water conservation tool.
HB-1044 has its roots at CSU where professors Larry Roesner and Sybil Sharvelle have conducted foundational research and development on graywater systems. Drs. Roesner and Sharvelle are the co-directors of the Urban Water Center at CSU’s Department of Civil and Environmental Engineering. Both professors have spent countless hours at the Capitol advocating for passage of HB-1044. They have earned my respect and gratitude for their efforts to help write and advocate for the bill.
“Graywater” consists of the discharge from fixtures other than toilets, kitchen sinks, and dishwashers that is collected and recycled within residential, commercial, or industrial facilities with minimal treatment in accordance with public health standards. HB-1044 amends Colorado’s public health statutes to allow more efficient first-use of water by enabling the recycling of graywater within the facilities in which it is generated. Graywater reuse is an important municipal and industrial water conservation tool that has the capability of reducing per capita water consumption by up to 30%.
The Coloradoan newspaper had a very positive editorial about HB-1044 in its Sunday, February 3, edition. Here is a link to the article:
A critical vote on the HB-1044 occurred last week when the House Appropriations Committee voted to approve a small general fund appropriation required by the health department for rulemaking. The approval of the appropriation paved the way for consideration of the bill in the House. The Senate will begin deliberation on HB-1044 in the coming days.
SB13-074: Irrigation Water Right Historical Use Acreage — Hodge/Sonnenberg. Concerning the resolution of ambiguities in old water right decrees regarding the place of use of irrigation water.
SB13-041: Protect Water Storage Long-term Use — Hodge & Roberts/Fischer & Sonnenberg. Concerning the protection of stored water and preserving supplies for drought and long-term needs.
From the Associated Press via the Fort Collins Coloradoan:
FIGHTING FIRES
Last year’s devastating fire season has prompted lawmakers to think about establishing a state firefighting fleet. Under the bill, a new division would have the power to buy or lease firefighting aircraft. The bill faces its first test in a Senate committee on Thursday.
DRILL DEBATES
Democratic efforts to put new limits on oil and gas drillers continue this week. A House committee hears two of them Thursday, including a bill to allow local governments to charge for drill-site inspections. Another bill would commission a study of whether Front Range drilling operations can harm human health.
FromThe Denver Post (Mark Jaffe) via the Loveland Reporter Herald:
Drilling for oil and gas has nearly doubled on the Front Range since 2006, sparking local concerns and seven legislative bills — with more possible. Some bills focus on the Colorado Oil and Gas Conservation Commission, the agency overseeing oil and gas development. The measures seek to boost inspections, increase spill reporting, raise fines and limit industry influence. Others seek to buttress the role of local government in overseeing oil and gas development…
In 2013, the two largest operators in the region, Anadarko Petroleum Corp. and Noble Energy, are poised to spend more than $3.2 billion on Front Range oil and gas development and drill about 650 wells. The discretionary portion of the state’s budget, by comparison, is about $8.2 billion. For Hickenlooper, who supports oil and gas development and maintains that the state has sole control over regulating drilling, the Democrat-sponsored and -supported bills create a dilemma. “I am very sympathetic to communities that are seeing a changing landscape and are worried about an industrial activity within a thousand feet of their homes,” Hickenlooper said in an interview. “But what are you going to do, take away everyone’s mineral rights?”[…]
In 2012, Colorado oil production reached a 51-year high — 48 million barrels — and Anadarko and Noble are projecting drilling about 1,600 wells in the next five years. In February, ConocoPhillips announced that it had found a “sweet spot” in the Arapahoe-Adams County area and is planning to drill 38 wells this year. Almost all the activity has been in Weld County, but local officials in neighboring areas are struggling, as drilling spreads, to meet their residents’ concerns over health, safety and property values. “As a local official, you feel your hands are tied,” said Rep. Dominick Moreno, D-Commerce City. “That’s why you are seeing these bills in the legislature.”
A lack of confidence in state regulators is also fueling much of the debate…
“The people rose up and did this because they are not getting satisfaction from their government,” Kaye Fissinger, a spokeswoman for the citizens group Our Health, Our Future, Our Longmont, testified at a hearing. “They were not getting satisfaction from the Colorado Oil and Gas Commission,” Fissinger said.
The administration is trying to find common ground with legislators on some of the bills, Matt Lepore, the executive director of the oil-and-gas commission, said in an e-mail.
But bills requiring an $8.2 million increase in oil and gas inspectors and blocking anyone paid by the industry from serving on the commission — which has three industry-designated seats — are problems, administration officials said. “You want to think very carefully before you change the commission’s mission,” Hickenlooper said…
“It will be interesting to see what the governor does,” said Peter Maysmith, executive director of Conservation Colorado, an environmental group supporting the bills.
“Representatives are bringing their constituents’ concerns about a state agency they do not see as being responsive,” Maysmith said. “This is democracy playing out.”
A controversial water bill that would give the state engineer authority over water transfers for up to 30 years was discussed Thursday in the Senate Agriculture Committee. Sen. Gail Schwartz, D-Snowmass Village, who chairs the committee, scheduled a vote for next Thursday after about three hours of testimony for and against the bill. She had concerns that the bill could be used to increase diversions from one basin to another. She added that the bill should be laid over to allow sponsors time to make amendments based on testimony, but did not call for a vote.
Sen. Nancy Todd, D-Aurora, and Sen. Randy Baumgardner, R-Hot Sulfur Springs, are sponsoring the bill after Sen. Angela Giron, D-Pueblo, removed her name as a sponsor.
The bill would expand current legislation on interruptible supply agreements. Currently, cities may lease water for three years out of 10 from farms without changing use of a water right. The bill extends the arrangement for two additional 10-year periods.
Opponents of the bill, mostly water interests in the South Platte basin, objected to the legislation because it could allow injury to senior water rights without due process in water courts.
The bill was supported by Aurora, farmers from the Rocky Ford area, the Colorado Farm Bureau and the Colorado Cattlemen’s Association. They argued the 30-year period would facilitate lease agreements between cities and farmers and prevent permanent dry-up of farmland. “I support it because it eliminates re-engineering and rediscussion,” said Alan Frantz, a Rocky Ford farmer who participated in a 2004-05 lease to Aurora. “We don’t pay any more to prove that it didn’t hurt anybody down the stream.”
Schwartz asked Kevin Rein, deputy state engineer, if farmers and cities could simply apply for an extension now. Rein said the current statute prohibits extending an application, but added that a completely new application would require less engineering work after going through the process the first time.
FromThe Aspen Times (Janet Urquhart) via the Glenwood Springs Post Independent:
The drought-fueled measure, put forth by state Sen. Gail Schwartz, a Democrat from Snowmass Village, passed unanimously in the Senate last week and now moves to the House, starting with the Agriculture, Livestock and Natural Resources Committee. Rep. Randy Fischer, D-Fort Collins, is the sponsor.
While the legislation, Senate Bill 13-19, was amended to gain the necessary support — losing its most ambitious provisions in the process, Schwartz on Thursday called the measure a critical first step and one that will lead to further conversations this summer about water conservation. With Colorado likely facing a second straight summer of severe drought, Schwartz said she hopes to encourage water conservation among agricultural users without punishing them in the process. “We need to modify our thinking and our attitudes about how we use water,” the senator said.
The legislation was originally to apply statewide, but concerns among the state’s seven river basins were varied and ultimately, the bill’s focus was narrowed to the Gunnison, Colorado main stem and Yampa/White River basins…
Under Schwartz’s bill, a water user who enrolls in various conservation programs could reduce their water use in drought years but the reduction would not be considered by a water judge in determining that user’s historic consumptive use. “What we’re trying to say is, ‘If you’re willing to do this, your historical consumptive use is protected,’” Schwartz said.
The conservation programs include those enacted by local water districts. Last year, for example, the Eagle River Water and Sanitation District, which provides water to the eastern half of Eagle County and is a main user of water from Gore Creek and the Eagle River, worked with its customers to conserve water but also convinced other water diverters to do with less, according to spokesperson Diane Johnson. Entities such as golf courses and the town of Avon, which uses raw water to irrigate its parks, got on board, she said. Schwartz’s bill would mean those entities wouldn’t get dinged in a calculation of consumptive use if that voluntarily reduction is repeated, she said.
“Gail’s bill is quite significant,” said Basalt attorney Ken Ransford, secretary for the Colorado Basin Roundtable. The group is one of nine in the state that focuses on water-management issues under the umbrella of the Colorado Water Conservation Board. Ransford has watched Schwartz’s legislation closely. Its passage would mean an important incentive for conservation, he said. “It’s a significant change in the law. It takes away a disincentive to a landowner who wants to enroll their land in a conservation program,” he said…
Gone from the legislation, however, are provisions that would have provided incentives to irrigators to increase the efficiency of their watering systems without jeopardizing their water rights.
A late bill in the Colorado Legislature would allow the Colorado Water Conservation Board to administer three pilot projects to test water leasing strategies. The bill, HB1248, was introduced earlier this month and is sponsored by Randy Fischer, D-Fort Collins, and Sen. Gayle Schwartz, D-Snowmass Village. They chair legislative agriculture committees. As written, the bill applied only to the Arkansas River Basin. Fischer sent it to a subcommittee to rewrite the bill to apply it to the entire state and to clarify the role of the state engineer in approval of plans. It should be heard in committee this week.
The bill would give the CWCB authority over the pilot projects for one 10year period to demonstrate how irrigated agricultural land could be fallowed and the water temporally leased for municipal use, along the lines proposed by the Arkansas Valley Super Ditch. CWCB board member Alan Hamel said the board already has funded several projects looking at the impact of leasing programs like Super Ditch.
A similar bill, HB1130, seeks to extend state engineer approval of interruptible water supply agreements for up to 30 years. The agreements now can be operated three years out of a 10-year period. The bill would allow that period to be renewed twice. The bill, backed by Aurora, passed the House last month, but has yet to be heard in the Senate ag committee.
Other water bills:
● SB19, allowing water rights to be temporarily used for conservation purposes without penalty to consumptive use calculations, passed the Senate, but reportedly has been amended in the House to exclude water divisions 1, 2, 3 and 7.
● SB41, protecting stored water for drought and long-term needs, passed both houses.
● SB74, concerning ambiguities of water rights, passed both houses. The bill was amended from its original form to give water judges leeway in determining how much acreage historically was irrigated.
● SB181, the water projects bill, passed the Senate and is in the House ag committee. It includes $72 million in water projects administered by the CWCB.
Under SB 183, HOAs would not be able to fine homeowners whose lawns die because they observe watering restrictions, which are anticipated this summer amid the current drought. It also overrides any covenants that demand water-guzzling turf lawns and ban xeriscape landscaping methods featuring drought-tolerant plants. The bill has passed the Senate and is awaiting action in the House.
The bill to clarify ambiguous water decrees prior to 1937 is on its way to the governor’s desk. Senate Bill 13-074 passed the House on a 55-8 vote on March 10. Rep. Jerry Sonnenberg (R-Sterling) carried the bill on behalf of last fall’s Interim Water Resources Review Committee. The House agriculture committee approved it on March 4. The committee amended it to clarify some of the language regarding enforcement of old water decrees.
SB 74 is in response to several recent Colorado Supreme Court cases that could impact senior irrigation water rights, according to Sonnenberg. Those cases resulted in dramatic reductions in the irrigated acres on the South Platte River, acres that had been irrigated for close to 100 years. Farm families have relied on these diversions for generations, Sonnenberg told the House, and the court decisions destabilized those water rights.
SB 74 notes that some decrees do not include acreage limitations, and water courts have looked at historic consumptive use to determine the lawful historical consumptive use, based on the original appropriator’s intent. SB 74 says that if a decree entered prior to Jan. 1, 1937, establishes an irrigation water right and doesn’t limit the number of irrigated acres, the lawful maximum amount would equal the maximum number of acres irrigated for the first 50 years after the original decree was entered.
Opponents, including attorney Steve Simms, who represented the Colorado Water Congress, testified that the bill sends a “bad message: if you cheat and get away with it, we’ll legitimize it as long as you can hide it long enough.”
The Upper Arkansas Water Conservancy District recently finalized acquisition of a new source of water in the Wet Mountain Valley. Attorney Kendall Burgemeister with Wilderson, Lock & Hill LLC reported at the district meeting Thursday that the judge had issued a “final signed decree” in the district’s water court case to change the use of water purchased from Hermit Basin Lodge in Custer County. The district will use the water as a source of replacement water under its augmentation plans, and engineer Ivan Walter said, now that the decree has been signed, his goal is to complete the engineering work so the district can use the water this year…
With the Colorado Legislature in session, consultant Ken Baker reported on several bills under consideration, including Senate Bill 41, which would expand the beneficial uses of water to include storage. Baker said the bill is likely to pass.
Baker also reported on SB 19, sponsored by District 5 Sen. Gail Schwarz, who has described the bill as a way to “encourage farmers and producers to take water efficiency measures or upgrade their irrigation technology.” Baker pointed out that a provision of the bill would allow senior water-rights holder to curtail their water usage without losing credit for beneficial use of the water. This would allow junior rights holders to use water that they could not otherwise use, allowing them to expand their beneficial use of the water, which would affect future water court cases.
[State Representative Jerry Sonnenberg] is sponsoring House Bill 1013, which forbids the federal government from forcing people to cede their water rights in order to get a special use permit. The bill matters because the Forest Service usually defers to state law on water rights.
Sonnenberg’s hometown is about as far from a ski resort as a Coloradan can get without crossing the border to Nebraska, but he has bigger concerns than fresh powder. “This isn’t just about ski resorts. This affects agriculture. Agriculture has a number of grazing permits on public lands,” Sonnenberg said.
But the unanimous votes Sonnenberg has received so far mask some serious concerns from Democrats…
The Forest Service’s 2011 policy was just the latest in three decades of efforts to make sure ski water rights stay tied to ski mountains.
Ski areas won a victory in a Denver courtroom last December when U.S. District Judge William Martinez threw out the policy nationwide. He cited “severe” and “serious” problems with the way the Forest Service wrote the rule without soliciting public input.
After that case, the Forest Service announced a public process to create a new water-rights rule for ski areas. The process should start this spring.
Legislators want to get a bill passed before the Forest Service approves a new rule.
The Forest Service, too, wants to get something done, especially in light of global warming and the recent dry winters.
“We know that the need for snowmaking is likely to grow, as evidenced by our current prolonged drought and warmer winters, which increases the importance of these issues for the industry and the public,” [Regional Forester Dan Jirón] said in testimony last month.
[SB13-074] came out of the Interim Water Resources Review Committee in September, and got a 34-1 vote from the Senate on Feb. 20, where Sen. Greg Brophy (R-Wray) called it the most important water bill in a decade. The bill intends to clear up ambiguous language regarding water decrees put into place prior to January 1, 1937.
SB 74 would affect decrees that are silent on the maximum amount of irrigated acres. The bill creates a mechanism for determining the maximum number of irrigated acres, to be based on the amount irrigated in the first 50 years after the decree was issued. According to State Water Engineer Dick Wolfe, there are 16,338 water decrees statewide issued prior to Jan. 1, 1937. He said he could not determine how many would be affected by SB 74 without reviewing each one individually.
The bill stems from concerns over Colorado Supreme Court decisions involving the Jones irrigation ditch (Greeley) and Burlington irrigation ditch (Adams and Weld counties). In the Jones case, the court ruled that while farmers had been irrigating 700 to 900 acres for generations, the original intent was to irrigate only about 300 acres. In the Burlington case, the original intent was to irrigate only above Barr Lake, although the ditch had been using water flowing below the lake as well…
SB 74 was opposed by the Colorado Water Congress. Attorney Steve Simms, representing the CWC, said the bill was unnecessary and wouldn’t solve the problem. It also wouldn’t apply retroactively to the Jones or Burlington cases.
Simms, who was the lead counsel in the Burlington case, explained that the case was based on the legal location of the use of water, which he said SB 74 doesn’t address. In 95 percent of the cases brought to water court, the original decree should be sufficient. “The normal rule is that you go back to see what original farmer asked for,” Simms said. Look at the original claim, which shows how much water the farmer wants, here’s what he’ll do with it, and the judge figures out the legal area of use, a system Simms said has worked for 100 years. “A bill designed to say maximum use doesn’t solve the question.”[…]
Sen. Mary Hodge (D-Brighton) has thrown out her original bill to grant eminent domain rights to oil companies and has started over, but the new bill picked up more opposition. SB 21 claimed that it would simply make a technical correction to a 19th-century statute regarding the authority of pipeline companies to obtain rights-of-way for new pipelines. The original bill stated that its intent was to overturn a 2012 decision by the Colorado Supreme Court over alleged eminent domain and condemnation rights by oil companies. SB 21 would have granted those rights to oil companies.
The original bill has since been scrapped, and on Feb. 22, Hodge introduced a new bill, SB 191, which adds oil, petroleum and hydrocarbon to the types of pipelines and companies that can exercise eminent domain rights. The bill quickly moved to the Senate Local Government Committee for a Tuesday, Feb. 26 hearing. But that’s where the bill got more opposition, this time from irrigation ditch companies throughout northeastern Colorado.
Attorney Michael Shimmin, who represents the Bijou Irrigation Company, said SB 191 raises concerns for ditch companies that grant pipeline companies permission to cross irrigation ditches. Under a 2001 legal decision, Roaring Fork v. St. Jude, ditch companies have the right to deny pipeline crossings unless there is an agreement between the pipeline company and the ditch company. However, in the past year, Shimmin said, oil and gas companies feel they no longer need the agreement of the ditch company. In January, Shimmin obtained a temporary restraining order in Weld District Court against Kerr McGee Gathering, which attempted to cross the Bijou ditch without permission…
Much of the concern over how pipelines dig under ditches stems from an incident in 2008, when a gas pipeline went 20 feet under the North Sterling ditch. The ditch was full of water at the time, and although the ditch company believed 20 feet would be a safe depth, the ditch collapsed and emptied itself, and the ditch company lost water for three weeks. After that, Shimmin testified, the ditch companies changed their crossing agreements to make sure no crossings took place while the ditch was full of water. Most ditches are dry at least half of the year, so there is ample opportunity for crossings when the ditch is empty, he said.
The prospect that SB 191 would grant oil companies the right to put in pipelines whenever they want to “terrifies” the directors of the Bijou Ditch, Shimmin said.
Mike Groves, president of the Bijou Irrigation Company, testified that the oil companies do not “play ball” with the ditch companies. “We’re protecting what’s ours.”
The language in SB 191 would take away some of our rights, claimed Jim Yahn, manager of the North Sterling Irrigation Ditch. “We want oil and gas companies to succeed, but we want control of when and how.”
Scott Edgar, representing the Farmer Reservoir and Burlington irrigation companies, said they are not opposed to crossings and in fact granted 150 of them in 2012. However, the ditch companies cannot afford to go to battle with international oil companies. He said his ditch companies have gotten condemnation threats from the oil companies, and is currently fighting with one company that says it doesn’t have to get a crossing agreement.
A bill that passed through the state House of Representatives in Denver this week would help preserve the communal irrigation ditches dug by Hispanic settlers when they came to parts of Southern Colorado.
The bill is the second measure from state Rep. Ed Vigil, D-Fort Garland, to address the ditches, called acequias in Spanish, but this version loosens landuse requirements for participation from the one he carried in 2009. “It’s inclusive now,” Vigil said.
The measure, which applied to pre-statehood ditches built in Conejos, Costilla, Huerfano and Las Animas counties, required that at least two-thirds of the land they irrigated remain in the long-lot style that would have existed at the time of settlement. But Vigil heard from irrigators that the requirement was too strict. While long lots, or varas as they’re known in Spanish, can still be seen in Costilla County, they’re far less common in the other counties. “That’s just not the case here in Conejos County anymore,” rancher Lawrence Gallegos said. “Today they’ve been consolidated.”
He waters pastures off of two different acequias that were built in 1855 and 1856 and draw from the San Antonio River. Gallegos, who testified in favor of the bill before the House Agricultural Committee, said he thinks his fellow members on the two ditches might be interested in taking up some of the provisions from the bill. He pointed specifically to a clause that allowed the ditch the right of first refusal regarding the sale, lease or exchange of water.
The law also incorporates elements that were historically common to acequias but did not become a part of Colorado law, such as each member of a ditch having an equal vote. The measure would also allow for ditch policy that required members to provide labor for maintenance. Vigil did not know when it would be taken up in the Senate.
A bill that would allow state engineer approval of water transfers without a court decree for up to 30 years is headed to the state Senate. The state House this week approved the legislation, HB1130. Sen. Angela Giron, D-Pueblo, is listed as the Senate sponsor.
The bill would allow extended operation of interruptible supply agreements. Current law allows for water leases from farms to cities for three years out of 10 on the approval of the state engineer. The agreements cannot be renewed, and would require a water court decree to continue the arrangement beyond the initial 10-year period. The new law would allow the leases to be approved by the state engineer for two additional 10-year periods. Aurora, which is seeking water leases this year to replenish its water storage supply, is pushing the legislation. In 2004-05, Aurora leased water from theRocky Ford High Line Canal, selling part of the lease to Colorado Springs in the second year. Aurora City Council has approved up to $5 million for leases this year.
While Aurora has talked to the Arkansas Valley Super Ditch, they have so far been unable to come to terms. Farmers say Aurora’s offer of $500 per acre-foot is too low because crop prices have improved since a 2010 memorandum of understanding was signed.
Opponents of the legislation say 30 years is too-long a period to lease water without a water court action. Water court provides a forum to determine how an action injures other water rights, which cannot be allowed under the state Constitution. The new law would allow appeals to water court only after agreements were negotiated.
A state-administered substitute water supply plan for a proposed pilot program last year to lease a much smaller amount of water from the Super Ditch to El Paso County cities drew unprecedentedopposition. Several water interests challenged the state engineer’s authority to approve moving water under existing state law without a filing in water court.
